Bangalore District Court
Chinnamma vs N.Nagaraj on 25 August, 2015
IN THE COURT OF THE VII. ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH.No.19)
Dated: This the 25th Day of August 2015
Present: Sri. V. K. Badiger, B.Com., LL.B.,(Spl.,)
VII Addl. City Civil & Sessions Judge,
Bengaluru City.
O. S. NO.990/1993
Plaintiffs: Chinnamma
Since deceased by his LRs.
1(a). Parvathamma,
W/o.Ramaiah Reddy,
Aged about 52 years,
Vishwanathapura,
Harakere Post,
Hesaraghatta Hobli,
Bangalore 560 064.
1(b). Ramakka,
W/o.Srirama Reddy,
Aged about 60 years,
Sanjevarayanapalya,
Nagarakere hobli,
Gowribidanur Taluk,
Chikkaballapura Dist.
1(c). Sarojamma,
W/o.Srinivasa Reddy,
Aged about 57 years,
Aadhi Vishwanathapura
Harakere Post,
Hesaraghatta Hobli,
Bangalore 560 064.
1(d). Jayamma,
2 O.S.990/1993
W/o.Muninarayana Reddy,
Aged about 55 years,
Aadhi Vishwanathapura,
Harakere post,
Hesaraghatta Hobli,
Bangalore 560 064.
1(e). Lakshmamma,
W/o.Srinivasa Reddy,
Aged about 52 years,
Konena Agrahara,
Vimanapura post,
Bangalore 560 017.
1(f). Nanjappa,
S/o.late Narappa @ Dodda
Narappa,
Aged about 59 years,
Byrasandra,
C.V.Raman Nagar Post,
Bangalore 560 093.
2. Nanjappa,
S/o.late Doddanarappa @ Narappa,
Major,
R/at.Byrasandra Village,
Krishnarajapura Hobli,
Bangalore South Taluk.
3. Nanjappa,
Since deceased by his LRs.
3(a). Yellamma,
W/o.late Nanjappa.
3(b). Hanumantha Reddy,
S/o.late Nanjappa.
3(c). Venkatesh,
Since deceased by his LRs.
3 O.S.990/1993
3(c) (a) Smt.K.Sujatha,
W/o.late B.N.Venkatesh,
Aged about 40 years.
3(c) (b) Kumari Divya V.
D/o.late B.N.Venkatesh,
Aged about 20 years.
3(c) (c) Diwakar V.
S/o.late B.N.Venkatesh,
Aged about 18 years.
No. a to c are
R/at.No.119/A, 3rd cross, Ground
Floor,
Next VARS Residency,
Bhuvaneshwarinagar, .C.V.R. Post ,
Bangalore.
3(d). Sampangamma,
D/o. late Nanjappa
3(e). Nanjamma,
D/o.late Nanjappa.
3(f). Sarojamma,
D/o.late Nanjappa.
4.Nagappa,
Since deceased by his LRs.
4(a). Nanjappa,
S/o.late Nagappa.
4(b). Ammayyamma,
D/o.late Nagappa.
4(c). Hanuma Reddy,
S/o.late Nagappa.
4 O.S.990/1993
4(d). Ramakka,
D/o.late Nagappa.
4(e). Thimakka,
D/o.late Nagappa.
All are residing at
Byrasandra Village,
Krishnarajapura Hobli,
Bangalore South Taluk.
(By Sri. **, Advocate)
Vs.
Defendants: 1. N.Nagaraj,
S/o.late Chikkanarappa
@ Narappa,
Major.
2. H.Ramaiah,
S/o.late Chikkanarappa
@ Narappa,
Major.
3. R.Ramakrishan
S/o.late Chikkanarappa
@ Narappa,
Major.
4. Srinivasa,
S/o.late Chikkanarappa
@ Narappa,
Major.
5. Anand,
S/o.late Chikkanarappa
@ Narappa,
Major.
5 O.S.990/1993
6. Parameshwaran,
S/o.late Chikkanarappa
@ Narappa,
Major.
All are resident of
Byrasandra Village,
Krishnarajapura Hobli,
Bangalore South Taluk.
7. B.C.Anjanappa,
Since deceased by his LRs.
7(a). Smt.Sonamma,
W/o.late B.C.Anjanappa,
Aged about 65 years,
Residing at Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
7(b). Rathnamma,
D/o.late B.C.Anjanappa,
W/o.Krishnappa,
Aged about 47 years,
Residing at No.47, Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
7(c). B.A.Muniraju,
S/o.late B.C.Anjanappa,
Aged about 45 years,
Residing at Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
7(d). Smt.Narayanamma,
D/o.late B.C.Anjanappa,
W/o.R.Venkatesh,
Aged about 43 years,
Residing at 7th cross, Byrsandra,
6 O.S.990/1993
C.V.Raman Nagar,
Bangalore 560 093.
7(e). Smt.Kanthamma,
D/o.late B.C.Anjanappa,
W/o.B.M.Nagaraj,
Aged about 40 years,
Residing at Sampingappa Layout,
1st cross, Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
7(f). Smt.Nirmala,
D/o.late B.C.Anjanappa,
W/o.lae Munegowda,
Aged about 38 years,
Residing at Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
7(g). B.A.Prasad,
S/o.late B.C.Anjanappa,
Aged about 37 years,
Residing at Byrsandra,
Near Munishwara Temple,
Ramegowda Building,
C.V.Raman Nagar,
Bangalore 560 093.
7(h). Smt.B.A.Gundamma,,
D/o.late B.C.Anjanappa,
Aged about 35 years,
Residing at Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
7(i). Smt.B.A.Suma,
D/o.late B.C.Anjanappa,
Aged about 30 years,
7 O.S.990/1993
Residing at Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
7(j). B.A.Manjunath,
S/o.late B.C.Anjanappa,
Aged about 28 years,
Residing at Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
7(k). B.A.Mohan,
S/o.late B.C.Anjanappa,
Aged about 26 years,
Residing at Byrsandra,
C.V.Raman Nagar,
Bangalore 560 093.
8. Suresh Solariya,
S/o.late K.C.Solariya,
Aged about 54 years,
No.12/1, Versova Layout,
C.V.Raman Nagar (P)
Bangalore 560 093.
9. V.Mohammed Shafiulla,
S/o.late Abdul Waheed,
Aged about 58 years,
R/o.No.80, Zareena Manzil,
Nagavar Palya,
C.V.Raman Nagar (P)
Bangalore 560 093.
10. Subhash Solariya,
S/o.late K.C.Solariya,
Aged about 63 years,
No.12/1, Versova Layout,
Kaggadasapura Road,
C.V.Raman Nagar,
Bangalore 560 093.
8 O.S.990/1993
11. Smt.Shalini Solariya,
D/o.Subhas Solariya,
Aged about 52 years,
R/o.No.12/1, Versova Layout,
Kaggadasapura Road,
C.V.Raman Nagar
Bangalore 560 093.
12. Smt.Zarina Begum
W/o.V.Mohammed Shafiulla,
Aged about 51 years,
R/o.No.80, Zareena Manzil,
Nagavar Palya,
C.V.Raman Nagar (P),
Bangalore 560 093.
13. Byanna,
S/o.E.Maralappa,
Aged about 52 years,
R/o.No.24/1, Byrasandra (V),
C.V.Raman Nagar (P),
Bangalore 560 093.
(By Sri.H.R. for D3, Sri.R.K. for
D1,2,4 to 6, for D8 to 12 S.K.B., for
D13 K.A.,Advocates)
Date of institution of suit 8.2.1993
Nature of the suit Partition and Declaration
Date of commencement of
recording of evidence 21.3.2013
Date on which Judgment
was pronounced 25.08.2015
Total duration Days Months Years
17 06 22
9 O.S.990/1993
/ JUDGMENT /
This is a suit filed by the plaintiffs against the defendants
for partition and declaration.
2. The brief facts of the case of the plaintiff is as under:-
The 1st plaintiff is the widow and the 2nd plaintiff is the
son of the deceased co-parcener of Hindu undivided family by
name Doddanarappa. The 3rd and 4th plaintiffs are the younger
brothers of the said Doddanarappa. The deceased father of the
defendants by name Chikkanarappa was the younger brother of
the 3rd and 4th plaintiffs. The relationships of the parties are
given in genealogy.
3. The plaintiffs and defendants are Hindus by religion
and governed by Mitakshara Law. They are the members of
Hindu undivided joint family owning and possessing the
immoveable properties described in the schedule referred as
suit schedule property. The suit schedule properties are very
valuable and resourceful being located within the urban
agglomeration. The defendants in general and the 3rd
defendant in particular have taken a dominant position in the
10 O.S.990/1993
family and misappropriating the income derived from the suit
schedule properties. They are stealthily working injurious to the
plaintiffs and to exclude the latter from enjoying the suit
schedule properties jointly and deriving income there from. The
defendants are trying to alienate some of the items of the suit
schedule properties and to induct 3rd parties in possession and
to convert them from the purpose of non-agriculture. The
defendant No.7 had filed O.S.No.3016/1991. In this context,
seeking specific performance of an alleged contract against
defendant No.3 in respect of 4 guntas of land in survey
No.124/1 of Benniganahalli village. The suit was filed on
14.5.1991 in active collusion with defendant No.3 and obtained
decree based on a compromise stated to have reported on
30.5.1991. The defendant No.3 had colluded with defendant
No.7 and conceded the claim made in the suit even before
service of summons within 15 days from the date of institution
of the suit itself. The compromise decree obtained by the
defendant No.7 in collusion with defendant No.3 in respect of 4
guntas of land in survey No.124/1 is not binding on the
plaintiffs.
11 O.S.990/1993
4. The defendant No.3 had no exclusive right to enter
into any contract with any body in respect of the joint family
properties. The plaintiffs along with the defendant No.1 filed
suit O.S.No.1765/88 for declaration of ownership and injunction
in respect of item No.1 of the plaint schedule property. The suit
had been filed against Shafi and Suresh, who tried to invade
over the portion of item No.1 of the plaint schedule property and
lay the foundation. In those circumstances, the suit had been
filed against strangers seeking protection in respect of joint
family properties. Defendant No.1 had admitted the joint
ownership and possession in that suit. Now the defendants
have developed greedy intentions and acting by denying the
joint rights of the plaintiffs in the suit schedule properties.
5. The plaintiffs are no more interested in the joint status
along with the defendants and to hold the joint status in the
schedule properties. In the first week of December 1992, the
plaintiffs decided to severe from the joint status and demanded
the defendants to effect equitable division and allot their
legitimate share in all the suit schedule properties. Their
legitimate demand has been impliedly denied by the actions of
12 O.S.990/1993
the defendants affecting the undivided interest and vested right
of the plaintiff in the joint properties, the plaintiffs having no
other way or instituting the suit for equitable partition and
allotment of their legitimate share in the suit schedule
properties.
6. The cause of action arose in the 1st week of
December 1992 when the plaintiffs demanded for equitable
partition. The suit is valued properly, court fee paid. Hence,
for all these reasons, it is prayed to decree the suit.
7. In response to the suit summons, the defendants
appeared through Counsels. The defendants No.1,2 and 4 to
6, defendant No.3, defendants, defendant No.7 not filed written
statement, defendants No.8 to 12 and defendant No.13 filed
their written statements as under:-
The defendants No.1,2 and 4 to 6 filed written
statement contending that regarding relationship and
genealogical averments admitted. Parties to the suit are
governed by the Mithakshara Law are admitted. But, other
allegations touching the fact that Hindu Undivided Family
consisting of plaintiff, defendant owning, possession
13 O.S.990/1993
immoveable properties are denied. The averments regarding
misrepresentation causing injury legal rights of the plaintiffs are
denied. The defendants are trying to alienate the schedule
property and induct 3rd parties into the possession and convert
them for the purpose of non-agriculture are false. The
allegation of the plaintiffs that the judgment in
O.S.No.3016/1991 does not bind the plaintiff\s is not correct. It
is true that legal proceeding was taken in O.S.No.1765/88 by
defendant No.1 along with plaintiff.
8. Paras No.4 and 5 of the plaint are denied. The land
bearing Sy.No.124 6 acres 6 guntas was earlier belonging to
Subbarayappa who on 23.11.1942 sold the same to Narappa
and Chikka Narappa under registered sale deed. The said land
was purchased by the said persons mutated in records of
rights. Plaint schedule property Sy.No.124/1 belonged to
Narappa, Chikka Narappa and apart from them no other person
can exercise any kind of legal rights over the same where as
Sy.No.124/3 which is property shown at Sl.No.3 of the plaint is
kharab land. Therefore, it cannot be the property of Ramaiah
14 O.S.990/1993
similarly properties bearing Sy.Nos.44,45 which are not the
subject matter of the present suit belongs to Narappa and
Chikka Narappa and Ramaiah and khatha of the same have
been made out in their respective names and it becomes
necessary that Sy.Nos.44, 45 have been further divided into 4
parts 44/1, 44/2, 44/3, 44/4 and 45/1, 45/2 respective parties
are in continuous possession and enjoyment. There are 9
houses and 2 shops situated in Byrasandra village, which
properties stands in the name of Ramaiah which property is
ancestral property all the parties to the suit are entitled for
share and the income by way of rents are being enjoyed by the
plaintiff No.1 and 3 alone and deliberately the said properties
are not been included in the suit by the plaintiffs with regard to
Sy.No.1 of Byrasandra is property which is acquired by Chikka
Narappa, Nanjappa and Narappa jointly. Therefore, each one
has 1/3rd share in it.
9. Plaintiffs who are not in possession of the plaint
schedule properties have no khatha or right, title interest. The
suit is not maintainable. Hence, for all these reasons, it is
prayed to dismiss the suit with exemplary costs.
15 O.S.990/1993
10. The 3rd defendant in his written statement
contending that regarding paras 1 and 2 of the plaint, the
relationship of the parties and genealogical tree furnished in the
plaint do not require any traverse. The parties are Hindus and
governed by the Mithakshara Law are true and other averments
that they are members of Hindu Undivided Family jointly owned
and possessed the immoveable properties are denied. The
assertion made that the properties are very valuable,
resourceful, located in the urban agglomeration is made with a
view to prejudice the mind of the court. The further averments
in the same para, the defendants in general and 3rd defendant
in particular have taken prominence in the family and
misappropriating the income derived from the plaint schedule
properties and they are stealthily working injurious to the
plaintiffs and to exclude the latter from enjoying the plaint
schedule properties jointly and deriving the income there from
are all denied. The further averments that the defendants are
trying to alienate some of the items of the schedule properties
and to induct 3rd parties in possession and to convert them for
16 O.S.990/1993
the purpose of non-agriculture is a distorted version, it is true
that 4 guntas of land in Sy.No.124/1 of Benniganahalli village
has been sold in favour of Anjanappa and he had filed suit in
O.S.No.3016/1991, decree has been passed. But, it is
incorrect to state that there has been a collusion between
defendants No.3 and 7 and that defendant No.3 had conceded
the claim before service of summons and that the compromise
decree obtained by defendant No.7 in collusion with defendant
No.3 in respect of 4 guntas of land in Sy.No.124/1 of
Benniganahalli Village is not binding on the plaintiffs is denied.
11. The defendant No.3 has no exclusive right to enter
into contract with any body in respect of joint family property is
not correct. The properties are not the joint family properties.
This defendant is not aware that the suit has been filed in
O.S.No.1765/88 for declaration of ownership and injunction in
respect of item No.1 of the plaint schedule property. Further
averments that suit had been filed against Shafi and Suresh,
who tried to invade over the portion of item No.1 of the plaint
schedule property are not within the knowledge of this
defendant. The joint ownership and possession not admitted.
17 O.S.990/1993
The plaintiffs are no more interested in the joint status along
with the defendants etc., does not arise. The plaintiffs
demanded their legitimate shares are denied, only with a view
to found a cause of action, such assertion is made. No cause
of action arose. Court fee paid is insufficient. Plaintiffs are not
entitled to 1/4th share in the properties or any share in the plaint
schedule properties. The decree in O.S.No.3016/1991 cannot
be set aside. The plaintiffs are not come with clean hands.
12. Item No.1 is an agricultural land bearing
Sy.No.124/1 of Benniganahalli village. Item No.2 is
Sy.No.124/2, item No.3 is Sy.No.124/3. The Sy.No.124/3 does
not exist, its description is incorrect, boundaries are not correct.
The plaint is silent as to how Sy.No.124 was acquired. There is
no joint family at all. Sy.No.124 was purchased by Narappa
and Chikka Narappa on 23.11.1942 under a deed of sale which
has been duly registered. The purchase was made from
Subbarayayappa. The total extent of land is 6 acres and 6
guntas. In Sy.No.124/1 only two persons are entitled to share
ie., Narappa and Chikkanarappa. The division into 3 sub-
numbers in Sy.No.124 is incorrect. Sy.No.124/3 is shown as
18 O.S.990/1993
kharab land it cannot be divided apart from the main land. It
could not have been made out in the name of Ramaiah who
has no right, title, interest or possession in Sy.No.124 land
Sy.Nos.44 and 45 belong to Narappa, Chikka Narappa @
R.Nagappa and Ramaiah. There has been division of
properties belonging to them, khatha has been made out in
their respective names. Sy.No.44 has been divided into
Sy.Nos.44/1, 44/2, 44/3 and 44/4 and survey No.45 was divided
into Sy.Nos.45/1 and 45/2.
13. There are 9 houses and two shops in Byrasandra
village which stands in the name of Ramaiah, it is ancestral and
rents are being collected by Sri.Nanjappa and Smt.Chinnamma.
They are not included in the suit.
14. Sy.No.1 of Byrasandra village has been acquired by
Chikkanarappa, Nanjappa Reddy and Nagappa Reddy and
each one have an undivided 1/3rd share.
15. The plaintiffs have no right, title, interest on the lands
mentioned in the schedule to the plaint. Plaintiff is not in
possession of any portion of the lands. This defendant and
other defendants are in possession, the suit is not maintainable.
19 O.S.990/1993
The plaintiffs have not been in possession of land in Sy.No.124
at any time, it has been in possession of Chikka Narappa @
R.Nagappa and Narappa ever since the purchase in the year
1942, they have perfected their title by adverse possession
without prejudice to the contentions in the alternative it is
pleaded, that the plaintiffs and others have ousted from the
property and suit is barred by time.
16. A suit for partial partition is not maintainable. All the
properties including Sy.No.44, 45, houses, buildings and other
properties ought to have been included in the suit. Plaintiffs
want to make a wrongful gain for themselves and cause
wrongful loss to the defendants. The above said suit was
dismissed for default on 2.4.1997 and the suit was restored on
21.4.2001 in Misc.case No.333/97. During the interregnum
period ie., from 2.4.1997 to 21.4.2001 the following transactions
were taken place. The defendants No.1 to 6 have entered into
an agreement of sale with defendants No.8 to 10 to sale the
portion of survey No.124/2, plot No.3, Benniganahalli village,
measuring east to west 128 ft. north to south 70 ft. The
defendants No.8 to 10 have filed O.S.No.3555/97 before the
20 O.S.990/1993
court of civil judge for specific performance of contract. The
defendant herein along with the defendants No.1, 2 and 4 to 6
have agreed to sell 23 guntas in Sy.No.124/1 under the
agreement of sale dated: 19.1.1993. Defendants No.8 to 10
have filed O.S.No.3612/97 filed before the City Civil Court for
specific performance of contract. Both original suits were
decreed. Subsequent to the decree granted by civil court, the
defendant along with defendants No.1,2 and 4 to 6 have
executed the registered sale deeds dated: 10.8.1998,
20.8.1997, 20.8.1997, 20.8.1997, 15.6.1998, 15.6.1998,
10.8.1998, 10.8.1998, 8.12.2000.
17. Subsequent to the civil court decrees, mutation was
carried out, names of the purchasers ie., defendants No.8 to 10
was entered in RTC., matter went up to Hon'ble High Court in
W.P.No.25999/2004, decided in favour of defendants No.8 to
10 in W.P.No.1674/2006. The Hon'ble High Court of Karnataka
in writ appeal No.1674/2006 has observed that the appellants /
defendants No.8 to 10 can also claim equity in the suit schedule
properties, as they have stepped into the shoes of their sellers
ie., defendants No.1 to 6.
21 O.S.990/1993
18. Further, it is contended that Sy.No.124/3, the
defendants No.8 to 12 have purchased 8 guntas of wet land
from the defendants No.1 to 6 under registered sale deed
dated: 15.6.1998 in part (A) portion measuring east west 90' x
71', north to south 52' x 60' in part (B) portion 'A" schedule
property measuring north to south 50' x 60' east to west 105' x
90' and 'B' schedule property measuring east to west 10' north
to south 30', the 'B" schedule property is also known as 'C'
portion.
19. Chikka Narappa and Dodda Narappa were in
possession of 1 acre in Sy.No.124/3, Chikka Narappa was in
exclusive possession and enjoyment of 8 guntas of wet land
and on his death, the defendants No.1 to 6 the L.Rs., of Chikka
Narappa have sold said 8 guntas of land to defendants No.8 to
12. The defendants have also filed affidavit declaring that the
property which has been sold as house list No.253/1 'A' portion
and 253/2 'B' and 'C' portions and survey No.124/3 (8 guntas)
is one of the same property. After the dismissal of the said suit
for default in the year 1997, the defendant herein along with
defendants No.1, 2 and 4 to 6 have sold their shares of
22 O.S.990/1993
properties in Sy.Nos.124/1, 124/2, 124/3 ie., suit item Nos.1,2
and 3. After the restoration of the suit, the purchasers have
filed the impleading applications before this court and came on
record as defendants No.8 to 12 and filed written statement and
relevant documents. The defendants No.8 to 12 are in
possession and enjoyment of portions of properties in item
Nos.1 to 3 and they have paid taxes, betterment charges and
BBMP., has granted khatha in their name. The defendant
herein has sold 4 guntas in Sy.No.124/1 to B.C.Anjanappa on
9.10.1997, said B.C.Anjanappa sold the same land to
defendant No.8 on 8.12.2000 and defendant No.8 is in
exclusive possession and enjoyment of 4 guntas of land in
Sy.No.124/1. Sy.No.124 is self-acquired property of both
Dodda Narappa and Chikka Narappa, as they have jointly
purchased the said property in the year 1942 from
Subbarayappa. Prior to 1942 there was partition in the family of
late Ramaiah, among his 4 children by metes and bounds.
Even after partition, though the children of the late Ramaiah
were separated, they had purchased some properties jointly. In
O.S.No.1982/1984 deceased Nanjappa has admitted the prior
23 O.S.990/1993
partition in the family and also admitted that there remains
nothing to be partitioned in the family. Hence, suit of the
plaintiff not maintainable and suppressed the true facts by the
plaintiff.
20. The defendants No.1,2 and 4 to 6 have filed an
application for amendment of written statement pending
subsequent events from the date of dismissal of the above suit
in 1997 till its restoration in 2001, during that interregnum
period defendants No.8 to 12 have purchased the properties
Sy.No.124/1, 124/2, 124/3 by the defendant including
defendants 1,2 and 4 to 6 have sold their share in the said
properties. The defendants No.8 to 12 are in possession and
enjoyment of the portion of property in Sy.No.124/1, 124/2 and
124/3, khathas are made in their names and tax paid. The
defendants No.1, 2 and 4 to 6 filed affidavits identified the
properties mentioned in the registered sale deeds.
21. Defendants No.1, 2 and 4 to 6 have started acting
contrary to the interest of defendants No.8 to 12 in collusion
with plaintiff's to make unlawful gain, only to defeat the interest
of defendants No.8 to 12 I.A.No.3 is filed for amendment of
24 O.S.990/1993
written statement, pleadings subsequent events was withdrawn
by the defendant Nos.1,2 and 4 to 6. The defendants 1, 2 and
4 to 6 have approached the defendant No.3 herein to act
contrary to the interest of defendants No.8 to 12 in collusion
with plaintiffs. The defendant contended as already delivered
the possession of his share in Sy.No.124/1, 124/2, 124/3 in
view of registered sale deeds executed by him in favour of
defendants No.8 to 12, the said sale deed consideration
amount used for family necessities. The defendant has refused
to act contrary to the interest of defendants No.8 to 12. The
defendant No.1 is instrumental in instigating brothers for act
contrary to the interest of defendants No.8 to 12 and gave
trouble to defendants No.8 to 12 in collusion with plaintiff on
30.1.2009, the defendants 1, 2 and 4 to 6 have withdrawn the
application filed U/o 6 Rule 17 of C.P.C.,
22. Defendants No.1, 2 and 4 to 6 have sold their share
of properties to defendants No.8 to 12 to meet their individual
family needs and sale consideration amount has been spent for
the development of their individual family for providing
education, marriage etc., The defendant herein has also settled
25 O.S.990/1993
in life utilizing the sale consideration amount received from
defendants No.8 to 12. The averments of plaint not herein
before traversed and contrary to what is stated are denied as
false. Hence, it is prayed to dismiss the suit with cost.
23. The defendants No.8 to 12 filed written statement
contending that the suit is filed by the plaintiff after lapse of
more than 60 years from the date of earlier partition in the
family of the late Ramaiah. The plaintiff suppressed the earlier
partition taken place in the family by way of family settlement
during the life time of late Ramaiah. The plaintiffs deliberately
misrepresented regarding factum of earlier partition by way of
family settlement during the life time of Ramaiah.
24. The late Ramaiah had 4 sons by name Dodda
Narappa, Chikka Narappa, Nanjappa and Nagappa. All the
sons of late Ramaiah who have been separated during the life
time of late Ramaiah residing separately by taking their shares
and they are no more alive and their L.Rs.., are succeeded to
their respective shares derived under the partition by way of
family settlement which was taken place during the life time of
26 O.S.990/1993
late Ramaiah. The late Ramaiah had distributed the family
properties to all his sons and the sons have accepted the
settlement and as per the settlement they have been residing
separately from decades in their respective houses given to
them under the family settlement and as on to day there is no
joint family at all and there are no joint family properties exists.
The suit filed only to harass subsequent purchasers ie.,
defendants No.8 to 12 and to make unlawful gain. These
defendants have purchased the portion of properties in survey
No.124/1 and also a small portion of the property in survey
No.124/2 which was the self acquired property of the father of
defendants No.1 to 6 and on the death of late Chikka Narappa,
the defendants No.1 to 6 who have succeeded to his self
acquired properties in survey No.124/1 and 124/2 have sold the
share of their father to the defendants No.8 to 9 in survey
No.124/1 and 124/2 and to the defendants No.11 to 12 and also
in favour of defendants No.8 and 9 in survey No.124/3, after
the dismissal of the present suit O.S.990/93. On the date of
sale made by defendants No.1 to 6 the properties purchased by
these defendants were not the joint family properties, on the
27 O.S.990/1993
contrary all the properties are self acquired properties of late
Chikka Narappa and after his death defendants No.1 to 6 have
succeeded to his estates and at different stages the defendants
No.1 to 6 have sold the said properties to the defendants No.8
to 12.
25. The 1st plaintiff is the wife of late Dodda Narappa
who is already residing in the share of late Dodda Narappa
derived in the partition taken place prior to 1940 by way of
family settlement, has colluded with other two brothers namely
Nanjappa and Nagappa and the 2nd plaintiff is the son of late
Dodda Narappa has also joined hands of plaintiffs No.3 and 4
and on the death of plaintiff Nos.3 and 4 the L.Rs., of plaintiffs
No.3 and 4 are on record and all of them are colluded together
to harass the defendants herein and also the vendors of these
defendants i.e., the defendants No.1 to 6. In fact, the plaintiffs
Nos.3 and 4 who were are also residing separately in their
houses given to them under the family settlement and they
were not at all interested in the present suit and on their death
the L.Rs., of plaintiffs No.3 and 4 have joined with the plaintiffs
No.1 and 2 only to harass the defendants No.8 to 12, who have
28 O.S.990/1993
purchased the properties from defendants No.1 to 6. The suit
schedule properties in the survey Nos.124/1 and 124/2 and
124/3 are the properties of the defendants No.1 to 6 and these
properties are fallen to the possession and ownership of the
defendants No.1 to 6 on the death of their father late
Shri.Chikkanarappa. The present suit is filed with an ulterior
motive to harass the defendants No.8 to 12 by suppressing the
earlier partition by way of family partition taken place prior to
1940.
26. The averments made in para - 2 of the plaint with
regard to the relationship of the plaintiffs with plaintiffs No.3
and 4 is admitted but since there was no joint family as on
today and the character of the joint family has been lost since
six decades ie., ever since the partition in the family by way of
family settlement, the question of plaintiffs mentioning that the
2nd plaintiff is the son of the deceased coparcener of the Hindu
undivided family by name Dodda Narappa does not arise. The
family has already been divided long back prior to 1940 and the
two younger brothers namely Dodda Narappa and Chikka
Narappa are no more alive and the 1st and 2nd plaintiffs are the
29 O.S.990/1993
L.Rs., of Doddanarappa who are residing in the self acquired
property of late Dodda Narappa and as on to day the plaintiffs
No.3 and 4 are also not alive and their L.Rs., are on record and
they are enjoying the self acquired properties of plaintiffs No.3
and 4 and the defendants No.1 to 6 are residing in the property
left by their father Chikkanarappa which was also a self
acquired property. The plaintiffs No.3 and 4 who are residing
separately nearly for six decades ever since the family partition
are made as parties to the suit in the year 1993 unnecessarily
to harass the defendants No.1 to 6 and also the purchasers of
the defendants No.1 to 6 i.e., the defendants No.8 to 12.
27. The genealogical tree which is produced for the
purpose of the case which discloses the relationship of the
parties but the said genealogical tree is not at all required in the
facts and circumstances of the case. Since the late Ramaiah
has distributed the joint family properties to all his 4 sons and
he has taken his share and after the death of Ramaiah, the
L.Rs., are enjoying his share in accordance with law. The
plaintiff produced genealogical tree only to mislead the court
and create an impression that family of late Ramaiah is still a
30 O.S.990/1993
joint family and such contention cannot be accepted in view of
the fact that late Ramaiah has expired nearly 30 years back on
the date of death of Ramaiah the family properties had already
been divided between the 4 sons and if according to the
plaintiffs there exists a joint family even to day it is very
suppressing that why the sons of late Ramaiah have not
demanded partition of the family properties after the death of
Ramaiah, if the family continued as a joint family there should
be powthi khatha in the name of his wife and sons if there was
no partition in respect of the properties of late Ramaiah. At no
point of time such a khatha was made after the death of late
Ramaiah because even during the life time of late Ramaiah the
properties of the family have been divided prior to 1940. The 4
sons of late Ramaiah who are residing separately after
accepting the partition of the family properties by metes and
bounds and as on to day all the 4 sons of late Ramaiah have
expired and their L.Rs., are enjoying the self acquired
properties of 4 sons of late Ramaiah and in the present suit
only the self acquired properties of Chikka Narappa and Dodda
Narappa ie., 2 acres 20 guntas jointly purchased by them after
31 O.S.990/1993
the partition has been included and the property in survey
No.1B which has been jointly purchased by Chikka Narappa
and other sons of late Ramaiah as their relation was cordial
even after the partition and to safeguard their self acquired
properties and also to avoid encroachers sometimes the sons
of late Ramaiah have fought together in the court proceedings.
The plaintiffs herein have filed a false suit to harass the
defendants even though they are in possession and enjoyment
of the share derived by late Dodda Narappa under the family
settlement taken place prior to the 1940 during the life time of
Ramaiah.
28. It is an admitted fact that the plaintiffs and the
defendants are governed by Mitakshara law. But the
averments that they are the members of the Hindu Undivided
family jointly owning and possessing the immoveable properties
described in the schedule are hereby denied as false. The
plaintiffs are not the members of Hindu undivided family. The
family had already been divided prior to 1940 and the question
of the plaintiffs owning and possessing joint family properties
does not arise. At present the plaintiffs are living in the house
32 O.S.990/1993
and enjoying the properties, which were fallen to the shares late
Dodda Narappa under the family settlement taken place prior to
1940. The averments relating to suit schedule properties are
very valuable and resourceful being located within the urban
agglomeration is a distorted version and the defendants No.8 to
12 have urchased portions of the properties in Sy.Nos.124/1,
124/2 and 124/3 from the defendants No.1 to 6 at different
stages which are the self acquired properties of late Chikka
Narappa and the said properties are now in possession and
enjoyment of the defendants No.8 to 12. They are absolute
owners of the same having sale deeds, khatha certificates, tax
paid receipts, encumbrance certificates. Further averments
that the defendants in general and the 3rd defendant in
particular had taken a dominant position in the family and
misappropriating the income derived from the suit schedule
properties is denied.
29. The partition by way of family settlement had taken
place prior to 1940. By that time the parties were separated as
per the family settlement and have divided the properties and
all the brothers i.e., sons of late Ramaiah though resided
33 O.S.990/1993
separately by accepting the division of the family properties
they have maintained cordial relation and both Chikka Narappa
and Dodda Narappa though they have separated by metes and
bounds prior to 1940 in respect of the family properties even
after partition their relations were cordial and they have
acquired property in Sy.No.124 together by contributing funds
equally and likewise the 3rd and 4th sons of late Ramaiah i.e.,
Nanjappa and Nagappa were also having cordial relations each
other and also with their elder brothers and they have also
purchased property in Sy.No.1/B measuring 22 guntas together
by contributing funds with Chikka Narappa. The partition by way
of family settlement, the two sons of late Ramaiah were
residing separately have contributed the funds together and
purchased an extent of 2 acres 20 guntas under the registered
sale deed dated:23.11.1942 from one Subrayappa, s/o
Nanjundaiah. The said property is the self acquired property of
both Dodda Narappa and Chikka Narappa. The said property
originally numbered as Sy.No.124 and the names of Chikka
Narappa and Dodda Narappa was mutated in the revenue
records in respect of 2 acres and 20 guntas of land and later it
34 O.S.990/1993
was subdivided into 124/1 and 124/2, in both Chikka Narappa
and Dodda Narappa have got equal shares as the same is their
self acquired property survey No.124/1 measuring 1 acre 25
guntas wherein both Chikka Narappa and Dodda Narappa have
got share and in survey No.124/2 measuring 35 guntas, both
Chikka Narappa and Dodda Narappa have got equal shares
which is their absolute property. On the death of Chikka
Narappa and Dodda Narappa their L.Rs., were in possession of
the portion in Sy.No.124/1 and half portion in Sy.No.124/2.
The suit schedule properties i.e., item Nos.1 to 3 and item No.4
are not the joint family properties these defendants are only
concerned with item Nos.1, 2 and 3 of the suit schedule
properties which are the self acquired properties of late Chikka
Narappa and Dodda Narappa. These relevant facts have
been suppressed by the plaintiffs. In respect of items Nos.1
and 2 the L.Rs., of Dodda Narappa are in possession of their
half share both in survey Nos.124/1 and 124/2 and the
defendants No.1 to 6 who were in possession of half share of
late Chikka Narappa in survey No.124/1 and 124/2, they have
sold the same to the defendants No.8 to 12 as per the Court
35 O.S.990/1993
direction made in O.S.Nos.3016/91, 3555/97 and 3612/1997.
In O.S.No.3016/1991 the 3rd defendant sold an extnt of 4
guntas in old survey No.124 new No.124/1 in Benmniginahalli
village, K.R.Puram Hobli, Bangalore South Taluk, which was
his absolute property to B.C.Anjanappa the 7th defendant herein
who have purchased the said property from 3rd defendant as
per the Court decree dated: 30.5.1991. The 8th defendant has
purchased the said 4 guntas of land from B.C.Anjanappa and
as such, the defendant No.8 is in possession of the 4 guntas of
land in survey No.124. The plaintiffs have not challenged the
above said decree till to day and the plaintiffs are very well
aware about the decree in O.S.No.3016/1991 between the 3rd
defendant and 7th defendant and the subsequent sale deed and
purchase made by 8th defendant in the year 1991 itself as on
that date also the 4 guntas of land was not joint family property.
The said property was the absolute property of
Sri.Ramakrishna who is the L.R., of Chikka Narappa.
Contrary to the facts whatever pleaded in para - 4 of the plaint
by the plaintiffs are hereby denied as false. The plaintiffs have
contended that O.S.No.3016/91 is collusive suit if that is so in
36 O.S.990/1993
the year 1991 itself having aware of the said facts, they should
have questioned the said decree before the competent court in
the present suit only to harass 8th defendant who is in
possession of 4 guntas of land as its absolute owner, the
plaintiffs herein have included a prayer in para - 8 (b) that the
decree is not binding on them which prayer cannot be granted
as the said decree was passed in accordance with law and the
7th defendant was the absolute owner of the schedule property
mentioned in O.S.No.3016/91 and thereafter, the 7th defendant
has sold the 4 guntas of land in survey No.124/1 to 8th
defendant. The said property was the absolute share of the 3rd
defendant he has transferred the said property to 7th defendant
as per the court decree in the said suit.
30. The averments relating to O.S.No.1765/1988 filed
against 8th and 9th defendant over the portion of item No.1 of
the schedule etc., are all not at all relevant because on the said
date the defendant Nos.8 and 9 are not acquired any right for
item Nos.1 and 2 of the suit schedule properties. Even after the
family partition prior to 1940 the sons of late Ramaiah were
sailed together to safeguard their shares of property derived
37 O.S.990/1993
under the family settlement and to avoid encroachment from
third parties the L.Rs., of Chikka Narappa have fought together
to fight out the litigation with collective efforts against the
encroachers in respect of their self acquired properties in
Sy.Nos.124/1, 124/2 and 124/3 but the fact remains same that
they have been separated long back by dividing the properties
and enjoying the said properties separately as per the family
partition taken place prior to 1940 during the life time of late
Ramaiah. On the contrary to all these facts pleaded in para - 4
or in any other plaint is denied as false.
31. The plaintiffs are no more interested in joint status
along with defendants and to hold the suit schedule properties
as a joint status and demanded the defendants to effect the
equitable division and allot the legitimate share in all the suit
schedule properties and their legitimate demand has been
impliedly denied by the actions of the defendants affecting the
undivided interest and vested rights of the plaintiffs in the family
properties. Further averments that plaintiffs have no other way
are instituting the above suit for equitable partition and
allotment of their legitimate share in the suit schedule
38 O.S.990/1993
properties etc., are denied. There was no joint family, question
of demanding share of the plaintiffs does not arise.
32. The plaintiffs filed the present suit in the year 1993,
same came to be dismissed in 1997. After the dismissal of the
said suit, the defendants No.8 to 12 have purchased the
properties in item No.1, item No.2 and also item No.3 which are
self acquired properties of late Chikka Narappa and after his
death, the said properties were in possession of defendants
No.1 to 6 who had in turn sold to defendants No.8 to 9 as per
the court decrees in O.S.No.3555/97 and 3612/97.
33. Late Chikka Narappa and Dodda Narappa the sons
of late Ramaiah have jointly purchased the property measuring
2 acres 20 guntas in survey No.124 situated at Benniganahalli,
K.R.Puram Hobli, Bangalore, under registered sale deed dated:
24.11.1942 after they separated from the family as per the
family partition by way of family settlement prior to 1940. The
names of late Chikka Narappa and Dodda Narappa have been
mutated in a revenue records MR No.3A/91-92 dated:
23.9.1991. Thus, late Chikka Narappa and Dodda Narappa
were entitled for half share in the said property measuring 2
39 O.S.990/1993
acres 20 guntas in survey No.124 i.e., 1 acre 10 guntas each in
both survey numbers. The two brothers have purchased 2
acres 20 guntas by contributing funds together after the family
partition and after the severance of the joint family status and
late Ramaiah's family. The property measuring 2 acres 20
guntas in survey No.124 has been sub-divided into survey
No.124/1 measuring 1 acre 25 guntas and survey No.124/2
measuring 35 guntas. Both Chikka Narappa and Dodda
Narappa are entitled for the half share in survey No.124/1 i.e.,
32-1/2 guntas each likewise, in survey No.124/2 out of 35
guntas each Chikka Narappa and Dodda Narappa are entitled
for 17-1/2 guntas and on their death the respective L.Rs., have
succeeded to the respective portions of the properties in survey
No.124/1 and 124/2 which is self acquired property of Dodda
Narappa and Chikka Narappa that means the L.Rs., of Dodda
Narappa are entitled for half share in the property bearing
survey No.124/1 measuring 1 acre 25 guntas i.e., 32-1/2
guntas. Likewise, the L.Rs., of Chikka Narappa are also
entitled for 32-1/2 guntas in the same property of 1 acre 25
guntas in survey No.124/1. In Survey No.124/2 the L.Rs., of
40 O.S.990/1993
both Chikka Narappa and Dodda Narappa are entitled for half
share i.e., 0.17-1/2 guntas each by keeping 11 guntas in both
survey numbers ie., 5-1/2 guntas each in survey No.124/1 and
124/2. Defendants No.1 to 6 have sold remaining portion to the
defendants No.8 to 10.
34. O.S.No.3555/97 the suit schedule property
mentioned was 35 guntas bearing survey No.124/2 at
Benniganahalli village in O.S.No.3612/1997 the suit schedule
property mentioned was 23 guntas bearing survey No.124/1
situated at Benniganahalli village. The suits have ben decreed
as per the compromise petition filed by the parties to the suit
and after the mutation proceedings, after the court decree sale
deeds have been executed by defendant Nos.1 to 6. In
O.S.No.3555/97 specific performance of contract was granted
in respect of agreement dated: 27.12.1992 in respect of
property bearing survey No.124/2 measuring 35 guntas.
Likewise, in O.S.No.3612/97 specific performance of contract
was granted in respect of agreement dated: 19.1.1993 in
respect of survey No.124/1 measuring 23 guntas as per the
court decrees, the sale deeds have been executed after the
41 O.S.990/1993
mutation being carried out. The vendors have filed affidavits
stating that the properties mentioned in the sale deeds and
properties mentioned in survey No.124/1 and 124/2 are same
as per the court decrees. As such in so far as the identification
of the property there was no dispute at all. What was sold by
the defendants No.1 to 7 to the defendants No.8 to 10 is half
share of Chikka Narappa in survey No.124/1 and 124/2 and in
the remaining half share in survey No.124/1 and 124/2 plaintiffs
No.1 and 2 are in possession and the plaintiffs No.3 and 4 are
their L.Rs., have no right in respect of the property which is in
possession plaintiff Nos.1 and 2 herein, as the said property
was the self acquired property of late Dodda Narappa. Like
wise, plaintiffs No.3 and 4 are the L.Rs., have no right in
respect of half portion of the property which was in possession
of late Chikka Narappa in survey No.124/1 and 124/2 and on
his death the defendants No.1 to 6 have sold the said
properties, as the defendants No.1 to 6 have succeeded to the
said self acquired property of late Chikka Narappa in survey
No.124/1 and 124/2 and the defendants No.1 to 6 have
retained 5-1/2 guntas of land in both survey Nos.124/1 and
42 O.S.990/1993
124/2 ie., totally 11 guntas and remaining portion is in
possession and enjoyment of defendants No.8 to 10 and in
respect of 8 guntas in survey No.124/3 which has been
regularized by the Assistant Commissioner in favour of family of
Chikka Narappa has been sold to defendant Nos.8, 9, 11 and
12.
35. Further, it is contended in the year 1993 the
present O.S.No.990/93 was filed, same came to be dismissed
for default on 2.4.1997 it was recalled on 21.4.2001 in
Miscellaneous No.333/97 during this interregnum period the
suits filed by the defendants No.8 to 9 have been decreed.
O.S.No.3555/97 has been decreed on 4.7.1997.
O.S.No.3612/97 has been decreed on 27.4.1997. The suits
have been decreed as per the compromise arrived in between
the parties.
36. As per the court decrees mutation has been carried
out and subsequently sale deeds dated: 20.8.1997, 10.8.1998,
20.8.1997, 20.8.1997, 8.12.2000, 10.8.1998 and 10.8.1988
were executed.
43 O.S.990/1993
37. Based on the registered sale deeds the revenue
entries have been made in the name of the defendants No.8, 9,
10 and after contest by the contesting respondents including
plaintiffs No.1 and 2 herein the matter went up to Hon'ble High
Court in second round litigation in W.P.No.25999/2004 and the
matter was remanded and the order of remand dated: 8.9.2006
is subject matter of writ appeal No.1674/2006.
38. In respect of 1 acre in survey No.124/3 both Chikka
Narappa and Dodda Narappa were in possession etc.,
contended. The order passed by the Assistant Commissioner
dated: 14.6.1996 in R.A.No.100/91-92 and 140/91-92 wherein
the Assistant Commissioner has regularized 8 guntas of land in
favour of the vendors of defendants Nos.8, 9, 11 and 12. As
per the order passed by the Tahsildar dated: 25.3.1985 and as
per the mahazar drawn before passing the order and
mentioned in the said order both Chikka Narappa and Dodda
Narappa were in possession of 1 acre out of 3 acres 26 guntas
of land in survey No.124/3. The remaining 2 acres 26 guntas
was and is in possession of Bayanna. As per survey sketch
survey No.124/3 measures 3 acres 26 guntas, in that 3 acres
44 O.S.990/1993
18 guntas land is a kharab land and remaining portion of 0.08
guntas of land is wet land which was exclusively in possession
of late Chikka Narappa and after his death the said property
was sold to defendants No.8, 9, 11 and 12.
39. The defendants No.8, 9, 11 and 12 have purchased
the said 8 guntas of land from defendants No.1 to 6 herein, in
part A portion measuring east west 90 x 71', north to south 52 x
60'. In schedule B portion A schedule property measuring north
to south 50 x 60' east to west 105 x 90'. In B schedule property
measuring east to west 10' north to south 30', the B schedule
property are also known as C portion both A and B portion of
the property purchased is the property in 8 guntas of wet land
are in survey No.124/3. Further, it is contended defendants
No.11 and 12 have purchased A portion of schedule property
from defendants No.1 to 6 for valuable consideration of
Rs.5,13,000/- under the registered sale deed dated: 15.6.1998
out of the sale consideration defendants No.1 to 6 have shared
Rs.85,500/- each. Both A and B portion of the property
purchased is the property in 8 guntas of wet land in survey
No.124/3.
45 O.S.990/1993
40. The defendants No.8 and 9 have purchased B
portion of the schedule property which consists of A and B
schedules mentioned in the respective sale deed from the
defendants No.1 to 6 for a valuable consideration of
Rs.6,52,000/- under the registered sale deed dated: 15.6.1998
out of the sale consideration the defendants No.1 to 6 have
shared Rs.1,08,666/- each both A and B portion of property
purchased is the property in 8 guntas of wet land are HIGN land
in survey No.124/3.
41. The wet land measuring 8 guntas in item No.3 of
the schedule property has been sold in favour of defendants
No.8, 9, 11 and 12 under the respective registered sale deeds.
Sellers the defendants No.1 to 6 have filed an affidavit
declaring that the property which has been sold as house list
No.253/1 (A) portion and 253/2 (B and C) portions and survey
No.124/3 is one and the same property.
42. In view of the registered sale deeds executed by the
defendants No.1 to 6 in favour of the defendants herein
immediately after the execution of the sale deeds the
defendants have put in possession of the said properties and all
46 O.S.990/1993
the documents title transferred in the name of the defendants.
The plaintiffs were and are very well aware about all these facts
and the plaintiffs have deliberately suppressed these facts and
they have filed false suit. The plaintiffs No.1 and 2 despite
enjoying the share and self acquired property of late Dodda
Narappa in survey No.124/1 and 124/2 the plaintiffs have
deliberately mentioned the properties in survey Nos.124/1 and
124/2 are the joint family properties. If that contention is
correct if there is no partition in the family the said property
which have been in the name of all the L.Rs., of late Ramaiah
and L.Rs., of 4 sons of late Ramaiah. The plaintiffs have not
approached the Court with clean hands, defendants No.8 to 12
are the bonafide purchasers.
43. The suit was dismissed in the year 1997 and same
came to be restored in the year 2001. The defendants No.1 to
6 have sold properties in survey Nos.124/1 and 124/2 and
124/3 to the defendants No.8 to 12 after dismissal of
O.S.No.990/93, the bonafide purchasers defendants No.8 to 12
have not been made parties to the suit and as their interest is
involved in the suit and they are in possession of portion of
47 O.S.990/1993
properties in item Nos.1, 2 and 3 of the schedules. The
purchasers have filed an application U/o 1 Rule 10(2) of C.P.C.,
to come on record as proposed defendants and application was
allowed, defendants filed written statement accordingly.
44. Survey Nos.44 and 45 of B.Narayanapura village is
also property belonging to late Ramaiah, survey No.44 is sub
divided into 44/1 to 44/4 and survey No.45 has been divided
into survey No.45/1 and 45/2 which was also joint family of late
Ramaiah and the said properties have been already divided
prior to 1940 and the respective L.Rs., of 4 sons of late
Ramaiah are found to be in possession of the said properties.
The plaintiffs have deliberately suppressed these facts. Nearly
9 houses and two shops of Byresandra village were standing in
the name of late Ramaiah has also been divided long back prior
to 1940 as per the family settlement, accordingly, theya re
residing in their houses. The plaintiffs playing fraud on the
court by misrepresenting that the schedule properties are joint
family properties, even though they are enjoying the self
acquired properties of the sons of late Ramaiah. Relevant
extracts of survey Nos.124/1 and 124/2 in the name of
48 O.S.990/1993
defendants No.8 to 10 and regarding survey No.124/3 sold to
defendants No.8, 9, 11 and 12 by defendant No.6 are
produced.
45. The certified copy of the sale deed dated:
23.11.1942 wherein after the family partition the two brothers
Dodda Narappa and Chikka Narappa by contributing found
together have purchased two acres 20 guntas in survey No.124
of Benniganahalli. After the family partition, the brothers
Chikka Narappa, Nagappa and Nanjappa who were residing
separately have contributed the funds together and purchases
22 guntas in survey No.1/B in Byrasandra village.
46. The six affidavits filed by defendants No.1 to 6
declaring that the properties which have been sold to the
defendants No.8,9 and 10 under the registered sale deeds as
per the court decrees in O.S.No.3555/97 and 3016/97 are the
same properties in survey Nos.124/1 and 124/2. Identification
of the property which is in possession of the defendants under
the registered sale deeds was never in dispute and the
defendants are in possession of the properties as the absolute
owners in respect of properties in survey Nos.124/1, 124/2.
49 O.S.990/1993
The sale deed dated: 15.6.1998 executed in favour of
defendants No.11 and 12 for valuable consideration of
Rs.5,13,000/- in respect of property in survey No.124/3 and
also stated regarding sale deed dated: 15.6.1998, this material
facts are within the knowledge of the plaintiffs, they have
suppressed the same. The plaintiffs not challenged the
decrees granted by the court in O.S.No.3555/97 and
O.S.No.3612/1997 as on to day the defendants are in
possession of the properties purchased under the sale deeds.
They are enjoying the same, the plaintiffs are not at all
concerned with those properties. The defendants No.8 to 12
are in possession of the same, the plaintiffs No.1 and 2 are in
possession of the share of late Dodda Narappa derived under
the partition by way of family settlement taken prior to 1940.
Likewise, plaintiffs No.3 and 4 were also in possession of their
respective shares derived under partition by way of family
settlement taken place prior to 1940 and after their death their
L.Rs., are in possession as on to-day there is no joint family at
all.
50 O.S.990/1993
47. There is no cause of action court fee paid is
insufficient. Hence, for all these reasons, it is prayed to dismiss
the suit with exemplary costs.
48. The defendant No.13 filed his written statement
contending that the suit is not maintainable. It is contended that
this defendant is in possession and enjoyment of 2 acres 26
guntas of land in Sy.No.124/3 of Benniganahalli village. It is a
portion of item No.3, which measures 3 acre 18 guntas, out of
this, defendant is the owner of 2 acres 26 guntas of land.
Originally, the land Sy.No.124 of Benniganahalli was 6 acres 6
guntas, out of the same Sri.Narappa and Chikkanarappa, both
sons of Ramaiah have purchased 2 acres 20 guntas from
N.Subbrayappa, son of Nanjundaiah, under sale deed
dated:23.11.1992. The defendant's grand father Dasappa, was
in possession and enjoyment of the karab land measuring 3
acres 28 guntas in Sy.No.124, which is later assigned with
Sy.No.124/3 showing the name of Dasappa son of
Yemaralappa, this defendant's grand father, as the
Hiduvalidhar of Sy.No.124/3 measuring 3 acres 26 guntas. Out
of which 3 acres 18 guntas phut karab and 8 guntas cultivable
51 O.S.990/1993
land. Pushpa and Manjula daughters of Narayanappa, brother
of this defendant to an extent of 2 acres 26 guntas as in
possession and enjoyment and cultivation of the land in
Sy.No.124/3.
49. Late Doddanarappa, son of Ramaiah and
Chikkanarappa have filed O.S.No.2325/1980 against this
defendant and others for the relief of possession and
permanent injunction in respect of Sy.No.124/3, subsequently
said Doddanarappa, Chikkanarappa, Nanjappa and Nagappa
filed O.S.No.1982/1984 against this defendant and others have
declaration, possession and permanent injunction including
these defendants land Sy.No.124/3. This defendant has also
filed O.S.No.10836/1991 against legal representatives of
Chikkanarappa, Doddanarappa, Nanjappa and Nagappa for the
relief of permanent injunction in respect of Sy.No.124/3, both
suits were clubbed and common judgment and decree passed
on 12.11.2003. Decreeing O.S.No.1982/1984 in respect of
Sy.No.124/1 and dismissing suit of the plaintiffs in respect of
declaration, possession and permanent injunction in respect of
Sy.No.124/3, and also dismissing O.S.No.10836/1991 filed by
52 O.S.990/1993
this defendant for permanent injunction on the ground that land
is karab land.
50. Common judgment and decree passed against the
same Chikkanarappa filed RFA 205/2004 and L.Rs., of
Doddanarappa filed RFA 64/2004 and this defendant filed cross
objection appeal No.13/2004 before the Hon'ble High Court of
Karnataka. The Hon'ble High Court of Karntaka dismissed both
appeals inter alia holding the appellants have not produced any
records to show that the kharab land has been granted in their
favour by the Government. Cross objection filed by this
defendant are also dismissed. Against the said order granting
permanent injunction subsequently the Hon'ble High Court of
Karnataka this defendant has filed special leave petition before
the Hon'ble Supreme Court of India and order passed on
17.8.2007 and 2.2.2009 staying the operation of the impugned
order. In view of the pendency of the appeals before Hon'ble
Supreme Court of India in respect of Sy.No.124/3 ie., suit
schedule item No.3 and inclusive of the same in the present
suit by the plaintiffs for partition which does not belong to
plaintiffs or defendants No.1 to 6 who are not entitled to the
53 O.S.990/1993
relief of partition. The suit is liable to be stayed till the disposal
of appeals await final order of the Hon'ble Supreme Court, to
make the wrongful gain and defraud to this defendant and his
property in his absence as a party. L.Rs., of Doddanarappa
L.Rs., of Chikkanarappa have no right, title interest on the land
Sy.No.124/3 measuring 3 acres 26 guntas. O.S.No.1982/1984
R.A.No.205/2004 clubbed with 64/2004 were also dismissed by
Hon'ble High Court. Thus, the claim of the plaintiffs and
defendants No.1 to 6 is dismissed in respect of item No.3 of the
plaint schedule property. The plaintiff and defendants No.1 to 6
have not challenged the judgment passed by the Hon'ble High
Court in confirming the dismissal of their suit for the relief of
declaration, possession and injunction. Thus, they are not
owners in possession of suit schedule item No.3 property.
51. The Assistant Commissioner, Bangalore North
passed an order on 14.6.1996 in RA 100/91-92 connected with
140/91-92 granting said karab and directed Tashildar to enter
the names of defendant Smt.Rathnamma, w/o D.Narayanappa
brother of this defendant, Puspa and Manjula daughters of
Dodda Narappa in column No.12(2) of the RTC., in respect of 2
54 O.S.990/1993
acres 26 guntas in Sy.No.124/3. The name of L.Rs., of Dodda
Narappa and Chikka Narappa in respect of remaining 1 acre of
land in survey No.124/3 against the said order of the Assistant
Commissioner plaintiffs 2, 3 and 4 have filed writ petition and
the same came to be dismissed.
52. Item No.3 of the suit schedule property this
defendant and his brothers wife, children are in possession and
enjoyment of 2 acres 26 guntas out of 3 acres 26 guntas and
survey No.124/3. The plaintiff filed the above suit for the relief
of partition and separate possession in the schedule properties
including this defendant and his brothers land Sy.No.124/3 of
Benniganahalli. Deliberately suppressing the defendants
possession and enjoyment in item No.3 property without
impleading this defendant as party to the suit is attempting to
obtain decree. The plaintiffs or defendants No.1 to 6 are not
entitled to any share in the suit schedule item No.3 of the
property. Hence, for all these reasons, it is prayed to dismiss
the suit with exemplary cost.
53. On the basis of the above pleadings of the parties,
the following issues have been framed:-
55 O.S.990/1993
1. Whether the plaintiffs prove that the
suit schedule properties are their
joint family properties?
2. Whether the plaintiffs prove that the
decree in O.S.3016/91 is not
binding them?
3. Whether the suit is bad for partial
partition as alleged in the written
statement of defendant No.3?
4. Whether the suit is barred by time
as alleged in the written statement
of defendant No.3?
5. Whether the plaintiffs are entitled to
declaration as prayed?
6. Whether the plaintiffs are entitled to
partition and possession as prayed?
7. Whether the plaintiffs are entitled to
mesne profits?
8. What decree or order?
Addl. Issue framed on 27.9.2010
1. Whether defendant No.13 proves
that he is owner of 2 acres 26
guntas of land in item No.3 of suit
schedule property?
56 O.S.990/1993
54. In support of the case of the plaintiff, 2nd plaintiff is
examined as Pw.1, plaintiff No.3(3b) is examined as P.W.2.
The documents at Exs.P1 to P45 are marked.
55. On the other hand, 3rd defendant is examined as
D.W.1, 9th defendant is examined as D.W.2, 13th defendant is
examined as D.W.3 and the documents at Exs.D1 to D60 are
marked.
56. Heard the argument.
57. The L.R., of 1st plaintiff filed written argument and
zerox documents. The 2nd plaintiff filed written synopsis and
decisions reported in SCC 2014(4) 707.
58. The defendant Nos.8 to 12 filed written synopsis
and decisions reported in AIR 1954, SC 379, RSA 1181/2006,
1966 SC 411, AIR 1969 SC 1076, AIR 1984 SC 1171, AIR
1998 SC 2776, RSA 1181/2006, AIR 1987 SC 1242, Civil
Appeal No.5798/99, AIR 2011 SC 2496, AIR 1976 SC 2456,
SCC 1993 suppl. (2) SCC 560, ILR 2014 Karnataka, 1311, ILR
2014 Karnataka 2759, AIR 2007 SC 1062, civil appeal
S.C.2634/2004, AIR 1987 Karnataka 173, AIR 2000 S.C. 191
KCCR 2013(1)105, KLJ 1988(1) 563, AIR 1968 S.C.1358.
57 O.S.990/1993
59. The 13th defendant filed written argument.
12. My findings to the above issues are as under:-
Issue No. 1 : In the negative
Issue No. 2 : Partly affirmative
Issue No. 3 : In the negative
Issue No.4 : In the negative
Issue No.5 : Partly affirmative
Issue No.6 : Partly affirmative
Issue No.7 : A separate enquiry is to be held
Addl.Issue : Not considered
Issue No.8 : As per the final order for the
following:
REASONS
60. Issue No.1:- Regarding schedule item No.3
property the matter is pending before the Hon'ble Supreme
Court. Hence, there is no consideration or discussion of
item No.3, survey No.124/3.
For this issue, the contention of the plaintiffs is that the
schedule properties are their joint family properties. To
substantiate this aspect, the oral evidence of P.W.1 reveals that
58 O.S.990/1993
he is the son of Dodda Narappa. They constituted Hindu
undivided family and jointly own the schedule properties.
Ramaiah was their common ancestor. Plaintiffs are in joint
possession of the schedule properties. The original survey
No.124 was measuring 6 acres 6 guntas. The said land
belongs to their paternal great grand father Narayanappa. Out
of the said land he has created encumbrance in respect of 2
acres 20 guntas in favour of Gopalappa, Son of Erappa and in
the Court auction one Kondappa purchased the said land, he in
turn sold to Shanbog Subbarayappa, son of Nanjundaiah. On
23.11.1942 his father Narappa and his brother Chikka Narappa
purchased the said land from Subbarayappa and joint family
came to be in possession. Survey No.124 was subsequently
phoded as 124/1 measuring 1 acre 25 guntas and 124/2
comprises 35 guntas. Ramaiah is survived by 4 sons ie.,
Dodda Narappa @ Narappa, Chikka Narappa, Nanjappa and
Nagappa. Accordingly, each of the branches (sons) would get
1/4th share in the total extent ie., plaintiff No.1(a) to (f) and 2
would get 1 acre 21.5 guntas, plaintiffs No.3 and 4 would get 1
59 O.S.990/1993
acre 21.5 guntas in support of version documents at Exs.P1 to
P45 are marked.
61. During the course of cross-examination of P.W.1, it
is admitted that on 23.11.1942 his father Doddanarappa and
brother Chikkanarappa had jointly purchased 2 acres 20 guntas
of land in Sy.No.124 of Benniganahalli ie., item Nos.1 and 2.
The said land has been phoded as 124/1 and 124/2 measuring
1 acre 25 guntas and 0.35 guntas respectively and also
admitted that on the date of purchase of said land by his father
and brother Chikkanarappa, his father and his 3 brothers ie.,
Chikkanarappa, Nanjappa and Nagappa were residing
separately. Further, admitted that his grand father had not
purchased the land in survey No.124 of Benniganahalli. This
witness shown ignorance that whether his grand father was
holding any other property or not and also ignorant about the
survey No.45/2 had gone to the share of his uncle
Chikkanarappa and he does not know his grand father was
owner of survey No.4/5 measuring 27 guntas of Byrasandra
village and he does not know survey No.4/5 was also allotted to
the share of his uncle Chikkanarappa. Further, this witness
60 O.S.990/1993
does not know that his grand father was the owner of land
survey No.44 measuring 27 guntas of B.Narayanapura village
and the said land has been allotted to his father and uncle
Nanjappa. But, this witness denied the suggestion that there
are two shops in land survey No.124 same are not included,
but, it is admitted that he is collecting the rent of said shops but
not sharing with the defendants and plaintiff Nos.2 and 3. This
witness also admitted that 4 houses are situated in the land
survey No.124/1, he is residing in the house allotted to the
share of his father and the defendants are residing in the
houses allotted to their shares. The plaintiff Nos.3 and 4 are
residing in the houses allotted to their shares, this witness
denied the suggestion that his father and brother have effected
partition in item No.4 of schedule property. But, it is admitted
that the khatha of the survey No.124 was transferred jointly in
the name of his father and Chikkanarappa. Further, it is
admitted regarding the order of Tahsildar, Assistant
Commissioner, R.A.proceedings and writ petitions pertaining to
mutation of land survey No.124 jointly in the name of his father
and Chikkanarappa and the said proceedings are dismissed.
61 O.S.990/1993
Further, admitted that the plaintiff Nos.3 and 4 have no right
over item Nos.1 and 2 schedule properties. This witness
denied the suggestion that he has filed I.A., for amendment
therein it is sought the joint family owned certain lands and
enjoyed them till 1979 and also stated regarding unregistered
partition deed under which they have divided immoveable
properties belonging to joint family, the said I.A., has been with
drawn. Further, this witness denied the suggestion that only to
harass the defendant, they have filed false suit, on the contrary,
it is stated that the joint family properties are still undivided.
This witness admitted that son of Nanjappa has constructed a
house over plaint schedule property No.4. On the very next
breadth, this witness states that survey No.140/2 of Byrasandra
village is not his joint family property and also admitted that
sons of Chikka Narappa have sold survey No.124 of
Nagawarapalya village in favour of defendants No.8 to 12 and it
is admitted that the sons of Chikka Narappa are residing in a
house constructed by them in the self acquired property of
Chikka Narappa.
62 O.S.990/1993
62. P.W.2 who was son of Nanjappa original plaintiff
No.3 has deposed that schedule properties are joint family
properties and plaintiffs and defendants No.1 to 6 and they
have constituted Hindu undivided joint family. Plaintiffs and
defendants No.1 to 6 are in joint physical and constructive
possession as of now and also stated as stated by P.W.1 and
relied on the said documents, the sum and substance is that
they are having their legitimate 1/4th share each over the
schedule properties and also deposed for the benefit of the joint
family his senior uncle Doddanarappa and his uncle Chikka
Narappa purchased survey No.124 on 23.11.1942. Thus, the
said property became the joint family property and in
O.S.No.1765/1988 deceased 1st plaintiff and other admitted
jointly that all the 4 sons of Ramaiah are in joint possession of
item No.1 this establishes joint family and joint ownership.
Regarding item No.4 it is stated that in oral family arrangements
they constructed residential houses for their dwelling. Hence, it
is prayed to divide the schedule properties into 4 equal shares
between plaintiffs and defendants No.1 to 6.
63 O.S.990/1993
63. The P.W.2 during the course of cross-examination
has deposed that he do not know the contents of affidavit
evidence. Since, it is in English and this witness denied the
suggestion that Nagappa and Nanjappa have no manner of
right in survey No.124. But, admitted that in 1942
Subbarayappa executed sale deed in favour of Chikka Narappa
and Dodda Narappa. Further, this witness states that he has
not instructed his lawyer to draft chief examination which is in
English and this witness denied the suggestion that survey
No.124 is the self acquired property of Chikka Narappa and
Dodda Narappa. But, denied that even prior to 1942 Chikka
Narappa, Dodda Narappa, Nanjappa and Nagappa were
already separated. This witness shown ignorance that there is
no recital in 1942 sale deed that the said purchase was made
on behalf of the joint family, by Chikka Narappa and Dodd
Narappa. This witness denied the oral division in survey
No.124/1 and 124/2 between Chikka Narappa and Dodda
Narappa, when this witness was questioned that has he
produced any material to show their joint possession. But, this
witness not answered. Further, it is admitted that his father
64 O.S.990/1993
Nanjappa has got one share in survey No.1/B like wise Dodda
Narappa and Chikka Narappa got their shares and mother of
him is constructing house in the said area and he has also
denied that though there was a division in the family having
suppressed the same now filed false suit and also denied that
defendants No.8 to 12 are in physical possession of their
respective shares, only to harass the defendants they have filed
false suit. This witness also denied that survey No.45/2 had
fallen to the share of Chikka Narappa and they have not
included the said property in this suit.
64. On perusal of entire oral and documentary evidence
placed on record by the plaintiffs, the plaintiffs come up with the
case that the schedule properties are joint family properties.
Basically this witness not discloses the properties originally
standing in the name of Ramaiah. The plaintiffs pleaded in the
plaint that the suit schedule properties are joint family
properties, but not pleaded regarding what was the source of
income of joint family to purchase the property Nos.1 and 2.
More over, if really item Nos.1 and 2 properties were purchased
out of joint family sources and on behalf of joint family, it is not
65 O.S.990/1993
made clear as to why the name of Nanjappa and Nagappa not
finds place in the said sale deed and the said sale deed is
standing in the name of Chikka Narappa and Dodda Narappa
only. Therefore, it is hard to believe that the suit schedule
properties 1 and 2 are joint family properties.
65. Whereas, the D.W.1 who is the son of Chikka
Narappa has very clearly stated that there was family partition
in the family of late Ramaiah, they were living separately since
1940, schedule properties are not joint family properties as on
the date of suit, there is no joint family status. The plaintiff and
defendants No.1 to 6 are not joint family members. Chikka
Narappa and Dodda Narappa had jointly purchased 2 acres 20
guntas in survey No.124 of Benniganahalli which is the self
acquired property of Chikka Narappa and Dodda Narappa. The
said property has been divided into 124/1 and 124/2 measuring
1 acre 25 guntas and 35 guntas respectively. Therefore,
Chikka Narappa and Dodda Narappa were entitled for equal
extent ie., 32-1/2 guntas each in survey No.124/1 and 17-1/2
guntas each in survey No.124/2. The plaintiffs No.3 and 4
never in possession of the suit item Nos.1 and 2 at any point of
66 O.S.990/1993
time and also deposed that after the death of his father Chikka
Narappa himself and his brothers have sold their individual
shares in survey No.124/1 and 124/2 to the defendant Nos.7 to
12. The sum and substance of chief evidence of D.W.1 is there
was earlier partition prior to filing of the suit. The plaintiffs filed
present suit only to extract money from the defendants. The
plaintiffs and defendants were divided the properties prior to
filing of the suit, and they are residing separately in their
respective portions. During the course of cross-examination,
this witness has been suggested regarding purchase of survey
No.124 and regarding oral partition and also suggested
schedule properties are joint family properties, for all these
suggestions this witness gave satisfactory answers.
66. D.W.2 is the 9th defendant has also deposed that
during the life time of Ramaiah there was oral family partition,
settlement, late Ramaiah distributed properties to his sons and
they are living separately. This family settlement took place
prior to 1940. Only after the partition late Chikka Narappa and
Dodda Narappa jointly purchased 2 acres 20 guntas in survey
No.124 of Benniganahalli. Therefore, it is a self acquired
67 O.S.990/1993
property of Chikka Narappa and Dodda Narappa. The said
property has been purchased out of their self earnings and both
have equal share, accordingly, revenue records mutated in the
name of late Chikka Narappa and Dodda Narappa. Survey
No.124 has been divided as 124/1 and 124/2 both Dodda
Narappa and Chikka Narappa are entitled for half share each in
the said survey number and L.Rs., of Dodda Narappa and
Chikka Narappa succeeded in respective portions of the
properties in survey Nos.124/1 and 124/2. It is also deposed
that what was sold by the defendants No.1 to 6 in favour of
defendants No.8 to 10 is the portion of half shar0e of Chikka
Narappa in survey No.124/1 and 124/2 and defendants No.8 to
10 are in possession of the same as absolute owners and
defendants No.1 to 6 have retained 5-1/2 guntas in both survey
numbers totally 11 guntas.
67. According to D.W.3 who is defendant No.13
deposed regarding survey No.124/3 since the matter is before
the Hon'ble Supreme Court of India, hence, need not be
considered. The defendants produced documents at Exs.D1 to
D60.
68 O.S.990/1993
68. The Learned Counsel for the plaintiff No.2 argued
that Ramaiah is the proginator of joint family of himself and his
4 sons. Dodda Narappa was the eldest son of Ramaiah.
Dodda Narappa was the husband of plaintiff No.1 through him
plaintiff 1(a) to (f) and plaintiff Nos.1 and 2 claims their 1/4th
share in the schedule properties and defendants No.1 to 6 are
sons of Chikka Narappa and they are entitled to 1/4th share in
the suit schedule property. The plaintiffs 3(a) to (f) and 3a to c
claim 1/4th share through 3rd son Nanjappa, plaintiffs No.4(a) to
4(e) claims 1/4th share.
69. Further it is argued that there cannot be a partition
of said property, defendants No.7 to 13 not being the members
of joint family of Ramaiah are not competent to speak about
partition alleged to have been taken place prior to 1940. The
defendant No.3 born in 1959, he is not competent to speak
about the partition alleged to have been taken place prior to
1940. Further, it is submitted that the survey No.124 was
purchased by Dodda Narappa and Chikka Narappa. The
defendants failed to prove the fact of partition. No documents
69 O.S.990/1993
are produced. The sum and substance of argument is the
schedule properties are their joint family properties.
70. The Learned Counsel for L.Rs., of plaintiff No.1
argued that defendants No.1 to 6 have no right to alienate the
properties their undivided interest of coparceners, as the
property was purchased by Narappa and Chikka Narappa
during 1942. The sum and substance of argument is partition
be made in accordance with law.
71. On the other hand, the Learned Counsel for the
defendant argued that there is already partition. The schedule
properties are not joint family properties. Schedule No.1 and 2
are the self acquired properties of Dodda Narappa and Chikka
Narappa. There is no pleading and evidence of plaintiffs that
the schedule item Nos.1 and 2 are the joint family properties.
The plaintiffs also not proved the source of income for the
purchase of the said property. The plaintiff added new things in
the plaint, the plaint averments and evidence are contrary to
each other. Hence, prays to answer item Nos.1 and 2 are the
self acquired properties of Chikka Narappa and Dodda
Narappa.
70 O.S.990/1993
72. On the other hand, the Learned Counsel for the
defendant Nos.8 to 12 argued that suit for partial partition is not
maintainable. There is no pleading as to how these properties
are acquired, mode of acquisition, there is no foundation in the
plaint. In the absence of pleadings and any amount of
evidence regarding joint family properties cannot be
considered. On the date of the suit, these properties are not
joint family properties. There is no pleading as to how these
properties are acquired. Pws.1 and 2 very clearly deposed that
they are residing in the property allotted to their father. The
P.W.1 not produced relevant documents to prove joint family
property and also submitted party who comes to the court must
establish his case, weakness of the defendants cannot be
taken, joint family nucleolus not proved. Further, it is argued
that there is no pleading as to how item Nos.1, 2 and 4
properties came to the plaintiffs. The P.W.1 clearly admitted
the earlier partition and they are residing separately. Hence,
schedule 1 and 2 properties are not joint family properties. The
plaintiffs No.3 and 4 have no right in the suit property. The
undivided share means not joint family but between Dodda
71 O.S.990/1993
Narappa and Chikka Narappa. Defendants No.8 to 12 are in
possession of respective properties. The sum and substance
of argument is survey No.124/1 and 124/2 are self acquired
properties of Dodda Narappa and Chickka Narappa.
73. In the light of the arguments advanced from both
sides and having perusal of the oral and documentary evidence
the undisputed facts are relationship of parties much less
plaintiffs and defendants No.1 to 6. The late plaintiff No.1 is the
wife of late Dodda Narappa, plaintiff No.2 is the son of late
Dodda Narappa. The plaintiff Nos.3 and 4 are the sons of late
Ramaiah. The late Ramaiah had 4 sons ie., Dodda Narappa,
Chikka Narappa, Nanjappa and Nagappa, since original plaintiff
Chinnamma died, brought L.Rs., on record. The plaintiff No.3
died, brought L.Rs., on record. The plaintiff No.4 is dead,
brought L.Rs., on record.
74. The plaintiff sought partition and allotment of 1/4th
share to each of the plaintiffs. The defendants No.1 to 6 are
the children of late Chikka Narappa. According to defendant
No.3 prior to 1940 they were separated, there is no joint family
status in the family. Survey No.124 measuring 2 acres 20
72 O.S.990/1993
guntas is self-acquired property of Dodda Narappa and Chikka
Narappa, the names of Dodda Narappa and Chikka Narappa
mutated to the record of rights.
The evidence of Pws.1 and 2 and pleadings not reflects how
the properties are acquired by the family, what was the source
and why the sale deed is made in the name of Chikka Narappa
and Dodda Narappa only. These aspects remained
unexplained. The plaintiffs are not proved about the sale deed
dated: 24.11.1942 has been made on behalf of joint family and
also not made clear as to whether there was joint family
nucleous available in the family and also who was the kartha of
the family. These aspects remained unproved. More over,
during the course of cross-examination, P.W.1 clearly admitted
that his father and Chikka Narappa had jointly purchased 2
acres 20 guntas of land in survey No.124 of Benniganahalli.
The P.W.1 deposed that he is residing in the house allotted to
the share of his father and defendants are residing in the share
allotted to them, the plaintiffs No.3 and 4 are residing in the
share allotted to them and also admits that plaintiffs No.3 and 4
have no right in item Nos.1 and 2 properties. The P.W.1 is
73 O.S.990/1993
uncertain about the immoveable and moveable properties of
the joint family, if really there was no partition, why all these
properties are not included in the suit is not made clear. More
over, this witness admitted that sons of Nanjappa have
constructed house in plaint schedule property No.4. Therefore,
from the unequivocal admissions of P.W.1, it is clear that there
was partition prior to filing of the suit, since this fact has been
admitted by P.W.1. While confronting Ex.D1 the written
statement filed by this witness therein it reads the palupatti has
taken place in 1979 and started living separately.
75. The P.W.2 is unable to say whether there is recital
in the sale deed of 1942 as to the said purchase has been
made on behalf of the joint family by Chikka Narappa and
Dodda Narappa. Further, it is admitted that Dodda Narappa
had also got one share by way of division in survey No.1/B ie.,
item No.4, his father Nanjappa in survey No.1/B, Chikka
Narappa has also got one share and his mother is building
house in survey No.1/B, these all circumstances establishes
earlier partition in the family and item No.4 is not available for
partition. Therefore, looking to the admissions of Pws.1 and 2
74 O.S.990/1993
though there was division in the family having suppressed the
same and also admitted that survey No.45/2, 37 guntas of land
of B.Narayanappa village is not the subject matter of suit.
According to the defendants, there was division in the family,
wherein survey No.45/2 had fallen to the share of Chikka
Narappa to that effect relevant RTCs., produced. The plaintiffs
not included the said properties in the present suit. Therefore,
plaintiff's pleaded about the joint family properties etc., but not
proved the same. Whereas, the D.W.1 who is the son of
Chikka Narappa stated that since 1940 sons of Ramaiah were
living separately, the schedule item Nos.1 and 2 properties are
not joint family properties as on the date of suit, there is no joint
family. On the contrary, it is deposed that his late father
Chikka Narappa and Dodda Narappa had jointly purchased 2
acres 20 guntas in survey No.124 of Benniganahalli. Hence,
the said property is self acquired property of his father Chikka
Narappa and uncle Dodda Narappa. The plaintiffs and
themselves are residing separately having regard to the
documents and oral evidence placed on record the sale deed
Ex.D3 and Ex.P1 dated: 23.11.1942 demonstrate that survey
75 O.S.990/1993
No.124 measuring 2 acres 20 guntas have been purchased by
late Chikka Narappa and Dodda Narappa in their individual
capacity as self-acquired property. The documents much less
Exs.D33, 36, 45 to 53 establishes this fact. Hence, issue No.1
is answered in the negative.
76. Issue No.2:- For this issue, the contention of the
plaintiffs is that the decree sought in O.S.No.3016/1991 is not
binding on them. To substantiate this aspect, P.W.1 during the
course of chief evidence has deposed that defendant No.3
admitted alienation of some of the schedule properties to the 3rd
parties by excluding the plaintiffs in this background, the
defendant No.7 had instituted O.S.No.3016/1991 for seeking
specific performance of alleged contract against defendant
No.3 in respect of 4 guntas of land in survey No.124/1. The
said suit was filed on 14.5.1991 by the defendant No.7 in
collusion with defendant No.3. The said suit came to be
compromised between them even though defendant No.3 has
no exclusive right to deal with the joint family properties. As
such, the compromise decree between defendant No.7 and
defendant No.3 is not binding on the plaintiffs. In this regard,
76 O.S.990/1993
plaintiffs produced certified copies of order sheet, plaint,
compromise petition, compromise decree in O.S.No.3016/1991.
77. P.W.2 also deposed that the collusive decree came
to be entered in between defendant No.3 in favour of defendant
No.7 in O.S.No.3016/1991 dated: 30.5.1991 cannot be looked
into by this court as other members of the joint family do not
concern to the said decree and none of the joint family
members have given any consent to enter into any agreement
with defendant No.7. Hence, said decree is not binding on
them.
78. During the course of cross-examination, the P.W.1
admitted that on 23.11.1942 his father Dodda Narappa and his
brother Chikka Narappa had jointly purchased 2 acres 20
guntas of land in survey No.124 ie., item Nos.1 and 2 of the
schedule properties and the said survey numbers were divided
as 124/1 and 124/2 measuring 1 acre 25 guntas and 35 guntas
respectively. It is also admitted that the defendants are residing
in the house allotted to their share and the plaintiff Nos.3 and 4
are residing in the house allotted to their share. The khatha of
the land of survey No.124 was transferred jointly in the name of
77 O.S.990/1993
his father and Chikka Narappa. Plaintiffs No.3 and 4 have no
right over item Nos.1 and 2 of the schedule property and he has
not preferred any appeal against the Judgment and decree in
O.S.No.3016/1991. This witness is unable to say whether their
joint family was owned any moveable property or not.
79. The P.W.2 during the course of cross-examination
has stated that he has not taken any steps for challenging the
decree in O.S.No.3016/1991. On the contrary, it is stated that
they have challenged the same in the present suit. This
witness denied the suggestion that though they have
knowledge of the said decree deliberately not challenged.
80. The D.W.1 during the course of chief evidence has
deposed that on the date of filing of the suit there was no joint
family, the sons of Ramaiah were living separately since 1940.
His father Chikka Narappa and Dodda Narappa jointly
purchased 2 acres 20 guntas of land in survey No.124 of
Benniganahalli same has been phoded as 124/1 and 124/2
accordingly, his father and his uncle were entitled equal extent
in survey No.124/1 and 124/2. The plaintiffs No.3 and 4 were
not in possession of suit item Nos.1 and 2 at any point of time.
78 O.S.990/1993
After the death of his father, himself and his brothers have sold
their individual shares in survey No.124/1 and 124/2 to the
defendants No.7 to 12. Further, it is deposed that they have
sold 4 guntas of land in survey No.124/1 to B.C.Anjanappa as
per the decree in O.S.No.3016/1991, in turn the said
B.C.Anjanappa has sold the said land to defendant No.8.
Accordingly, himself defendants No.1, 2 and 4 to 6 have jointly
sold 23 guntas in survey No.124/1 and 12 guntas in survey
No.124/2 to defendants No.8 to 12 as per the decree in
O.S.No.3555/97 and O.S.No.3612/1997 and also stated
regarding affidavits in this regard. As per the court decrees
mutation was effected in favour of defendants No.8 to 12 and
registered sale deeds have been executed, there was earlier
partition, himself and defendants No.1, 2 and 4 to 6 have
received sale consideration amount from the defendants No.8
to 12, they have performed marriage of their children and
settled in life by utilizing the sale consideration amount, the
plaintiffs have filed this suit to extract money from the
defendants. Even during the course of cross-examination, this
witness stated that B.C.Anjanappa has filed suit against him in
79 O.S.990/1993
O.S.No.3016/91, he appeared through lawyer contested the
case and also admitted he executed agreement of sale in
favour of B.C.Anjanappa for 4 guntas and it is also admitted
that for the year 1981-1982 pahani was not standing in his
name, but, it was standing in the name of Narappa. This
witness also stated that on 30.5.1991 he appeared through
Counsel got filed compromise petition got the case closed on
the same day. It is also admitted that himself and his brother
together executed agreement for 4 guntas in favour of
B.C.Anjanappa and he does not know on the basis of what
documents B.C.Anjanappa filed that suit and he does not know
what were the terms and conditions of compromise petition in
O.S.No.3016/1991 and he does not know what kind of
documents his elder brother Nagaraj was having to show
division Nos.124/1 and 124/2. But, it is denied that in the RTC
of survey No.124/1 to the share of Dodda Narappa and Chikka
Narappa has been left blank and another RTC for 124/2 column
meant for extent is left blank even after seeing the documents
he is unable to say anything. The said RTC pertaining to prove
division of property for 32-1/2 guntas and 17-1/2 guntas in
80 O.S.990/1993
survey Nos.124/1 & 124/2 not produced. It is also admitted that
at the time of selling property in favour of B.C.Anjanappa the
said property was not standing in his name alone, but it was
standing in the name of the brothers it is also admitted that land
sold in the name of B.C.Anjanappa was standing in the joint
name of himself and his brother. Further, it is deposed that
after 1942 there was division of these two acres 20 guntas in
writing between his father and senior uncle and said partition
deed is with his elder brother. This witness shown ignorance
that the said B.C.Anjanappa did not pleaded boundaries of 4
guntas in O.S.No.3016/1991 and also not remembered
boundaries of the same. This witness does not know who
prepared the sketch it is admitted that he voluntarily appeared
through Advocate in O.S.No.3016/1991 on 30.5.1991 and said
suit ended in single hearing.
81. The P.W.1 has deposed that the defendant No.7
had instituted O.S.No.3016/1991 seeking specific performance
of alleged contract against defendant No.3. The said suit came
to be compromised between them. The defendant No.3 has no
exclusive right to deal with the joint family properties, as such,
81 O.S.990/1993
compromise decree between defendant No.7 and defendant
No.3 is not binding on the plaintiffs. Whereas, P.W.2 has
deposed that plaintiffs and defendants No.1 to 6 are in joint
physical and constructive possession. The defendant No.3
without their knowledge and without consent of other joint
family members entered into illegal contract in favour of
defendant No.7 in respect of 4 guntas of survey No.124/1, the
same is resulted in filing of collusive suit in O.S.No.3016/1991
and the said suit came to be decreed in their behind back by
virtue of compromise petition. Hence, the decree is not binding
on them since 3rd defendant has no independent right to sell the
same. Whereas, D.W.1 the son of Chikka Narappa has
deposed that the plaintiffs No.3 and 4 not in possession of suit
item Nos.1 and 2 property at any point of time. After the death
of his father late Chikka Narappa himself and his brothers have
sold their individual shares in survey No.124/1 and 124/2 to the
defendant No.7 and the defendants No.8 to 12. Further, it is
deposed that 4 guntas of land in survey No.124/1 sold to
B.C.Anjanappa. When this witness was questioned as to what
was the authority for him to sell it, for that this witness says he
82 O.S.990/1993
had taken permission of his other brothers and he sold it
because he was in need of money. But, it is clearly admitted
that he has no written document to show that his other brothers
gave consent for selling 4 guntas in favour of B.C.Anjanappa. It
is also admitted that he has not examined revenue documents
of survey No.124 as on 10.1.1982 and for the year 1981-1982,
pahani was not standing in his name and it was standing in the
name of Narappa. Further, this witness deposed that he do
not remember if he voluntarily appeared in O.S.No.3016/1991
through Advocate and got filed compromise petition and got the
case closed on the same day. For all these, this witness says
that his elder brother Nagaraj knows it and this witness do not
remember on the basis of which documents B.C.Anjanappa
filed that suit and he does not know what were the terms and
conditions of compromise petition filed in O.S.No.3016/1991.
This witness does not know boundaries to the compromise
decree schedule property.
82. The document at Exs.P24, 25, 26 discloses that the
O.S.No.3016/1991 has been filed by B.C.Anjanappa
83 O.S.990/1993
againstRamakrishna, son of Chikka Narappa. The L.Rs., of
deceased Dodda Narappa are not parties to the said suit.
Since, the said survey number has been purchased by Dodda
Narappa and Chikka Narappa jointly. The Learned Counsel for
the plaintiff 1(f) and plaintiff No.2 argued that the decree passed
in O.S.No.3016/1991 is collusive decree between defendant
Nos.7 and 3 and these plaintiffs are not parties to the said suit.
The defendant No.7 is out sider who has acquired the portion of
the land based on compromise decree. After 1942 there is no
partition. In the absence of partition between Dodda Narappa
and Chikka Narappa the said sale by way of compromise
decree is not proper and the said decree is not binding on these
plaintiffs. There was no phodi in the said lands, these plaintiffs
not given any indication to the defendant Nos.1 to 6, therefore,
the decree in O.S.No.3016/1991 collusive not binding on these
plaintiffs. If there is any sale transaction ie., bad in law when
the property is jointly owned by Dodda Narappa and Chikka
Narappa, the defendant No.3 had no absolute right to sell the
same or enter into compromise in the said suit. The plaintiffs
are not parties to the said collusive suit within less than one
84 O.S.990/1993
month, the said suit disposed, the fraud played, the defendant
No.7 or L.Rs., not filed written statement or gave evidence and
also submitted that D.W.1's version cannot be believed, his
version not building any confidence and not corroborating with
the pleadings. The D.W.1 gave inconsistent evidence not
supported by pleadings jubani hissa has been contended
regarding partition, no deed of partition is produced, there is no
mention of property between Dodda Narappa and Chikka
Narappa to say that it is divided. The plaintiffs not challenged
the compromise decree, but, they have challenged the revenue
entries and there is no need to challenge the compromise
decree.
83. The Counsel for the defendant Nos.8 to 12 argued
that the Hon'ble High Court in writ appeal No.1674/2006
(Ex.D1) held that it is an undisputed fact O.S.No.990/93 is
pending and subject matter is in respect of Sy.Nos.124/1 and
124/2 concerned under the sale deeds executed in favour of
appellants......compromise was entered into, decrees obtained
and sale deeds are executed, the same are in relation to survey
Nos.124/1 and 124/2 in respect of their interest and share. It
85 O.S.990/1993
is further held the vendors have categorically admitted the
execution of sale deeds in favour of appellants and affirmed the
same by filing affidavits merely because there is no entry in
encumbrance certificate, registered documents cannot be
ignored.
84. The 7th defendant had purchased 4 guntas in survey
No.124/1 from 3rd defendant and same has been purchased as
per the decree in O.S.No.3016/1991. The plaintiff has not
questioned the said decree in separate suit. The prayer made
in the present suit that the decree is not binding on them is not
maintainable in law.
85. The vendor of the said land has been categorically
admitted, the execution of sale deed and compromise was
entered into the sale deed in favour of defendant No.7 is
accepted. Finding recorded by revenue authorities, the
registered documents cannot be ignored since the vendors
have categorically admitted the execution of the sale deed.
Right of the vendor to execute the sale deed is reconsidered.
The defendant No.3 has no exclusive right according to the
plaintiffs to enter into any contract. Defendant No.3 admits joint
86 O.S.990/1993
ownership and possession. To show partition in survey
No.124/1 and 124/2, there is no document.
86. The Learned Counsel for the plaintiff No.2 submitted
the decree obtained by defendant No.7 is collusive.
O.S.No.3016/1991 filed on 14.5.1991 ended in compromise on
30.5.1991. The defendant in the said suit voluntarily appeared
before suit summons and placed reliance on Ex.P23 when
D.W.1 sold 4 guntas of land to defendant No.7 his father was
alive sale is impermissible under law. Further, it is submitted
survey No.124 was purchased in the joint name of Dodda
Narappa and Chikka Narappa, the defendants not proved
division in between Chikka Narappa and Dodda Narappa. The
defendants No.8 to 12 are bound by the out come of this suit as
per the observation of Hon'ble High Court in
W.A.No.1674/2006. The revenue entries made in favour of
appellants are subject to the result of the suit. The documents
of the defendant would not confer title or possession of the
schedule lands. Hence, looking to the oral and documentary
evidence on record, admittedly the plaintiff Nos.1 and 2 and
defendants No.1 to 6 are entitle for the share in item Nos.1 and
87 O.S.990/1993
2 properties. It is also admitted fact that there was / is no
division in between Chikka narappa and Dodda narappa in
Sy.No.124/1 and 124/2 ie., 2 acres 20 guntas. The 4 guntas
land has been sold by the defendant No.3 in favour of
defendant No.7. The vendor of the said 4 guntas land is clearly
admitted this fact and registered sale deed also made as per
court order. But, the L.Rs., of Dodda Narappa are not parties
to the said suit. Hence, compromise decree in
O.S.No.3016/1991 is not binds to the extent of the share of
Dodda Narappa. The purchasers are stepped into the shoes of
vendors equitable partition is to be made. The plaintiff Nos.3
and 4 are not entitled for any share in item Nos.1 and 2
property. Accordingly, issue No.2 is answered as partly
affirmative.
87. Issue No.3:- For this issue, the contention of the
3rd defendant is that the immoveable properties described in the
plaint schedule are distorted versions of fact. The suit for
partial partition is not maintainable, all the properties including
survey Nos.44, 45, houses, buildings and other properties
ought to have been included in the suit. To substantiate these
88 O.S.990/1993
aspects the D.W.1 not placed satisfactory substantial evidence
to show that the said properties are available for partition, mere
contention in the written statement is not suffice for the
defendant, it requires cogent and corroborative, oral and
documentary evidence. In the absence of the same, this issue
is answered in the negative.
88. Issue No.4:- For this issue, the defendant No.3
has taken contention that the suit is barred by time. But, to
substantiate this aspect, except his contention in the written
statement no such substantial evidence is forthcoming. The
Learned Counsel for the plaintiff submitted that the proceedings
going on even in the Hon'ble High Court and Hon'ble Supreme
Court, the plaintiffs filed this suit for equitable partition and
declaration. Therefore, the suit is not barred by limitation. The
defendant taken numerous contentions regarding the suit is
barred by limitation etc., but proved none. Accordingly, this
issue is answered in the negative.
89. Issue Nos.5 & 6:- The plaintiff contends that
declare the compromise decree obtained by defendant No.7 in
O.S.No.3016/1991 dated: 30.5.1991 is not binding on the
89 O.S.990/1993
plaintiff. Further contention is that they are entitled for partition
and possession in the schedule properties. To substantiate
these aspects, the oral and documentary evidence placed on
record by both sides, it is revealed that defendants No.1 to 6
sold their undivided share in item Nos.1 and 2 properties. The
defendants very clearly admitted that Chikka Narappa and
Dodda Narappa are entitled for 1 acre 10 guntas each in survey
No.124. The said survey No.124 is measuring 2 acres 20
guntas. The said survey number has been phoded as 124/1
measuring 1 acre 25 guntas and 124/2 measuring 0.35 guntas.
The defendants placed oral and documentary evidence and
very clearly admitted that Dodda Narappa and Chikka Narappa
jointly purchased the suit property item Nos.1 and 2 by their
joint contribution and it is self acquired property of Dodda
Narappa and Chikka Narappa. Therefore, Dodda Narappa and
Chikka Narappa are entitled for 32-1/2 guntas each in survey
No.124/1 and 17-1/2 guntas in survey No.124/2 as per the
evidence placed on record by the defendants. The defendants
No.1 to 6 sold 4 guntas of land to one Anjanappa i.e.,
defendant No.7 totally 27 guntas sold in survey No.124/1 and
90 O.S.990/1993
12 guntas sold in survey No.124/2 totally 39 guntas.
According to defendants this is share of defendants No.1 to 6
and the defendant Nos.1 to 6 sold their share keeping 11
guntas in both survey numbers i.e., 5-1/2 guntas each. What
was sold by defendants No.1 to 6 to defendants No.8 to 12 is
the portion of half share of Chikka Narappa in survey No.124/1
and 124/2. But, there is no document to show division in
between Chikka Narappa and Dodda Narappa.
90. Survey Nos.44, 45 of B.Narayanapura sub divided
into 45/1 to 44/4 and survey No.45 has been sub divided into
45/1 and 45/2 which was joint family property of late Ramaiah.
The said property has been divided prior to 1940 and L.R., of
late Ramaiah are found to be in possession of the said
properties. The plaintiff suppressed these facts, house
properties and shops have been divided long back prior to 1940
as per the family settlement and they are residing in their
houses given to them in the partition. After family partition
Nagappa and Nanjappa who were residing separately have
contributed the funds together and purchased 22 guntas in
survey No.1/B Byrasandra village. Chikka Narappa, Dodda
91 O.S.990/1993
Narappa though they have separated prior to 1940 but relations
were cordial, hence, by contributing funds equally they
purchased survey No.124 jointly. Like wise, Nanjappa and
Nagappa 3rd and 4th sons of late Ramaiah were also cordial and
have purchased survey No.1/B measuring 22 guntas together
by contributing funds with Chikka Narappa. The L.R. of Chikka
Narappa and Dodda Narappa were in possession of half portion
in survey No.124/1 and half portion in survey No.124/2 but not
by metes and bounds. Therefore, item Nos.1 and 2 properties
are self acquired properties of late Chikka Narappa and Dodda
Narappa. Defendants No.1 to 6 sold their shares as per court
decrees in favour of defendants No.7 to 12 under registered
sale deeds.
91. The next question is whether the said item Nos.1
and 2 properties are divided in between Dodda Narappa and
Chikka Narappa. According to the defendant, the said survey
No.124/1 is measuring 2 acres 20 guntas it was sub divided
into 124/1 and 124/2. Survey No.124/1 measuring 1 acre 25
guntas and survey No.124/2 is measuring 35 guntas. The
defendants evidence reveals that Chikka Narappa and Dodda
92 O.S.990/1993
Narappa are entitled to equal extent in the said survey number
much less 32-1/2 guntas and 17-1/2 guntas each in the said
survey number. It is also revealed that L.Rs., of Chikka
Narappa and L.Rs., of Dodda Narappa were residing separately
in the properties, the plaintiff Nos.3 and 4 are not in possession
of item Nos.1 and 2 properties. The D.W.2 has deposed that
in survey No.124/1 measuring 1 acre 25 guntas were in both
Chikka Narappa and Dodda Narappa have got equal shares
and in survey No.124/2 measuring 35 guntas both Chikka
Narappa and Dodda Narappa have got equal shares which is
their absolute property. Accordingly, the L.Rs., of Dodda
Narappa are in possession of their half share both in survey
Nos.124/1 and 124/2 ie., item Nos.1 and 2 and the defendants
No.1 to 6 who were in possession of half share of late Chikka
Narappa in survey No.124/1 and 124/2 and they have sold
portion of the property as per the Court direction in
O.S.Nos.3016/91, 3555/97 and 3612/97. To substantiate this
aspect, there is no document forth coming to show that there
was a division in between Dodda Narappa and Chikka
Narappa. It is an admitted fact that Dodda Narappa and Chikka
93 O.S.990/1993
Narappa have contributed jointly and purchased survey No.124
measuring 2 acres 20 guntas. The sale deed is evident in this
regard. The document of title is available for the L.Rs., of
Chikka Narappa and Dodda Narappa. But, there is no
document to show that when the division has been taken place
in between Chikka Narappa and Dodda Narappa or with their
L.Rs., and it is also not made clear which portion fallen to the
share of Dodda Narappa and which portion of the said survey
number fallen to the share of Chikka Narappa. Therefore, the
L.Rs.., of plaintiff No.1 and plaintiff No.2 together are entitle for
half share in item Nos.1 and 2 properties and defendants No.1
to 6 together entitle for half share in item Nos.1 and 2
properties. Accordingly, the decree in O.S.No.3016/1991 is not
binding on the plaintiff No.1 and 2 L.Rs., only to the extent of
their half share. Plaintiffs No.3 and 4 not entitle for any share in
item Nos.1 and 2 properties. Whereas, item No.4 property is
already divided among the sharers and they are residing in their
respective portions, this property is not available for partition.
Accordingly, issue Nos.5 and 6 are answered as partly
affirmative.
94 O.S.990/1993
92. Issue No.7:- The plaintiffs pray to order for mesne
profits, except mere contention there is no material on record in
this regard. However, enquiry is to be held in a separate
proceeding. Hence, this issue is answered accordingly.
93. Addl.Issue:- For this issue, both side Learned
Counsels submitted that the matter is pending before the
Hon'ble Supreme Court of India. Hence, this issue is not
considered.
94. Issue No.8 :- On the foregoing discussion, I
proceed to pass the following:
ORDER
The suit is partly decreed. No cost. The plaintiff Nos.1 and 2 (L.Rs., of Dodda Narappa) together entitle for half share in the suit item Nos.1 and 2 properties.
It is declared that the judgment and decree in O.S.No.3016/1991 is not binding on the plaintiff Nos.1 and 2 (L.Rs., of Dodda Narappa) only to the extent of their share. 95 O.S.990/1993
Regarding mesne profits there shall be enquiry in a separate proceeding.
Draw preliminary decree accordingly. (Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in open Court today the 25th day of August 2015.) (V.K.Badiger) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY.
/ANNEXURE/ Witnesses examined on behalf of plaintiff/s:
P.W.1 Nanjappa P.W.2 B.N.Hanumareddy
Witnesses examined on behalf of Defendants:
D.W.1 Ramakrishna D.W.2 V.Mohammed Shafiulla D.W.3 Bayyanna
Documents marked on behalf of plaintiff/s:
Ex.P1 Certified copy of the registered sale deed dtd:23.11.1942 Exs.P2 &3 certified copies of Index of land Exs.P4 To P9 Six land revenue receipts Ex.P10 Certified copy of the plaint in O.S.No.4254/91 Ex.P11 Certified copy of written statement in 96 O.S.990/1993 O.S.No.4254/91 Exs.P12 & 13 Certified copy of the depositions in LRF/INA/1849/1529/74-75 Ex.P14 Certified copy of the mutation No.3/91-92 Ex.P15 Certified copies of the order sheet in R.A.No.64/94- 95 Exs.P16 To P18 Certified copies of the two affidavits and Application in R.A.64/94-95 Exs.P19 & 20 Two encumbrance certificates Ex.P21` Endorsement dtd:9.10.2002 Ex.P22 Endorsement dtd:24.1.2003 Exs.P23 To P26 Certified copies of the order sheet, plaint, compromise petition, compromise decree in O.S.No.3016/91 Exs.P27 & P28 Certified copies of the plaint, decree in O.S.No.3555/97.
Ex.P29 Certified copies of the compromise petition in O.S.No.3555/97.
Ex.P30 Certified copies of the plaint in O.S.No.3612/97 Exs.P31 & 32 Certified copies of two RTC of land Sy.No.24/3 Ex.P33 Certified copy of Akar Bandh Ex.P34 Certified copy of orders passed by Tahasildar Ex.P35 Certified copy oftippan Utar of land Sy.No.124 Ex.P36 Death certificate of Chikkanarappa Ex.P37 Certified copy of agreement of sale dtd:19.1.93 Ex.P38 Certified copy of commission report in O.S.489/77 Ex.P38(a) Typed copy Ex.P39 Certified copy of the judgment in O.S.No.1765/88 Ex.P40 Certified copy of the decree in O.S.No.1765/88 Ex.P41 Certified copy of the sale deed Ex.P41 Certified copy of the sale deed Ex.P42 RTC Ex.P43 RTC extract Ex.P44 Certified copy of the written statement in 97 O.S.990/1993 O.S.No.1765/88 Ex.P45 Certified copy of deposition of Byanna in O.S.No.1982/84 Documents marked on behalf of Defendant/s:
Ex.D1 Certified copy of written statement in O.S.No.25252/2010 Ex.D2 Certified copy of the judgment in O.S.No.1982/1984 Ex.D3 Certified copy of common judgment in RFA 205/2004 C/w RFA 64/2004 Ex.D4 Order in writ petition Ex.D5 Order of Assistant Commissioner Ex.D6 Certified copy of W.P.No.24553/96 Ex.D7 Certified copy of written statement in O.S.No.1765/88 Ex.D8 Certified copy of plaint in O.S.No.1765/88` Ex.D9 Ex.D10 Certified copy of writ appeal No.1674/06 Ex.D11 Certified copy of sale deed dt:10.8.1998 Ex.D12 Photo Ex.D13 Original sale deed dtd:20.8.1997 Ex.D14 Affidavit dtd:20.8.1997 Ex.D15 Sale deed dtd:20.8.1997 Ex.D16 Affidavit dtd: 20.8.1997 Ex.D17 Another sale deed dtd:20.8.1997 Ex.D18 Affidavit dtd: 20.8.1997 Ex.D19 Another sale deed dtd: 10.8.1998 Ex.D20 Affidavit dtd:10.8.1998 Ex.D21 Another sale deed dtd: 10.8.1998 Ex.D22 Affidavit dtd:10.8.1998 Ex.D23 Another sale deed dtd:10.8.1998 Ex.D24 Affidavit dtd:10.8.1998 Ex.D25 Absolute sale deed dtd:15.6.1998 Ex.D26 Affidavit dtd:15.6.1998 Ex.D27 Absolute sale deed dtd:15.6.1998 Ex.D28 Affidavit dtd:15.6.1998 Ex.D29 Order sheet & decree, plaint compromise decree in 98 O.S.990/1993 O.S.No.3555/97 Ex.D30 Certified copy of order sheet & decree, plaint in O.S.No.3612/97 Ex.D31 Certified copies of plaint, compromise petition and decree in O.S.No.3016/1991 Ex.D32 Copy of order in Writ Appeal No.1674/2006 Ex.D33 Copy of sale deed dtd:23.11.1942 Ex.D34 Copy of sale deed dtd:30.7.1997 Ex.D35 Another copy of sale deed dtd:8.12.2000 Ex.D36 10 RTCs., concerning S.No.124/1 Ex.D37 11 RTCs., concerning S.No.124/2 Ex.D38 8 RTCs., concerning S.No.45/2 Ex.D39 9 RTCs., concerning S.No.44/1 Ex.D40 7 RTCs., concerning S.No.1-B Ex.D41 Tax paid receipt dtd:14.7.2010 Ex.D42 Another receipt dtd:31.7.2010 Ex.D43 4 receipts dtd:30.7.2010 Ex.D44 Tax paid receipt Ex.D45 Assessment extract for the year 1985-86 Ex.D46 Another tax paid receipt Ex.D47 Katha extract for the year 1985-86 Ex.D48 Assessment extract for the year 1993-1994 Ex.D49 Khatha extract 1993-94 Ex.D50 Another tax paid receipt Ex.D51 Khatha extract Ex.D52 Another tax paid receipt Ex.D53 Khatha extract Ex.D54 Interim application order sheet in O.S.No.252502/2010 Ex.D55 Mutation dtd:2.5.1994 Ex.D56 Certified copy of sale deed dtd:23.11.1942 Ex.D57 Revision settlement akar bandh Ex.D58 14 RTC extracts 1992-93 to 2013 Ex.D59 Certified copy of settlement registered extract Ex.D60 Certified copy of spl.petition VII.ADDL.CITY CIVIL JUDGE (CCH.No.19) BANGALORE.99 O.S.990/1993
25.08.2015 P1(f) - K.S.R. P1(a) - Absent P1(b)(c)(e) - T.H.V. P1(d)- Advocate P2 - K.S.R. P3(a)to (f) - N.S.G. D3 - H.R. D1,2,4 to 6 - R.K. L.Rs., of D7 - K.H.T. D8 to 12 - S.K.B. D13 - K.A. (Judgment pronounced in the open Court (vide separate) and the order portion of the Judgment is as under:-
The suit is partly decreed. No cost.
The plaintiff Nos.1 and 2 (L.Rs., of Dodda Narappa) together entitle for half share in the suit item Nos.1 and 2 properties.
It is declared that the judgment and decree in O.S.No.3016/1991 is not binding on the plaintiff Nos.1 and 2 (L.Rs., of Dodda Narappa) only to the extent of their share.
Regarding mesne profits there shall be enquiry in a separate proceeding.
Draw preliminary decree accordingly.
(V.K.Badiger) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY 100 O.S.990/1993 ABCDEFGHIJKL MNOPQRSTUVW XYZ 101 O.S.990/1993 0 1 2 3 4 5 6 7 8 9 10 11 12 13 102 O.S.990/1993 Notes:
Decree passed in the said suit clearly established that the 4 sons of late Ramaiah are the joint owners.
Regarding constructed residential house for dwelling purpose etc., stated.
The written statement averments of D7 to 12 not binding on them.
The claim of D13 is not the property of him in Sy.No.124/3. It comes within 6 A 6 G of S.No.124. Hence, D13 has no locus-standi to claim any land.
The order passed in RFA 205, 64/4 with cross- objections 13/4 are in their favour and order passed by the Hon'ble Supreme Court of India in SLP in respect of item No.3 is in their favour.
Except plaintiffs and defendants No.1 to 6, other defendants have no right, title or interest in the schedule property.103 O.S.990/1993
Schedule property be divided into 4 equal shares between plaintiffs and defendants No.1 to 6 and item No.4 shall be divided into 3 equal shares between Chikkanagappa, late Nanjappa and late Nagappa.
Collusive decree entered between 3rd defendant N.Ramakrishna in favour of 7th defendant cannot be looked into. Since, they are not concern and ie., a fraudulent compromise. The said decree in O.S.No.3016/91 is not binding on them/share.
During the pendency of the suit D1 to 6 created illegal interest in favour of D8 to D12 by giving wrong picture in the sale deeds as defendants No.1 to 6 are the owners in respect of strips in S.No.124 and created panchayath assessment extracts, khatha and sale deeds. Sale deeds in favour of D8 to 12 are forged. The S.No.124 is situated within Benniganahalli village and not Nagawrapalya village. No rights conferred on the D8 to 12 by virtue of sale deeds. Sale deeds are void ab-initio. No property has been conveyed out of item Nos.1 to 3 by D1 to 6 in favour of D8 to 12.
Adopted Exs.P1 to P48