Bangalore District Court
O.S./789/2005 on 4 February, 2022
KABC010109782005
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 4th day of February, 2022
O.S.No.789/2005
Plaintiff/s :
1. Smt.Boramma
W/o late Byrappa,
Aged 56 years,
2. Sri.Thimmaraju,
S/o late Byrappa,
Aged 39 years,
3. Sri.Hanumantha,
S/o late Byrappa,
Aged 36 years,
4. Sri.Rangaswamy,
S/o late Byrappa,
Aged 31 years,
5. Sri.Venkatesh,
S/o late Byrappa,
Aged 29 years, Since dead
his Lrs
2 O.S.No.789/2005
5.(a)Smt.Ramya,
W/o late Venkatesh,
Aged about 36 years,
5.(b)Tejaswini,
D/o late Venkatesh,
Minor in age,
(a) and (b) are at :
Babasabarapalya,
Kengeri post,
Bangalore South Taluk,
Bangalore-560 060
6. Sri.Hanumaiah,
S/o late Hanumanthappa,
Aged 46 years,
7. Sri.Siddaraju,
S/o late Chikkabyra,
Aged 19 years,
8. Smt.Jayamma,
W/o Rangappa,
Aged 61 years,
9. Sri.Ramakrishna,
S/o Rangappa,
Aged 43 years, Since dead by
his Lrs.
9(a) Smt.Lakshmamma,
W/o late Ramakrishna,
Aged about 58 years,
9(b)Sri.Hanumaiah,
S/o late Ramakrishna,
Aged about 40 years,
9 (c) Sri.Rangaswamy,
S/o late Ramakrishna,
Aged about 37 years,
9 (d) Smt.Susheela,
D/o late Ramakrishna,
3 O.S.No.789/2005
Aged about 35 years,
9 (e) Smt.Sumalatha,
D/o late Ramakrishna,
Aged about 33 years,
9(a) 9(e) are at
Babasabarapalya,
Kengeri post,
Bangalore South Taluk,
Bangalore-560 060.
10. Sri.R.Venkatesh,
S/o Rangappa,
Aged 41 years,
11. Sri.R.Govindaraja,
S/o Muthappa,
Aged 25 years,
12. Sri.Rangappa,
S/o late Muniyappa,
Aged 45 years,
13. Sri.Gangaraju,
S/o Late Muniyappa,
Aged 39 years,
14. Sri.Puttaswamaiah,
S/o late Hanumaiah,
Aged 66 years,
15. Sri.P.Hanumantharaju,
S/o Puttaswamaiah,
Aged 37 years,
16. Sri.P.Chandru,
S/o Puttaswamaiah,
Aged 35 years
17. Sri.P.Lakshman,
S/o Puttaswamaiah,
Aged 33 years,
4 O.S.No.789/2005
18. Sri.P.Rudrappa,
S/o Puttaswamaiah
Aged 26 years,
19. Sri.Muthappa @ Kakappa,
S/o late Hanumaiah,
Aged 63 years,
20. Smt.Lakshmamma,
S/o late Nagaraja,
aged 37 years,
21. Sri.Manjunath,
S/o Late Nagaraja,
aged 22 years,
Since dead, represented by his LR's
(a)Smt.Mahalakshmi,
W/o late Manjunath,
Aged about 33 years,
(b) Master Nithin,
S/o late Manjunath,
Aged about 14 years,
(c) Master Mithun,
S/o late Manjunath,
Aged about 12 years,
21(a) to ( c) residing at
Baba Saheb Palya, Kengeri Post,
Bangalore-560060.
22. Sri.Rangaswamy,
S/o Muthappa,
Aged 38 years,
23. Sri.Chikkaraju,
S/o Muthappa,
Aged 27 years,
24. Sri.Channappa
S/o late Hanumaiah,
Aged 61 years. Dead by his
5 O.S.No.789/2005
24(a) Smt.Mangamma,
W/o late Channappa,
Aged about 70 years,
At Babasabarapalya,
Kengeri Post,
Bangalore South Taluk,
Bangalore-560 060.
24(b) Smt.Byaramma,
D/o late Channappa,
Aged about 55 years,
24(c) Smt.Mymakka,
D/o late Channappa,
Aged about 53 years,
24(b) and(c ) are at:
Muddanapalya village,
Viswaneedam post,
Yashwanthapura Hobli,
Bangalore.
24.(d) Smt.Lakkamma
D/o late Channappa,
Aged about 51 years,
R/at No.125, Gowdanapalya,
1st Main, 4th Cross, Uttarahalli post
Uttaharahalli hobli,
Bangalore.
25. Sri.C.Muniraju,
S/o Channappa
Aged 29 years,
26. Sri.C.Govindaraju.
S/o late Channappa
Aged 27 years,
27. C.Manjunath,
S/o Channappa,
aged 25 years,
6 O.S.No.789/2005
28. Kemparamaiah,
S/o late Hanumaiah,
Aged 56 years,
29. Sri.Nagaraju,
S/o Kemparamaiah,
Aged 56 years,
30. Sri.Hanumaiah,
S/o Kemparamaiah,
Aged 26 years
31. Smt.Rudramma,
W/o late Chikkanna,
aged 41 years,
32. Sri.Sanjeevamurthy,
S/o late Chikkanna,
aged 24 years,
33. Sri.Hanunth
S/o late Chikkanna,
Aged 32 years.
All are residing at
Babasabarapalya,
Kengeri post,
Bangalore-560 060.
Plaintiffs are represented by their
power of Attorney Holder
(a ) Sri.P.Nagaraju,
S/o Puttaswamaiah,
Aged 51 years,
R/at No.716, Babasabarapalya,
Kengeri Satellite Town,
Bangalore-560 060.
(b) Sri.R.Muniraju,
S/o late Ganappa
Aged 31 years,
7 O.S.No.789/2005
Babasabarapalya,
Bangalore South Taluk.
(c) Sri.B.C.Channappa,
S/o Chikka Chennaigappa,
Aged 51 years,
R/at No.716, 4th Main,
4th cross, Kengeri Satelite
Town, Bangalore South Taluk
(By Sri.V.H.,Advocate for plaintiffs,
Plaintiff No.5 (a) (b) 9 (c) (d)(a) absent,
Plaintiff No.24 (a) (b) ( c) (d) absent)
- Vs -
Defendant/s :
1. Smt.Munibyramma,
W/o Late Hanumaiah,
Aged 48 years,
2. Sri.Gundappa,
S/o late Hanumaiah,
Aged 19 years,
3. Smt.Lakshmamma,
D/o late Hanumaiah,
Aged 26 years,
4. Smt.Manjamma,
D/o late Hanumaiah,
Aged 24 years,
5. Smt.Bhagyamma,
D/o late Hanumaiah,
Aged 22 years
6. Smt.Nagamma,
D/o late Hanumaiah
Aged 20 years
8 O.S.No.789/2005
All are residing at
Honnaganganalli Gate,
Kempegowda Nagara,
Thavarekere Hobli,
Bangalore South Taluk.
7. Smt.Gangamma,
D/o Gundanna
Aged 60 years,
8. Sri.Hanumaiah,
S/o Smt.Gangamma,
Aged about 38 years,
9. Sri.Savandamma,
W/o late Bettathimmaiah,
Aged about 80 years,
10. Sri.Marakka,
D/o late Bettathimmaiah,
Aged about 55 years,
11. Smt.Mayamma,
W/o Veerabhadrappa,
D/o late Bettathimmaiah,
Aged about 50 years,
12. Smt.Kempamma,
D/o late Bettathimmaiah,
Aged about 45 years,
Nos 9 to 12 are residing at
Babasabarapalya,
Kengeri Hobli, Bangalore South Tq.
13. Sri.Gundappa,
S/o late Lakkanna,
Aged 52 years,
14. Sri.Ramanna,
S/o late Lakkanna,
Aged about 48 years,
9 O.S.No.789/2005
15. Sri.Galiswamy,
S/o late Lakkanna,
Aged about 40 years,
16. Sri.Maranna,
S/o late Lakkanna,
Aged 37 years,
Nos.13 to 16 are residing at
Babasabarapalya, Kengeri Hobli,
Bangalore South Taluk.
17.Sri.Lakkamma,
W/o Doddamariyappa,
aged about 54 years,
Emmigepura, Kengeri Hobli,
Bangalore South Taluk.
18. Smt.Muniyamma,
W/o Kariyanna,
Aged about 47 years,
Talaghattapura,
Bangalore North Taluk.
19. Smt.Muni Hanumakka,
W/o Krishnappa,
Aged about 42 years,
Mylasandra, Kengeri Hobli,
Bangalore South Taluk.
20. Kempaiah,
S/o Thimmarayappa,
Aged about 77 years,
21. Sri.Channamara,
S/o Kempaiah,
Aged about 52 years,
21(a) Smt.Thimmakka,
W/o late Channamara,
Aged about 55 years,
21(b)Smt.Gayathri,
W/o Gundappa,
10 O.S.No.789/2005
D/o late Channamara,
Aged about 35 years,
21 (c) Sri.B.K.Muniraju,
S/o late Channamara,
Aged about 33 years,
21(d) Smt.Manjula,
D/o late Channamara
Aged about 31 years,
21 (e) Sri.B.K.Basavaraju,
S/o late Channnammara,
Aged about 28 years,
All are at C/o Kariannana Mane,
Babasabrapalya, Kengeri post,
Bangalore South Taluk, Bangalore.
22. Sri.Thimmappa,
S/o Kempaiah,
Aged about 49 years
22.(a) Smt.Muniyamma,
W/o late Thimmappa,
Aged about 55 years,
22.(b) Sri.Basava,
S/o late Thimmappa,
Aged about 35 years,
Both are at : Babasabarapalya,
Kengeri post, Bangalore South taluk,
Bangalore.
23. Sri.Galiswamy,
S/o Kempaiah,
Aged about 46 years,
24. Sri.Thimmarayappa,
S/o Kempaiah,
Aged about 38 years,
25. Smt.Marakka,
11 O.S.No.789/2005
D/o Kempaiah,
Aged about 44 years,
26. Smt.Nagamma,
D/o Kempaiah
Aged 36 years,
27. Sri.Thayamma,
D/o Kempaiah,
Aged about 41 years,
Nos. 17 to 27 are residing at
Babasabarapalya,
Kengeri Hobli,
Bangalore South Taluk.
28. Sri.M.Maranna,
S/o Late Muniyappa,
Aged about 36 years,
No.1, Babasabarapalya,
Kengeri Hobli,
Bangalore South Taluk.
(By Sri.HPK, Adv., for Deft No.1 to 6
By Sri.KVK, Adv., for Deft No.7 to 8
By Sri.HPG., Adv, for Deft No.9 to 12
By Sri.NRJ., Adv, for Deft No.13 to 16,
18 & 19,
Deft No.20 to 27 - Exparte,
Deft No.28 Sri.S.P., Adv.,
Deft No.21 (a) Sri.SGS. Adv.,
Deft No.21 (b) ( c) (d) M/s Nag Associates.
Date of institution
of the suit : 29-01-2005
Nature of the suit
[suit on pronote, suit : Declaration, cancellation
for declaration and of sale deed, possession
possession, suit and such other reliefs.
for injunction]
12 O.S.No.789/2005
Date of the commencement
of recording of the evidence : 04-07-2014
Date on which the
Judgment was pronounced : 04-02-2022
Year/s Month/s Day/s
Total Duration 17 -- 15
JUDGMENT
This suit is filed by the plaintiffs against the defendants for the relief of declaration of ownership, cancellation of sale deed, possession and other consequential reliefs.
2. The brief facts of the plaintiffs' case are as under:
That Hanumaiah and Muddaiah sons of Channappa, during their life time have purchased the agricultural lands situated at Babasabarapalya, Kengeri Hobli, Bangalore South Taluk, including land bearing Sy.No.159 under the registered sale deed, dated: 16-10-1924. Thereafter they have got divided their properties on 18-3-1935 through registered partition deed. As per said partition deed the agricultural land bearing Sy.No.159 to an extent of 25 acres 17 guntas fallen to the share of Hanumaiah and he 13 O.S.No.789/2005 continued to be in possession and enjoyment of said property as absolute owner thereof. He passed away on 13-02-1974, leaving behind his 8 sons to succeed all of his properties. Out of 8 sons 4 sons namely Hanumanthappa, Rangappa @ Muddappa, Muniyappa and Chikkanna dead, remaining four sons of Hanumaiah namely Puttaswamaiah, Muthappa @ Kakanna, Channappa and Kemparamaiah thereafter legal heirs of other four sons are in possession and enjoyment of the property left by deceased Hanaumaiah as the owners. Except all the legal heirs of Haumaiah no one has got any right or title over the properties of Hanumaiah. The katha of the property was originally in the name of Hanumaiah S/o Channnappa.
Without the knowledge or consent of either Hanumaiah son of Channappa or his legal heirs one Haumaiah S/o Bettathimmaiah has been inserted in the pahani along with the original Hanumaiah son of Channappa. No notices were served either to Hanumaiah Son of Channappa or his legal heirs at the time of said insertion. In fact there is no person by name Hanumaiah S/o Bettathimmaiah in the family of 14 O.S.No.789/2005 Hanumaiah S/o Channappa. The plaintiffs who are agriculturist and no knowledge of the rules and regulations unaware of these changes. The records maintained by the revenue office does not disclose when exactly the insertion has been made. No mutation entries available in this record. That the legal heirs of one Gunde Gowda who belongs to a separate family and not at all concerned with the family of Hanumaiah S/o Channappa, played fraud in getting katha of the agricultural land belongs to Hanuamaiah S/o Channappa including the land Sy.No.159/41 Kengeri village and Hobli, Bangalore South Taluk. That Bettathimmaiah S/o Thimmarayappa had no son by name Hanumaiah. Moreover Bettathimmaiah had no Male issue at all. The wife and daughters of Bettathimmaiah who are defendants No.9 to 12 herein have admitted this fact in R.A.No.110/2001-2002. The legal heirs of Gundanna i.e. defendants No.1 to 8 have played fraud in collusion with the revenue officials and the entries in the pahanies and the mutation has been changed as per the orders passed in IHC 11/89-90 in the name of Munibyramma W/o Hanumaiah i.e., 15 O.S.No.789/2005 defendant No.1 herein. The plaintiffs have also got impleaded in the above said appeal and filed their objection. The said matter is pending for adjudication. Meantime defendant No.1 in collusion with the defendants No.2 to 6 executed sale deed in favour of defendant No.28 for consideration amount of Rs.15,00,000/- by showing fictitious boundaries. The defendant No.28 having knowledge of the same and pendency of the litigation in respect of the suit schedule property has purchased the same without paying the entire consideration with an intention to make unlawful gain and obtained nominal sale deed, hence he will not get any right, interest over the said property under the fictitious documents. The sale deed executed in favour of defendant No.28 by defendants No.1 to 6 is null and void, it is liable to be cancelled. The defendant No.1 to 6 were owners in possession of the suit schedule property. The mutation effected in their name is challenged in R.A.No.110/2001-02, same is pending before competent authority. The plaintiffs being legal heirs of late Hanumaiah are the absolute owners in possession of the 16 O.S.No.789/2005 said property. Hence present suit is filed for declaration, possession, cancellation of sale deed dated 06-09-2004 and other consequential reliefs, prayed for decreeing the suit in favour of plaintiffs.
3. After service of summons, the defendant No.1 to 6, 7 to 8, 9 to 12, 13 to 16, 18, 19, 28, 21(a) (b)(c) (d) appeared before the court through their respective counsels and filed their written statements denying the case of the plaintiffs. The brief facts of the written statements of defendants No.1 to 6 are as under.
The suit of the plaintiff is frivolous, vaxcious without cause of action, hence liable to be rejected, it is false to say that Muddaiah and Hanumaiah sons of Channappa during their life time purchased land Sy.No.159 of Babashabpalya under the registered sale deed, dated: 16-10-1924. It is also false to say that said Hanumaiah and Muddaiah have got divided their properties on 18-03-1935 through the partition deed and land bearing Sy.No.159 to an extent of 25 acres 17 guntas was fallen to the share of Hanumaiah, thus he continued to be in possession and enjoyment of the 17 O.S.No.789/2005 said land as absolute owner, he passed away on 13-02- 1974, leaving behind his 8 sons to succeed all his properties and his legal heirs were continued to be in possession and enjoyment of the said property as absolute owners are all absolutely false and concocted story. The genealogical tree narrated by the plaintiff is incorrect. It is false to say that without the knowledge of original owner Hanumaiah and his legal heirs, Hanumaiah has got inserted his name in the pahani and it has not within the knowledge of the plaintiffs are all false, hence denied and plaintiffs be put to strict proof of the same. It is true to say that Gundegowda belongs to separate family and who are not at all concerned with the family of Hanumaiah S/o Channappa. It is false to say that defendants played fraud in getting the katha of the agricultural lands belongs to Hanumaiah S/o Channappa including the agricultural land bearing Sy.No.159/41 of Kengeri village and hobli, Bangalore South Taluk are absolutely false and concocted story. Further averments Bettathimmaiah S/o Thimmarayappa had no son by name Hannumaiah is absolutely incorrect it is true that 18 O.S.No.789/2005 Bettathimmaiah S/o Thimmarayappa had no male issues, defendant No.8 Gundanna and other defendants No.1 to 8 have played fraud in collusion with the revenue officers and got changed the entry in the R.T.C. and mutation as per the order passed in IHC.No.11/1989-90 in the name of Munibyramma W/o Hanumaiah, defendant No.1 herein and legal heirs of Betta Thimmaiah is absolutely false, the defendants No.9 to 12 have filed R.A.No.110/2001-02, before Asst. Commissioner, same is pending for adjudication is not within the knowledge of this defendants. The averments that MR IHC No.11/1989-90 in which, Byramma, Hanumaiah died and katha changed in the name of Munibyramma is true. It is true that family of Gundegowda is no way connection with the family of Hanumaiah s/o Channappa. The Tahasildar has made entries in the R.T.C. in accordance with law. It is continued from 1972-73 till 1987-
88. The name of Hanumaiah S/o Bettathimmaiah is shown in respect of agricultural land Sy.No.159/41. It is also submitted that one Gundegowda was the moolapurusha and he had two sons namely Hanumaiah and Thimmarayappa. 19 O.S.No.789/2005 Hanumaiah having one son namely Gundappa , said Gundappa having two wives namely Chennnamma and Byramma. Chennamma having one daughter namely Gangamma 2nd wife Byramma died leaving behind one son Hanumaiah and daughter Chennamma. Hannumaiah married with Munibyramma having 5 children namely Lakshhmamma, Manju, Bhagyamma, Nagarathna and Gundappa. The land Sy.No.145/1, 4 acres 10 guntas, Sy.No.157/5, 11 guntas, Sy.No.157/10, 4 guntas, Sy.No.159/2, 2 acres 22 guntas and another Sy.No.159/41 were left out in M.R.No.19/1978-79 in the said proceedings. That after death of Gundappa S/o Hanumaiah, his wife Byramma approached the revenue authorities and after enquiry, katha was changed in her name on the above said property in M.R.No.19/78-79. Subsequently after death of Byramma, and also her son Hanumaiah, Munibyramma approached the revenue authorities to change of katha and got katha changed in her name in IHC No.11/1989-90. It is pertinent to note that at this stage IL and RR of the said land, which corroborate the IHC and MR proceedings. The 20 O.S.No.789/2005 above said lands originally belongs to ancestors of Gundappa, subsequently, his wife Byramma and subsequently his children and daughter-in-law Munibyramma and her successors are in undisturbed peaceful possession and enjoyment of the same. 1 St defendant has filed declaration before Spl.Deputy Commissioner, Urban Land Ceiling, Kumara Park, Bangalore and the authority concerned sought for clarification from first defendant as per letter dated: 10-03-1986. On 5.2.1987 the Secretary, Housing and Urban development Department has issued a letter for the production of the documents to substantiate the claim of the 1 st defendant from exemption of the application of the said act. Subsequently on 4.12.1991, the authority issued notice to first defendant for production of documents in support of her claim. Thereafter the concerned Tahasildar after verifying the matter with the defendants No.1 to 6 and their ancestors are in undisturbed peaceful possession and enjoyment of the suit schedule property way back to 1979-80. So the suit filed by the plaintiff is hopelessly barred by law of limitation, liable to be 21 O.S.No.789/2005 dismissed on exemplary costs. The defendants No.1 to 6 neither joint family members nor having any relationship with what-so-ever including coparcanery or joint family. The family of the plaintiff and the family of the defendants No.1 to 6 are distinct and entirely unconnected or unrelated to each other. These defendants and their ancestors are in possession and enjoyment of the suit schedule property without any disturbance from anybody even for the sake of arguments assuming that the property belongs to plaintiff. These defendants have perfected their title by adverse possession as such the present suit is not maintainable, hence prayed for dismissal of the suit with exemplary costs.
4. The brief facts of written statement of defendant No.28 are that, he has reiterated the written statement averments of defendants No.1 to 6, further contended that he is in lawful possession and enjoyment of the suit schedule property by virtue of sale deed executed in his favour by defendant No.1 to 6, so plaintiffs suit is false, frivolous not at all maintainable, prayed for dismissal of the suit.
22 O.S.No.789/2005
5. The brief facts of written statement of defendant No.8 is that, he has also reiterated the averments of written statement of the defendants No.1 to 6, further contended that first defendant was the absolute owner and she sold the suit schedule property in favour of defendant No.28 and he has been put in possession of the said property and this defendant is consenting witness for the sale deed executed in favour of defendant No.28 by defendants No.1 to 6. The suit is not properly valued and Court fee paid is insufficient, claim of the plaintiff is not maintainable, hence prayed for dismissal of the suit.
6. The brief facts of the written statement of defendant No.9 to 12 are that, they have also reiterated the averments of written statement of defendant No.1 to 6 and further contended that the suit of the plaintiff is nothing but counter blast in respect of suit filed by these defendants i.e. R.A.No.102 and 103 of 2004 were preferred. The plaintiffs are not at all entitle for the relief sought in the suit, hence prayed for dismissal of the suit.
23 O.S.No.789/2005
7. The brief fact of the written statement of defendant No.13 are as under.
He has also reiterated the averments of written statement of defendants No.1 to 6 and other defendants, further contended that there is no cause of action to file the suit. The cause of action shown in the plaint by the plaintiffs is imaginary to over come the litigation, the plaintiffs are not at all entitle any relief sought in the suit, hence prayed for dismissal of the suit.
8. During pendency of the suit defendant No.27 reported to be dead, his Lrs were brought on record, they have also filed their written statement denying the plaint averments and reiterated the averments of written statement of the defendants No.1 to 6 and further contended that suit of the plaintiff is baseless, contrary to the true and material facts and they are not entitle for the relief sought in the suit, prayed for dismissal of the suit with exemplary costs.
9. During the pendency of the suit, the plaintiffs have got amended the plaint on various occasion, accordingly 24 O.S.No.789/2005 defendants have also filed their additional written statement. Based on the above referred pleadings same my predecessor in office overall has framed the following 4 issues and 5 additional issues.
1. Whether the plaintiffs prove that the suit schedule property is their ancestral property?
2. Whether the plaintiffs prove that the defendants 1 to 6 on 6/9/2004 without valid right over the suit schedule property sold it to defendant No.28?
3. Whether the suit is in time?
4. What decree or order?
Additional issues:
1. Whether the defendant No.1 to 6 prove that they have perfected the title to the suit property by adverse possession as contended in para No.13 of their written statement?25 O.S.No.789/2005
2. Whether the plaintiffs are entitled for possession of the suit property?
3. What order or decree?
4. Whether the plaintiff proves that the sale deed dated: 06-09-2004 executed by defendants 1 to 6 in favour of defendant No.28 is liable to be set aside, not binding on the plaintiff?
5. Whether the defendant No.28 proves that he is the bonafide purchaser of suit schedule property?
10. In order to prove these issues, and additional issues on behalf of plaintiffs two witnesses have been examined as Pws. 1 & 2 and got marked 26 documents as Ex.P-1 to 26 and closed their side. On behalf of the defendants 3 witnesses have been examined as D.Ws.1 to 3 and got marked 42 documents as Ex.D1 to 42 documents and closed their side, hence case is posted for argument. 26 O.S.No.789/2005
11. Heard the arguments of both sides. Perused pleadings, evidence and documents placed on record.
12. My findings to the above issues are as follows :
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : In the affirmative,
Issue No.4 : As per final order
Addl.Issue No.1 : In the Negative,
Addl.Issue No.2 : In the Affirmative,
Addl.Issue No.3 : As per final order
Addl.Issue No.4 : In the Affirmative,
Addl.Issue No.5 : In the Negative,
REASONS
13. ISSUE No.1, 2, ADDITIONAL ISSUES No.1, 4
and 5: All these issues are inter related and connected to each other to avoid repetition, I have taken them jointly for discussion.
It is the case of the plaintiffs that, one Hanumaiah and Muddaiah were sons of Channappa, during their life time 27 O.S.No.789/2005 they have purchased agricultural land bearing Sy.No.159 situated at Babasarapalya, Kengeri Hobli, Bangalore South Taluk, under the registered sale deed, dated: 16-10-1924. Thereafter they have got divided their properties under the registered partition deed, dated: 18-3-1935. In the said partition 25 acres 17 guntas in Sy.No.159 was fallen to the share of Hanumaiah, thus he continued to be in possession of lands fallen to his share as absolute owner. He passed away on 13-02-1974, leaving behind his 8 sons to succeed his estate. Out of 8 sons of Hanumaiah, 4 sons namely Hanumanthappa, Rangappa @ Muddappa, Muniyappa and Chikkanna were dead, remaining four sons of Hanumaiah, namely Puttaswamaiah, Muthappa @ Kakanna, Channappa and Kemparamaiah are alive they themselves and the legal heirs of four sons of late hanumaiah are in possession and enjoyment of the property, except them no other persons have got any right, title over the properties left by Hanumaiah. The katha of the property was originally standing in the name of Hanumaiah S/o Channnappa. Without the knowledge or consent of either Hanumaiah or 28 O.S.No.789/2005 his legal heirs name of Haumaiah S/o Bettathimmaiah has been inserted in the pahani of suit schedule property along with the original owner Hanumaiah son of Channappa. That insertion of his name in the pahani is not in accordance with the procedure laid down in the Land Revenue Act or Rules. No notice was served either to Hanumaiah Son of Channappa or his legal heirs. There is no person by name Hanumaiah S/o Bettathimmaiah in the family of Hanumaiah S/o Channappa. The plaintiffs being agriculturist having no knowledge of the rules and regulations about changing of khata and unaware of these changes in records maintained by revenue officials. That one Gundegowda and his legal heirs belongs to a separate family and not at all concerned with the family of Hanumaiah S/o Channappa, played fraud in getting katha of the agricultural land belongs to him including suit land Sy.No.159/41 Kengeri village. On enquiry it is learnt that Bettathimmaiah S/o Thimmarayappa had no son by name Hanumaiah, and he had no Male issue at all. The defendants No.9 to 12 are being wife and childrens of Bettathimmaiah have clearly admitted this fact in 29 O.S.No.789/2005 R.A.No.110/2001-2002. The legal heirs of Gundanna i.e. defendants No.1 to 8 have played fraud in collusion with the revenue officials got mutated the RTC in the name of Munibyramma W/o Hanumaiah as per order passed in IHC No.11/89-90. That in R.A.No.110/2001-2002, these plaintiffs have also got impleaded same is pending for adjudication. The first defendant belongs to family of one Gundegowda, who is no way concerned to the family of Hanumaiah S/o Channappa. The revenue officers have joined hands with the first defendant in getting katha transferred in her name though she is not having any right over suit schedule property. The plaintiffs came to know the about these fraudulent acts of the first defendant in getting katha transferred in her name and questioned her about it, she confessed the mistake made by her and assured that she will consult with her relatives and take decision in transferring the katha of the schedule property in the name of plaintiffs within one month. Plaintiffs believing her version and waited but she has not turned up rectify the mistake. On the contrary in collusion with other defendants she has 30 O.S.No.789/2005 alienated the schedule property in favour of defendant No.28 through fictitious sale deed by showing wrong entries. Since the plaintiffs are absolute owners having succeeded to the suit schedule property from their ancestors. They are entitled for declaration of ownership and consequential relief sought in the present suit.
14. These facts have been denied by the defendants in their written statement and contended that, the suit of the plaintiff is frivolous, vaxcious without any cause of action, same is liable to be dismissed. It is false to say that neither defendants nor any one except the plaintiffs have got any right, title over the suit schedule property and without the knowledge or consent of other. It is false to say that without the knowledge of Hanumaiah S/o Channappa or his legal heirs, name of Hanumaiah S/o Bettathimmaiah inserted in the pahani along with original Hanumiah S/o Channappa and it is not in accordance with the Land revenue Act and Rules. In fact there is no person Hanumaiah S/o Bettathimmaiah in the family of Hanumaiah S/o Channappa, are all false and created story, plaintiff be put to strict proof 31 O.S.No.789/2005 of the same. That Gundegowda belongs to separate family and who are not at all concerned with the family of Hanumaiah S/o Channappa is true. But the averments of plaint that defendants got played fraud in getting the katha of the agricultural lands belongs to Hanumaiah S/o Channappa including the agricultural land bearing Sy.No.159/41 of Kengeri village and hobli, Bangalore South Taluk are absolutely false and concocted story. The Genological tree produced by plaintiff is almost true, but Bettathimmaiah S/o Thimmarayappa had no son by name Hanumaiah is absolutely incorrect. It is true that Bettathimmaiah had no male issues. The defendant No.8 Gundanna and other defendants No.1 to 7 have played fraud in collusion with revenue officials and changed entries in RTC, pahani and mutation has been changed as per order IHC 11/1989-90 in the name of Munibyramma W/o Hanumaiah is absolutely false. It is false to say neither defendants No.1 to 6 or any other defendants were in possession of schedule property. That one Gundegowda was the moolapurusha and he had two sons namely 32 O.S.No.789/2005 Hanumaiah and Thimmarayappa. Hanumaiah having one son namely Gundappa, said Gundappa had two wives namely Chennamma and Byramma. Chennamma having one daughter namely Gangamma, Hanumaiah married with Munibyramma having 5 children namely Lakshmamma, Manju, Bhagyamma, Nagarathna and Gundappa. These defendants further submits that, the land Sy.No.145/1, 4 acres 10 guntas, Sy.No.157/5, 11 guntas, Sy.No.157/10, 4 guntas, Sy.No.159/2, 2 acres 22 guntas and another Sy.No.159/41, which was left out in M.R.No.19/1978-79. In the said proceedings after death of Gundappa S/o Hanumaiah, his wife Byramma approached the revenue authorities and after enquiry, katha was changed in her name on the above said property in M.R.No.19/78-79. Subsequently after death of Byramma, and also her son Hanumaiah, Munibyramma approached the revenue authorities to change of katha and got changed khata in her name as per IHC No.11/1989-90. Defendant No.1 has filed declaration before Spl.Deputy Commissioner, Urban Land Ceiling, Kumara Park, Bangalore and the authority 33 O.S.No.789/2005 concerned sought for clarification from first defendant through letter dated: 10-03-1986. That on 5.2.1987 the Secretary, Housing and Urban development Department has issued a letter for production of the documents to substantiate the claim of the 1 st defendant from exemption of the application of the said Act. Subsequently on 4.12.1991, the authority issued notice to first defendant to produce documents in support of her claim and also on 21.03.1985 and in pursuance of said querry these defendants furnished required copies on 21-03-1987. It is further submitted that defendants family and plaintiffs family are distinct and separate and there is no relationship between them and they are enjoying their properties of their own right, title and interest, as such question of taking undue advantage of similarity in the name and changed katha in the name of ancestors of the defendants are utterly false. These defendants and ancestors are in possession and enjoyment of the suit schedule property way back from 1978-79 with the knowledge of the plaintiff and also right, title and interest being exercised by these defendants and 34 O.S.No.789/2005 their ancestors open to the knowledge and belief of the plaintiffs also hostile to their interest and enjoying the same as of their own. Hence, even assuming for the sake of argument the property belongs to the plaintiff, these defendants have perfected their title by adverse possession as such present suit is not maintainable. It is also contended by defendant No.28 that, he is the bonafide purchaser for value of the suit schedule property. The claim of the plaintiffs against him is not maintainable prayed for dismissal of the same with exemplary cost. As already stated above to prove the case of the plaintiffs over all two witnesses have been examined. The plaintiff No.18 himself got examined as PW-1, in his affidavit filed in the form of examination-in-chief he has reiterated the plaint averments. In support of his oral contention he has relied over all Ex.P-1 to 26 documents. The defendants in their cross-examination made an hectic attempt to deny the right, interest and title of the plaintiffs over the suit schedule property. All the suggestions made in this regard have been denied by the witness, no valuable admission is obtained from his mouth 35 O.S.No.789/2005 contrary to the plaint averments and contentions of the plaintiffs annd in support of contentions of the written statements of defendants. The PW-2 also examined to bring corroboration to the evidence of PW.1, he deposed supporting the case of the plaintiffs. On the contrary on behalf of defendants also examined over all 3 witnesses and got marked 19 documents. On perusal of over all contentions set up by both the parties as well as evidence placed on record by them it clearly reveals that there is no dispute that one Muddaiah and Hanumaiah Sons of Chanappa, have purchased several properties including the suit land Sy.No.159 measuring 25 acres 17 guntas under
registered sale deed, dated: 16.10.1924. It is also not in dispute that said Muddaiah and Hanumaiah have got partitioned their family properties under registered partition deed, dated: 18-3-1935, and Sy.No.159 was fallen to the share of Hanumaiah, who is none else than ancestor of the plaintiffs. The defendants having admitting this fact have set up plea that they have also invested the amount for registered sale deed got by Muddaiah and Hanumaiah Sons 36 O.S.No.789/2005 of Channappa, and it is also contended that they have purchased the land Sy.No.159 on behalf of the villagers and villagers have contributed the consideration amount for purchasing the said property. It is also contended that the ancestor of defendants No.1 to 6 were in actual possession and enjoyment of the suit schedule property and their name were appearing in the revenue records jointly along with name of ancestors of the plaintiffs. In this regard several suggestions have been made to P.W.1, but he has categorically denied all these suggestions. So, burden is on the defendants to establish the fact of consideration amount contributed by their ancestors for purchasing the land Sy.No.159 under registered sale deed, so also they have to prove their contention about consideration amount paid by villagers for the said sale deed. Inspite of lengthy cross-examination to P.W.1 nothing is elicited from his mouth. Their names are appearing in the revenue revision settlement document as they were cultivating the land as Aragandaya holder. The property was allotted in their name and they are enjoying the said property with the knowledge 37 O.S.No.789/2005 of the ancestors of the plaintiffs same has not been questioned by anybody. Therefore they have perfected title over the suit schedule property by way of adverse possession. That on perusal of all the contentions set up by defendants it clearly reveals that they are not only contradictory to each other also self destructive. In one breath they have contended that their ancestors have also contributed and paid the consideration amount for purchasing property in the name of ancestors of plaintiff under registered sale deed dated:16.10.1924, thereby tried to contend that they are also co-owners or joint owners of the land Sy.No.159 along with the ancestors of the plaintiffs. This contention of the defendant is unknown to law, even for the shake of argument the ancestors of the defendant No.1 to 6 have also contributed consideration amount for purchasing land Sy.No.159 as per sale deed dated:
16-10-1924, there must be some reference about it in the sale deeds argument seems to be reasonable. On keen observation of contents of Ex.P-4 certified copy of registered sale Deed dated: 16.10.1924, there is no such recital 38 O.S.No.789/2005 available. Further if it is a joint ownership property of ancestors of plaintiffs and villagers it not ought have been partitioned as per partition deed, dated: 18-3-1935. The defendants have categorically admitted the said partition but no one has challenged it till today. The very contentions of the defendant No.1 to 6 clearly amounts to pleading about Benami transaction, that after coming into force of Abolition of Benami transaction Act, no parties are permit to plead Benami transaction nor set up claim on the basis of Benami transaction argument cannot be overruled, therefore this contentions of the defendants appears to be unacceptable. The defendants have also set up plea that name of their ancestors were appearing in the revenue records ever since from 1964. Therefore as per revenue revision settlement the property which was in possession and cultivation of their ancestors has been allotted them. If such would be the fact there must some document showing allotment of suit land Sy.No.159/41 measuring 4 acres 7 gunts either in the name of defendant No.1 to 6 or in the name of their ancestors. No order of allotment has been 39 O.S.No.789/2005 placed on record to show that the property has been allotted or granted by competent authorities in their name, therefore this contention is also does not holds water arguments seems to be reasonable. The defendants have set up another plea that since they are also co-owners or joint owners of suit schedule property holding property along with original owners i.e. ancestors of the plaintiffs. But they have failed to prove it with cogent and convincing evidence. In this regard they have relied some judgment and other documents stated to be held in respect of same nature of properties and alleged admissions stated to be held in previous proceedings, mere production of documents does not suffice their contentions it requires to be proved. It is further case of the defendants that they have acquired said property as Aragandaya holders, in this regard the defendants have relied several documents particularly revenue records pertaining to land Sy.No.159. Though the name of Bettathimmaiah under whom the defendants No.1 to 6 are claiming their right is shown as joint cultivator along with Hanumaiah the original owner of 40 O.S.No.789/2005 land Sy.No.159 and ancestors of plaintiffs. But source or base for such entry has not been disclosed. According to the defendants as categorically admitted in their written statement that Bettathimmaiah had no male issue, such being the facts how the name of Hanumaiah S/o Bettathimmaiah has been came in existence and after his demise name of Munibyramma W/o Hanumaiah alleged son of Bettathimmaiah inserted by way of IHC in the ROR of suit schedule property. Even for the sake of argument the contentions of the defendants No.1 to 9 being legal heirs of said Bettathimmaiah have succeeded to the suit schedule property is considered to be true, even then since they have clearly admitted that the name of Bettathimmaiah was jointly appearing along with name of ancestors of plaintiffs in the revenue records how they will succeed for entire property and without giving notice to them how they got changed khata in their name has not been properly explained. Therefore mere based on revenue entries title of the immovable property cannot be changed arguments holds good. On keen observation of the documents relied 41 O.S.No.789/2005 by defendants particularly revenue records of the land Sy.No.159/41 under Ex.D-23, 31 clearly goes to show that the name of the ancestors of the defendants have been shown as cultivator of the said property only and not as owners. Merely because the names of ancestors of defendants No.1 to 6 is shown as cultivators of the propert i.e. without base for such entry does not amounts to acquisition of title over it. The defendants have also relied Ex.D.3 to 5 to establish that the ancestors of plaintiffs have executed registered documents in favour of several persons thereby accepted ownership of their ancestors. On keen observation of contents of said documents there is no reference of Sy.No.159/41 in the said documents and they have no nexuses with said property arguments cannot be rejected. Therefore said documents will not come to the aid of the defendants to prove the acquisition of right or interest in respect of suit schedule property by their ancestors. That on behalf of defendants, defendant No.21
(e) he himself got examined as D.W.2 in his affidavit filed in the form of examination-in-chief he has deposed that suit 42 O.S.No.789/2005 land Sy.No.159 and other properties have been purchased by Hanumaiah and Muddaiah Sons of Channappa during their life time under registered sale deeds, dated:
16-10-1924. He has also deposed that said properties have been got divided by said Hanumaiah and Muddaiah under registered partition deed, dated: 18.03.1935, but in his cross-examination he has totally deposed contrary to his own evidence given in the examination-in-chief as under.
"ದದವ ಆಸಸಯನನನ ಹನನಮಯಯನವರನ ದದ 16.10.1924 ರರದನ ಖರರದಸರನತದಸರರರದರರ ಸನಳನಳ. ಹನನಮಯಯ ಮತನಸ ಮನದದಯಯನವರ ಮಧರಯ ಪದಲನ ವಭದಗ ಆಗರನತಸದರರದರರ ಗರಗತಸಲಲ. ಸದರ ವಭದಗದಲಲ ಹನನಮಯಯನವರ ಹಸರಸಗರ ದದವ ಅಸಸಯನನನ ಒಳಗರಗರಡನ ಇತರರ ಆಸಸಗಳನ ಬರದರನತಸವರರದರರ ಸನಳನಳ . ಪದಲನ ವಭದಗದ ನರತರ ದದವ ಆಸಸಯ ಕರದದಯ ದದಖಲರಗಳನ ಹನನಮಯಯನವರ ಹರಸರಗರ ಆಗರನತಸವರರದರರ ಸರಯಲಲ.
The very above evidence of D.W.2 is quite contrary to his own affidavit filed in the form of examination-in-chief as well as to his written statement. Therefore his evidence is not trustworthy to accept the argument seems to be reasonable.43 O.S.No.789/2005
15. The Power of Attorney holder of defendant No.28 examined as D.W.2. In his affidavit filed in the form of examination-in-chief he has reiterated the defence set up by defendant No.28 in the written statement In the course of cross-examination he has deposed as under.
"ದದವ ಸಸತಸನ ಬಗರಗ ಮನನಬರಬರಮಮ ಮತನಸ ಅವರ ಮಕಕಳ ಹರಸರಗರ ಕಕಯಪತಕ ಆಗರನವವದಲಲ ಎರದರರ ಸರ . ಬರಬರಮಮ ಎನನನವವರನ ಮನನಬರಬರಮಮನ ಸಸರತ ಅತರಸ ಆಗರನತದಸಳರರದನ ಸದಕಕ ಸಸತದ ಹರರಳನತದಸರರ . ಹನನಮಯಯ ಮತನಸ ಮನದದಪಪ ಎನನನವವರನ ದದವ ಷರಡಗಯಲಲ ಸಸತಸನರಗನಳಗರಗರಡನ ಒಟನಟ 52 ಎಕರರ ಜಮರನನನನ ದದ 16.10.1924 ರ ನರಗರದದಯತ ಕಕಯಪತಕದಡ ಖರರದಸರನತದಸರರ ಆದರರ ಅದಕರಕ ಊರವರರಲದಲ ಸರರರ ಹಣ ಕರಗಟಟರನತದಸರರರದನ ಸದಕಕ ಸಸತದ ಹರರಳನತದಸರರ . ಹನನಮಯಯ ಮತನಸ ಮನದದಪಪ ಎನನನವವರನ ಗನರಡಪಪನವರ ಕನಟನರಬಕರಕ ಸರರರದವರಲಲ ಎರದರರ ಸರ . ಹನನಮಯ ಮತನಸ ಮನದದಪಪನವರ ಮಧರಯ ಮರಲರ ಹರರಳದ 52 ಎಕರರ ಜಮರನನ ಬಗರಗ ದದ 18-3-1935 ರರದನ ನರಗರದದಯತ ಪದಲನ ವಭದಗ ಪತಕದ ಮಗಲಕ ವಭಜನರ ಆಗರನತಸದರರದರರ ಸರ . ಸದರ ವಭದಗ ಪತಕವನನನ ಯದರಗ ಯದವವದರರ ನದಯಯದಲಯದಲಲ 44 O.S.No.789/2005 ಪಕಶನಸರನವವದಲಲ ಎರದರರ ಸರ . ನರತರ ಹನನಮಯಯನವರ ಹರಸರನಲಲ ಕರದದಯ ದದಖಲರಗಳನ ಬರದರನತಸವರರದರರ ಸರ .
ದದ 16/10/1924 ರರದನ ಹನನಮಯಯ ಮತನಸ ಮನದದಪಪನವರ ಹರಸರಗರ ಅಗರನವ ಕಕಯಪತಕಕರಕ ಊರನವರರಲದಲ ಹಣ ಕರಗಟಟರನತದಸರರರದನ ಹರರಳದನದ ಈ ಬಗರಗ ದದಖಲರಗಳನ ಇರನತಸವರ ಅದನನನ ನದಯಯದಲಯಕರಕ ಹದಜರನಪಡಸಬಲರಲ . ದದ 6.9.2004 ರ ಕಕಯಪತಕಕರಕ ಸರಬರಧಸದರತರ ವದದಗಳಗದಗಲರ ಅಥವದ ಹನನಮಯಯ ಬನಲ ಚನನಪದಪಜರಯವರಗದಗಲರ ಯದವವದರರ ಹಣ ಸರದದಯ ಮದಡರನವವದಲಲ ಅರದರರ ಸರ .
16. On perusal of above evidence of D.W.2 it is quite clear that, he has categorically and in an unequivocal term admitted that including suit schedule property totally measuring 52 acres Sy.No.159 land has been purchased by ancestors Hanumaiah, Muddaiah and Hanumaiah the ancestors of plaintiffs under registered Sale Deed, dated: 16-10-1924. Thereafter both of them have got partitioned said land including other properties under registered partition deed, dated: 18.3.1935. Admittedly, both the documents were came in existence in an undisputed point of time and much earlier to the filing of this suit. It is also 45 O.S.No.789/2005 admitted by D.W.2 that neither Sale Deed nor the partition deed, dated:16-10-1924 and 18.03.1935 have been challenged by ancestors of the defendants No.1 to 6 or any body. Such being the facts the contentions of defendants No.1 to 6 and 28 that the villagers have also contributed the sale consideration for purchasing land Sy.No.159 and they are also acquired right of ownership under said sale deed. If really the villagers had also jointly purchased it definitely they ought to have challenged the partition deed arguments appears to be reasonable. Further mere setting up contention that villagers have also contributed amount for payment of consideration to purchase the property itself does not establish right in favour of defendants No.1 to 6 or their ancestor. That the defendants No.1 to 6 have not made it clear the quantum of amount paid by their ancestors. They have set up vague plea stating that villagers have also contributed amount for payment of consideration of the said property without stating the specific quantum of amount is nothing but vague contention, and it cannot be acceptable. That admittedly 46 O.S.No.789/2005 the defendant No.1 Munibyramma is no way connected or related to the plaintiff's family. Such being the facts, it is for the defendants to establish how they have acquired right o over the suit schedule property. In this regard they have set up various pleas and none of their pleas have been proved by them with convincing evidence. They have also contended that their ancestors have acquired suit land as Aragandaya holders but they have not produced single piece of documents or any order passed by competent authority confirming their right of occupancy over suit schedule property. Therefore this contention of defendants appears to be unacceptable. The defendants No.1 to 6 have also set up plea that they have perfected title over the suit schedule property by way of adverse possession. For considering the plea of adverse possession the defendants have to admit the ownership of the plaintiffs over suit schedule property. Having admitting the said fact they have to establish that they are in continuous and uninterrupted possession and enjoyment of the suit schedule property, with the knowledge and adverse to the interest of plaintiffs. 47 O.S.No.789/2005 Though the name of ancestors of defendants No.1 to 6 i.e. Bettathimmaiah and others are appearing in the R.T.C. But their name is shown as holder of the property and not as owners. Mere holding property or cultivating it for several years itself does not create right of ownership such possession must be hostile to the interest of true owner. Admittedly the defendants have not placed any material on record. The nature of possession as shown in the revenue holder or cultivator and so mere cultivation of land for long duration will not create right of ownership over the said property argument seems to be reasonable. The documents relied by the defendants judgment and decree passed by Civil Courts i.e., copies of O.S.No.387/1987, O.S.No.160/1992, O.S.No.680/1996, O.S.No.1855/1993 does not pertains to the suit schedule property. It is also contended that in those documents the persons who are in possession of the portion of land Sy.No.159 were exercising their right of ownership and courts have accepted their contentions. Since the subject matter and parties to the case so also facts and circumstances are different, so they 48 O.S.No.789/2005 cannot be made base to decide the contentions set by them argument cannot be rejected. More over the documents relied by the plaintiff under Ex.P-22, 26 clearly discloses that Munibyramma is not the wife of Hanumaiah alleged ancestor of defendants No.1 to 6, though defendant No.1 got mutated khata of the suit schedule property in her name claiming to be wife of deceased Hanumaiah in fact her name is Byramma. It is specifically alleged that defendant No.1 by impersonation represented before revenue authorities posing herself as Munibyramma w/o Hanumaiah and got mutated her name in respect of the suit schedule property as per IHC order No.11/89-90. D.W.1 in his cross-examination categorically admitted that Byramma is the daughter-in-law of Munibyramma. If Munibyramma was not alive on the date of submission of application for change of khata how it has been filed is a question for consideration. More over the defendants have not produces sufficient material to show that they are the legal heirs of deceased Hanumaiah the ancestor of the plaintiffs. So how 49 O.S.No.789/2005 they are entitle for acquiring right over suit schedule property by inheritance.
17. The D.W.3 in his cross-examination with regard to genealogy of defendant No.1 to 6 deposed as under.
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18. On perusal of the above evidence of D.W.3, it clearly reveals that though the defendants No.1 to 6 are claiming absolute right over the suit schedule property, but the witness examined on their behalf categorically admitted that they have no documents to show how the property has been acquired by their ancestors. In one breath they contends their ancestors jointly purchased land Sy.No.159 along with Muddaiah and Hanumaiah the ancestors of the plaintiffs by paying part of the consideration amount, in another breath they tried to contend that their ancestors have acquired right of occupancy over the suit schedule property under Aregandaya scheme. It is also admitted fact that the defendants have not placed grant of occupancy right by competent authority in respect of the suit schedule property either in their favour or in favour of their ancestors. So all these contentions appears to be baseless and without support of documents, hence they are not acceptable argument seem to be reasonable. Admittedly, the original owners of land Sy.No.159 are not all related to 52 O.S.No.789/2005 the defendants family so transfer of title in respect of immovable property shall be through procedure known to law by way of execution of title deeds. Though the D.W.3 in the cross-examination categorically contended that defendants have documents to show acquisition of right over suit schedule property by the ancestors of defendant but they have not seen the day light. The learned counsel for defendants vehemently argued and contended that defendants right over suit schedule property is confirmed much earlier and they are in possession and enjoyment of the said property. The plaintiffs have shown wrong boundaries and they have failed to prove the specific boundary hence they are not entitle for the relief sought in the suit. In support of their arguments they have relied the following decisions.
1. 2012 AIR SCW 5802 Kishore Samrite v. State of U.P. and Ors
2. 2014 (3) AKR 677 Usharani v. The Commissioner of Police, Infantry Road, Bangalore & Ors.
3. ILR 2005 KAR 884 T.L. Nagendra Babu Vs Manohar Rao Pawar
4. 2018 (3) KCCR 2175 53 O.S.No.789/2005 Shri Bharatesh Balasaheb Kuppanatte & Another.
Vs Sri.Noorbabasab Peeraso Mantoorkar since dead by L.Rs.
5. 2021 (2) ILR (KAR)477 (SC) Jitendra Singh V/s The State of Madhya Pradesh & Ors.
I have gone through the principles laid down in the above referred cases. The decisions relied by learned counsel for the defendants No.13 to 16 and 19 at Sl.No.1 and 2 Habea Corpus filed on suppressing the material facts. Therefore Hon'ble Apex Court of India as well as Hon'ble High Court was pleased to dismiss the application by imposing penal cost. The facts and circumstances of the above referred cases are quite different with the facts and circumstances of the present case. Therefore with due respect to the principles laid down in the above referred matters, I am of the opinion that they are not helpful to the case of the defendants. Further Learned Counsel for defendant No.28 has relied decision at Sl.No.3 to 5 in decision No.3 Hon'ble High Court of Karnataka was pleased to hold that unless the Court is satisfied with regard to material details in the light of material evidence with 54 O.S.No.789/2005 regard to the identification of the property, no declaration or injunction can be granted. In another decision the Hon'ble High Court was pleased to hold that where there are many discrepancies in thee pleadings of the plaintiff itself and the plaintiff has not come to the Court with satisfactory material with regard to to the identity of the property, then under such circumstances the question of declaration and injunction does not arise at all. So also the Mutation entry effect of Mutation of property in revenue records neither creates or extinguishes title of the property nor as it any presumptive value on title. Such entries are relavant only for the purpose of collecting land revenue. No ownership is conferred on the basis of such entries. So far as the title of the property is concerned, it can only be decided by a competent Court. As already discussed above it is admitted fact that the ancestors of plaintiffs have purchased suit schedule property under the registered sale deed. Thereafter they have got partitioned their family property under registered partition deed in an undisputed point of time. Subsequently the names of 55 O.S.No.789/2005 ancestors of some defendants has been inserted in the revenue records and prays of such insertion has not been established. Such being the facts of the case the defendants are claiming their right over the suit schedule property based on said revenue records. As rightly held by Hon'ble High Court of Karnataka in a decision relied at Sl.No.25 by learned counsel for defendant No.28 mere revenue entry does not create title, there must be some base for transfer of title in respect of immovable property. The decision aptly applicable to the facts of the case. But it is help to the plaintiffs rather than the defendant with respect to the principles laid down in the above referred matters. The facts and circumstances of the case are referred above are quite different with the facts and circumstances of the present case. Therefore they are not help to the case of the defendants. Further the defendants have failed to prove their contention that they have acquired right of ownership over the suit schedule property by way of adverse possession but they have miserably failed to prove required ingredients of principles of 56 O.S.No.789/2005 adverse possession. Therefore taking into consideration of all these facts and circumstances and documents relied by both parties, it is quite clear that plaintiffs are able to prove their contention that suit schedule property was acquired by their ancestors Muddaiah and Hanumaiah sons of Channappaji and defendants No.1 to 6 without having any valid right over the suit schedule property got mutated khatha in the name of defendant No.1 and colluding with defendant No.28 executed registered sale deed, dated: 06- 09-2004. Since the available material placed on record clearly goes to how that defendant No.1 to 6 have no right title interest to execute said sale deed. Such being the facts their contention that the defendant No.28 has acquired absolute right over the suit schedule property under the said sale deed, dated: 6-09-2004. Further, the defendant No.28 contended that he is a bonafide purchaser for value of the suit schedule property but the evidence placed on his behalf clearly goes to show that he is having knowledge of plaintiff and defendants family since from long time and he has also having knowledge 57 O.S.No.789/2005 about acquisition of right by ancestors of the plaintiff over the suit schedule property. Therefore having such knowledge and relationship between the family of plaintiffs and defendant No. 1 to 9 he has purchased the schedule property under registered sale deed dt.6.09.2004, so he cannot be called as bonafide purchaser of value of the suit schedule property without having knowledge of the rights of the parties to the suit. Hence his contention does not holds water. The plaintiffs have proved issue No.1, 2, additional issue No.4, hence I have answered them in the Affirmative. On the contrary the defendants No. 1 to 6 and 28 have miserably failed to prove additional issue No.1 and 5, hence I have answered it in the Negative.
19. Issue No.3: According to the defendants since 1964-65 the name of ancestor of defendants were appearing in the revenue records of the suit schedule property. Neither ancestors of plaintiffs nor plaintiffs have questioned it nor challenged the same before competent authority. At this belated stage they have filed the present suit in the year 2005, which is hopelessly time barred. This 58 O.S.No.789/2005 facts have been denied by the plaintiffs and contended that the ancestors of defendants No.1 to 6 without the knowledge of their ancestors got inserted their name in the RTC in collusion with the revenue officials. The plaintiffs and their ancestors being illiterate village restrict persons having no knowledge about procedure of maintenance of revenue records as they being uneducated unaware about the said facts same as not been questioned. Recently the defendant no.1 by impersonation got changed the katha of the suit schedule property in her name claiming herself to be wife of Hanumaiah without the knowledge and behind the back of plaintiff as per IHC No.11/89-90. Further the defendants No.1 to 6 in collusion with defendant No.28 got created sale deed, dated: 6-9-2004 based on the concocted document after having knowledge of the same the plaintiffs have challenged same before competent authority then came to know about illegality committed by defendants and their ancestors. Therefore the present suit is filed same is well within time. As already discussed in the above issues though the name of defendants No.1 to 6 and their 59 O.S.No.789/2005 ancestors are appearing in the revenue records of the suit schedule property as cultivator. No document is placed on record to show that title of the property has been changed either in the name of defendants No.1 to 6 or their ancestors. Admittedly, the revenue records of title of a immovable property the defendants No.1 to 6 have executed registered sale deed alienating the suit schedule property in favour of defendant No.28 in the year 2004 based on the alleged revenue records. So, after having knowledge of the said sale deed plaintiffs have filed present for the declaratory relief and possession, more over the defendants have not placed any documents to show that the title of the plaintiffs in respect of the suit schedule property was challenged or disputed by them before filing of the suit. The very order passed on IHC No.11/89-90 has been set aside by Assistant Commissioner as per Ex.P-19. therefore the base of title of the defendant for executing the sale deed has been nullified. Such being the facts of the case the sale deed executed by defendant no.1 to 6 in favour of defendant No.28 is baseless and having no title 60 O.S.No.789/2005 over the schedule property argument seems to be reasonable. So the contentions of the plaintiffs that after coming to the knowledge of the said sale deed they have filed present suit same is within period of limitation seems to be reasonable. Taking into consideration of all these facts and circumstances it is quite clear that plaintiffs have filed suit in the year 2005 same is well within period of limitation. No reason to deny the same, plaintiff has proved this issue, hence I have this issue in the Affirmative.
20. ADDITIONAL ISSUE No.2: As already discussed in the above issues the suit schedule property has been purchased by one Muddaiah and Hanumaiah Sons of Channappaji under the registered sale deed, dated:
16-10-1924, thereafter Hanumaiah and Muddaiah got partitioned their family properties as per the registered partition deed dated: 18-03-1935. Admittedly both documents have not been challenged nor questioned by any party, they are still in force not set aside by competent authority. The defendants are claiming absolute right over the suit schedule property based on names appearing in the 61 O.S.No.789/2005 revenue records. Admittedly, revenue records are not title deeds immovable property mere the names of ancestors of defendants and names of the defendant No.1 were appearing in the revenue records, tax and tax assessment records and they are paying the tax of the suit schedule property itself does not create right of ownership over the suit schedule property argument seems to be reasonable. Admittedly, the defendants No.1 to 6 are not related to the family of plaintiffs and their ancestors no alienation of right in in respect of the suit schedule property made in their favour as per the procedure known to law. IHC order obtained by defendant No.1 has been set aside by competent authority, it has not been challenged before appellate authority even the defendants have not made out valid grounds before the Court to accept the IHC order. So, based on the order of IHC the name of defendant No.1 entered into revenue records of the suit schedule property and she in collusion with defendants 2 to 6 on the strength of illegal entries of revenue records obtained by her executed registered sale deed in favour of defendant No.28. 62 O.S.No.789/2005 Therefore the defendant No.28 will not get any right under the said sale deed over the suit schedule property. The plaintiffs being successor of the original owners of the suit schedule property have inherited right of ownership from their ancestors over the suit schedule property arguments holds good. Therefore they are entitled to the relief of declaration of ownership in respect of the suit schedule property. Since the possession of defendants over the suit schedule property is based on illegal entries of revenue records it has to be handed over to the plaintiffs considering all these facts and circumstances if the relief is not granted in favour of the plaintiffs they will put to great hardship arguments seems to be reasonable. The plaintiffs have proved that they are the rightful owners of the suit schedule property entitle for the relief sought in the suit, no reason is available to deny the same. Hence plaintiffs have proved above issue, accordingly I have answered it in the Affirmative.
21. ISSUE No.4 & ADDL.ISSUE No.3 :- In the result, I proceed to pass the following;
63 O.S.No.789/2005
ORDER The suit of the plaintiffs is decreed with costs.
The plaintiffs are declared as owners of the suit schedule property.
The registered sale deed executed by defendants No.1 to 6 in favour of defendant No.28 dated: 06-09-2004 in respect of the suit schedule property is null and void executed without any base of title it has no binding effect on the plaintiffs hence it is ordered to be cancelled.
The plaintiffs are also entitle for possession of the suit schedule property.
64 O.S.No.789/2005
Draw the decree accordingly.
[Dictated to the Judgment writer, transcribed & computerized by him, corrected and signed by me then pronounced in the Open Court, dated this the 4th day of February, 2022] (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sri.P.Rudrappa P.W.2 : Sri.Raja
List of documents marked on behalf of the plaintiff/s:
Ex.P-1 : Certified copy of G.P.A. dt: 01-03-2006 Ex.P-2 : Certified copy of the proceedings sheet before the Asst. Commissioner, Bangalore South Sub Division in R.A.No(S)110/2001-02 Ex.P-3 : Tax paid receipt Ex.P-4 : C/c of sale deed, dated: 16-10-1924 ExP-5 : C/c of the partition deed, dated 18.03.1935 Ex.P-6 : C/c of the record of rights Ex.P-7 to : C/c of RTCs 11 Ex.P-12 : RTC Ex.P-13 : C/c of sale deed, dated: 06.11.2004 Ex.P-14 : RTCs to 17 65 O.S.No.789/2005 Ex.P-18 : M.R. Extract Ex.P-19 : C/c of order RA (S)269/2005-06 Ex.P-20 : Computerized Bescom bills.
and 21 Ex.P-22 : NOC issued by Grama Panchayath to BESCOM Ex.P-23 : C/c of Bescom Work order Ex.P-24 : C/c of Meter purchase bill Ex.P-25 : Two applications filed by defendant No.1 for the and 26 supply of electricity dated: 13.09.2005
List of witnesses examined on behalf of the defendant/s:
D.W.1 : Sri.R.Jayaramaiah D.W.2 : Sri.Basavaraju D.W.3 : Sri.Sreenivas List of documents marked on behalf of the defendant/s :
Ex.D-1 : GPA, dated: 10-08-2016 Ex.D-2 : C/c of Survey settlement extract Ex.D-3 : C/c of Sale Deed, dated: 08.07.1936
Ex.D3(a) to : Typed copy of Ex.D.3 to Ex.D.5 Ex.D.5(a) Ex.D-4 : C/c of Sale Deed, dated: 31-10-1948 pertaining to adjacent property.
Ex.D-5 : C/c of Sale deed, dated: 31.11.1948 pertaining to adjacent property.
Ex.D-6 & 7 : C/c of judgment and decree passed in O.S.No.387/1987 Ex.D-8 & 9 : C/c of the plaint and written statement in O.S.No.387/1987 Ex.D-10 : C/c of the order sheet in RA 42/1994 Ex.D-11 : C/c of Judgment in R.A.No.42/1994 66 O.S.No.789/2005 Ex.D-12&13 : C/c of Judgment and Decree in O.S.No.680/1996 Ex.D-14 : C/c of order sheet in O.S.No.160/1998 Ex.D-15 : C/c of Sale Deed, dated: 06-09-2004 Ex.D-16 : C/c of the Rectification Deed Ex.D-17 : C/c of the Judgment passed in O.S.No.7525/2006.
Ex.D-18 : C/c of the deposition of the husband of the plaintiff in O.S.No.387/1987 Ex.D-19 : C/c of the Sale deed, dated: 15.05.2006 Ex.D-20 : C/c of plaint in O.S.No.5410/2013 Ex.D-21 : C/c of order sheet in O.S.No.5410/2013 Ex.D-22 : General Power of Attorney Ex.D-23 : C/c of Revision Settlement extract Ex.D-24 : xerox copy of tippani Ex.D-25&26 : Copies of orders for mutation entries Ex.D-27 : Endorsement issued by Tahasildar Ex.D-28 : Index of Lands Ex.D-29 to : 3 Pahanies 31 Ex.D-32 : C/c of order passed on I.A.No.1 in O.S.No.307/2004, on the file of 2nd Addl.Civil Judge, Bangalore Rural.
Ex.D-33 : C/c of order passed on I.A.No.1 in O.S.No.661/2002 on the file of 2nd Addl.Civil Judge, Bangalore Rural.
Ex.D-34 : C/c of plaint in O.S.No.387/1987 of Munsiff Court, Bangalore.
Ex.D-35 C/c of judgment and decree in O.S.No.387/1987 on the file of 2nd Munsiff, Bangalore 67 O.S.No.789/2005 Ex.D-36 : C/c of order sheet of I.A.No.1 and copy of judgment of O.S.No.160/1992 Ex.D-37 : C/c of judgment and decree in O.S.No.680/1996 Ex.D-38 : Notice to publics by Spl.Land Acquisition Officer Ex.D-39 : C/c of sale deed, dt: 15.5.2006 Ex.D-40 : C/c of sale deed, dt: 15.5.2006 Ex.D-41 : C/c of judgment and decree in O.S.No.1855/1993 on the file of CCH-10 Ex.D-42 : C/c of Judgment in RFA No.1341/2003 XIV Addl. City Civil Judge Bangalore.68 O.S.No.789/2005