Bangalore District Court
P. Srinivas vs Puttaswmy on 23 September, 2022
TITLE SHEET FOR JUDGEMENTS IN SUITS
KABC010126802011
IN THE COURT OF V ADDL.CITY CIVIL COURT
AT BENGALURU
(CCH.No.13)
Present: Smt. NERALE VEERABHADRAIAH BHAVANI, B.A., LL.B. (Hons)
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 23rd day of September, 2022
O.S. No.794/2011
PLAINTIFFS: 1. P. Srinivas,
S/o Late Papanna,
Aged about 38 years
2. P. Kumar,
S/o Late Papanna,
Aged about 36 years
3. P. Ramesh,
S/o Late Papanna,
Aged about 29 years
4. P. Satish,
S/o Late Papanna,
Aged about 18 years
The plaintiff No.1 to 4 are
R/at No.26/5, 5th Cross,
Nanjappa Layout,
Audugodi, Bengaluru.
5. Smt. P. Padma,
D/o Late Papanna,
Aged about 35 years,
R/o Tavarekere village,
Bengaluru South Taluk,
Bengaluru.
6. Muniswamy,
S/o Late Muniyappa @
Rampada Muniga,
Aged about 58 years,
R/at No.26/5, 5th Cross,
Nanjappa Layout,
Audugodi, Bengaluru.
(By Sri.HVS, Advocate)
2
O.S. No.794/2011
.Vs.
DEFENDANTS: 1. Puttaswmy
S/o Sampangiramaiah,
2. Lakshmana,
S/o Sampangiramaiah,
Both defendant No.1 and 2
Are R/o Chikkabegur village,
Begur Hobli, Bengaluru
South Taluk, Bengaluru.
3. Channarayappa,
S/o Pilleshi Munishamappa,
Aged about 76 years
Dead by his L.Rs
3(a). Rathnamma,
D/o Channarayappa,
Aged about 48 years,
R/at 3rd cross,
Chikkabegur village,
Begur Hobli,
Hosaur Main Road,
Bengaluru.
4. Krishnappa,
S/o Pilleshi Munishamappa,
Aged about 72 years
Dead by his L.Rs
4(a). Prem Kumar,
S/o Late Krishnappa,
Aged about 47 years
4(b). Prabhavathi,
D/o Late Krishnappa,
Aged about 45 years
4(c). Lokesh,
S/o Late Krishnappa,
Aged about 42 years
4(d). Jagadish,
S/o Late Krishnappa,
Aged about 40 years
3
O.S. No.794/2011
All the L.Rs of defendant No.4
are R/at No.422, 15th cross,
1st Phase, Vishwapriya Layout,
Begur Hobli, Bengaluru South
Taluk, Bengaluru.
5. Lakshmaiah,
S/o Kuntadasappa
Dead by his L.Rs
5(a). Yellamma,
W/o Late. Lakshmaiah,
Aged about 78 years
5(b). Muniraj,
S/o Late. Lakshmaiah,
Aged about 46 years
5(c). Srinivas.S,
S/o Late. Lakshmaiah,
Aged about 36 years
5(d). Venkatesh.S,
S/o Late. Lakshmaiah,
Aged about 42 years
All the L.Rs of defendant No.5
Are R/at No.1,1st Main,
Nanjappa Layout,
Audugodi, Bengaluru.
6. Muniyamma,
W/o Late Muniyappa,
Aged about 80 years
Dead by her L.Rs
defendant No.7 to 14
7. Nagaraja,
S/o Late Muniyappa,
Aged about 59 years
8. Muniraja,
S/o Late Muniyappa,
Aged about 53 years
4
O.S. No.794/2011
9. Vajarappa,
S/o Late Muniyappa,
Aged about 50 years
10. Papamma
D/o late Muniyappa,
Aged about 45 years
11.Gowramma,
D/o Late Muniyappa,
Aged about 40 years
12. Nagamma,
D/o late Muniyappa,
Aged about 30 years
13. Chandramma,
D/o Late Muniyappa,
Aged about 27 years
14. Munirathnamma,
D/o Late Muniyappa,
Aged about 25 years,
The defendant No.6 to 14
are residents of Singasandra Village, Begur
Hobli Bangalore South Taluk Bangalore.
15. Francis
S/o Charappa,
Aged about 65 years,
Resident of Begur Village,
Begur Hobli, Bangalore South Taluk,
Bangalore.
16. Devaraja
S/o Govindareddy,
Aged about 40 years,
R/at No. 2855, 9th Main,
Banshankari 2nd Stage,
Bangalore-70.
17. Kumar
S/o Govindareddy,
Aged about 36 years
5
O.S. No.794/2011
18. Guruswamy,
S/o Govinda Reddy,
Aged about 34 years
Defendant No.17 and 18
are R/at No. 801 Tata Silk Farm, Bangalore.
19. The Thasildar
Bangalore South Taluk,
Bangalore.
20. G. Subash Reddy
S/o Muralidhar Reddy,
Aged about 35 years
21. G. Dinesh Reddy,
S/o Muralidhar Reddy,
Aged about 37 years
22. Galvity Sree Nagesh Reddy,
S/o Galvity Muralidhar Reddy,
Aged about 40 years,
Defendant No.20 to 22 are
R/at No.9, Sapthagiri Nilaya, Muniswamappa
Road
Maruthisevenagara,
Bangalore-33.
23. Peddabali Saraswathamma
W/o P. Nagireddy,
Aged about 67 years,
R/at No.501 & 502, Flat No. 304,
6th Phase, Pragathi Park View Apartments,
KPHB Colony,
Hyderabad,
Telangana State.
24. Adhinarayana Reddy,
S/o Subbareddy,
Aged about 28 years
25. Smt. A. Neelima,
W/o Adhinarayana Reddy,
Aged about 34 years
6
O.S. No.794/2011
Both defendant No.24 &25
are represented by their
General Power of Attorney holder
Bramhaputhra Reddy,
R/at No.107/1, Ramchandrapuram,
Bangalore-97.
26. K. Guruva Reddy.K
S/o Dilip Reddy,
Aged about 47 years,
R/at No.G- 01, LAA Residency,
3rd Lane Thimmareddy Colony,
Jeevan Bhima Nagara,
Bangalore-75.
27. G.V. Subba Reddy,
S/o Musal Reddy,
Aged about 65 years
R/at No. 3-6-65/1/7 Basheer Bag, Hyderabad-
29.
28. Sri. Parada Saradahi Davuluri,
S/o D. Sudhakara Reddy,
Aged about 35 years,
R/at No. 59-13-35, Gayathri Nagara,
Vijayawada, Andrapradesh.
29. Kandapathi Nageshwara Rao
S/o Munikrishna Naidu,
Aged about 47 years,
R/at No.480, 8th Cross,
6th Main, MICO BTM Layout Bangalore-76.
30. Shravanthi,
W/o Shyam Rrasad Reddy,
Aged about 51 years
31. Shyam Rasad Reddy,
S/o Shankaranarayana Reddy,
Aged about 59 years
Defendant No.30&31 are
R/o Avalahalli, Bangalore-62.
7
O.S. No.794/2011
32. Maddini Meghamam,
S/o Sanjeevini Naidu,
Aged about 50 years,
R/o Venkatarampura Village,
K.V.Puram Post, Ramachandrapuram
Mandala, Chittoor District,
Andhrapradesh.
33. Kotapathi Hari,
S/o Munirathna Naidu,
Aged about 40 years,
R/at No.3, 22nd Cross,
Eshwar Nagara, PSTI Back Side,
Banashankari 2nd Stage,
Bangalore-70.
34. Vemuri Balaji Naidu
S/o V. Srinivasulu Naidu,
Aged about 50 years,
R/o Bapuji Vidya Sadan,
Vikruthamala Village,
Papanaidupet Post,
Yerpedu Mandal,
Chittoor District,
Andrapradesh.
35. Sriramaineni Krishnamurthy,
S/o Srinivasulu Naidu,
Aged about 45 years,
R/at No. 19-14-55, Raghavendra Nagara,
Near SGS Arts College Tirupathi,
Andrapradesh.
36. Peram Dhananjaya Naidu,
S/o P. Venkatadri Naidu,
Aged about 52 years,
R/at Govindavarum Village,
Munagala Playam Post,
Yerpadi Mandala, Chittoor District
Andrapradesh.
37. Kandapathi Madhusudan Rao
S/o Munikrishna Naidu,
Aged about 52 years,
8
O.S. No.794/2011
Rep. By his General Power of Attorney
holder Munikrishna Naidu,
Flat No.301, 3rd Floor, Plot No.124/2, New
No.7, Sri Poomkrishana Enclave, 20th Main,
Padmanabhanagara,
Bangalore-70.
38. M/s Poineer Developers
Rep. By Managing Partner,
Hanumantha Reddy,
S/o Y.Anand Reddy,
Aged about 32 years,
R/at No. 417/B, 2nd Floor,
3rd Main, R.R. Layout,
Nagadevanahalli,
Bangalore-56.
39. Vishwa Prakash E.G
S/o E.A. Govindan,
Aged about 38 years
40. Mrs. Manju.A.V
W/o Vishwa Prakash,
Aged about 31 years
Defendant No.39 and 40
are R/o Indeevaram,
Near Thayalikulm Pallikulam And Post,
Kannur District,
Kerala-04.
41. Chandran Chiramel
S/o K. Ambunhi,
Aged about 59 years,
R/at Quarter No. 601,
Block.43, CPWD Complex,
Sector-1, HSR Layout,
Bangalore.
42. G.D. Praveen,
S/o Doddasiddegowda,
Aged about 26 years
43. Bhanu Praveen,
W/o G.D. Praveen,
Aged about 26 years,
9
O.S. No.794/2011
Defendant No.42 and 43 are
R/at No. 142, M. Block,
Suvarna Santhinikethan,
KSRP Quarters, Koramangala,
Bangalore-34.
44. K.G.P. Nair,
S/o Late Gopal Pillai,
Aged about 60 years
45. Indira Nair,
W/o KGP Nair,
Aged about 52 years,
The defendant No.44&45
are R/at No. C-275, Block No. 25,
CPWD Quarters, Koramangala Bangalore-94.
46. Vipindas.K,
S/o A.V. Mureleedharan,
Aged about 32 years
47. Deepthi,
W/o Vipindas.K
Aged about 30 years,
The defendant No.46&47 are
R/at Flat No. 101, Lake Mont Village, 6th
Main, D Block, AECS Layout Kundalahalli,
Bangalore-66.
48. Saaji George,
S/o T.J. George,
R/at No. 357, Block No.30,
CPWD Quarters, Koramangala,
Bangalore-94.
49. T.K. Suthersen,
S/o T.V. Kuppuswamy,
Aged about 52 years
50. T.S. Ramila,
W/o T.K. Suthersen,
Aged about 42 years,
The defendant No.49&50 are
R/at No.605, Block 43,
10
O.S. No.794/2011
CPWD quarters, Sector-1,
HSR Layout Bangalore.
51. Kanadapati Rajashekara Rao,
S/o Munirishnama Naidu,
Aged about 39 years,
R/at Plot No. 124/6/2 New No.7,
Sri. Poorna Krishan Enclave,
20th Main Road, Padmanabhanagara,
Bangalore-70.
EFENDANTS: 1. (D.1,
HOMIGO REALTY
3 to 6- Dead PRIVATE LTD.,
Lr/D3(a),4(a to d) &
D5(a to d)- Exparte
D2, 7 to 16, 19 to 29,
32 to 37, 39 to 50 - Exparte
D17, 18- Sri. HRA
D30, 31- Sri. BNJ
D38- Sri. BSR/TKR advocates)
Date of Institution of the suit 28/01/2011
Nature of the suit Declaration and Injunction Suit
Date of Commencement of recording 28/08/2019
of evidence
Date on which judgment was 23/09/2022
Pronounced
Total Duration Year Months Days
11 07 25
[ NERALE VEERABHADRAIAH BHAVANI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
11
O.S. No.794/2011
:JUDGMENT:
The plaintiffs have filed this suit for declaration for declaring the Sale Deed executed by defendant No.1 and 2 in favour of Muniyappa and the Sale Deed executed by defendant No.3 and 4 in favour of defendant No.15 under Sale Deed dated 10/10/1978 and 27/12/1982 respectively as null and void and not binding on the plaintiffs and to declare the subsequent sale transactions by other defendants as illegal and consequently to direct the defendants to deliver the possession of the suit schedule property to the plaintiffs, to declare that the plaintiffs are the absolute owners of the suit schedule property and to declare the revenue entries made in the name of Munireddy is illegal and void and for grant of pi and other consequential reliefs.
2. Brief facts are as under:-
That, late Sri. Rampada Muniswamy S/o Pothalappa belong to schedule caste (Adi Karnataka) was the owner and was in peaceful possession and enjoyment of the land bearing Sy.No.119 measuring about 4.19 acres situated at Singasandra Village, Begur Hobli, Bengaluru South Taluk. He died leaving behind his two sons and daughter viz., Abbaiah @ Muninga, Muniswamy @ Muniyappa @ Rampada Muniga @ Chikka Muniga, Smt. Munivenkatamma. After the death of Rampada Muniswamy the said property was equally divided between his two sons Abbaiah @ Muniga and Muniswamy @ Muniyappa @ Rampada Muniga. The said Abbaiah got 2.09 acres and Muniswamy @ Muniyappa @ Rampada Muniga got 2.09 acres and for the sake of their convenience the said land in Sy.No. 119 was called as Sy.No. 119/1 and 119/2. The plaintiff No.1 12 O.S. No.794/2011 to 5 are the children of late Papanna, who are the great grand children of said Rampad Muniga and the plaintiff No.6 is the son of Muniswamy @ Rampada Muniga and uncle of plaintiff No.1 to 5.
Further it is averred that, the said Abbaiah sold his share to the extent of 2.09 acres in Sy.No. 119/2 in favour of Siddappa under a registered Sale Deed dated 11/08/1941. Similarly, in the year 1945 the said Muniswamy @ Muniyappa @ Rampada Muniga also sold his share of 2.10 acres in Sy.No. 119/1 in favour of Channarayappa under the Sale Deed dated 28/07/1945. The plaintiffs grandfather Muniswamy @ Muniyappa @ Rampada Muniga had repurchased the very same land in Sy.No. 119/1 measuring 2.09 acres from Channarayappa under the Sale Deed dated 06/04/1946. He has also purchased 1.04 ½ acres of land in Sy.No. 119/2 from his owner Siddappa under the Sale Deed dated 15/12/1944. Accordingly, the katha in respect of the portion of the land with Siddappa continued to be with him. Therefore, it is clear that late Muniswamy @ Muniyappa @ Rampada Muniga was the absolute owner in possession of the land in Sy.No. 119/1 measuring
3.14 ½ acres and Siddappa is the owner of the land in Sy.No. 229/2 about 1.4 ½ acres. The name of Muniswamy @ Muniyappa @ Rampada Muniga is reflected in the records of right till 1982. Hence, the plaintiffs grandfather Muniswamy @ Muniyappa @ Rampada Muniga was the absolute owner of the land bearing Sy.No.119/1 measuring in all 2.14 ½ acres situated at Singasandra village, Begur Hobli which is the suit schedule property and he was looking after the land and his family was shifted to Audugodi for the purpose of children education and employment. Thereafter, he was personally looking after the schedule property till his death and he died in the 13 O.S. No.794/2011 year 1996. After the death of plaintiffs grandfather, his son Papanna and Muniswamy were looking after the suit property but since Muniswamy the 6th plaintiff is lazy and alcoholic and was not co- operating in cultivating the said land, late Papanna alone cultivated the same with the help of labourers.
It is further averred that, plaintiff No.1 to 5 are the children of late Papanna since the 1st plaintiff is doing business, plaintiff No.2 and 3 are working in private company and the plaintiff No.4 is pursuing his studies and 5th plaintiff got married and living outside, late Papanna did not troubles the plaintiffs for managing and looking after any properties including the schedule property. The plaintiff's no.1 to 5 father did not inform anything about the property. The plaintiffs did not ask about the property of the family as he was looking after them exclusively during his life time. The plaintiffs no.1 to 5 mother died prior to the death of their father Papanna who died on 05/03/2010 suddenly. On the death of Papanna there was no discussion or talks about the properties. Thereafter, the plaintiffs noticed the RTC and other records while cleaning the house and requested his uncle Muniswamy to show the schedule property. Since their uncle is ailing and unhealthy was unable to show the schedule property. During the month of June 2010 the 1 st plaintiff with the assistance of the relatives came near the schedule property wherein he noticed the construction and also came to know that the flat belongs to M/s Pioneer Developers i.e. 8th defendant herein. In pursuance of the said development over the suit schedule property the plaintiffs for better information and clarification obtained certain revenue records in respect of the suit property. It came to the knowledge of the plaintiffs that, defendant No.1 Puttaswamy sold 14 O.S. No.794/2011 1.10 acres and defendant No.2 Lakshmana sold 0.15 guntas of land in Sy.No. 119/1 in favour of one Late Muniyappa s/o Kuntadasappa under the registered Sale Deed dated bearing No.281/1975-76 dated 08/11/1975 and 4282/78-79 dated 10/10/1978. Since Muniyappa is no more his legal representative i.e. defendant No.6 to 14 are the necessary parties to the suit. These defendant No.1 and 2 are not the owners and they have no manner of right, title and interest over the suit land and defendant No.6 to 14 laying false claim over the suit land based on the forged and fabricated Sale Deed and they are in unauthorized and illegal possession. Hence, the said sale transaction made between them are void and illegal.
Further it is averred that, since defendant No.3 and 4 Channarayappa and Krishnappa i.e. sons of Munishamappa S/o Pillappa sold the portion of land in Sy.No. 119/1 measuring 1 acre 4 ½ guntas of land in favour of one Francis i.e. defendant No.15 under registered Sale Deed bearing No.5524/1982-83 dated 27/12/1982. The defendant No.3 and 4 are also not owners and do not have any manner of right, title and interest over the suit land and the said transaction are void and illegal and defendant No.15 is in illegal and unauthorized possession. One Munireddy the grandfather of defendant No.15 to 18 herein has purchased the land in Sy.No. 118 in the year 1991 measuring 1.2 ½ acres of Singasandra village which is adjacent to the schedule property from his vendor and defendant No.5 Lakshmaiah under registered Sale Deed No.250/1991-92 dated 18/04/199. After purchase of the said land, the defendant No.19 i.e. The Tahasildar, Bengaluru South Taluk has changed Sy.No. 118 and mentioned in the records as Sy.No.119/1 in M.R. No.18/1990-91 and transferred the katha in the 15 O.S. No.794/2011 name of Munireddy in respect of the land bearing Sy.No. 119 without any basis and Rectification Deed. The Tahasildar has no power to change the survey number and the said act is without any jurisdiction. Munireddy died leaving behind the legal representative i.e. defendant No.16 to18 and executed a registered Will bearing No.6/92-93 dated 12/05/1992 bequeathing the said land in favour of these defendants. The deceased Munireddy had no right to bequeath and as such the defendant No.16 to 18 and his L.Rs do not have any manner of right in Sy.No. 119/1.
Further it is averred that, during the life time of Muniyappa he along with his sons and daughters the defendant No.6 to 14 herein sold Sy.No. 119/1 measuring 1 acre 3.5 guntas in favour of defendant No.15 Devaraj under the registered Sale Deed No.3358/1994-95 dated 16/08/1994 and the name of said Devaraj is also entered into the said land. The suit schedule property are the ancestral properties of the plaintiffs and they are the absolute owners for having succeeded and inherited and have a clear title over the suit schedule properties. After the death of Papanna i.e. on 05/03/2010 they came to know about the present status only when they visited the suit land and and witnessed the illegal construction and learnt that defendant No.16 to 18 have sold the sites by creating fabricated layout plan by obtaining the land conversion from the competent authority to defendant No.20 to 37 and the said Sale Deed executed by defendant No.1 to 3 are illegal and void as they do not have right, title and interest in the land to sell the same and subsequent Sale Deeds executed by other defendants are also illegal and void and not binding upon the plaintiffs. Hence, the suit.
16O.S. No.794/2011
3. After filing the suit, the suit summons was duly served and defendant No.17, 18, 30, 31, 38 appeared through their counsel and defendant No.7, 9 to 23, 27, 29, 32, 33, 34, 36, 37, 39, 40, 41, 42, 43, 49 and 50 remained absent and placed ex-parte. Summons to defendant No.1, 3, 4, 5 and 6 returned as dead and the summons to L.R of defendant No.5 was served and appeared through their counsel but did not chose to file written statement. Summons to defendant No.8 and 10 returned as refused and placed ex-parte. Thereafter, the plaintiffs have carried out the newspaper publication against defendant No.2, 11 to 16, 24, 25, 26, 48, 28 and 35 and after the publication the said defendants were placed ex-parte.
4. The defendant No.9 in his written statement contended that the suit of the plaintiffs is without any pecuniary jurisdiction and not maintainable and the plaintiffs are not entitled for the relief without seeking proper relief and the suit is liable to be dismissed under under Order VII Rule 11(a)&(d).
Further it is contended that the plaintiffs have suppressed the true facts and factualities and the suit is liable to be dismissed on the ground of misrepresentation of the facts. Admittedly, the suit schedule property is situated at Begur Hobli, Bengaluru SouthTaluk and this court will not get jurisdiction without prejudice. It is further contended that, father of this defendant No.9 i.e. Muniyappa S/o Late Kuntudasappa acquired the land bearing Sy.No. 119/1 measuring to an extent of 1 acres 10 guntas of Singasandra village, Begur Hobli, Bengaluru South Taluk under registered Sale Deed dated 08/11/1974 from its owner Sri. Puttaswamy S/o Sampangiramaiah. The said sale is for family and legal 17 O.S. No.794/2011 necessities of the said Puttaswamy. In turn father of defendant No.9 Sri. Muniyappa sold an extent of 37 guntas to defendant No.16 during 1978. He retained 15 guntas out of the total extent purchased under the Sale Deed. To that extent the name of the defendant No.16 is shown in RTC for 37 guntas as per M.R. No.1/1995-96 and 12 guntas. Thereafter, the defendant No.9 applied for conversion to an extent of 12 guntas as entire land was developed in and around for the purpose of residential purpose and the same was granted vide order dated 27/07/1996. Thereafter Muniyamma the mother of defendant No.9 who is defendant No.6 executed a registered Gift Deed in favour of her sons i.e. defendant No.7 to 9. By virtue of Gift Deed, they are the absolute owners of sites as per the conversion order and the allegations made in para 1 to 22 are denied and the plaintiffs are put to strict proof of the same and sought for dismissal of the suit. The defendant No.8 filed memo for adopting the written statement of defendant No.9.
5. The learned counsel for defendant No.17 to 18 filed their written statement contending that the allegations made in the plaint is barred by limitation. Even according to the plaintiffs, the 1 st plaintiff is aged about 38 years and suit ought to be filed within three years from attaining the age of majority and Article 59 of the Limitation Act applied. The suit is barred by limitation and suit is liable to be rejected under Order VII Rule 11 of CPC. The allegations made in para No.4 is correct. The allegations made in para 5 do not require any traverse. The allegations made in para 6 is denied as false and baseless. The allegations made in para 7 is not within the knowledge of these defendants. The allegations made in para 8,9,10,11 are denied as false and baseless. The allegations 18 O.S. No.794/2011 made in para 12 is distorted version of the plaintiffs. The allegations made in para 13 is true except the sale transaction as mentioned in para 13 are void and illegal. The allegations made in para 14 and 15 are denied and the plaintiffs be put to strict proof of the same. The allegations made in para 16 is true and the allegations made in para 17, 18, 19 and 20 are denied as false and baseless and the plaintiffs be put to strict proof of the same.
Further, the allegations made in para 21 that the subject matter of the suit is for declaration with consequential relief with possession and injunction and proper court fee paid as per the valuation is hereby denied as false. The suit is not valued properly and the land has been converted and the market value per square feet as enumerated by the Government is Rs.1,000/- per square feet. The allegations made in para 22 and 23 that there exists a cause of action is denied. The plaintiffs are not entitled for any share in the suit schedule property. The suit itself is not maintainable. The plaintiffs have not come before this court with clean hands and they have suppressed the true facts.
It is further contended that Sy.No. 118 of Singasandra village, Begur Hobli, Bengaluru South Taluk, measuring 2 acres 6 guntas originally belongs to one Smt. Muniayagi and she has sold the said property to Sri. B.C. Ramaiah S/o Channarayappa and she was in possession of the same since 06/05/1944. The said B.C. Ramaiah has sold the same on 11/07/1956 to one Sri. Lachumga @ Lakshmaiah the purchaser has been in peaceful possession and enjoyment of the said property. The said Lakshmaiah and Sri. Muniyappa are brothers and the schedule properties has been 19 O.S. No.794/2011 partitioned under a panchayath pallu patti on 02/02/1980 each one have possessed 1 acre 3 guntas out of 2 acres 6 guntas and the separate katha have been made out as per M.R. No.1/1990-91.
It is further contended that, the property allotted to the share of Sri. Lakshmaiah has been sold to one Sri. Munireddy S/o Krishna Reddy under a registered Sale Deed dated 18/04/1991 for a valid consideration since the date of purchase he is in possession and enjoyment of the same. Sri. Muniyappa his wife Smt. Muniyamma and their children have sold the property allotted to their share to G. Devaraj i.e. 16th defendant under a registered Sale Deed for a consideration and they put the purchaser in peaceful possession and enjoyment of the property and the sellers under both the Sale Deeds were executing all rights of proprietorship. The taluk surveyor has inspected to locate the property and there was a problem in identifying the property. The taluk surveyor along with the concerned officials visited the property purchased by this defendant and was noticed that the property purchased by them likes within Sy.No. 119 and has assigned separate survey number. Sri. P. Muni Reddy died on 19/12/1997 leaving behind a registered Will dated 12/05/1992 bequeathing the property bearing Sy.No. 119/1A measuring 1 acres 3 guntas of Singasandra village in favour of defendant No.1 to 3 and during his life time he had applied for conversion of the said land from agricultural to non agricultural purpose and defendant No.1 also applied for conversion for his self acquired property and the competent authority has permitted convert and /or the land from non agricultural to residential purpose. The said Munireddy was hale and healthy and in a sound state of disposition when the Will was executed.
20O.S. No.794/2011 It is further contended that Smt. Yellamma W/o Sri. Lakshmaiah and her children Smt. Muniyamma, Manjuntha and her children have filed a petition under Section 5 of the Karnataka Schedule Caste and Schedule Tribe Act, 1978 for restoration of the property that the sale deed executed by Sri. Lakshmaiah is not proper and he has not obtained prior permission from the government and the same has been numbered as K.SC.ST.72/2005- 06 and K.SC.ST.71/2005-06 respectively before the Asst. Commissioner, Bengaluru South Taluk and was pleased to reject both the applications vide order dated 28/09/2006. The parties in K.SC.ST.71/2005-06 have preferred an appeal before the Spl. Dy. Commissioner and subsequently they have been withdrawn their claim and the parties in K.SC.ST.72/2005-06 have not challenged the order of the Asst. Commissioner, Bengaluru South Division and the order of the same became final.
Further it is contended that the defendants in above suit are not at all related to the plaintiffs and they have no right, title or interest in or over the schedule properties. The defendants have acquired the portion of the suit schedule property under a registered Will executed by their grandfather Sri. P. Munireddy and the remaining portion is the self acquired property of the defendant No.16 under a registered Sale Deed executed by Sri. Muniyappa, his wife and their children. Further, the suit is bad for misjoinder and non joinder of necessary parties. One Sri Papana has filed a suit against this defendant for the relief of partition and separate possession in respect of the suit schedule property and the said suit is pending consideration and this defendant is a party to the said proceedings and sought for dismissal of the suit.
21O.S. No.794/2011
6. The learned counsel for the defendant No.38 has filed the written statement contending that, the allegations made in para 3 are denied as false and baseless and the allegations made in para 4, 5, 6, 7,8, 9, 10, 11,12,13, 14 and 15 are denied as false to an extent as stated in the written statement and contended that Munireddy died leaving behind him as his legal heir and defendant No.16 to 18 have executed a registered Will dated 12/05/1992 bequeathing the property belonging to him in favour of these defendant No.15 to 18 and denied that Munireddy do not have any right, title and interest. In regard to para 16 this defendant has admitted that defendant No.6 to 14 herein have sold the property in Sy.No. 119/1 measuring 1 acre 3.5 guntas in favour of defendant No.15 Devaraj. The allegations made in para 17 are denied as false and baseless and it may be true that the defendants may have sold the site to the defendant No.20 to 37 as alleged and denied the rest of the allegations. In regard to para 18 that the allegations made that sale transaction made by defendant No.1 to 14 are illegal and not owners and they do not have any manner of right, title and interest is false and contended that the apartment constructed in site No.31 and 32 is already completed and possession is also issued to the various apartment owners who are residing in their respective property.
Further the allegations made in para 19, 20, 21, 22 are denied as false and baseless. The allegations made in para 23 that the plaintiffs have not filed any other suit before any other court is false. In fact one suit already filed is pending in O.S. No.6591/2009 filed by Papanna S/o Sonnappa. The said Papanna claims that he is the father of the plaintiffs herein. Therefore the present suit is not 22 O.S. No.794/2011 maintainable. In O.S. No.6591/2009 Papanna claims to be the son of Sonappa and the plaintiffs herein claim that Papanna is the son of Muniswamy @ Rampada Muniga. Therefore it is clear that the plaintiffs are fictitious persons who have searched the revenue records and have filed the suit only to demand ransom from the property owners in respect of the suit schedule property.
It is further contended that the plaintiffs are not entitled for any declaration as null and void nor they can claim that the revenue records are illegal and void and they are not entitled for the relief of injunction. It is further contended that Rampada Muniswamy never had title in the property bearing Sy.No. 119. The sale transaction was canvassed by the plaintiffs in respect of Sy.No. 118 are false and the document are fabricated for the purpose of this suit.
Further it is contended that, the property bearing Sy.No. 118 measuring 2 acres 6 guntas belonged to Muninarasu which was granted in her favour. Virtually the property pertaining to Sy.No. 118 and 119 was Sy.No. 55. The property bearing Sy.No. 118 and 119 were resurvey numbers. Originally the said Muninarasu was in peaceful possession and enjoyment of the property bearing Sy.No. 119 and not Sy.No. 118. Hence the said property which belonged to Muninarasu was succeeded by her two sons Muniyappa and Lakshmaiah after the death of Muninarasu. Hence the said Muniyappa and Lakshmaiah orally divided the said property in to 1 acre 3 guntas respectively. The said property was conveyed in favour of B.C. Ramaiah and said B.C. Ramaiah re-conveyed the said property in favour of Lakshmaiah. Subsequently the wife and 23 O.S. No.794/2011 children of Muniyappa conveyed the property in favour of Devaraj by the absolute owners of the said property. Virtually the property that was in possession of Muniswamy and Lakshmaiah was Sy.No. 119/1 and 119/2, in view of the fact that old Sy.No. 55 was phoded in to resurvey No.s 118 and 119.
Further it is contended that, the proceedings were initiated under KSC & ST/2005-06 on the file of Asst. Commissioner and he has passed an order to the effect that the land that was held by the children of Muninarasu was virtually Sy.No. 119 only as per the order of ADLR of revenue department. Further on survey of the said property, the ADLR passed an order in ALDR MPR 13, 14 and 29/1991-92 and as per the terms of this the correct survey number in peaceful possession and enjoyment of children of Muninarasu was only Sy.No. 119 and not Sy.No. 118. The tippani drawn under the provisions of Karnataka Land Revenue Act and Sy.No. 119 was phoded in to Sy.No. 119/1A, 119/1B and 119/1C and the property belonging to Munireddy was Sy.No. 119/1A. Hence, the allegations of the plaintiffs are totally incorrect and improper. Further the plaintiffs have not challenged the order of the ADLR even if they are rightful owners of the schedule property. The revenue records pertaining to Sy.No. 119 never stood in the name of Rampada Muniswamy nor the revenue records stood in the name of children of the said Rampada Muniswamy. Virtually at no point of time the Rampada Muniswamy or his children were in possession and enjoyment of the property bearing Sy.No. 119, 119/1 or 119/2 as such the claim of the plaintiffs is false and baseless. The order of ADLR has become final as per the provisions of Karnataka Land Revenue Act and no suit is maintainable in pursuance of the same 24 O.S. No.794/2011 and as such the suit is barred by the provisions of Karantaka Land Revenue Act and it required to be dismissed as not maintainable.
It is further contended that, the order passed by ADLR cannot be challenged before the Asst. Commissioner, therefore the allegations that appeal was preferred against the order of the Tahsildar holds no water and hence is of no consequences. The suit is not properly valued. Admittedly the schedule property is converted and huge residential apartments are situated on the property including site No.31 and 32 and on site No.17 and 18 and this defendant has already constructed residential apartments and sold to various purchasers and the plaintiffs have already made the apartment holders of site No.31 and 32 as parties to the suit. But the court fee is paid as if it is an agricultural land. Therefore the suit is improperly valued and insufficient court fee is paid on the plaint. The suit is to be valued as per the present existing value which is inclusive of residential apartments. Therefore the suit is not properly valued and the suit requires to be dismissed by exercising the power under Order 7 Rule 11 of CPC. The plaintiffs have not made the apartment owners who have purchased the apartments in site No.17 and 18 as necessary parties to the suit, as such the suit requires to be dismissed as misjoinder of necessary parties. The suit is barred by limitation. The plaintiffs are not in possession of the schedule property for more than 10 years. Therefore even if the plaintiffs are treated as owners by law of limitation, whatever right even if they got is extinguished by law of limitation. Therefore this suit requires to be dismissed as barred by law and the suit requires to be dismissed at the threshold by exercising the power under Order 7 Rule 11 of CPC instead of taking the suit for trial. The plaintiff is not entitled for the 25 O.S. No.794/2011 relief as sought for and not in possession and the civil court cannot exercise the jurisdiction over the order of the survey authority under the Land Revenue Act and there is no iota of proof produced as to how Rampada Muniswamy has got the right over the suit property in question and sought for dismissing the suit with exemplary costs.
The defendant No.38 has also filed additional written statement contending that the plaintiffs are aware of the rival title of the defendants and did not chose to avail the prayer of declaration within three years from the date of filing of the written statement. The suit for declaration without seeking for further relief is not maintainable and the plaintiff has only challenged the sale deed executed long back in the year 1975, 1976 and 1982 and not challenged the sale deed executed prior to the filing of the suit. Therefore, the plaintiff is not entitled for the relief as sought for under Section 34 of the Specific Relief Act and sought for dismissing the exemplary cost.
7. On the basis of the above pleadings, my predecessor in office has framed the following issues:-
1. Whether the suit of the plaintiff is maintainable without seeking the relief of declaration of their ownership?
2. Whether the plaintiff to prove their lawful possession over the suit schedule property?
3. Whether the plaintiff to prove the sale deed executed by defendants 1 and 2 in favour of Muniyappa the 26 O.S. No.794/2011 husband of the defendant No.6 and father of defendant No.7 to 14 is null and void?
4. Whether the plaintiff to prove similarly the sale deed executed by defendant No.3 and 4 in favour of defendant No.15 is null and void not binding on the plaintiff including subsequent sale deeds in respect of the suit property?
5. Whether the plaintiff to prove the entries in revenue records in respect of Sy.No. 119/1, measuring 3 acres 14 guntas of land situated at Singasandra village as illegal and void?
6. Whether the court fee is paid insufficient?
7. Whether the suit of the plaintiff is in time?
8. Whether the suit of the plaintiff is bad for misjoinder of parties?
9. Whether the defendant No.38 to prove that he is the absolute owner and in possession of the suit property?
10. Whether the suit of the plaintiff is not maintainable in view of the provision of SC/St Act and Karnataka Land Revenue Act as contended by the defendants?
11. Whether the plaintiff is entitled for relief claimed in the suit?27
O.S. No.794/2011
12. What decree or order?
Addl. Issues:-
1. Whether the defendant No.38 proves that the suit of the plaintiff is not maintainable in view of Section 34 of the Specific Relief Act as there is no further relief sought for?
2. Whether the plaintiffs prove that they are the owners of the suit schedule property?
8. In order to prove their case, the plaintiff No.1 examined himself as PW-1 and got marked the documents at Ex.P.1 to 16.
On the other hand the Managing Partner of defendant No.38 examined himself as D.W. 1 and got marked the documents at Ex.D.1 to D.52.
9. The learned counsel for the plaintiffs has addressed their oral arguments and also filed written arguments. The learned counsel for the defendants addressed the oral arguments.
10. My findings on the above issues are as under:-
Issue No.1 : In view of the amendment, present issue does not arise for consideration Issue No.2 : In the negative Issue No.3 : In the negative Issue No.4 : In the negative Issue No.5 : In the negative Issue No.6 : In the affirmative Issue No.7 : In the negative 28 O.S. No.794/2011 Issue No.8 : In the affirmative Issue No.9 : In the affirmative Issue No.10 : In the negative Issue No.11 : In the negative Addl. Issue No.1 : In the affirmative Addl. Issue No.2: In the negative Issue No.12 :As per final order for the following:
:R E A S O N S:
11. Addl. Issue No.1:- The learned counsel for the defendant No.38 contended that the plaintiffs are aware of the sale transactions pertaining to the suit schedule property apart from the sale transactions as mentioned in the plaint. There are several sale deeds pertaining to the individual sites that are taken place, JDA, GPA in respect of the residential apartment constructed on the suit schedule property. But all the sale deeds are not challenged by the plaintiffs and suit for declaration without further relief is not maintainable under Section 34 of the Specific Relief Act.
12. On the contrary, the learned counsel for the plaintiffs has contended that the sale deeds executed by defendant No.1 to 3 and other subsequent sale deeds are void and illegal and not binding on the plaintiffs and the relief for declaration that the plaintiffs are the absolute owners of the suit schedule property is maintainable.
13. Considering the rival arguments and the material on record, at first I would like to extract Section 34 of the Specific Relief Act which reads thus:-
29O.S. No.794/2011 "34. Discretion of court as to declaration of status or right:- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.
14. On bare reading of the aforesaid section, it is clear that the essential requisite to claim declaratory relief are that i) the plaintiff at the time of the suit must be entitled to any legal character or to any right as to any property, ii) the defendant has denied or is interested in denying the character or title of the plaintiff, iii) the denial must be communicated to the plaintiff in order to give him cause of action, iv) the declaration asked for is a declaration that the plaintiff is entitled to a legal character or to a right to property and (v) the plaintiff is not in position to claim further relief than bare declaration of his title. Further proviso makes it clear that the plaintiff, who is able to seek for further relief should not be allowed mere declaratory relief, if he omits to do so.
15. In the instant case, admittedly the plaintiffs have sought the relief of declaration to declare that they are the owners of the suit schedule property along with cancellation of the sale deed executed by the defendant No.1, 2, 3 and 4 and the revenue entries in the 30 O.S. No.794/2011 names of Munireddy and consequential reliefs of possession and permanent injunction.
16. P.W. 1 has admitted that the schedule property is a converted land and there is an apartment and each floor consist of 5 apartment. He has also admitted that he has not obtained encumbrance certificate from the Sub- Registrar office and if he had obtained then he could have known about transactions. He do not know that whether he has not made all the apartment owner as party to the suit. He has admitted that there are small houses apart from the apartment and tar road, electricity and water connection. D.W. 1 has produced the sale deeds in respect of the apartments constructed over the suit schedule property at Ex.D.1 to D.35. The sale deeds at Ex.D1 to 6, 8 to 10, 12 to 15 and 34 are prior to institution of the suit and except the persons mentioned in the sale deeds at Ex.D.1 to 4, all others person are not made parties i.e., the purchaser at Ex.D.5, 6, 8 to 10, 12 to 15 and 34 to the present proceedings. In such circumstances, the suit for declaration without not seeking further relief of possession from the occupant and cancellation of their sale deeds as null and void as mentioned supra is hit by Section 34 of the Specific Relief Act. Therefore, the contention of the learned counsel for the defendant No.38 that the suit of the plaintiffs is not maintainable is sustainable in the eye of law. Accordingly I answer Addl. Issue No.1 in the affirmative.
17. Issue No.1:- It is pertinent to note that, originally the plaintiffs have filed suit for the relief of declaration that the sale deed executed by defendant No.1 and 2 infavour Muniyappa is null and void, sale deed executed by the defendant no.3 and 4 in favour of 31 O.S. No.794/2011 defendant No15 as null and void, possession and other consequential relief without the declaratory relief that they are the owners of the suit schedule property and subsequently on 16/12/2013 the plaintiffs have filed an application for seeking amendment to the plaint to declare that they are absolute owner of the suit schedule property and the same was rejected vide order dated 10/09/2014 and the said order was challenged before the Hon'ble High Court of Karnataka in W.P. No.16041-16045/2015 and the same was allowed keeping open the point of limitation vide order dated 20/10/2016. In pursuance of the said order, the present issue ought to be considered along with the limitation point which is discussed at the later stage of the judgment. In view of the amendment, the present issue has become redundant and cannot be considered independently.
18. Issue No.2 to 5, 9 and Addl. Issue No.2 :- The Issue No.2 to 5, 9 and Addl. Issue No.2 are interlinked, hence they are taken together.
19. The learned counsel for the plaintiffs has contended that the plaintiffs belongs to depressed class and the Government by considering the long cultivation and possession over the land in Sy.No.119 measuring 4 acres 19 guntas has granted the land in the name of Rampada Muniswamy and the plaintiff No.1 to 5 are the great grandchildren of the said Rampada Muniswamy and plaintiff No.6 is the grandson and to prove that the plaintiffs ancestor are the owner of the suit property, the plaintiffs have produced the sale deeds of their great grand father Abbaiah and Muniswamy and the plaintiffs ancestors never sold the land in Sy.No. 119/1 either to the 32 O.S. No.794/2011 defendants or any body. But the defendants by changing the revenue entries in collusion with revenue officials and also changing the Sy.No. 118 into 119 illegally and tried to grab the entire suit property dishonestly. It is the well settled law that the mere revenue entry does not prove the title and there must be valid transfer of title and possession. The plaintiffs on coming to know about illegal transactions of the defendants in Sy.No. 119/1 has filed the present suit. The plaintiffs are the owners of the property and are entitled for the relief of declaration and sought for decreeing the suit.
20. On the contrary, the learned counsel for the defendant No.38 has contended that the entire case of the plaintiffs is that originally the property bearing Sy.No.119/1 measuring 4 acres 19 belongs to Rampada Muniswamy, who had two sons namely Abbaiah @ Muninga, Muniswamy @ Muniyappa @ Rampada Muniga @ Chikka Muniga and after death of Rampada Muniswamy, his two sons got divided the property but to prove the plaintiffs have not produced any documents to show how Rampada Muniswamy had acquired the property. In fact, P.W. 1 has admitted that he has not produced any documents to show their right to claim the property of Rampada Muniswamy. Prior to the present suit the father of plaintiff No.1 to 5 have filed the suit for partition in O.S. No. 6591/2009 and the said suit came to be dismissed. In the said suit, the father of plaintiff No.1 to 5 has stated that he is the son of Sonappa. But the genealogical tree reflected in plaint shows the father of plaintiff No.1 to 5 is one Papanna s/o Muniswamy @ Rampada Muniga and the same is contrary to earlier suit. Therefore the plaintiffs have failed to prove their relationship with Rampada Muniswamy. In fact, plaintiffs 33 O.S. No.794/2011 have admitted in the plaint that the defendants are putting up the construction in the suit property and the apartments are also raised. In such circumstances, the contention of the plaintiffs that they are in possession of the suit schedule property is filled with falsity. The suit of the plaintiffs is barred under Limitation, delay and latches. The plaintiffs are not entitled for any reliefs as sought for and sought for dismissing the suit.
21. Considering the rival arguments and the material on record, it is the specific case of the plaintiffs that, originally the suit schedule property belongs to Rampada Muniswamy and the plaintiff No.1 to 5 are the great grandchildren and plaintiff No.6 is the grandson of late Rampada Muniswamy and entitled to succeed to the property as they are the absolute owners and sale transactions of the defendants are not binding upon them.
22. In order to prove their case, the plaintiff No.1 is examined as P.W. 1 and reiterated the entire plaint averments in his examination-in-chief. During the course of cross-examination, he has stated that Rampada Muniswamy S/o Pothalappa is his grandfather's father and not produced the patta book showing that the suit schedule property belongs to Rampada Muniswamy. He has admitted that he has not produced any documents to show that the children of Rampada Munisway are Abbaiah and Rampada Muniga and they have divided the property. He has denied due to which he do not have any right in the property. He has admitted that the original survey number in which Rampada Muniswamy got the property is in Sy.No. 55 and thereafter the said survey number was phoded from Sy.No.113 to 123. He has not produced the documents 34 O.S. No.794/2011 to show the same. He do not know Muninarasu is in possession of Sy.No. 119. He do not know one Sonnappa. He do not know about the case in O.S. No.6591/2009. He do not know that Papanna s/o Sonnappa had filed the said case. He has denied that Papanna is the son of Sonnappa. He has stated that he has produced the sale deed to show Abbaiah and Rampada Muniga are the children of Rampada Muniswamy. Except the said document there is no other document. Abbaiah and Rampada Muniga are dead. Abbaiah expired about 30-40 years back. Rampada Muniga expired in the year 1996. Papanna expired on 10/03/2010. He do not have the document to show that Sy.No.119 is a granted land. He do not know how many children Pothalappa had. He has seen the suit property prior to the filing of the suit. He has stated that there was a construction to put up the apartment. He has stated that Rampada Muniswamy got Patta of the land in Sy.No. 55. He do not know the measurement of Sy.No. 55. He do not know Sy.No. 119 is phoded in to 1, 2 and 3. He has denied that there is no Sy.No. 119/1 and deposing falsely. He has admitted that RTC extract at Ex.P.5 shows the name of Muniswamappa, Muniyappa and Munireddy for the year 1994-95 and there is a reference as Sy.No. 119/1A, 119/1B and 119/1C. He has admitted that the land bearing Sy.No.119/1A has been converted. He do not know the market value of the suit property. He has admitted that he has paid the court fee as an agricultural land. He has denied that he has not seen the sale deeds produced by the defendant No.38. He has volunteered that he has seen and again says he do not know that the said documents needs to be challenged.
35O.S. No.794/2011
23. Before analyzing the evidence of P.W. 1, I would like to refer to Ex.P.1 to P.7. Ex.P.1 is the sale deed dated 11/08/1941 executed by Abbaiah in favour of Siddappa in respect of Sy.No. 119/2 measuring 2 acres 0.9 guntas. The recital of the said sale deed shows that Abbaiah's father as Rampada Muniswamy and was holding Patta in respect of the said land. Ex.P.2 is the sale deed dated 28/07/1945 executed by Muniswamy in favour of Chennarayappa in respect of Sy.No. 119/1 measuring 2 acres 10 guntas. Ex.P.3 is the sale deed dated 06/04/1946 executed by Chennarayappa in favour of Muniswamy in respect of 2 acres 9 guntas in Sy.No. 119/1. It indicates that the said Muniswamy had repurchased the property alienated by him. Ex.P.4 is the sale deed dated 15/12/1944 executed by the Siddappa in favour of Muniga in respect of the land bearing Sy.No. 119/2 to an extent of 1 acre 0.4 ½ guntas. It further indicates that as per Ex.P.3 and P.4 the said Muniswamy had a holding of land in Sy.No.119/1 and 119/2 to an extent of 2 acres 9 guntas and 1 acre 0.4 ½ guntas respectively in all measuring 3 acres 13 ½ guntas. Ex.P.5 series are the RTC extracts and mutation entries in respect of the land bearing Sy.No. 119/1, 119/1A, 119/1B, 119/1C. RTC extract for the year 1969-70 in respect of Sy.No. 119/1 shows the land in occupation in the name of Rampada Muniswamy to an extent of 3 acres 14 guntas and the same has been continued till the year 1979-80. The RTC extract for the year 1979-80 in respect of Sy.No. 119/1 shows the name of Rampada Muniswamy is rounded off and the name of Muniswamappa S/o Pillappa and Muniyappa S/o Kuntadasappa is reflected. The ILR in respect of Sy.No. 119/1 shows the name of Rampada Muniswamy and adjacent to his name there is an entry 36 O.S. No.794/2011 with regard to the sale and the name of Muniswamappa is also reflected. RTC extract for the year 1989-90 in respect of Sy.No. 119 shows the name of Muniswamappa S/o Pillappa, Muniyappa S/o Kuntadasappa and Munireddy S/o Krishnareddy and also refer to the mutation entry bearing MR No.14/1983-84 and M.R. No.18/1990-91 till year 1993-94. RTC extract for the year 1994-95 in respect of the survey number as 119/1A measuring 1 acre 3 ½ guntas show the name of Munireddy S/o Krishnareddy and there is an entry with regard to the mutation M.R. No.17/1991-92 and M.R.No. 30/94-95 and the same is continued till 2005-06. The RTC extract in Sy.No. 119/1A for the year 2006-07 shows the name of Devaraj S/o Govindreddy, Kumar S/o Govindreddy and Guruprasad S/o Govindreddy and mutation entry shows the entry of M.R. No.57/2005-06 and reference with regard to the Will dated 26/07/2006 and their name continued till 2009-10.
24. RTC extract in respect of Sy.No. 119/1B measuring 1 acre 2 ½ guntas shows the name of Muniyappa S/o Kuntadasappa and the same is rounded off and the name of Devaraj S/o Govindreddy is mutated and there is an entry with regard to the mutation in M.R. No.26/1994-95 and the same has been continued till 2009 and 2010. The RTC extract in respect of 119/1C measuring 1 acre 5 guntas shows the name of Francis S/o Charappa and the entry in regard to the mutation register bearing M.R. No.17/1991-92 and his name continued till 2009-10.
25. Ex.P.6 are the series of mutation entries shows the survey number 83 and its sub division as 119/1 and the name of Muniswamappa S/o Kuntadasappa for purchasing the property 37 O.S. No.794/2011 under the sale deed dated 16/10/1975 for Rs.4,000/-. M.R. No.26/1994-95 shows the name of Muniyappa S/o Kuntadasappa for having purchased the property from Govindreddy under the sale deed dated 17/08/1994 measuring 1 acre 2 guntas in Sy.No. 119/1B. M.R. No.30/1995-96 shows the name of Kirshnareddy in respect of Sy.No. 119/1 and phoded as 119/1A measuring 1 acre 2 ½ guntas.
26. In this context, I would like to refer to the evidence of P.W. 1. P.W. 1 has admitted that he has no document to show that Abbaiah @ Muninga and Muniswamy @ Muniyappa @ Rampada Muniga @ Chikka Muniga are sons of Rampada Munswamy and their partition but produced registered sale deeds at Ex.P1 to P.4. Ex.P.1 the sale deed dated 11/08/1941 executed by Abbaiah in favour of Siddappa in respect of Sy.No. 119/2 measuring 2 acres 0.9 guntas reflects Abbaiah's is the first son of Rampada Muniswamy. Ex.P.2 is the sale deed dated 28/07/1945 executed by Muniswamy S/o Rampada Muniswamy in favour of Chennarayappa in respect of Sy.No. 119/1 measuring 2 acres 10 guntas. Ex.P.3 is the sale deed dated 06/04/1946 executed by Chennarayappa in favour of Muniswamy in respect of 2 acres 9 guntas in Sy.No. 119/1. Ex.P.4 is the sale deed dated 15/12/1944 executed by the Siddappa in favour of Muniga S/o Rampada Muniswamy in respect of the land bearing Sy.No. 119/2 to an extent of 1 acre 0.4 ½ guntas and Muniga is referred as second son of Rampada Muniswamy. D.W. 1 has also admitted that there was a partition between Abbaiah and Rampada Muniga. Keeping the said aspect this court can infer that originally the property bearing Sy.No119/1 measuring 4 acres 19 guntas belongs to Rampada Muniswamy and he had two sons i.e., Abbaiah 38 O.S. No.794/2011 @ Muninga and Muniswamy @ Muniyappa @ Rampada Muniga @ Chikka Muniga and they have got the property partitioned and sold their respective shares and subsequently, the said Muniga, who is second son of Rampada Muniwamy had repurchased the property to an extent of 3 acres 13 ½ guntas of land in Sy.No.119/1. Therefore, the version of PW1 to that extent is believable.
27. Now in regard to next generation of Abbaiah @ Muninga and Muniswamy @ Muniyappa @ Rampada Muniga @ Chikka Muniga is concerned, PW 1 has not produced any document to show that Muniswamy @ Muniyappa @ Rampada Muniga @ Chikka Muniga had two sons and two daughter namely Papanna, Muniswamy i.e., Plaintiff No.6, Munivenkatamma and Nagamma. Though P.W.1 has denied that his father Papanna is the son of Sonappa and pleaded ignorance about Papanna having filed suit in O.S. No.6591/2009 against Devaraj and others. D.W.1 has produced the certified copy of the order sheet, plaint, written statement and decree in O.S.No.6591/2009 at Ex.D.49 to 52 respectively. The plaint at Ex.P50 discloses that Papanna is son of Sonappa. P.W.1 has stated that his father Papanna had election identity card but no efforts is made to produce the same. He has also stated that Rampada Muniga died in the year 1996. In such an event, Rampada Muniga ought to have some documents such as election card, ration card to his identity. Except the oral testimony of P.W1, there is no document to prove their relationship with Muniswamy @ Muniyappa @ Rampada Muniga @ Chikka Muniga and his oral testimony is contrary to Ex.D.50. Therefore, the plaintiffs fails to prove their relationship with Muniswamy @ Muniyappa @ Rampada Muniga @ Chikka Muniga.
39O.S. No.794/2011
28. Even assuming for the sake of the arguments that Rampada Muniswamy was holding the land bearing Sy.No.119/1 measuring 3 acres 14 guntas, the plaint averment in O.S. No.6591/2009 filed by Papanna and others against Devaraj and others, who are the defendants16 to 18 and 15 in the present case at Ex.D.50 discloses that "one Pothalappa was the Mula Purusha of the joint undivided family. Sri. Pothalappa died leaving behind two sons viz., Rampada Muniswamy and Sonnega and after the death of Pothalappa his sons constituted Hindu Undivided joint family having no division of the family properties and on account of the bad habit of the 1 st son i.e. Rampada Muniswamy and playing fraud on the joint family had alienated all the joint family properties". The said averment coupled with RTC extract as referred above only shows the name of Rampada Muniswamy for the year 1969-70 in respect of Sy.No. 119/1 to an extent of 3 acres 14 guntas and the same has been continued till the year 1979-80 and thereafter, the name of Rampada Muniswamy is rounded off and insertion of the name of Muniswamappa S/o Pillappa and Muniyappa S/o Kuntadasappa, ILR ( Index of Land records ) in respect of Sy.No. 119/1 also shows the name of Rampada Muniswamy and adjacent to his name there is an entry with regard to the sale and the name of Muniswamappa indicates that the said Rampada Muniswamy had alienated the property in Sy.No. 119/1 measuring 3 acres 14 guntas. In the absence of any documents to prove the relationship, this court can draw an inference that the P.W. 1 is uttering falsehood. Therefore the contention of the defendant No.38 that the plaintiffs failed to prove that plaintiff No.1 to 5 are the great grandchildren of Rampada Munisway and plaintiff No.6 is the grandson of Rampada Muniswamy is acceptable.
40O.S. No.794/2011
29. Now in regard to the possession of the suit property is concerned, P.W. 1 has admitted that as on the date of the institution of the suit there was a construction and the land was already converted from agricultural to non agricultural purpose. The RTC extracts at Ex.P.5 series in respect of the Sy.No. 119/1 for the year 1979-80 shows the name of Rampada Muniswamy is rounded off and from the year 1984 onwards till the date of the filing of the suit name of the Muniswamappa S/o Pillappa, Muniyappa S/o Kuntadasappa was shown till 1993-94 and subsequently the name of Munireddy is shown. In so far as the Sy.No. 119/1A, 119/1B and 119/1C the name of Muniswamappa and Francis is shown. It indicates that Rampada Muniswamy was never in possession of the suit property subsequent to 1984 onwards. Thus, the plaintiffs have utterly failed to prove that they were in possession of the property as contended. Therefore, the contention of the defendant No.38 that the plaintiffs were never in possession over more than 40 to 50 years is acceptable.
30. Now in regard to contention of the plaintiffs that one Munireddy, who is grand father of defendant No.15 to 18 had purchased the land in Sy.No.118 measuring about 1. 2 ½ acres of Singasandra village, which is adjacent to schedule property from its vendor and after purchase the survey number was changed from Sy.No.118 to 119/1 and the legal representative of said Munireddy sold the land in Sy.No119/1 belonging to plaintiff is concerned, admittedly, there was resurvey pertaining to Sy.No.118 and 119 but the said survey is only after purchase of property by Munireddy in the year 1991. Prior to this date itself the name of Rampada 41 O.S. No.794/2011 Muniswamy was not shown in any of the revenue records nor any document to show there exist any valid or subsisting right in Sy.No.119/1 measuring 3 acres 14 guntas of land. The burden is on the plaintiff to explain the sequence of events from 1974 till date of filing of suit, which they have failed to do. In such circumstance, the contention of the plaintiffs that there was a resurvey and land of plaintiffs was grabbed holds no good.
31. Now in regard to the contention of the learned counsel for the plaintiffs that the defendants have not produced the sale deeds to show that Rampada Muniswamy had alienated the suit schedule property and revenue records are created is concerned, admittedly there is no sale deed to Rampada Muniswamy have alienated the property in Sy.no.119/1 measuring 3 acres 14 guntas, but there is a clear admission by the father of the plaintiff No.1 to 5's Papanna in the earlier suit i.e. in O.S. No.6591/2009 that the Rampada Muniswamy had alienated the property. It is also pertinent to note that the plaintiffs have not utterly failed to explain in regard to the entries made in the revenue records except stating that the same is created and produced the sale transactions which have taken place on 08/11/1974, 10/10/1978, 27/12/1982 and 18/04/1990, 17/08/1994 at Ex.P.9 to 12 and 14 and the same are pertaining to the defendants No. 1and 2, defendants No.3 and 4, defendants No.15 to 18 and defendants No.6 to 14 respectively. The said sale deed produced by the plaintiffs itself indicates that the aforesaid defendants basis their title have mutated their names in the revenue records and earliest sale deed is dated 08/11/1974 and continued to be in possession till its alienation to developer i.e., defendant No.38 42 O.S. No.794/2011 and the developer sold to subsequent purchaser as evident from Ex.D.1 to D.35 and the defendants are in lawful possession of the property Therefore, the oral testimony of P.W.1 that the revenue records is created, there is no alienation, the sale deeds as mentioned above are null and void holds no goods. Hence, the contention of the learned counsel for the plaintiffs that the defendants have not produced the sale deeds to show that Rampada Muniswamy had alienated the suit schedule property is not help to present case.
32. Lastly, in regard to the contention of the defendant No.38 that the suit of the plaintiffs is barred by limitation, delay and latches is concerned, this court has already observed that the RTC extract shows the name of Rampada Muniswamy for the last time for the year 1984-85 and the present suit is filed after the lapse of 16 years and the relief claimed for declaration that the plaintiffs were the owners of the suit property was only in the year 2013. As per Article 58 of the Limitation Act, the time limit fixed for filing the suit for declaration is three years from the date when the right to sue first accrued. In the instant case, the plaintiffs have approached the court after the lapse of 16 years from the date of last entry in the RTC extract. Even assuming for the sake of arguments that Rampada Muniswamy had any right over the suit schedule property, the said claim of the plaintiffs having approached the court after 16 long years is clearly barred by limitation and there is delay and latches. Thus, the suit of plaintiff for declaring that they are absolute owners are barred by limitation. Accordingly, I answer Issue No.2 to 5 are in the negative, Issue No.9 in the affirmative and Addl. Issue No.2 in the negative.
43O.S. No.794/2011
33. Issue No.6:- The learned counsel for the defendant No.38 has contended that, the plaintiffs are not in possession of the suit property and the nature of the land is converted and the court fee ought to be paid on the market value of the property and sought for dismissing the suit for want of proper court fee.
34. The learned counsel for the plaintiffs has contended that the plaintiffs are the owners of the suit schedule property and paid the proper court fee as the nature of the land was an agricultural land.
35. Considering the rival arguments and the material on record, P.W.1 has admitted that as per Ex.P.15- land in Sy.No.119/1A was converted. He has also admitted that the name of Munireddy is shown in the RTC extract and he has also admitted that the suit schedule property was not an agricultural land as on the date of filing of the suit and he has paid court fee as agricultural land. Ex.P.15 is the order passed by the A.C dated 31/07/1996 wherein it discloses that the land bearing Sy.No.119/1A measuring 1 acre 2 ½ guntas of land was converted from agricultural to non agricultural. The said document coupled with the admission of P.W.1 itself indicates that Sy.No.119/1A is a converted land. Inspite of the said fact, the plaintiffs have paid the court fee on the suit schedule property treating as an agricultural property and assessing its value at Rs.4.75 and the court fee paid under Section 24(a) r/w Section 7(2) of the Karnataka Court Fee and Suits Valuation Act, which is not proper. Therefore the contention of the defendant No.38 that the plaintiffs have not paid the requisite court fee is sustainable in the eye of law. Accordingly, I answer Issue No.6 in the affirmative.
44O.S. No.794/2011
36. Issue No.7:- The learned counsel for the defendant No.38 has contended that, even for the sake of arguments if the plaintiffs prove that they are the legal heirs of Rampada Muniswamy but the suit of the plaintiffs is barred by limitation, delay and latches and sought for dismissing the suit on the said ground itself.
37. On the other hand the learned counsel for the plaintiffs has contended that the plaintiffs are the absolute owners of the suit schedule property of Sy.No.119 and father of the plaintiffs No.1 to 5 i.e., Papanna was looking after the suit schedule property and he shifted his family to Audugodi for the purpose of children education and employment and after death of Papanna, they came about illegal transactions of the defendants and also creation of the revenue documents in collusion with the surveyor and changed the survey number from 118 to 119 which is land belongs to the plaintiffs and sought for allowing the claim of the plaintiffs.
38. Considering the rival arguments and the material on record, this court has already observed that the plaintiffs have failed to prove their relationship with Rampada Muniswamy. Apart from that, P.W.1 has also admitted that there are apartments in the suit schedule property and RTC extract for the year 1994-95 shows the name of Munishamappa, Muniyappa and Munireddy in respect of Sy.No. 119/1A, 1B and 1C. The said version coupled with the land being converted from agricultural to non agricultural way back in the year 1996 and RTC showing the name of Munishamappa, Muniyappa and Munireddy in respect of Sy.No. 119/1A, 1B and 1C for the year 1994-95 itself indicates that the plaintiffs were never in possession of the land bearing Sy.No. 119 as contended. Therefore, 45 O.S. No.794/2011 the contention of the defendant No.38 that suit of the plaintiffs is clearly barred by time, delay and latches is sustainable. Accordingly, I answer issue No.7 in the negative.
39. Issue No.8:- The learned counsel for the defendant No.38 has contended that the plaintiffs have not impleaded all the purchasers of the apartment constructed in the suit schedule property and as such the suit of the plaintiffs is bad for non joinder and misjoinder of parties.
40. Considering the arguments and the material on record, admittedly the suit land is a converted land and there exists an apartment on the said land. It is also an admitted fact that the plaintiffs have not impleaded all the apartment owners in the present suit. In such circumstances, the contention of the defendant No.38 holds good. Accordingly, I answer Issue No.8 in the affirmative.
41. Issue No.10:- The learned counsel for the defendant No.38 has contended that Smt. Yellamma W/o Sri. Lakshmaiah and her children Smt. Muniyamma, Manjuntha and her children have filed a petition under Section 5 of the Karnataka Schedule Caste and Schedule Tribe Act, 1978 for restoration of the property that the sale deed executed by Sri. Lakshmaiah is not proper but they have withdrawn the claim and the plaintiffs have not challenged the revenue entries in regard to the change of survey number from 118 to 119 and the civil court has no jurisdiction in respect of the revenue matters and sought for dismissing the suit.
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42. The learned counsel for the plaintiffs has contended that, the plaintiffs have filed the suit for declaration and mutation entries in the revenue records does not create or extinguish title nor has it any presumptive value and relied upon the decision reported in Municipal Corporation, Gwalior Vs. Pooransingh (2014) SCR Civil 946 and sought for rejecting the contention of the plaintiffs.
43. Considering the rival arguments and the material on record, at first the question that arise for my consideration in regard to applicability of Karnataka Schedule Caste and Schedule Tribe Act, 1978. PW1 in his cross examination dated 14/11/2019 has stated that his great grand father Rampada Muniswamy S/o Pothalappa acquired suit land under Darkasth but not produced the Patta Book and he do not know whether the land was granted by the Government. But he has produced the sale deed at Ex.P1 and 2 that shows Rampada Muniswamy was holding Patta Book belonging to Government. In order to attract the aforesaid SC/ST act, there must be an alienation of land belonging to SC/ST without permission of DC. In the present case, there is no such pleading to attract the provision of Karnataka Schedule Caste and Schedule Tribe Act, 1978.
44. Secondly, in regard to the contention that this court has no jurisdiction in respect of the revenue matter is concerned, admittedly the present suit is filed for declaration and also challenging the entries made in the revenue records and the Civil court has wider jurisdiction to entertain the matter pertaining to the 47 O.S. No.794/2011 declaration. Therefore, the contention of the learned counsel for the defendant No.38 that this court has no jurisdiction is unsustainable in the eye of law. Accordingly, I answer Issue No.10 in the negative.
45. Issue No.11:- In view of my findings on the aforesaid issues I am of the opinion that suit of the plaintiffs is liable to be dismissed without cost. Hence, I answer issue No.11 in the negative.
46. Issue No.12:- For the foregoing reasons, I proceed to pass the following;
:ORDER:
The suit of the plaintiffs is hereby dismissed. No order as to costs.
Draw decree accordingly.
(Partly dictated to the Stenographer both on computer and dictation, typed and transcribed by her respectively, corrected and then signed by me and pronounced in the open Court on this the 23rd day of September, 2022) [ NERALE VEERABHADRAIAH BHAVANI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : P. Srinivas WITNESSES EXAMINED FOR THE DEFENDANTS: DW.1 : Y. Hanumantha Reddy 48 O.S. No.794/2011 DOCUMENTS EXHIBITED FOR THE PLAINTIFFS: Ex.P1 Certified copy of the of the sale deed of 1941-42 Ex.P1(a) Typed copy of the sale deed of 1941-42 Ex.P2 Certified copy of the of the sale deed of the year 1945 Ex.P2(a) Typed copy of sale deed 1945 Ex.P3 Certified copy of the of the sale deed of the year 1946 Ex.P3(a) Typed copy of sale deed 1946 Ex.P4 Certified copy of the of the sale deed of the year 1944 Ex.P4(a) Typed copy of the sale deed1944 Ex.P5 RTC (34 No.s) Ex.P5(a) Hissa Tippani Ex.P6 MR extract (5) with typed copy Ex.P7 Death certificate of Smt. Lakshmi Ex.P8 Form No.10 Ex.P9 Certified copy of the sale deed of the year 1974 Ex.P9(a) Its typed copy Ex.P10 Certified copy of the of the sale deed of the year 1978-79 Ex.P10(a) Its typed copy Ex.P11 Certified copy of the of the sale deed of the year 1982 Ex.P11(a) Its typed copy Ex.P12 Certified copy of the of the sale deed of the year 1991 Ex.P12(a) Its typed copy Ex.P13 Certified copy of the of the sale deed of the year 1992-93 Ex.P13(a) Its typed copy Ex.P14 Certified copy of the of the sale deed of the year 1994 Ex.P14(a) Its typed copy Ex.P15 Certified copy of the of the Order of A.C Ex.P16 Encumbrance Certificate (5) of 1924-2010 49 O.S. No.794/2011 DOCUMENTS EXHIBITED FOR THE DEFENDANTS:- Ex.D1 Certified copy of Sale Deed dated 29.04.2010 Ex.D2 Certified copy of Sale Deed dated 11.06.2010 Ex.D3 Certified copy of Sale Deed dated 16.07.2010 Ex.D4 Certified copy of Sale Deed dated 24.09.2010 Ex.D5 Certified copy of Sale Deed dated 11.11.2010 Ex.D6 Certified copy of Sale Deed dated 19.11.2010 Ex.D7 Certified copy of Sale Deed dated 13.02.2012 Ex.D8 Certified copy of Sale Deed dated 31.12.2010 Ex.D9 Certified copy of Sale Deed dated 19.01.2011
Ex.D10 Certified copy of Sale Deed dated 21.02.2011 Ex.D11 Certified copy of Sale Deed dated 28.01.2012 Ex.D12 Certified copy of Sale Deed dated 10.02.2011 Ex.D13 Certified copy of Sale Deed dated 10.02.2011 Ex.D14 Certified copy of Sale Deed dated 11.08.2011 Ex.D15 Certified copy of Sale Deed dated 27.10.2011 Ex.D16 Certified copy of Sale Deed dated 04.01.2012 Ex.D17 Certified copy of Sale Deed dated 30.01.2012 Ex.D18 Certified copy of Sale Deed dated 30.01.2012 Ex.D19 Certified copy of Sale Deed dated 31.12.2012 Ex.D20 Certified copy of Sale Deed dated 08.03.2013 Ex.D21 Certified copy of Sale Deed dated 16.03.2013 Ex.D22 Certified copy of Sale Deed dated 12.04.2013 Ex.D23 Certified copy of Sale Deed dated 12.04.2013 Ex.D24 Certified copy of Sale Deed dated 15.04.2013 Ex.D25 Certified copy of Sale Deed dated 18.04.2013 Ex.D26 Certified copy of Sale Deed dated 29.04.2013 Ex.D27 Certified copy of Sale Deed dated 24.06.2013 Ex.D28 Certified copy of Sale Deed dated 10.07.2013 Ex.D29 Certified copy of Sale Deed dated 07.08.2013 Ex.D30 Certified copy of Sale Deed dated 07.08.2013 Ex.D31 Certified copy of Sale Deed dated 21.08.2013 Ex.D32 Certified copy of Sale Deed dated 10.03.2013 Ex.D33 Certified copy of Sale Deed dated 23.08.2013 50 O.S. No.794/2011 Ex.D34 Certified copy of Sale Deed dated 08.02.2011 Ex.D35 Certified copy of Sale Deed dated 16.04.2013 Ex.D36 Certified copy of Memorandum of Title Deeds dated 08.09.2010 Ex.D37 Certified copy of Memorandum of Title Deeds dated 08.03.2013 Ex.D38 Certified copy of Memorandum of Title Deeds dated 18.04.2013 Ex.D39 Certified copy of Memorandum of Title Deeds dated 08.02.2011 Ex D40 Certified copy of Release Deed 25.08.2010 Ex.D41 Certified copy of Release Deed 16.09.2013 Ex.D42 Certified copy of Rectification Deed dated 31.12.2010. Ex.D43 Certified copy of the Joint Development Agreement dated 06.10.2008.
Ex.D43(a) Endorsement Ex.D44 Certified copy of the General Power of Attorney dated 06.10.2008.
Ex.D45 Certified copy of the Joint Development Agreement dated 24.05.2010 Ex.D45(a) Endorsement Ex.D46 Certified copy of the General Power of Attorney dated 24.05.2010 Ex.D47 Certified copy of the Joint Development Agreement dated 28.03.2011.
Ex.D48 Certified copy of the General Power of Attorney dated 28.03.2011.
Ex.D49 Certified copy of the order sheet in O.S. No. 6591/2009 Ex.D50 Certified copy of the plaint in O.S. No.6591/2009 Ex.D51 Certified copy of the written statement in O.S. No.6591/2009 Ex.D52 Certified copy of the decree in O.S. No.6591/2009 [ NERALE VEERABHADRAIAH BHAVANI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 51 O.S. No.794/2011 Operative portion of the judgment pronounced in open court vide separate judgment:-
ORDER The suit of the plaintiffs is hereby dismissed.
No order as to costs.
Draw decree accordingly.
[ NERALE VEERABHADRAIAH BHAVANI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU