Bangalore District Court
Smt. Muthulakshmi vs Mr. Kanickaraj on 19 March, 2020
1
O.S.No.15090/2001
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for
AT MAYOHALL UNIT, (CCH-29) BENGALURU.
Judgment in suits
(R.P.91)
Present: Smt. B.S. Bharathi, B.Sc., LL.B,
(Name of the Presiding Judge)
Dated: This the 19th day of March 2020.
Original suit No.15090/2001
Plaintiff:- Smt. Muthulakshmi,
D/o Smt. Marimuthu,
W/o Late Ponnurangam,
No.410, Corporation Quarters,
East Road, Austin Town,
Bangalore - 47.
Since dead by her LRs.
1 Mr.Mahendra, Age: 67 years,
2 Mr.Ramani Bai, Age: 65 years,
3 Ms.Prabhavathi, Age: 61 years
4 Mr. Suresh Kumar, 59 years,
5. Mrs.Vijayalakshmi, Age: 47 years,
6. Mr.Nanda Kumar, Age: 45 years,
All are children of Late Muthu
Lakshmi & Ponnurangam, All are
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O.S.No.15090/2001
r/at. No.410, Corporation Quarters,
East Road, Austin Town,
Bangalore - 47.
(Pleader by: Sri.K.N.Somaiah, Adv.)
- V/s -
Defendants:- 1. Mr. Kanickaraj,
S/o Abdul Gaffoor,
Major,
No.402, Corporation Quarter
East Road, Austin Town,
Bangalore - 37.
Since deceased by LRs.
1(a) Smt. Paulina W/o Kanikaraj,
Aged 50 years.
1(b) Mr. Dannis, S/o Kanikaraj,
Aged 32 years,
1(c) Mrs. Pramila Amsu @ Richard,
D/o Kanikaraj,
Aged 28 years,
All are residing at No.402,
Corporation Quarters,
East Road, Austin Town,
Bangalore- 47.
2. The Commissioner,
Bangalore City Corporation,
Hudson Circle,
Bangalore-2.
(Pleader by: Sri.T. Jayaprakash., Adv.)
3
O.S.No.15090/2001
Date of Institution of the suit 17-01-2001
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Declaration
injunction, etc.)
Date of the commencement of 16-11-2018
recording of the Evidence
Date on which the Judgment was 19-03-2020
pronounced
Year/s Month/s Days
Total duration 19 02 02
JUDGMENT
This suit is filed by the Plaintiff against the defendants praying for declaring that the plaintiff is the absolute owner of the suit property with all rights and directing the 1st defendant to vacate and handover the vacant possession of the suit schedule property by passing order of ejectment, directing the 2 nd defendant to cancel the khatha pertaining to the suit property standing in the name of the 1 st defendant and mandatory injunction directing the 2nd defendant to issue the khatha of the same in favour of the plaintiff and for awarding 4 O.S.No.15090/2001 cost and other reliefs which deems fit.
2. According to the Plaintiff, the 2nd defendant has allotted the residential quarters No.402, East Road, Austin Town, Bangalore-47, described in the schedule hereunder, in favour of the mother of the plaintiff by name Smt.Marimuthu. The mother of the plaintiff was enjoying the said property, by paying taxes, to the 2 nd defendant from 1924 as absolute owner. In the year 1976, the mother of the plaintiff died, leaving the plaintiff as only daughter and rightful legal heir to succeed the suit property. According to the plaintiff, in the year 1976 January, the mother of the plaintiff fell ill and she was in death bed. To look after her medical care, the plaintiff had taken her to her residence, but in the short time, she died. Taking the advantage of the death bed of the mother of the plaintiff, the 1st defendant herein had break-opened the lock of the schedule property and illegally occupied the suit property. In fact, the 1 st defendant pretended that he is the son of Smt.Marimuthu and he had created concocted documents. During the life 5 O.S.No.15090/2001 time of Smt. Marimuthu, she had made an application before the 2nd defendant to transfer the schedule property in favour of the plaintiff, with supporting affidavit, sworn by Smt.Marimuthu, before the concerned Magistrate, thereafter, the plaintiff had filed an application seeking for transfer of the said property in her favour, being the rightful legal heir of Smt.Marimuthu, but the 2nd defendant herein have not taken any initiative to transfer the schedule property, in favour of the plaintiff, but, the 2nd defendant played under the tune of the 1 st defendant and transferred the said property in favour of 1st defendant, by issuing the khatha on the said property.
3. The plaintiff further submitted that, even after the death of mother of the plaintiff, she had paid tax in respect of the schedule property, upto 2009, upto date. The defendant No.2 herein used to collect the taxes from the plaintiff and allotted the suit property in favour of the 1st defendant, which clearly shows that the 2nd defendant played a fraud on their part, by leaving their statutory duty as per law, hence, the 2nd defendant is necessary 6 O.S.No.15090/2001 party in this above suit.
4. According to the plaintiff, the 1st defendant herein acted as the son of the mother of the plaintiff, named Smt.Marimuthu. Infact, the 1st defendant is the son of Abdul Gafoor and Smt.Shanthamma, he belonged to Muslim community, there is no question of claiming as son of mother of the plaintiff, but the 2 nd defendant herein totally yielded by considering that the 1st defendant is the son of the mother of the plaintiff, without proper verification and enquiry, allotting the suit schedule property in favour of the 1st defendant does not arise. The 1st defendant taking advantage of the illegal possession of the suit schedule property is trying to alienate the same to the third parties. On number of occasions the plaintiff approached and requested the 1 st defendant to vacate and hand over the possession of the suit schedule property. In the beginning, the 1 st defendant agreed for the same. Thereafterwords, postponing to do so, by giving one or the other reason. Thereafter, the 1st defendant failed to vacate and 7 O.S.No.15090/2001 handover the vacant possession of the suit schedule property.
5. According to the plaintiff, without any other alternative, the plaintiff had got issued a legal notice dt.12-10-2000, against both the defendants, which is duly served upon them, the 1st defendant made untenable reply for the said legal notice and the 1 st defendant failed to vacate the suit schedule property, on the sole intention to defeat the legitimate claim of the plaintiff. Hence, this suit for declaration, possession and also for ejectment of the 1st defendant from the suit property and subsequent prayer for mandatory injunction against the 2 nd defendant to cancel the khatha of the suit schedule property stands in the name of the 1st defendant and to issue the same in favour of the plaintiff. The plaintiff got issued a legal notice on 12-10-2000 against both the defendant for which the 2nd defendant made an untenable reply.
6. The suit schedule property is situated at Adugodi, Bangalore within the jurisdiction of this court. This court 8 O.S.No.15090/2001 has got jurisdiciton.
7. The cause of action for the suit arose in the year 3-11-1976 on the date of allotment, in favour of the mother of the plaintiff, in the year 1993, from the date of death of the mother of the plaintiff, on 28-1-2000, from the date of last payment of tax paid by the plaintiff in respect of the suit property and on 12-10-2000, from the date of legal notice, subsequently, within the jurisdiction of this Court. Court fee is paid as per Karnataka Court Fee and Suits Valuation Act. Hence prays for decreeing the suit on several other grounds.
8. After filing of the suit, Plaintiff died and her Lrs., were brought on record. After filing of the suit, the 1 st defendant also died and his Lrs., were brought on record.
9. The defendant No.1(b) & (c) filed written statement and defendant No.1(a) adopted the same by filing memo. The defendant No.1(b) & (c) filed written statement contending that, they do not know originally the residential quarters No.402, East Road, Austin town, 9 O.S.No.15090/2001 Bangalore allotted to Mr.Mangalesh, who was then serving in British Government and consequent to his death in the year 1924, his only daughter Smt.Marimuthu succeeded to the leasehold right and in enjoyment of the Corporation quarters bearing No.402, East Road, Austin town, Bangalore belonging to 2nd defendant. It is stated that, the Marimuthu was already residing in quarters in No.410, East Road, Austin town, Bangalore along with her daughter Muthulakshmi, the said Marimuthu opted to lease the premises to the 1st defendant Kanikarj. Few years after the occupation of the tenanted premises to the occupation of the tenanted premises i.e., No.402, East Road, Austin Town, Bangalore. Marimuthu died in the year 1976. The 1st defendant had been regular in payment of rents at the instructions to Marimuthu and after her death he started paying rents to her daughter Muthulakshmi right from 1976. It is denied that taking advantage of the illness of the plaintiff's mother, 1 st defendant illegally occupied quarters No.402, East Road, Austin town, by breaking open the lock. It is denied that, the 1st defendant created documents. It is denied that, 10 O.S.No.15090/2001 the 1st defendant approched the Corporation in getting tenancy rights transfered in favour of the plaintiff as a legal heir of Marimuthu. However it is stated that, the 1 st defendant had approached the Corportion in getting the tenancy rights transferred in his name, in view of the long stay and continuous occupation of the quarters in question. However the Corporation authorities advised the 1st defendant to obtain necessary concurrence agreement from the legal heirs of Marimuthu in order to avoid any controversy in transferring tenancy right in the name of the 1st defendant. In this regard these defendants father obtained sale-cum-concurrence agreement from the plaintiff by parting with Rs.78,000/- in forgoing her claim over the quarters as another quarters i.e., 410, East Road, Austin Town, Bangalore which was already earmarked to the plaintiff and she has been in occupation of that quarters for considerable period as a tenant under corporation. In view of the long period of stay and continuous occupation of quarters No.402, coupled with sale-cum-concurrence agreement executed by the plaintiff in favour of the father of these 11 O.S.No.15090/2001 defendants, tenancy right was confirmed in the name of 1st defendant. Right from that day these defendants father was paying rents to the Corporation. Subsequently as per the Notifiction passed by the Government, these defenants father had remitted the sale price as demanded by the Corporation and accordingly the absolute sale deed was executed and registered by the Corporation in the name of 1 st defendant in respect of the Quarters No.402, East Road, Austin Town, Bangalore on 28-3-1995 vide registered document No.227/95-96 before the Sub-Registrar, Shivajinagar, Bangalore-1. Right from the date of obtaining absolute sale deed these defendants father was paying Corporation taxes apart from effecting khatha in his name on 19-7-1996 which is within the knowledge of the plaintiff, which is within teh knowledge of the plaintiff. All other averments are denied. It is stated that, the defendant has not challenged the said sale deed dt.28-3-1995 and other than filing this suit.
10. After the death of Kanikaraj there was a partition 12 O.S.No.15090/2001 amongst the family members, 2 nd LR. got had share on southern portion of the property and northern half portion fallen to the share of 3rd LRs., of the 1st defendant and based on the partition khatha has been effected in the name of LR.No.2 and 3 of the 1st defendant. All other defendants are denied specifically in the written statement. It is stated that, prayer sought for the relief of declaration and such other reliefs filed by the plaintiff on 17-1-2001 is hopelessly time barred which touches the maintainability of the suit. There is no subsisting cause of action to be agitated in this suit. Hence prays for dismissing the suit on several other grounds.
11. On the above said pleadings, this court has framed the following issues:-
1) Whether the Plaintiffs prove that they are the owners the owners of the Plaint Schedule Property?
2) Whether the Plaintiffs further prove that the Defendants No.1(a) to 1(c) are in illegal occupation of the Plaint Schedule Property? 13
O.S.No.15090/2001
3) Whether the Defendant Nos.1(a) to 1(c) prove that the deceased Plaintiff has executed the sale cum concurrence agreement for Rs.78,000/- in favour of the Defendant No.1 forgoing her claim over the Plaint Schedule Property?
4) Whether the Defendant Nos.1(a) to 1(c) further prove that the Defendant No.1 was the absolute owner of the Plaint Schedule Property by virtue of the registered Sale Deed dtd: 28.3.1995 executed in his favour by the Defendant No.2?
5) Whether the Plaintiffs further proves that 2nd Defendant is liable to cancel the khatha standing in the name of the 1st Defendant and the khatha has to be issued in the name of the Plaintiffs?
6) Whether the Defendants prove that the valuation of the suit made by the Plaintiff for the purpose of court fee is not correct?
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O.S.No.15090/2001
7) Whether the plaintiffs are entitled for the reliefs claimed?
8) What order or decree?
Note : Issue No.6 shall be tried as preliminary issue.
12. To prove her case, the Plaintiff No.7 got examined himself as PW.1 and got marked Ex.P.1 to Ex.P.7 documents. The Defendant No.3 got examined herself as DW.1 and got marked Ex.D.1 to Ex.D.24 documents and closed her side.
13. Heard both sides.
14. My answers to the above issues are as follows:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Affirmative.
Issue No.4 : In the Affirmative.
Issue No.5 : In the Negative.
Issue No.6 : In the Affirmative on 12.9.2018.
Issue No.7 : In the Negative.
Issue No.8 : As per final orders
for the following:
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O.S.No.15090/2001
REASONS
15. Issue Nos.1 to 4, 5 and 7:- Since these issues are connected, they are taken together for giving reasoning.
16. This suit is filed by the Plaintiff against the Defendants for declaring that they are the absolute owner of the suit property and for directing the 1 st Defendant to vacate and handover the vacant possession of the suit property and cancelling the khatha pertaining to the suit property standing in the name of the 1 st Defendant and for mandatory injunction directing the 2 nd Defendant to issue khatha of the suit property in the name of the Plaintiff.
17. In support of the case of the Plaintiff, original Plaintiff was examined as PW.1 and later she died and her LRs were brought on record and therefore her evidence was discarded. Later LR of Plaintiff i.e., Plaintiff No.6 Nanda Kumar was examined as PW.1. PW.1 in his evidnece says that his mother has filed this suit and 16 O.S.No.15090/2001 during the pendency of the suit his mother died on 15.7.2010 and hence the suit was dismissed as abated. Later Miscellaneous Petition No.25203/2011 was filed by the legal heirs of the Plaintiff against the Defendants and thereafterwards the legal heirs of the Defendants. The said Miscellaneous Petition was allowed.
18. According to PW.1, the suit property originally allotted by the British Government in favour of Mangali @ Mangalesh father of Smt. Marimuthu grand mother of the Plaintiffs. After the death of Mangali her only daughter Smt. Marimuthu succeeded the schedule property and enjoying the same as absolute owner by paying all the taxes. It is the contention of PW.1 that in the year 1976 Smt. Marimuthu fell ill due to her old age. When she was in her death bed, Smt. Muthulakshmi was her only daughter and mother of the Plaintiff took care of Smt.Marimuthu and shifted Smt. Marimuthu to her residence. On 3.11.1976 Smt. Marimuthu died leaving behind Muthulakshmi as the only daughter and legal heir to succeed the suit property. According to PW.1 taking 17 O.S.No.15090/2001 advantage of the death of Smt. Marimuthu and vacant possession of the suit property 1st Defendant broke the lock of the suit property and occupied the same illegally. Thereafterwards, the 1st Defendant by creating concocted document as he is the only son of deceased Smt. Marimuthu made representation to the 2 nd Defendant to transfer the khatha of the schedule property in his favour. The 2nd Defendant without enquiring and verifying the documents, without inspecting the property transferred the khatha of the suit property in favour of 1 st Defendant. It is stated that 1st Defendant is a Muslim son of Abdul Gaffur and Mrs.Shantha, there is no question of claiming that he is the son of Marimuthu which clearly shows that 1st Defendant played fraud on his part.
19. He also says that when Smt. Marimuthu was in death bed and she was under treatment she made an application to the 2nd Defendant to transfer the khatha of the suit property by producing all the documents along with the affidavit of Smt. Marimuthu. The 2 nd Defendant without considering all the documents and without 18 O.S.No.15090/2001 considering the objection transferred the khatha of suit property in favour of 1 st Defendant. It is also stated that 1st Defendant is illegal occupant of the suit property and hence she requested to vacate the premises. She also says that even after death of Smt. Marimuthu her daughter Muthulakshmi was paying taxes and paid up to 2000.
20. It is the contention of the 1st Defendant that the deceased Defendant i.e., father of Defendant No.1 (a) to 1(c) obtained Sale Cum Concurrence Agreement from the Plaintiff by paying Rs.78,000/- to Muthulakshmi in forgoing her claim over the quarters as another quarters i.e., 410 Corporation Quarters, East Road, Austin Town, Bangalore, was already earmarked in the name of the deceased Plaintiff and she has been in occupation of the quarters for considerable period as a tenant of Corporation. In view of long period of stay in quarters No.402 coupled with Sale Cum Concurrence Agreement executed by the Plaintiff in favour of father of these Defendants and the tenancy rights was confirmed in the 19 O.S.No.15090/2001 name of the 1st Defendant. Right from that day these Defendants father was paying rent to the Corporation. Subsequently as per the notification passed by the Government these Defendant remitted the sale price as demanded by the Corporation and accordingly absolute Sale Deed was executed and registered in the Corporation in the name of the 1 st Defendant in respect of Quarters No.402 on 28.3.1995 registered as Document No.227/1995-1996 before the Sub-Registrar. Therefore, according to the Defendants, they are the owners of the suit property.
21. DW.1 i.e., Defendant No.1(c) in his evidence has also contended the same and produced the said Sale Deed executed by the 2nd Defendant in favour of the 1st Defendant at Ex.D.6 and therefore according to the Defendants No.1(a) to 1(c) LRs of Defendant No.1 are the owners of the suit property and subsequent to his death Defendant No.1(a) to 1(c) are the owners of the suit property and they are also paying taxes to the Defendant No.2 and khatha is also changed in the name of 20 O.S.No.15090/2001 Defendant No.1.
22. PW.1 was cross-examined by the Defendants and during the cross-examination it is suggested to PW.1 that on 3.10.1988 his mother negotiated with the Defendant No.1 for the transfer of the tenancy rights and had received Rs.5,000/- from the Defendant No.1 and the same was denied by PW.1. PW.1 denies that her mother has collected Rs.63,000/- from the 1st Defendant on 16.4.1989 and also denied that on 15.6.1992 his mother has received Rs.10,000/- in cash from the 1 st Defendant and executed Agreement stating that she has no objection to transfer the tenancy rights in respect of the Suit Schedule Property. It is the contention of the LRs of the 1st Defendant that in view of the execution of the Agreement by the deceased Plaintiff they were paying taxes and subsequently obtained Sale Deed from the Defendant No.2 by paying taxes. But, this contention is denied by the PW.1 during the cross-examination. However, when DW.1 was cross-examined by the Plaintiff Advocate it is suggested to DW.1 that OS.No.7036/2002 21 O.S.No.15090/2001 was filed by DW.1 against her father and her brothers and she admits the same and the same was marked as Ex.P.20. She also admits that she has given instructions to her Advocate for filing that suit. Therefore, it is clear that Ex.P.20 i.e., plant copy in OS.No.7036/2002 was marked through confrontation to DW.1 by the Plaintiff themselves. It is the contention of the Advocate for Plaintiff that in the said OS Suit the name of the father of the 1st Defendant is shown as Late Sundarraj in Ex.P.20 and even though name of the father of the 1 st Defendant is Late Sundarraj while obtaining Sale Deed deceased 1 st Defendant has shown his father's name as Mangoli. Even though 1st Defendant was not at all related to Mangoli, he has obtained Sale Deed from Defendant No.2 stating that 1st Defendant is the son of Mangali. PW.1 in his evidence says that 1st Defendant created and concocted documents as he is the only son of Mangoli made representation to the 2nd Defendant for transfer of Khatha of the suit property in his favour. It is the contention of the PW.1 that originally property was allotted to Mangoli @ Mangalesh by British Government. In the year 1976 he 22 O.S.No.15090/2001 died intestate leaving behind his only daughter Smt. Marimuthu. After his death, 2nd Defendant trnasferred the khatha of the suit property in favour of Smt. Marimuthu and she enjoyed the suit property. It is the contention of the PW.1 that when Smt. Marimuthu was in death bed her only daughter Smt. Muthulakshmi i.e., deceased Plaintiff shifted Smt. Marimuthu from her premises No.402 to her quarters 410 where she died. Therefore, it is the contention of PW.1 that by playing defraud the 1 st Defendant got transferred the khatha of the property in his name and also trespassed into the suit property in her absence.
23. It is suggested to DW.1 that in OS.No.7036/2002 there was no impediment to DW.1 to mention her grand father's name as Mangoli @ Sundarraj, since DW.1 says that her grandfather name si Mangoli @ Sundarraj.
24. PW.1 has also confronted the death certificate of original 1st Defendant Kanikaraj to DW.1 and it was marked as Ex.P.19. Even in the Death Certificate the name of grandfather of DW.1 is Sundarraj and not as 23 O.S.No.15090/2001 Mangoli. Therefore, it is argued by the Advocate for the Plaintiff that even though name of father of the 1 st Defendant was Sundarraj he has obtained Sale Deed as Ex.D.6 from 2nd Defendant mentioning his father's name as Mangoli and played fraud on the Defendant No.2.
25. However, it is the contention of the Defendant that Smt. Marimuthu had received Rs.78,000/- and had executed Agreement in favour of deceased Kanikaraj and Kanikaraj occupied the suit property basing on the said agreement and he was paying taxes also. But, Plaintiffs and PW.1 have denied the same. However, as stated above, the Plaint in OS.No.7036/2002 was confronted to DW.1 during the cross-examination in order to show that name of father of Kanikaraj is Late Sundarraj and not Mangoli. However, in the said Ex.P.20 document confronted to DW.1 which is relied by the Plaintiff it is mentioned that Muthulakshmi i.e., deceased Plaintiff approached the 1st Defendant's father and negotiated for sale of the quarters after getting approval from the Bangalore City Corporation and accordingly negotiation 24 O.S.No.15090/2001 were taken place and sale price was fixed at Rs.68,000/- of which on 3.10.1988 itself a sum of Rs.5,000/- was paid as advance and 1st Defendant took possession of suit property and thereafterwards the 1st Defendant as well as other members of the family i.e., Plaintiff as well as Defendant No.2 along with their mother started residing therein. Therefore, in the said document relied by the Advocate for the Defendant, the said Agreement said to have been executed by Muthulakshmi is mentioned. However, it is argued by Advocate for Plaintiff that the said document is produced only to prove that name of father of 1st Defendant is Sundarraj and not Mangoli and it is produced for limited purpose. When the document is relied by the Plaintiff he has to rely his contention basing on the entire contents of the document also. He cannot ask the Court to consider Ex.P.20 only for limited purpose. Therefore, as per the averments of this document Ex.P.20 it is clear that Agreement was executed by Smt. Muthulakshmi in favour of deceased 1st Defendant by receiving Rs.78,000/- in respect of the suit property on 3.10.1988.
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O.S.No.15090/2001
26. However, it is also the duty of the Defendant to prove the said document independently. But when it is admitted by Plaintiff by producing Ex.P.20 the same can relied to hold that the said agreement is executed by Marimuttu. The Plaintiff says that 1st Defendant has occupied the suit property illegally by braking open the lock and his mother was paying taxes to the suit property continuously. The Plaintiff in support of her contention has produced the tax paid receipts at Ex.P.6 to Ex.P.17 and Ex.P.24 to Ex.D.32. As per the same it is clear that taxes were paid to the suit property from 1960 to 1987 continuously and thereafterwards as per Ex.P.24 the tax of Rs.432/- is paid in the name of Smt. Marimuthu for the period from 1.4.1988 to 31.3.2000 at a time. This shows that Smt. Marimuthu was paying taxes continuously without break till 1987 and stopped paying taxes after 1988 and paid taxes at a time as per Ex.P.24 on 28.1.2000 for a period of 1.4.1988 to 31.3.200. If really Plaintiff was in possession of the suit property and if she was paying taxes continuously there was no necessity for 26 O.S.No.15090/2001 the deceased Plaintiff to pay taxes on 31.3.2000 as per Ex.P.24 for a period of 1.4.1988 to 31.3.2000 at a time.
27. It is the contention of PW.1 that deceased 1 st Defendant break open the lock and occupied the premises. PW.1 during the cross-examination at Page No.12 admits that Smt. Marimuthu died on 13.12.1976 and admits that after the death of Smt. Marimuthu Defendant No.1 occupied the property as a tenant of the property. During the cross-examination, PW.1 also admits that Defendant No.1 was paying rents to the Plaintiff. During the cross-examination at Page No.14 admits that Corporation has issued notice in the year 1985 stating that she can purchase the suit property. She also admits that even in respect of Quarters No.410 she received a notice from the Corporation for purchase of that property. That means, in respect of this suit property they have not made any further correspondence for purchase of the same from the 2nd Defendant. On the other hand, they have obtained Sale Deed in respect of another Quarters bearing No.410 where DW.1 is residing now and obtained 27 O.S.No.15090/2001 Sale Deed as admitted by DW.1 during the cross- examination. This admission of PW.1 during the cross clearly shows that deceased 1 st Defendant has not occupied the said property by breaking open the lock. On the other hand, he has occupied the said property as a tenant. This admission also shows that even though notice was issued by Corporation in the year 1985 in respect of the suit property asking the deceased 1 st Plaintiff to obtain Sale Deed in respect of the suit property Plaintiffs have not made any correspondence and have not obtained any Sale Deed in respect of this property, on the other hand, they have obtained Sale Deed in respect of the Quarters No.410. Therefore, it is clear that deceased 1st Defendant had not occupied the suit property legally and if he is a trespasser and occupied the suit property in the year 1976 by breaking open the lock, these Plaintiffs and deceased 1 st Plaintiff ought to have made attempts to take possession of the suit property legally within a period of limitation. When PW.1 was contending that deceased 1st Defendant occupied the suit property illegally in the year 1976 itself, 28 O.S.No.15090/2001 the deceased 1st Plaintiff would not have stopped paying rents to the suit property after 1988. However, the fact that on 28.2.2000 the taxes were paid to the suit property in the name of the Plaintiff as per Ex.P.24 at a time for a period of 1.4.1988 to 31.3.2000 clearly shows that in order to create cause of action for filing this suit they have paid taxes to the suit property at a time, since they had not made any attempts to take possession of the suit property after 1976, if really the 1 st Defendant had occupied the suit property illegally.
28. PW.1 in his evidence has produced Ex.P.5 which is the notice dtd: 12.10.2000 issued by the deceased Plaintiff against Defendant No.2 and 1 st Defendant. In the recitals of the same it is stated that the allotment of the suit property is made in favour of the deceased 1 st Plaintiff and same has to be cancelled. In the said notice it is mentioned that in the year 1993 when her mother fell ill and in death bed deceased 1st Plaintiff took her mother to her residence for treatment and after that she died. Taking advantage of the same, 1 st Defendant 29 O.S.No.15090/2001 trespassed by breaking the lock and occupied the suit property, but the date of occupation of the suit property by the 1st Defendant is not mentioned in the notice or in the plaint. As per the averments of the notice and plaint it is clear that Plaintiff has taken contention that in the year 1993 the deceased 1st Defendant has occupied the suit property illegally. If that is so, as per the law of limitation the suit for possession of the suit property ought to have been filed within the period of limitation. Therefore, it is clear that only to create cause of action even though 1 st Defendant was the tenant of the suit property as admitted by PW.1 herself in the cross-examination and later 1st Defendant obtained Sale Deed from the 2 nd Defendant, this Plaintiff filed this suit and the legal heirs continued this suit.
29. When Ex.P.5 notice was issued by the Plaintiff in the year 2000 i.e., 12.10.2000 stating that property is allotted to the 1st Defendant, the deceased 1st Plaintiff ought to have made all the claims in respect of the suit property i.e., even for cancellation of the sale deed by 30 O.S.No.15090/2001 impleading that prayer also. When DW.1 has produced Ex.D.6 Sale Deed dtd: 28.3.1995 executed by Defendant No.2 in favour of the deceased 1st Defendant, Plaintiff ought to have obtained encumbrance certificate and prayed for cancellation of the said Sale Deed also at the time of filing of the suit itself. However, after filing of the suit in the year 2019 an application was filed for amending the plaint for inserting the prayer for cancellation the Sale Deed dtd: 28.3.1995 and for issuing the Sale Deed in faovur of the legal heirs of the Plaintiff and that application was rejected by this Court. Against the said order the Plaintiff preferred Writ Petition before the Hon'ble High Court of Karnataka in Writ Petition No.43333/2020. It is argued by the Advocate for Defendants that in the said order the Hon'ble High Court of Karnataka has given permission for the Plaintiff to file an appeal even against the Judgment and this order simultaneously at the time of filing RFA and therefore, in case if the suit is not decreed the same will be considered by the Advocate for Plaintiff. But, according to the Advocate for Defendant when the suit is filed on 31 O.S.No.15090/2001 17.10.2001 and notice was also issued to the Defendant by the Plaintiff as per Ex.P.5 in the 2000 itself, the Plaintiff ought to have filed suit for cancellation of the Sale Deed and also khatha. But, Plaintiff has not sought for the said relief. As per Order II Rule 2 CPC the Plaintiff has to include all the claim and if they omit to claim without permission of the Court he cannot claim the same relief again. But, the Court cannot say anything in this regard. However, as discussed above, when Plaintiff has issued notice as per Ex.P.5 he ought to have sought for cancellation of the Sale Deed also at the time of filing of the suit in the year 2001 itself.
30. Even though as per Ex.P.6, the father name of the deceased 1st Defendant is shown as Mangoli, merely because the name of father of the deceased 1 st Defendant is shown as Mangali, it cannot be said that fraud is played on the Plaintiff. On the other hand, the said Deed can be rectified by the LRs of the 1 st Defendant if there is any error. Even though PW.1 contends that the father name of the 1st Defendant is Sundarraj and not 32 O.S.No.15090/2001 Mangali, she again contends that his father's name is Abdul Gaffur even while issuing notice as per Ex.P.5 she has shown father name of 1st Defendant as Abdul Gaffur only. Therefore, the Defendant can rectify the name of father. As per the above said discussion, it is clear that even though 1st Defendant occupied the suit property as a tenant as admitted by PW.1 during the cross- examination, now PW.1 is claiming in the examination-in- chief that deceased 1st Defendant is a trespasser to the suit property. Therefore, as per the admission of PW.1 himself and in view of the above said discussion, it is clear that the 1st Defendant occupied the suit property as a tenant and paying taxes to the Corporation and later he has obtained Sale Deed from the Corporation i.e., Defendant No.2 from 28.3.1995 as per Ex.D.6. On the other hand, even though Plaintiffs contends that 1 st Defendant occupied the suit property by trespassing the suit property they have not taken any action from 13.12.1976 after Smt. Marimuthu died and kept quite also shows that the Plaintiff are not entitled for the possession of the suit property and the relief claimed by 33 O.S.No.15090/2001 the Plaintiffs for possession of the suit property is time barred.
31. As per the above said discussion it is clear that there is no document produced by the Plaintiffs to prove that they are the owners of the suit property and Defendant No.1(a) to 1(c) are in illegal possession of the suit property and on the other hand, Defendant No.1(a) to 1(c) produced registered Sale Deed dtd: 28.3.1995 executed in favour of the deceased 1st Defendant and khatha is also standing in the name of the deceased 1 st Defendant. The Advocate for Plaintiff has relied the Judgment of Hon'ble Supreme Court reported in (2019) 7 SCC 76 between Sopanrao and Another V/s Syed Mehmood and Others, the Hon'ble Supreme Court had held that in a suit for declaration of title and possession based on the title i.e., both for relief of declaration and for relief of possession limitation period would be that under Article 65 and not Article 58. Therefore, it is the contention of the Advocate for Plaintiff as per Article 65 there is a limitation of 12 years for filing suit for 34 O.S.No.15090/2001 possession. However, as per the above said discussion it is clear that suit is filed after lapse of 12 years of period of limitation. Therefore, I feel that Plaintiffs are not entitled for the relief sought for. Hence, I answer Issue No.1 in the Negative, Issue No.2 in the Negative, Issue No.3 in the Affirmative, Issue No.4 in the Affirmative, Issue No.5 in the Negative and Issue No.7 in the Negative.
32. Issue No.6:- This Court by its order dtd:12.9.2018 has treated Issue No.6 as preliminary issue and answered the Issue No.6 in the Affirmative.
33. Issue No.8 :- In view of answering to the above said issues, this Court proceeds to pass the following :-
ORDER The Suit of the Plaintiff is dismissed with costs. Draw up decree accordingly. [Dictated to the Stenographer on 19.3.2019 in the open Court by pronouncing the same in the open Court and 35 O.S.No.15090/2001 thereafterwards, the same was transcribed and typed by the Stenographer and thereafterwards I have corrected, signed on 4.5.2020 since there was Covid-19 lockdown).
[ B.S. Bharathi ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru.
SCHEDULE All that piece and parcel of the property bearing Quarters No.402, First Floor, Corporation Quarters, East Road, Austin Town, Bangalore-47, bounded on the:
East by : Road;
West by : Corporation building (now
private property No.379).
North by : Property No.403
South by : Property No.401.
ANNEXURE
1. List of witnesses examined for the plaintiff:-
P.W.1 : Nanda Kumar 2. List of documents marked :- Ex.P.1 : Affidavit Ex.P.2 : Affidavit Ex.P.3 : Death Certificate of Marimuthammal 36 O.S.No.15090/2001 Ex.P.4 : Letter issued by Smt.Muthulakshmi to the -Corporation Ex.P.5 : Legal Notice dt.12-10-2000 Ex.P.6 to 17: Tax paid receipts from 1960 to 1987 Ex.P.18 : Reply by the 1st defendant Ex.P.19 : Death Certificate of S.Kanikarajan Ex.P.20 : CC of application U/o.7 Rule 1 CPC in - O.S.No.7036/2002 Ex.P.21 : CC of application U/o.23 Rule 3 CPC in O.S.No.7036/2002 Ex.P.22 : Final Notice issued by City Corporation, Bangalore dt.28-10-1985 Ex.P.23 : Certificate issued by Councillor
Ex.P.24 to 32: Tax paid receipts (9 Nos.) Ex.P.33 : Legal Notice dt.12-10-2000 Ex.P.34, P35: Two Acknowledgments Ex.P.36 : CC of the Voter Extract of defendant
-Sri Kanikaraj and his family members.
3. List of witnesses examined for the defendants :- 37
O.S.No.15090/2001 DW.1 : Smt. Lilly Premila
4. List of documents marked:-
Ex D.1 : Death Certificate of marimuthu dtd.13-12-1976 Ex D.2 : Rent paid eceipts in the name of marimuthu (2 Nos.) Ex D.3 : Rent paid kanikaraj to BBMp (3 Nos) Ex D.4 : Stamps Notice issued by Dy.Commissioner Dtd.27-7-1995 to kanikaraj. Ex D.5 : Remittence of challen dtd.5-1-95. Ex D.6 : Sale deed dtd.28-3-95 executed by Bangalore City Corporation in favor of kanikaraj.
Ex D.7 : Endorsement dtd.21-9-95. Ex D.8 : Khatha application form Ex D.9 : Khatha Certificate
Ex D.10 : (a to j) Tax paid receipt from 1995 to 2012 (10 Nos) Ex D.11 : Encumbrance Certificate from 1990 to 31-3-2004 Ex D.12 : Encumbrance Certificate from 1-4-2004 to 2017 Ex D.13 : Final Decree in OS 7036/2002 along with E.C. Ex D.14 : Bifurcation Letter issued by BBMP related to 38 O.S.No.15090/2001 suit property Ex D.15 : Khatha Certificate belongs to LRs of Defendant No.1(b).
Ex D.16 : Khatha extract belongs to LRs of Defendant No.1(b) Ex D.17 : Tax paid 2013 till date (6 Nos.) Ex D.18 : Final Decree 1-6-2007 to 6-2-2017 along with E.C. Ex D.19 : Bifurcation Letter issued by BBMP related to Suit Property Ex D.20 : Khatha Certificate belongs to LRs of Defendant No.1(c) Ex D.21 : Khatha Extract belongs to LRs of Defendant No.1(c) Ex D.22: Tax Paid Receipts from the year 2013-14 to 2018-19(6 Nos) Ex D.23 : Genealogical Tee of the LRs of Defendant No.1(b) Ex D.24 : Genealogical Tree of the LRs of Defendant No.1(c) Ex.D.25 : CC of Sale deed dt.15-2-2003 (B.S. Bharathi) XXVIII ADDL.CITY CIVIL JUDGE BANGALORE.
39 O.S.No.15090/2001 40 O.S.No.15090/2001 Judgment pronounced in open court as under (vide separate judgment):-
ORDER (B.S. Bharathi) XXVIII ADDL.CITY CIVIL JUDGE BENGALURU.