Bangalore District Court
Are Grandsons Of Late Munivenkatappa ... vs Nos.1 To 3 Are Children Of The Said ... on 3 January, 2022
O.S. No.4969/2013
1
KABC010124462013
IN THE COURT OF THE XXXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
Dated this the 3rd day of January, 2022
Present :
Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge,
Bengaluru.
O.S. No.4969/2013
Between:
1. Sri. Prakash,
S/o Late Ramaiah,
Aged about 50 years,
2. Sri. G.R. Govinda,
S/o Late Ramaiah,
Aged about 48 years,
3. Sri. Babu,
S/o Late Rukkamma,
S/o Late Yellappa,
Aged about 46 years,
4. Sri. Venkatesh,
S/o Late Rukkamma,
S/o Late Yellappa,
Aged about 42 years,
O.S. No.4969/2013
2
5. Sri. Govinda G.Y.,
S/o Late Rukkamma,
S/o Late Yellappa,
Aged about 37 years,
6. Sri. Suresh,
S/o Late Rukkamma,
Aged about 35 years,
All are R/at No.4,
Behind Anjaneya Temple,
Garvebavi Palya,
Begur Hobli,
Bangalore South Taluk,
Bangalore - 560 068. .. PLAINTIFFS
(By: Sri. G.S. Balagangadhar, Advocate)
And
1. Smt. Jayalakshmamma,
W/o Late Nagaraj,
Aged about 55 years,
2. Shashikumar,
S/o Late Nagaraj,
Aged about 28 years,
R/at Garvebavi Palya,
Begur Hobli,
Hosur Main Road,
Bangalore South Taluk,
Bangalore - 68.
3. Sri Narayana
S/o Late Ramaiah,
Aged about 56 years,
(Dead by LR's)
O.S. No.4969/2013
3
3(a) Smt. Vasundara B.V.
W/o Late Narayana,
Aged about 59 years
3(b) Kumari Tejashwini N.,
D/o Late Narayana,
Aged about 27 years
Both are R/at No.4,
Behind Anjaneya Temple,
Garvebavi Palya,
Begur Hobli,
Bangalore South Taluk,
Bangalore - 560 068.
4. Sri N.S.K. Swamy,
S/o Srinivasan,
Aged about 66 years,
R/at No.4/2, Lanes Town Road,
Calcutta - 20.
Calcutta State.
5. Smt. Sarwan Kumari,
W/o late N.R. Gupta,
Aged about 73 years,
(Since dead by LRs.)
6) Smt. Usha Guptha @ Usha,
W/o Late Shyamsundar Guptha,
D/o Late N.R. Guptha,
Aged about 56 years,
7) Smt. Sabita Jain @ Sabitha,
W/o Mr. Ajay Jain,
D/o Late N.R. Guptha,
Aged about 48 years,
R/at No.702, 7th Floor,
'A' Wing, Queens Corner Apartments,
O.S. No.4969/2013
4
3, Queens Road,
Bangalore.
8) Sri Mahendra Kumar Gupta,
S/o Late N.R. Guptha,
Aged about 54 years,
9) Sri Pavan Kumar Guptha,
S/o Late N.R. Guptha,
Aged about 52 years
Both are R/at No.42,
Vittal Mallya Road,
Bangalore - 560 001. .. DEFENDANTS
(Defendant Nos.1, 2 & 4 : Exparte,
Defendant No.3(a) & (b) : By Sri. T.C.Mallikarjuna Swamy.,
Advocate,
Defendant No.5 to 7 : By Sri. V.Raviprakash, Advocate,
Defendant No.8 to 9 : By Sri. Shrikara P.K., Advocate)
Date of Institution of the suit: 10/07/2013
Nature of the suit : Partition etc.
Date of commencement of : 19/10/2016
recording of evidence.
Date on which the judgment : 03/01/2022
was pronounced.
Total Duration Years Months Days
08 05 23
XXXIV Addl. City Civil & Sessions Judge
Bengaluru.
O.S. No.4969/2013
5
JUDGMENT
This suit under Order VII Rule 1 and 2 R/w Section 26 of Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs for partition and separate possession of their 1/2 share in the suit schedule property; to declare that the alleged documents created by the defendants in RR. 88 in respect of schedule property as not binding on the shares of plaintiffs; for permanently restrain the defendant, their agents, servants, anybody acting on their behalf from in any way interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiffs; to direct as to mesne profits as contemplated under Order XX Rule 12 of C.P.C and to grant such other appropriate relief/s deems just and proper under the facts and circumstances of the case including cost of this suit.
2. The brief facts of the case of the plaintiffs are as under:
Plaintiffs are grandsons of late Munivenkatappa and late Lakshmamma. Late Munivenkatappa and late Lakshmamma had 2 children, Ramaiah and Pilladasappa. The Plaintiffs and defendants Nos.1 to 3 are children of the said Ramaiah and Pilladasappa. Earlier, the revenue record in respect of suit O.S. No.4969/2013 6 schedule property stands in the name of Munivenkatappa and his children. After the death of Plaintiff's father, the plaintiffs are in physical possession and enjoyment of the suit schedule property.
The defendants, on 16.6.2013 visited the suit schedule property and tried to change the nature of the suit schedule property. In spite of repeated requests and demands the defendants were postponing the partition on one or the other pretext and finally they refused to do so and instead tried to effect partition among themselves. The Plaintiffs and defendant No.1 to 3 are Class I legal heirs.
3. After the institution of the suit, suit summons were issued and served to the defendants. During the pendency of the suit, defendant No.3 has died and his LRs were brought on record. Defendant Nos.3(a) and (b) appeared through their Counsel. But, have not filed their written statement. Defendant Nos.5 to 7 appeared through their Counsel and filed their written statement. Defendant Nos.8 and 9 appeared through counsel and filed their written statement. In spite of service of summons to defendant Nos.1, 2 and 4, they did not appear. Hence, they are placed ex parte.
O.S. No.4969/2013 7
4. a) The brief contentions of the written statement of the defendant Nos.5 to 7 are as under:
The suit schedule property earlier belonged to one Sri. Munivenkatappa. After his death, his sons Sri Pilladasappa and Sri Ramaiah succeeded to all his properties including the suit schedule property. Thereafter, Sri Pilladasappa and Sri Ramaiah partitioned all the properties that belonged to Sri Munivenkatappa including the suit schedule property by way of an oral partition. In the said oral partition, the northern half of the suit schedule property measuring 1 acre 8 guntas allotted to the share of Sri Pilladasappa and the southern half measuring 1 acre 8 guntas allotted to the share of Sri. Ramaiah.
Sri. Pilladasappa, for the family necessity, sold his share in favour of the 4th defendant by a registered sale deed dated 21/12/1964. Similarly, Sri Ramaiah for the family necessity sold his share in favour of the 4th defendant by a registered sale deed dated 30/04/1965. The 4th defendant sold the entire property in favour of the husband of defendants No.5 and father of defendants No.6 to 9, Sri N.R. Gupta under a sale deed dated 15/04/1971. In the year 1971, Sri N.R. Gupta got the schedule property O.S. No.4969/2013 8 converted from agricultural to nonagricultural industrial purpose and leased the same in favour of Chamundi Industries Ltd., under a registered Lease Deed dated 17/03/1997 for a period of 30 years, extendable by another period of 20 years at the option of the lessee. From the date of registration of the said lease, Chamundi Industries Ltd., has been in peaceful possession and enjoyment of the suit schedule property.
The Plaintiffs are liable to pay court fee on the actual market value of the suit schedule property under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 for the relief of declaration regarding the sale deeds and the court fee is liable to be paid on the actual consideration mentioned in the sale deeds.
The Plaintiffs now seek to challenge the validity of the sale deeds, which were executed on 21/12/1964 and 30/4/1965, when many of the Plaintiffs do not even claim to have been born. Therefore, the suit is barred by the Hindu Succession Act.
The sale deeds executed in the years 1964 and 1965 are challenged after a lapse of more than 48 years. The suit is hopelessly barred by limitation.
O.S. No.4969/2013 9
b) The brief contentions of the written statement of the defendant Nos.8 and 9 are as under:
The suit schedule property earlier belonged to the late Sri. Munivenkatappa. Sri. Munivenkatappa died intestate leaving behind his sons, Sri Pilladasappa and Sri Ramaiah as successors. They partitioned all the properties that belonged to Sri Munivenkatappa including the suit schedule property by way of an oral partition. In the partition, the northern half of the suit schedule property measuring 1 acre 8 guntas fell to the share of Sri Pilladasappa and the southern half measuring 1 acre 8 guntas fell to the share of Sri Ramaiah. Sri Pilladasappa and Sri Ramaiah for himself and on behalf of his then minor sons, Sri Prakash(Plaintiff No.1), Sri Nagaraj, (Husband of defendant No.1 and father of defendant No.2) and Sri. Narayana (3 rd defendant), for the family necessity sold the suit property in favour of the 4 th defendant through two registered sale deeds dated 21/12/1964 and 30/4/1965. Subsequently, the 4th Defendant sold suit schedule property in favour of the father of the defendants 6 to 9 and husband of Defendant No.5, Sri N.R. Gupta under a registered sale deed dated 15/04/1971. In the year 1971, Sri N.R. O.S. No.4969/2013 10 Gupta got the schedule property converted from agricultural to nonagricultural industrial purpose. The Defendants 5 to 9 are in joint possession of the suit schedule property.
The suit filed after a lapse of more than 48 years from the date of the sale deeds dated 21/12/1964 and 30/4/1965 is hopelessly barred by limitation and is therefore liable to be dismissed.
Most of the Plaintiffs were not even born when the suit schedule property was sold by Sri Pilladasappa and Sri Ramaiah in favour of Defendant No.4 by two sale deeds dated 21/12/1964 and 30/4/1965. Consequently, they are not entitled to challenge the same and on this ground also the suit deserves to be dismissed.
The Plaintiffs are liable to pay court fee on the actual market value of the suit schedule property as per Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. There is no specific prayer in the plaint regarding the sale deeds dated 21/12/1964, 30/4/1965 and 15/04/1971 and the suit is not maintainable and is liable to be rejected.
O.S. No.4969/2013 11
5. My predecessor has framed the following issues for consideration.
ISSUES
1. Whether Plaintiffs prove that suit schedule property is the joint Hindu family property of plaintiffs and defendants and all of them are in joint possession and enjoyment of the same?
2. Whether defendants No.8 and 9 prove that the court fee paid by the plaintiffs is insufficient, as alleged in para No. 4(iii) of their written statement?
3. Whether plaintiffs prove that they are entitle for partition and separate possession of half share in the suit schedule property by metes and bounds?
4. Whether plaintiffs prove that they are entitle for any other reliefs, so sought for?
5. What order?
6. In order to prove the case, the plaintiff No.2 examined himself as PW.1 and marked 24 documents as Ex.P1 to Ex.P24. The Plaintiffs also marked 3 documents as Ex.P25 to Ex.P27 through DW1. The plaintiffs examined 2 witnesses, Sri G.M. O.S. No.4969/2013 12 Narayanappa and Sri S.M. Nayak, as PWs.2 and 3 on their behalf. In order to disprove the case of the plaintiffs and to prove their case, defendant No.8 examined himself as DW.1 and marked 17 documents as Ex.D1 to Ex.D17.
7. Heard the arguments of the learned counsel for the plaintiffs, counsel for the defendants No.5 to 7 and counsel for the defendants No.8 and 9.
8. My findings on the above issues are as follows: Issue No.1: In the Negative Issue No.2: In the Affirmative Issue No.3: In the Negative Issue No.4: In the Negative Issue No.5: As per final order for the following:
REASONS
9. Issue No.1: Plaintiffs in their Plaint at para Nos.3 and 4 have pleaded as under:
"................ that the father and grandfather of the plaintiffs and defendant no.1 to 3 namely late Munivenkatapa had acquired the suit schedule O.S. No.4969/2013 13 property from his ancestral or inheritance the said Survey No.55/6, measuring 2 acres 16 guntas situated at Hongasandra Village. According to that earlier the revenue record in respect of suit schedule property stands in the name of Munivenkatappa and his children."
"After the death of Plaintiff's father, the plaintiffs are executors, successors and administrators left behind by Ramaiah."
Plaintiffs at para No.1 have pleaded as to their relationship with defendant Nos.1 to 3, which reads as under:
"Plaintiffs are grandsons of late Munivenkatappa and his wife late Lakshmamma and they have got 2 children, Ramaiah and Pilladasappa, The Plaintiffs and defendants Nos.1 to 3 are children of the said above said two persons. That the plaintiffs and defendants no.1 to 3 are members of Hindu Undivided Joint Family."
O.S. No.4969/2013 14 The pleadings of Plaintiffs about their family and how suit schedule property was acquired by their grandfather Munivenkatappa is vague and not clear.
Order VI Rule 2(1) of CPC reads as under:
"2. Pleading to state material facts and not evidence. (1) Every pleading shall contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved."
The pleadings of plaintiffs do not contain material facts, as mandated under Order VI Rule 2(a) of CPC.
Plaintiff No.5, who has been examined himself as PW.1 in his examination in chief evidence affidavit filed as per order XVIII Rule 4 of CPC has reiterated the plaint averments.
Plaintiffs have produced the Ex.P1, Genealogy issued by Village Accountant, Bommanahalli, Hongasandra Circle, Begur Hobli, Bangalore South Taluk. In Ex.P1, Plaintiff No.5/PW1 has stated that Pilladasappa and Ramaiah are the sons of Munivenkatappa, Plaintiff No.1 and Plaintiff No.2 are the sons of O.S. No.4969/2013 15 Ramaiah, defendant No.1 is the wife of late Nagaraju, son of Ramaiah, defendant No.2 is the son of late Nagaraju, son of Ramaiah and plaintiff Nos.3 to 6 are the sons of Rukkamma, daughter of Pilladasappa.
Plaintiffs relied on the following documents to prove suit schedule property is joint family property of Plaintiffs and defendant Nos.1 to 3 and they are in joint possession and enjoyment of the suit schedule property as on the date of filing of this suit.
Ex.P8 is RTC pertaining to suit schedule property for the years 196970 to 197374, which shows the name of defendant No.4 at Column Nos.9 and 12(2).
Ex.P9 is RTC pertaining to suit schedule property for the year 197475 to 197980, which shows the deletion of the name of N.S.K. Swamy and substitution of the name of N.R. Guptha, son of Banwarilal at Column No.9 and the name of N.S.K. Swamy at Column No.12(2).
Ex.P10 is RTC pertaining to suit schedule property for the year 198081 to 8384, which shows the name of N.R. Guptha at Column No.9 and the name of N.S.K. Swamy at Column No.12(2).
O.S. No.4969/2013 16 Ex.P11 is RTC pertaining to suit schedule property for the year 199091 to 199495, which shows the name of N.R. Guptha at Column Nos.9 and 12(2).
Ex.P12 is RTC pertaining to suit schedule property for the year 199596 and 199697, which shows the name of N.R. Guptha at Column Nos.9 and 12(2).
Ex.P13 is RTC pertaining to suit schedule property for the years 199798 to 200001, which shows the name of N.R. Guptha at Column Nos.9 and 12(2).
Ex.P14, Ex.P15, Ex.P16, Ex.P17 and Ex.P18 are RTC pertaining to suit schedule property for the year 200102, 2002 03, 200304, 200405 and 200506, which shows the name of N.R. Guptha at Column No.9. At Column No.11, Rights,s it is mentioned as 'Converted'.
Ex.P19 is RTC pertaining to suit schedule property for the year 200607. AT Column No.9 of Ex.P19 against 2 Acres 11.04 Gunta, the name of N.R. Guptha and against 0.04.12 Gunta, acquired for National Highway are mentioned. In Ex.P19, at Column No.10 it is also mentioned that 0.04.12 gunta was acquired for the purpose of National Highway under M.R. O.S. No.4969/2013 17 No.67/200506 - Land Acquisition - 22.6.2016.
Ex.P5, Ex.P6, Ex.P7, Ex.P2, Ex.P3, Ex.P4, Ex.P20 and Ex.P21 are RTC pertaining to suit schedule property for the years 200708, 200809, 200910, 201011, 201112 and 201213, 201314 and 201415. In these RTC also similar entries as mentioned in Ex.P19 can be seen at Column No.9, 10, 11 and 12(2).
Ex.P22 is Encumbrance Certificate issued by Senior Sub Registrar, Bommanahalli, Bangalore Urban District, in respect of suit schedule property for a period of 48 years from 15.2.1957 to 31.3.2004. In Ex.22 it can be seen that Pilladasappa has sold northern side 01 Acre 08 gunta in suit schedule property to defendant No.4 on 21.12.1964 and Ramaiah has sold southern side 01 Acre 08 gunta in suit schedule property to defendant No.4 on 30.04.1965 and defendant No.4 has sold suit schedule property in favour of N.R. Guptha on 15.4.1971.
Ex.P23 is Encumbrance Certificate issued by Senior Sub Registrar, Bommanahalli, Bangalore Urban District in respect of suit schedule property for the period 1.4.2004 to 21.10.2016, which shows deceased defendant No.5, who is wife of N.R. Guptha O.S. No.4969/2013 18 has executed Lease Deed in favour of M/s Chamundi Industries Limited on 18.10.2016 and other transactions in respect of suit schedule property.
Ex.P25 is an Agreement executed under Section 29(2) of KIADB Act, 1966 between deceased defendant No.5 and Karnataka Industrial Areas Development Board. By perusal of Ex.P25, it can be seen that an extent of 1461.00 Meters of land along with structure in Survey No.55/6 was notified for acquisition for the purpose of Metro Rail Project and the parties mutually agreed on the compensation of total amount of Rs.18,45,94,309.65 as full and final settlement.
Exs.P26 and P27 are the cheques drawn in favour of deceased defendant No.5 by Special Land Acquisition Officer (Metro), Karnataka Industrial Areas Development Board, Bangalore, as per Agreement Ex.P25.
By the above stated documents relied on by plaintiffs, it is clear that Pilladasappa has sold northern side 01 Acre 08 gunta in suit schedule property to defendant No.4 on 21.12.1964, Ramaiah has sold southern side 01 Acre 08 gunta in suit schedule property to defendant No.4 on 30.04.1965 and defendant No.4 has O.S. No.4969/2013 19 sold suit schedule property in favour of N.R. Guptha on 15.4.1971.
Plaintiffs nowhere in their plaint have pleaded as to Sale Deeds dated 21.12.1964, 30.4.1965 and 15.4.1971, which are produced by themselves. But Plaintiffs at prayer (b) of the Plaint have sought for the relief, which reads as under:
"b) Declare that the alleged documents created by the defendants in RR. 88 in respect of schedule property as not binding on the shares of plaintiffs;"
PW1 in his crossexamination has answered as under:
"It is not true to suggest that 21.12.1964, my father's elder brother by name Pilladasappa had sold away1 acre 8 guntas of land in Survey No.55/6 of Hongasandra Village in favour of Sri. N.S.K. Swamy. It is not true to suggest that on 30.4.1965, my father has sold away 1 acre 8 guntas of land in favour of Sri. N.S.K. Swamy under a registered Sale Deed."
"It is not true to suggest that on 15.4.1971, Sri. NSK. Swamy has sold away the entire land in Survey No.55/6 of Hongasandra Village in favour of N.R. Gupta under a registered Sale Deed."
O.S. No.4969/2013 20 Plaintiffs have examined one G.M. Narayanappa as PW2. PW2 in his examinationinchief evidence affidavit has sworn to as under:
"The documents relied upon by the defendants No.4 to 9 are not genuine."
"Since I am residing in the Garebavipalya Village near the houses of the plaintiffs I know the family affairs of the plaintiffs and defendants No.1 to 3."
PW2 in his crossexamination has answered as under:
"I do not know on what documents the defendants No.4 to 9 were relied upon. It is true that, I was aged about 12 years in 1964. It is true that, I was not aware of the transaction with regard to the suit schedule property in the year 1964, as I was minor at that time."
Plaintiffs have also examined one S.M. Nayak as PW3. PW3 in his examinationinchief evidence affidavit at para No.5 has stated that the documents relied upon by the defendant Nos.4 to 9 are not genuine.
PW3 in his examinationinchief evidence affidavit has not stated how he knows the parties of the suit and how he is O.S. No.4969/2013 21 conversant with the facts and circumstances of the case.
PW3 in his crossexamination has answered as under:
"I do not know the sale made by Ramaiah and also Pilladasappa in favour of defendant No.4. I do not know the sale deed made by 4th defendant in favour of N.R. Gupta."
Defendant No.8, who has been examined himself as DW.1 in his examination in chief evidence affidavit filed as per order XVIII Rule 4 of CPC has reiterated the written statement contentions.
Defendant Nos.8 and 9 have produced the following documents to prove their case.
Ex.D1 is a true copy of registered sale deed dated 21.12.1964 by which defendant No.4 has purchased northern side 1.08 gunta in suit schedule property from Pilladasappa on 21.12.1964. Ex.D2 is a true copy of registered sale deed dated 30.4.1965 by which defendant No.4 has purchased southern side 1.08 gunta of land in suit schedule property from Ramaiah. Ex.D3 is a true copy of registered sale deed dated 15.4.1971 by which N.R. Guptha has purchased the entire suit schedule property from defendant No.4.
O.S. No.4969/2013 22 Ex.D4 is a true copy of registered Deed of Lease dated 17.3.1997 entered into between N.R. Guptha and M/s Chamundi Industries Limited in respect of suit schedule property for the purpose of establishing, implementing and maintaining steel re rolling mill project in suit schedule property by M/s Chamundi Industries Limited.
Ex.D9 is property tax receipt issued by Bruhat Bengaluru Mahanagara Palike (BBMP) for having received property tax from deceased defendant No.5 towards suit schedule property for the year 201314.
Ex.D10 is Encumbrance Certificate in respect of suit schedule property for the period of 40 years from 1.4.1964 to 31.3.2004. Ex.D11 is Encumbrance Certificate in respect of suit schedule property for the period 1.4.2004 to 22.1.2017. In Ex.D10 and D11 the transactions happened in respect of suit schedule property are mentioned.
Ex.D12 is Award notice dated 24.4.2008 sent to N.R. Guptha about the Award passed in respect of acquisition of a portion of land in suit schedule property for the purpose of National Highway.
O.S. No.4969/2013 23 Ex.D13 is a certified copy of order passed on the main petition of O.A. No.364/2008 on 15.9.2015 by Debts Recovery Tribunal, Karnataka, Bangalore. By perusal of Ex.D13, it can be seen that Canara Bank has filed said O.A. for recovery of money and issue of Recovery Certificate against M/s Chamundi Industries Limited and children of N.R. Guptha and the said OA was allowed in favour of Canara Bank.
Ex.D14 is a true copy of the registered Surrender Agreement of Lease Deed dated 17.10.2016 entered into between M/s Chamundi Industries Limited and children of N.R. Guptha in respect of suit schedule property.
Ex.D16 is notice of settling sale proclamation issued in OA No.364/2008 on 5.6.2017. Ex.D17 is Warrant of Attachment of immovable property ordered in OA No.364/2008.
Counsel for Plaintiffs failed to elicit any admission or favourable answer in the crossexamination of DW1, by which the case of plaintiffs can be proved.
In view of the discussion I made above I come to an opinion that the plaintiffs have failed to prove that suit schedule property is joint family property of Plaintiffs and defendant Nos.1 to 3 and O.S. No.4969/2013 24 they are in joint possession and enjoyment of the suit schedule property as on the date of filing of this suit. Hence, I answer Issue No.1 in Negative.
10. Issue No.2: Both defendant Nos.5 to 7 and Defendant Nos.8 and 9 in their written statement have taken contention that plaintiffs are liable to pay court fee on the actual market value of the suit schedule property under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 and for the relief of declaration regarding the sale deeds is the court fee is liable to be paid on the actual consideration mentioned in the sale deeds.
Perused the Valuation Slip furnished by the Plaintiffs along with the Plaint. Plaintiffs have valued the suit for partition and separate possession of their share in suit schedule property under Section 35(2) of Karnataka Court Fees and Suits Valuation Act. By the documents produced by the plaintiffs themselves, it is clear that plaintiffs were not in possession and enjoyment of the suit schedule property from the date of execution of register sale deeds dated 21/12/1964 and 30/04/1965.
Section 35(1) of Karnataka Court Fees and Suits Valuation Act reads as under:
O.S. No.4969/2013 25 "35. Partition suits. (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share."
Section 7 of Karnataka Court Fees and Suits Valuation Act reads as under:
"7. Determination of market value. (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of land in suits falling under Sections 24(a), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be.
(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Deputy Commissioner's register as separately assessed with such revenue, and such revenue is permanently settled - twentyfive times the revenue so payable;"
(b) xxx
O.S. No.4969/2013
26
(c) xxx
(d) xxx "
Plaintiffs have not valued the suit as per Section 7(1) (2) (a) and Section 35(1) of Karnataka Court Fees and Suits Valuation Act.
The plaintiffs have produced the following decisions:
(1) RFA No.287/2008 (Nanjamma vs. Akkayamma & Others).
(2) ILR 2001 KAR 3988 (B.S. Malleshappa vs. Koratagigere B. Shivalingappa and Others) In this decision their lordships of Hon'ble High court of Karnataka, Bengaluru at Paragraph No.11.iv) have opined as under:
"11. We may now conveniently summarise the principles relating to Court fee in regard to suits for partitions and appeals therefrom:
i) xxx xxx xxx
ii) xxx xxx xxx
iii) xxx xxx xxx
iv) If the plaintiff claims that he is in joint
possession of a property and seeks partition and separate possession, he categorises the suit under O.S. No.4969/2013 27 Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence, (which may demonstrate absence of possession or joint possession) if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied." In view of the discussion I made above I come to an opinion that the defendants No.8 and 9 are able to prove that the court fee paid by the plaintiffs is insufficient, as alleged in para No. 4(iii) of their written statement. Hence, I answer Issue No.2 in Affirmative.
11. Issue No.3: Plaintiffs in their plaint at paragraph number 11 have pleaded that in spite of repeated requests and demands the defendants were postponing the partition on one or the other pretext and finally they refused to do so and instead O.S. No.4969/2013 28 tried to effect partition among themselves. But, PW1 in his cross examination has answered as under:
"It is true that I never approached the 1st Defendant and I have not requested her to effect the partition in the suit properties i.e., before filing of the suit."
By the above answer of PW1, it is clear that Plaintiffs have filed this suit without any cause of action just to file suit against Defendant Nos.5 to 9 in respect of prayer (b) of the Plaint. In view of the discussion I made above I answer Issue No.3 in Negative.
12. Issue No.4: In view of the finding I arrived to Issue Nos.1 to 3, I am of the opinion that Plaintiffs are not entitled for any other reliefs also. Hence, I answer Issue No.4 in Negative.
13. Issue No.5: The plaintiffs have produced the following decision:
1) ILR 2012 KAR 4129 (S.K. Lakshminarasappa, Since deceased by his L.Rs., vs. Sri. B. Rudraiah and Others) In this decision his lordship of Hon'ble High court of Karnataka, Bengaluru at Paragraph No.71 has opined as under:
"71. ...... Till the partition is effected by metes and bounds, nobody can claim exclusive title to any portion of the property. Therefore, the alienees O.S. No.4969/2013 29 though they are put in exclusive possession of a portion of the property, as the property is not divided by metes and bounds, they cannot claim exclusive title to the property which is to be in their possession. Therefore the Plaintiffs are deemed to be in possession in law, of the property, which is in the possession of such alienees. Therefore, the limitation do not run against such alienees. The Plaintiffs cannot maintain a suit against such alienees, as there is no privity of contract between them. Therefore if the plaintiffs have to recover possession from such alienees, it is necessary for the plaintiffs to file a suit for general partition against the coparceners or family members or cosharers and include such alienees who are only proper parties in a suit for partition. Only if they get decree against cosharers, family members or coparceners, they would be entitled to possession from such alienees. Therefore the suit that is being filed against the alienees is in fact a suit for partition filed against the members of the family, cosharers and coparceners and as admittedly no period of limitation is prescribed for filing such a suit, this suit is not barred by law of limitation in so far as alienees are concerned."
But, the facts and circumstances of this case are different.
O.S. No.4969/2013 30 This suit was filed by plaintiffs on 10.7.2013, which is after lapse of more than 48 years from the date of execution of registered sale deed dated 21.12.1964 by which defendant No.4 has purchased northern side 1.08 gunta in suit schedule property from Pilladasappa and registered sale deed dated 30.4.1965 by which defendant No.4 has purchased southern side 1.08 gunta of land in suit schedule property from Ramaiah.
The Plaintiffs at prayer (b) of the Plaint have sought for declaration that the alleged documents created by the defendants in RR. 88 in respect of schedule property as not binding on the shares of plaintiffs.
Plaintiffs in their plaint nowhere whispered about execution of registered sale deed dated 21.12.1964, registered sale deed dated 30.4.1965 and registered sale deed dated 15/04/1971 by which Defendant No.4 has sold entire suit schedule property in favour of N.R. Guptha. But without pleading, plaintiffs are seeking the relief of declaration that the alleged documents created by the defendants in RR. 88 in respect of schedule property are not binding on the shares of plaintiffs.
O.S. No.4969/2013 31 Article 58 of Limitation Act, 1963 reads as under:
Article Description of Period of Time from which suit limitation period begins to run 58 To obtain any Three years. When the right to other sue first accrues.
declaration.
There is nothing in the plaint about when the right to sue first accrued to plaintiffs to file this suit for declaration as prayed in prayer (b) of the plaint. Hence, the suit filed by the plaintiffs for the relief of declaration as prayed in prayer b) of the plaint is barred by law of limitation.
The defendants No.5 to 7 have produced an order of the Hon'ble High Court of Karnataka, Bengaluru dated 14.09.2021 passed in CRP No.307/2020 (IO).
The Defendants 8 and 9 have have produced the following decisions:
(1) (2020) 6 Supreme Court Cases 387 (Bhagwat Sharan (Dead through legal representatives) vs. Purushottam and others) (2) ILR 2001 KAR 3988 (B.S. Malleshappa vs. Koratagigere B. Shivalingappa and Others) (3) Order of the Hon'ble High Court of Karnataka, O.S. No.4969/2013 32 Bengaluru dated 14.09.2021 passed in CRP No.307/2020 (IO).
In view of the findings, I arrived to issue No.1 to 4 , I proceed to pass the following : ORDER The suit under Order VII Rule 1 r/w Section 26 of Code of Civil Procedure, 1908 (CPC) filed by the plaintiffs is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer and also directly on computer, after transcribed and typed by him, corrected, signed and pronounced in the open court on this the 3rd day of January, 2022) (G. RAGHAVENDRA) XXXIV Addl. City Civil & Sessions Judge Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW1: Sri. Govinda G.R. PW2: Sri. G.M. Narayanappa. PW3: Sri. S.M. Nayak.
LIST OF EXHIBITS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P1: Genealogy.
Ex.P2: RTC pertaining to suit schedule property for the year
O.S. No.4969/2013
33
201011.
Ex.P3: RTC pertaining to suit schedule property for the year
201112.
Ex.P4: RTC pertaining to suit schedule property for the year
201213.
Ex.P5: RTC pertaining to suit schedule property for the year
200708.
Ex.P6: RTC pertaining to suit schedule property for the year
200809.
Ex.P7: RTC pertaining to suit schedule property for the year
200910.
Ex.P8: RTC pertaining to suit schedule property for the year
196970 to 197273.
Ex.P9: RTC pertaining to suit schedule property for the year
197475 to 197778.
Ex.P10: RTC pertaining to suit schedule property for the year 198081 to 8384.
Ex.P11: RTC pertaining to suit schedule property for the year 199091 to 199495.
Ex.P12: RTC pertaining to suit schedule property for the year 199596 to 199697.
Ex.P13: RTC pertaining to suit schedule property for the year 199798 to 200002.
Ex.P14: RTC pertaining to suit schedule property for the year 200102.
Ex.P15: RTC pertaining to suit schedule property for the year 200203.
O.S. No.4969/2013 34 Ex.P16: RTC pertaining to suit schedule property for the year 200304.
Ex.P17: RTC pertaining to suit schedule property for the year 200405.
Ex.P18: RTC pertaining to suit schedule property for the year 200506.
Ex.P19: RTC pertaining to suit schedule property for the year 200607.
Ex.P20: RTC pertaining to suit schedule property for the year 201314.
Ex.P21: RTC pertaining to suit schedule property for the year 201415.
Ex.P22: Encumbrance Certificate. Ex.P23: Encumbrance Certificate. Ex.P24: Settlement Akarbandh (Utara). Ex.P25: Agreement to be executed under Section 29(2) of KIADB Act 1966.
Exs.P26 & P27: Cheques drawn in favour of deceased defendant No.5 by Special Land Acquisition Officer (Metro). LIST OF WITNESS EXAMINED ON BEHALF OF DEFENDANT:
DW1: Sri. Mahender Kumar Gupta.
LIST OF EXHIBITS MARKED ON BEHALF OF DEFENDANTS:
Ex.D1: True copy of registered sale deed dated 21.12.1964. Ex.D1(a): Typed copy of Sale Deed of Ex.D1.
O.S. No.4969/2013 35 Ex.D2: True copy of registered sale deed dated 30.4.1965. Ex.D2(a): Typed copy of Sale Deed of Ex.D2. Ex.D3: True copy of registered sale deed dated 15.4.1971. Ex.D4: True copy of registered Deed of Lease dated 17.3.1997. Exs.D5D9: Property tax receipts issued by BBMP.
Ex.D10: Encumbrance Certificate.
Ex.D11: Encumbrance Certificate.
Ex.D12: Award notice dated 24.4.2008.
Ex.D13: C.C. of order passed in O.A. No.364/2008.
Ex.D14: True copy of registered Surrender Agreement of Lease
Deed dated 17.10.2016.
Ex.D15: Original Death Certificate of Ms. Sarvana Kumari.
Ex.D16: Notice of settling sale proclamation ordered in OA
No.364/2008 on 5.6.2017.
Ex.D17: Warrant of Attachment of immovable property ordered
in OA No.364/2008.
XXXIV Addl. City Civil & Sessions Judge Bengaluru.