Bangalore District Court
Suresh Kumar B S vs Srinivas B M on 16 February, 2024
1 O.S.No.7594/2010
c/w O.S.No.7444/2009
KABC010185352010
IN THE COURT OF I ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.No.2)
Present: - SRI. SREENIVASA, B.A, LL.B.,
I Addl. City Civil & Session Judge,
Bengaluru.
Dated this the 16th day of February 2024.
O.S.No.7594 / 2010 c/w O.S.No.7444/2009
O.S.No.7594/2010:
Plaintiff in 1. B.S.Suresh Kumar,
O.S.No.7594/2010: S/o. Late M.Shantharaju,
Aged about 30 years.
2. Sri.S.Ravishankar,
S/o. Late M. Shantharaju,
Aged about 44 years.
3. Sri.B.S.Shivashankar,
S/o. Late M.Shantharaju,
Aged about 54 years.
4. Smt. Yallamma,
W/o. Late M.Shantharaju,
Aged about 72 years.
All are r/at No.94/15, 1st Main,
2nd Cross, Valmiki Nagar,
Mysore Road,
Bengaluru-560 026.
(By Sri.S.B.S., Adv.)
Vs
2 O.S.No.7594/2010
c/w O.S.No.7444/2009
Defendants in 1. Sri.B.M.Srinivas,
O.S.No.7594/2010: S/o. Late G.Muniyappa,
Aged about 50 years.
2. Sri.B.M.Satyanarayan,
S/o. Late G.Muniyappa,
Aged about 58 years.
3. Sri.B.S.Satyakumar,
S/o. Late M.Shanthrugna,
Aged about 50 years.
4. Sri.B.S.Manjunath,
S/o. Late M.Shathrugna,
Aged about 48 years.
5. Sri.B.S.Munirathna,
S/o. Late M.Shathrugna,
Aged about 57 years.
Defendant Nos.1 to 5 are r/at
No.94/15, 1st Main, 2nd Cross,
Vamiki Nagar, Mysore Road,
Bengaluru-560 026.
6. Sri.M.K.Shashidhar,
S/o. Late M.Krishnappa,
Since dead represented by his LRs.
6a. Smt.Sunanda
W/o. Late M.K.Shashidhar,
Aged about 51 years.
6b. Sri.S.Kiran,
S/o. Late M.K.Shashidhar,
Aged about 27 years.
6c. Sri.S.Arun,
S/o. Late M.K.Shashidhar,
Aged about 25 years,
3 O.S.No.7594/2010
c/w O.S.No.7444/2009
The defendant Nos.6(a) to 6(c) are
R/at Jayakrupa,
No.88/1, Kadirenahali Circle,
Kadirenahalli - Padmanabha Nagar,
BSK 2nd Stage, Bengaluru-560 070.
7. Sri.M.K.Prabhakar,
S/o. Late M.Krishnappa,
Aged about 48 years,
R/at No.784, 20th Cross,
19th Main, BSK 2nd Stage,
Bengaluru-560 070.
8. Sri.K.Ramakrishna,
S/o. Buddappa,
Aged about 45 years,
R/at Door No.19, 3rd Cross,
Nehru Colony, Bellary.
9. Sri.S.Rajashekar,
S/o. Late M.Shantharaju,
Aged about 50 years,
R/at Defendant Nos.1 to 5 address
No.94/15, 1st Main, 2nd Cross,
Valmiki Nagar, Mysore Road,
Bengaluru-560 026.
(By Sri.V.N., Adv. for D6(a) to (c)
Sri.G.M.G., Adv. for D8,
Sri.G.M., Adv. for D9
D1 to D5, D7 - Exparte)
O.S.No.7444/2009:
Plaintiff in 1. B.S.Suresh Kumar,
O.S.No.7444/2009: S/o. Late M.Shantharaju,
Aged about 30 years.
4 O.S.No.7594/2010
c/w O.S.No.7444/2009
2. Sri.B.S.Shivashankar,
S/o. Late M.Shantharaju,
Aged about 54 years.
3. Sri.S.Ravishankar,
S/o. Late M. Shantharaju,
Aged about 42 years.
All are r/at No.94/15, 1st Main,
2nd Cross, Valmiki Nagar,
Mysore Road,
Bengaluru-560 026.
(By Sri.S.B.S., Adv.)
- VS -
Defendants in 1. Sri.M.K.Shashidhar,
O.S.No.7444/2009: S/o. Late M.Krishnappa,
Since dead represented by his LRs.
1a. Smt.Sunanda
W/o. Late M.K.Shashidhar,
Aged about 51 years.
1b. Sri.S.Kiran,
S/o. Late M.K.Shashidhar,
Aged about 27 years.
1c. Sri.S.Arun,
S/o. Late M.K.Shashidhar,
Aged about 25 years,
R/at Jayakrupa,
No.88/1, Kadirenahali Circle,
Kadirenahalli - Padmanabha Nagar,
BSK 2nd Stage, Bengaluru-560 070.
5 O.S.No.7594/2010
c/w O.S.No.7444/2009
2. Sri.M.Prakash,
S/o. Late M.Krishnappa,
Aged about 50 years,
R/at No.784, 20th Cross Road,
19th main, BSK 2nd Stage,
Bengaluru-560 070.
3. Smt. Jayamma,
W/o. Late M.Krishnappa,
Aged about 78 years,
R/at Jayakrupa,
No.88/1, Kadirenahalli Circle,
Kadirenahalli - Padmanabha Nagar,
BSK 2nd Stage, Bengaluru-560 070.
4. Sri.M.K.Gopinath,
S/o. Late M.Krishnappa,
Aged about 60 years.
5. Sri.M.K.Kumaraswamy,
S/o. Late M.Krishnappa,
Aged about 62 years,
Defendant Nos.4 and 5 are r/at
No.784, 20th Cross, 19th Main,
BSK 2nd Stage, Bengaluru-560 070.
(By Sri.C.C., Adv. for D1(a) & D1(b)
Sri.K.N.N., Adv. for D3
D2 - Exparte)
***
6 O.S.No.7594/2010
c/w O.S.No.7444/2009
Date of Institution of the suit
O.S.No.7594/2010 30.10.2010.
O.S.No.7444/2009 21.11.2009.
Nature of the Suit (suit for pronote,
Suit for declaration & possession,
Suit for injunction, etc.):
O.S.No.7594/2010 Partition
O.S.No.7444/2009 Permanent Injunction.
Date of the commencement of
recording of the Evidence:
O.S.No.7594/2010 28.03.2019.
O.S.No.7444/2009 24.07.2019.
Date on which the Judgment was 16.02.2024.
pronounced:
Year/s Month/s Day/s
Total duration:
O.S.No.7594/2010 13 03 16
O.S.No.7444/2009 14 02 25
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The suit in O.S.No.7594/2010 is filed by plaintiff Sri.B.S.Suresh Kumar against respondent Sri.B.M.Srinivas and others, for direction to the defendants to effect the partition and separate possession of their 1/10th share each in the suit schedule agricultural properties by metes and bounds measuring 5 acres 36 7 O.S.No.7594/2010 c/w O.S.No.7444/2009 guntas (i.e., schedule A measuring 5 acres 22 ¾ guntas and schedule B - 13.04 guntas), and the alleged transfer of schedule-B property measuring 13.04 guntas agricultural land dated 15.09.2004 through an unauthorised sale / transfers made by the defendant Nos.6 and 7 in favour of the defendant No.8 is not binding on these plaintiffs and to direct the defendant Nos.6 to 8 not to interfere with the plaintiff's peaceful possession and enjoyment.
2. The suit in O.S.No.7444/2009 is filed by plaintiff Sri.B.S.Suresh Kumar and others against M.K.Shashidhar, since dead by his LRs and others, praying for permanent injunction against the defendants restraining them from interfering with the plaintiff's peaceful possession and enjoyment over the suit properties and not to alienate the suit schedule property to third parties.
3. The case of the plaintiff in O.S.No.7594/2010 is that:
3a) The plaintiffs submit that, Sri Late M.Munigangappa @Yajamaan Munigangappa has 4 sons namely (1) Late B.M. Ramaiah S/o Late.Munigangappa, he has no issues, (2) Late M.Shathrugna S/o Late Munigangappa (Father of Defendant Nos.3,
4 & 5), (3) Late M Shantharaju S/o Late Munigangappa (Father of Plaintiff Nos. 1 to 3 and defendant No.9 i.e., husband of plaintiff No.4) and (4) Late G Muniyappa S/o Late.Munigangappa (Father of Defendant Nos.1 & 2).
3b) Said Sri Late M.Munigangappa had owned and possessed the 5.36 Acres of Agricultural Land bearing Survey no.5 (Old Survey No.17), Katha No.43, Channasandra Village, Uttarahalli 8 O.S.No.7594/2010 c/w O.S.No.7444/2009 Hobli, Bangalore South Taluk, Bangalore, Measuring 5 acres 22 ¾ Guntaas, and agricultural land bearing Survey no.5 (Old Survey no.
17), Katha no.43, Channasandra Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, measuring 13.04 Guntaas, which are morefully described as SCHEDULE "A" and "B" properties. Said Sri.Late M.Munigangappa purchased the suit schedule properties from Gaali Hanumaiah and Others by virtue of the registered Sale Deed dated 23.08.1943. It is submitted that, subsequent to the purchase of the suit schedule properties, said Munigangappa had been in physical possession, enjoyment and cultivation of the said Munigangappa and these plaintiffs and defendant no.1 to 5 & 9. All Revenue Records stand in Munigangappa and his son's name. Further, the plaintiffs submit that, after the death of said Munigangappa and his sons, the plaintiffs and the defendant Nos.1 to 5 & 9 herein being the grand- children's of said Munigangappa, they succeeded to the estate of the deceased and they are in continuous physical possession and enjoyment of the suit schedule properties as joint owners thereof and are in peaceful cultivation of the same even to date.
3c) The plaintiffs further submit that, the plaintiffs and defendants No.1 to 5 & 9 being the grand-children and daughter-in- law of said Late M.Munigangappa are having joint right, title and interest over the suit schedule properties and they are in physical possession and enjoyment of the schedule properties as owners thereof and are in peaceful cultivation of the same even to date. Either during the lifetime of the said Munigangappa or after his death, the suit schedule properties have not been divided amongst the plaintiffs and defendant Nos.1 to 5 & 9 and the same remains a Hindu Undivided Joint Family properties and an ancestral one and 9 O.S.No.7594/2010 c/w O.S.No.7444/2009 the plaintiffs and the defendant Nos.1 to 5 & 9 being the Class-I Legal Heirs of deceased Munigangappa, continuing in possession, cultivation and enjoyment of the suit schedule properties as joint owners thereof without anybody's interruption of whatsoever nature.
3d) The plaintiffs have further submitted that, the defendant Nos.6, 7 & 8 are stranger's and trying to knock off the schedule B property and the plaintiffs further submit that the defendant 6 & 7 without consent, without knowledge of these plaintiffs have illegally and surreptitiously transferred 13.04 guntas of agricultural land in favour of Defendant No.8 through an unauthorized sale in the total 5 Acres 36 Gunta's of Suit Schedule Property. The said sale deed Dtd.15.12.2004 is concocted, fabricated and created one and the alleged transfer of schedule B's 13.04 guntas land is not vest in the eyes of law and the defendant no.8 who purchased from strangers (defendant nos.6 and 7) will not derive absolute ownership, right, title and interest over the schedule B property. The plaintiffs further submit that, the defendant nos.6 & no.7 are strangers as well as no right to create any encumbrance. Therefore, the alleged sale deed is void abinitio and same does not bind on these plaintiffs in any manner and these plaintiffs being the grand-children and daughter-in-law of late M.Munigangappa are in joint possession, enjoyment and cultivation of the suit schedule properties as on today.
3e) The plaintiffs have further submitted that, the defendant Nos.6 to 8 who are third parties herein active collusion with each other got the alleged fraudulently created sale deed in their favour and as such, the defendant No. 8 will not derive 10 O.S.No.7594/2010 c/w O.S.No.7444/2009 absolute ownership, right, title and interest over the schedule B property based on the said fraudulent sale deed. Other than the legal heirs of Late M.Munigangappa, third parties have no right, title and interest to create any encumbrance over the suit schedule properties land. The defendant Nos.6 to.8 create the illegal sale deed with an ill-intention to knock off the schedule-B property by the illegal way. Hence, the defendant No.8 do not derive any valid right, title and interest over the schedule B property land based on the said fraudulent document or sale deed.
3f) The plaintiffs have further submitted that, some legal heirs of Munigangappa appointed an agent late M.Krishnappa by granting GPA on 20.5.1992, which is automatically terminated or itself revoked after the death of a principal on 27.7.1992 and after that there was no any kind of relationship between late M.Krishnappa and the granters and also the said GPA not renewed, not re-granted or not legalized by original owners, which was also not granted by all the original owners. Said M Krishnappa very well known about this, but Late M.Krishnappa and defendant 6 and 7 intentionally tried to use dead GPA in the said illegal transaction without consent and without knowledge of these plaintiffs. The said sale or any illegal transaction made by Late M.Krishnappa & defendant Nos.6 and no.7 based on this dead and revoked GPA dtd.20.5.1992 does not bind on these plaintiffs in any manner and these plaintiffs being the grand-children and daughter-in-law of late M.Munigangappa are in joint possession, enjoyment an cultivation, interest of the suit schedule properties as on today.
3g) The plaintiffs have further submitted that, the plaintiffs have subsequently requested defendants to effect partition of suit 11 O.S.No.7594/2010 c/w O.S.No.7444/2009 schedule properties, by convening several talks / approaches though the defendants have agreed to effect partition and put the plaintiffs of their possession, the defendants went on postponing the same on one or the other pretext. Contrary to effecting the partition, when the defendants refused to effect partition, hence, the plaintiffs having no other alternative, have approached this Court for the relief of partition and separate possession of their 1/10th share each in the schedule properties and for other relief's.
4. After service of summons, the defendants have appeared through their counsels. The defendant No.6 his filed the written statement.
4a) The defendant No.6 in his written statement has contended that, the plaintiff's have filed this suit for judgment and Decree for Partition of their 1/10 share each in the suit schedule properties and injunction against Defendant No 6 to 8 and other relief's. The Present suit filed by the Plaintiffs is hopelessly barred by limitation. The relief sought for in the Plaint is in no way available to the Plaintiffs. The admitted facts goes to show that the Plaintiffs are not in possession of any portion of suit schedule property. The suit schedule property is not an agricultural land as such the present suit is liable to be dismissed. The suit is wholly misconceived, bereft of merits, plaintiff without seeking the possession of the suit schedule property and without including all the joint family properties, filed this suit. Admittedly, the suit schedule property is converted into residential Layout. The father of this defendant sold several site to intending purchasers. These site owners are necessary parties in this proceedings and they are all non-joinders for this suit on, this ground alone, this suit may be 12 O.S.No.7594/2010 c/w O.S.No.7444/2009 dismissed. There is no cause of action for this suit and the 1st Plaintiff is not a joint family member of Late Munigangappa. Since, the plaintiffs have not stated the facts correctly and have suppressed true facts.
4b) The 6th defendant has submitted that, one Sri.Munigangappa was the owner of land bearing Sy.No old No.17 New No. 5 measuring 5 acre 36 guntas situated at Channasandra village, Uttarahalli Hobli, Bangalore South Taluk and the same was purchased on 23.8.1943 from one Gali Hanumaiah. Said Munigangappa Died leaving behind 4 sons Viz Ramaiah, Shatrugna, Shantaraju and Muniyappa. Above said Ramaiah S/o Muniganpappa died issueless, Munigangappa's second son Shatrugna had 3 sons viz. Munirathna the 5th Defendant herein, Sathyakumar the 3rd Defendant herein and Manjunatha the 4th Defendant herein. Munigangaappa's 3rd Son Shantharaju had three sons viz Shivakumar, 3rd Plaintiff herein, Rajashekar the defendant No.9 herein and Ravishankar, the 2 nd Plaintiff herein. Above said Munigangappa's 4th son Muniyappa had two sons viz Sathyanarayna, the 2nd Defendant herein and Srinivasa the 1 st Defendant herein.
4c) It is submitted that, due to some domestic and legal necessities, above said B.M.Ramaiah S/o Late. Muniganappa, Sri. B.S. Munirathana (D5) Sri. B.S.Sathyakumar (D3) Sri B.S.Manjunatha (D4) Smt. Yellamma (P4) B.S. Shivashankar (P3) B.S. Rajashekar (D9) B.S. Ravishankar (P2) Smt. Lakshmamma w/o Muniyappa Sri Sathyanarayana (D2) Sri. Srinivasa(D1) were agreed to sell the Land bearing Sy. No old No 17 New No.5 measuring 5 Acre 36 guntas Situated at Channasandra Village. After negotiation one Sri.M.Krishnappa, the father of this Defendant 13 O.S.No.7594/2010 c/w O.S.No.7444/2009 agreed to purchase the above said land for valuable consideration of Rs. 8 lakhs 26 thousand. As per discussion on 29.4.1992 above said parties have entered into written Agreement of sale. At the time of Agreement, the vendors have received the entire sale consideration of Rs. 8 lakh 26 thousand from M.Krishanappa and as part performance of contract, they delivered the vacant possession to this defendant's father. On the same day, all the vendors have executed a irrevocable registered General power of attorney infavour of this Defendant's father to manage the affair of the suit schedule property. The said General power of attorney registered on 20.5.1992. It is submitted that, based on the Agreement of sale and irrevocable registered general power of attorney, this Defendant's father M.Krishnappa formed a Residential layout in the Land bearing Sy.No old No.17 new No.5 measuring 5 acre 36 guntas. After forming the residential layout, this defendants father sold the sites to intending purchasers and the said purchasers are in possession of their respective sites on their own right, title and interest, this fact is very well aware to the plaintiffs, even then, intentionally the plaintiffs have not included the site owners as parties in this suit.
4d) The defendant No.6 has further submitted that, this defendant's father died on 04.12.2003 leaving behind Smt. Smt.Jayamal, Sri.M.K. Shashidar, Sri.M.K.Gopinath and Sri.K.Kumar Swamy as his legal heirs. This defendant father left behind few sites and these sites are divided between these defendant family members and they are in peaceful possession and enjoyment of the same. After agreement of sale, GPA and affidavit, this Defendant father sold site bearing Nos.36,37,38 and 39 in favour of Smt. K.Vijaya W/o S.Rajashekar, the 9th Defendant 14 O.S.No.7594/2010 c/w O.S.No.7444/2009 herein and site bearing No.49 in favour of 9 th Defendant herein. Inspite of agreement of sale and inspite of selling all the sites formed in this layout in land bearing Sy.No 5. The Revenue entries pertaining to suit schedule property is continued in the name of D.M.Ramaiah, B.M.Shathrugna, M.Kantharaj, In spite of names continued in RTC in column No.12/9 shows that "building and no crop information. Taking undue advantage of this entry by suppressing the fact of buildings constructed on suit schedule property in collusion with the Revenue Authorities, they have managed to change the entry in column No.12/9 as Paddy. Based on tampered entries, the Plaintiff Nos.1 to 3 have filed a suit for permanent injunction in O.S.No.7444/2009 on the file of this Court (CCH-2). After this suit, now the plaintiffs have filed this suit for partition. Inspite of knowing the fact of alienation of sites to intending purchasers, the plaintiffs have intentionally not made the above said site purchasers as party to this proceeding and some of the intending purchasers have put up construction and residing in the respective sites and the entire land in Sy.No.5 was converted as residential layout and the nature of the property was changed and the entire property is now within the limits of BBMP, as such, the property claimed by the Plaintiff is not in existence more over on behalf of all the minor children Smt. Yellamma executed an Agreement of sale and GPA in favour of M.Krishnappa. The Plaintiffs are litigants and intentionally all the Joint family properties are not included in this suit. They have several joint family properties in Bengaluru City with malafide intention for unlawful gain and to grab the suit schedule property from this defendant, have filed this suit. There is no merit in this case. Hence, the defendant No.6 pray to dismiss the suit.
15 O.S.No.7594/2010c/w O.S.No.7444/2009
5. The case of the plaintiff in O.S.No.7444/2009 is that :
5a) The plaintiffs are the absolute owners of the suit schedule property, who got the same from their grandfather Late Munigangappa and Late Satyamma. Admittedly, the father of the plaintiffs Late M.Shantharaju S/o. Late M.Munigangappa passed away on 04.02.1995 at Bengaluru. The plaintiffs' grandfather Munigangappa passed away on 02.02.1964. B.M.Ramaiah passed away on 26.07.1992. Said Late Sri.M.Munigangappa had owned and possessed the 5.36 acres agricultural land bearing Sy.No.5 (Old Sy.No.17), Katha No.43, Channasandra Village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru, measuring 5 acre 36 guntas i.e., suit schedule property. Said Late Sri.M.Munigangappa purchased the suit schedule property. Said Late Sri.M.Munigangappa purchased the suit schedule property from Gaali Hanumaiah and others by virtue of a registered sale deed dated 23.08.1943. It is submitted that, subsequent to purchase of the suit schedule property, said Munigangappa had been in physical possession, enjoyment and cultivation of the said land. All Revenue Records stand in the name of Munigangappa and his son's (B.M.Ramaiah and others) name. The plaintiffs further submit that, after the death of said Munigangappa and his son's, the plaintiffs being the grand-children of said Munigangappa, they succeeded to the estate of the deceased and they continuing in physical possession and enjoyment of the suit schedule property as joint owners thereof and are in peaceful cultivation of the same even to date.
5b) The plaintiffs have further submitted that, the 16 O.S.No.7594/2010 c/w O.S.No.7444/2009 defendants are strangers, trying to use a void abinitio and third party GPA, which is automatically terminated after the death of a principal on 27.7.1992 and also subsequently revoked, the former agent late M Krishnappa knew this and the Plaintiffs being the Class-I legal heirs of deceased Munigangappa continuing in possession and enjoyment of the suit schedule property as joint owners thereof without any-body's interruption of whatsoever nature and the plaintiffs are in peaceful cultivation of the same even to date and the defendant nos.1 and 2 are strangers are trying to interfere with the plaintiffs' peaceful possession and enjoyment over the suit property. The defendants are trying to cheat innocent public and also the innocent plaintiffs. The defendants have no right, title and interest to create any encumbrance over the suit schedule property, but the defendants have already taken law into their hands and acted illegally on 10.06.2009 by an unauthorized sale of 13 guntas agricultural land in 5.36 acre of Suit Schedule Property land without consent and without knowledge of these plaintiffs, who are the original owners of the property. The said sale or any illegal transaction made by the defendant nos.1 and 2 does not bind on these plaintiffs in any manner, the alleged fraudulent sale is not vest in the eye of law and the purchaser/s by the said strangers or defendants will not derive any absolute ownership, right, title and interest over the suit schedule property and these plaintiffs being the grand children of late M.Munigangappa are in peaceful possession, enjoyment and cultivation, interest of the suit schedule property as on today. The plaintiffs submit that, at any moment, the defendants may sell the remaining suit schedule property in favour of third parties. Hence, it has become necessary to move this Court for the Relief of 17 O.S.No.7594/2010 c/w O.S.No.7444/2009 Permanent Injunction & Other Relief's restraining the defendants from alienating suit schedule property anymore.
6. a) The defendants have filed written statement in O.S.No.7444/2009 contending that, the suit as brought is not maintainable both on law and on facts. The suit is abuse of process of Law and procedure. The present suit is vexatious, imaginary and with oblique motive to harass the defendants. The present suit filed by the Plaintiffs is hopelessly barred by limitation. The relief sought for in the plaint, is in no way available to the Plaintiffs. The admitted facts goes to show that, the Plaintiffs are not in possession of any portion of suit schedule property and the suit schedule property is not an agricultural land and as such, the present suit is liable to be dismissed. The careful reading of the plaint goes to show that, there is no cause of action for the suit, the one alleged is a bogus and suffers from legal lacuna. The allegation that, the Plaintiffs are the absolute owners of schedule property will not give any meaning at all in as much as there is no property as described in the suit. The Plaintiffs are put to strict proof of the same. The genealogy and death of the persons mentioned in para No.2 may be correct. The Patta Book receipt in the name of B.M.Ramaiah does no give raise to any cause of action to the present suit or any right in favour of the Plaintiffs.
6b) The defendants have further submitted that, it is specifically denied that, B.M.Ramaiah was the grandfather of Plaintiffs and the Plaintiffs are put to strict proof of the same. It is not known to these Defendants when M.Munigangappa died, so also B M.Ramaiah. The Plaintiffs are called upon to prove the same. The family tree of M Munigangappa will not give the correct 18 O.S.No.7594/2010 c/w O.S.No.7444/2009 picture of the genealogy and the same is disputed. The tax paid receipts are no proof of possession or ownership. The nil encumbrance for 12 years is not in respect of the property in question as the property claimed is not in existence and the nature of the property was changed and the entire property is now included within the limits of BBMP and developed as residential layout. Thus, the encumbrance certificate of the said Sy. No, in no way help the plaintiffs to claim the relief of injunction. The allegation made in para No.7 that, M.Munigangappa purchased the property in the year 1943 may be correct. The allegation made in para No.8 that the Defendants are the sons of M.Krishnappa is true and correct.
6c) The defendants further submit that, it is also true that, the Plaintiffs given GPA in favour of M. Krishnappa dated 29.4.1992 which is coupled with consideration, the Agreement of sale, Affidavit, as well as confirmation receipt of full amount, thereby, the Plaintiffs transferred the property to the father of Defendants by way of an Affidavit and GPA. The very same Plaintiffs transferred all their right, title, interest and possession over Sy.No.5 of Channasandra Village. The said transfer was one for consideration, payment of full sale consideration and the original documents are also given to the custody of M.Krishnappa. Thus, the question of M.Krishnappa, the squatting on the property on the guise of GPA does not arise, on the contrary the Plaintiffs transferred all their right in favour of the father of Defendants. The father of Defendants exercising all the right of ownership, formed revenue layout by investing huge amount and then sold the sites to intending purchasers by retaining few sites for himself. The Purchasers have 19 O.S.No.7594/2010 c/w O.S.No.7444/2009 put up construction and residing in the respective sites and the entire land in Sy.No.5 was converted as residential layout and developed as residential plots immediately after the GPA ie., during the year 1993 or so. The allegation that, the GPA was given for looking after the schedule property will not give any meaning, on the contrary as admitted, the GPA power includes the sale, mortgage and also the gifts. Thus, the above said fact goes to show that, the Plaintiffs have no power on the property itself. The allegation that, the GPA has no power or legal sanctity after the death of M Krishnappa is not correct, on the contrary, the GPA is coupled with consideration and inheritable, which is already decided by the Supreme Court of India and High Court of Kamalaka in various cases, accordingly, the defendants having every right to deal with the schedule property. The allegation made in para No.9 that, the Defendants allowed the Plaintiffs to stay in the suit schedule property after the death of M Krishnappa, is hereby specifically denied. The said allegations are not only false, but also self-serving and without any meaning and a mischievous statement. The allegation that, the Defendants with ulterior motive interfering with the possession and enjoyment by the Plaintiffs, is hereby specifically denied. The Plaintiffs are admittedly not in possession of any portion of Sy No.5, the question of interference does not arise. The further allegation that, there was no alienation does not arise.
6d) The defendants have further submitted that, the further allegation made in para No.9 that, the Defendants managed to sell 13 guntas of land to one Smt. P. Leelavathi on 10-06-2009. Said P. Leelavathi is none other than the agent of one Ramakrishna and 20 O.S.No.7594/2010 c/w O.S.No.7444/2009 said Ramakrishna had committed various criminal acts on the portion of schedule property by fabricating and forging the signatures of M. Krishnappa, after his death. Said Ramakrishna and Smt P.Leelavathi together instigated the Plaintiffs to file the present suit to cover up their criminal act. Thus, the present suit is motivated and at the instigation of the said persons. The allegation that, the act of the Defendants is not binding on the Plaintiffs, will not hold any water. The Defendants having every power to remain in possession and to deal with the schedule property as per the decision of High Court of Karnataka and Supreme Court of India as they are the lawful and rightful owners. There is no cause of action, one alleged is false, frivolous and vexatious one. The suit in the present form is not maintainable. The suit for bare injunction is unknown to law in the circumstances narrated in the plaint. On these grounds also the suit is liable to be dismissed. During the life time of M.Krishnappa, M.Krishnappa formed a layout and sold the properties to 3rd parties by retaining few sites. There is no survey no. property as such. On this ground also, the suit is liable to be dismissed with exemplary costs. The court fee paid on the plaint is insufficient, the suit is not properly valued. The valuation is unmeaning. The entire property is converted into residential use and houses have come up as such, the plaintiff shall value the suit and shall pay the court fee accordingly. The suit is bad for non- joinder and misjoinder of necessary parties. The suit schedule property was sub-divided into number of sites and sold to several persons. The said persons are in possession of the portions of suit schedule property on their own right. The said persons are the proper and necessary parties. On these grounds, the suit is liable to be dismissed.
21 O.S.No.7594/2010c/w O.S.No.7444/2009
7. Based on the pleadings of both the parties, my learned predecessor-in-office has framed the following issues as under:-
ISSUES IN O.S.NO.7594 / 2017
1. Whether the plaintiff prove that suit 'A' schedule property is the joint family property ?
2. Whether the plaintiffs are entitled to the relief of partition in respect of 'A' schedule property ?
3. What Decree or Order ?
ISSUES IN O.S.NO.7444 / 2009
1. Whether the plaintiff prove lawful possession over the plaint schedule property as on the date of suit ?
2. Whether he proves interference with the possession over the plaint schedule property by defendants as pleaded ?
3. Whether plaintiff is entitled for the Permanent Injunction as sought for ?
4. What Order or Decree ?
8. In order to prove the case in O.S.No.7594/2010, plaintiff B.S.Suresh Kumar examined himself as PW.1 and got marked the documents at Ex.P.1 to Ex.P.36. On the other hand, LR of the defendant No.6 S.Kiran examined as DW.1 and got marked the documents at Ex.D.1 to Ex.D.3.
9. In O.S.No.7444/2009, plaintiff B.S.Suresh Kumar examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.15. On the other hand, the LR of Late defendant No.1 S.Kiran examined as DW.1 and got marked the documents at Ex.D.1 to Ex.D.3.
22 O.S.No.7594/2010c/w O.S.No.7444/2009
10. Heard the arguments from both the sides. Perused the entire materials on record along with the citations.
11. My findings on the above issues are as under :-
O.S.No.7594 /2010 Issue Nos.1 & 2 : In the affirmative, Issue No.3 : As per the final order.
O.S.No.7444 /2009
Issue Nos.1 to 3 : Partly in the affirmative,
Issue No.4 : As per the final order.
for the following:
REASONS
12. ISSUE Nos.1 and 2 in O.S.No.7594/2009 and
ISSUE Nos.1 to 3 in O.S.No.7444/2010 : All the issues are interconnected with each other, hence, they are taken together for discussion in order to avoid repetition of facts.
13. To prove the issues in question, plaintiff B.S.Suresh Kumar examined as PW.1 by filing the affidavit in lieu of his examination-in-chief. In his evidence, he has stated that, his grandfather Sri Late M.Munigangappa @Yajamaan Munigangappa has 4 sons namely (1) Late B.M. Ramaiah, (2) Late M.Shathrugna, (3) Late M Shantharaju and (4) Late G Muniyappa. Said Sri Late M.Munigangappa had owned and possessed the suit schedule properties from Gaali Hanumaiah and Others by virtue of the registered Sale Deed dated 23.08.1943 and subsequent to the purchase of the suit schedule properties, said Munigangappa had been in physical possession, enjoyment and cultivation of the suit 23 O.S.No.7594/2010 c/w O.S.No.7444/2009 schedule properties. All Revenue Records stand in Munigangappa and his son's name. After the death of said Munigangappa and his sons, the plaintiffs and the defendant Nos.1 to 5 & 9 herein being the grand-children of said Munigangappa, they succeeded to the estate of the deceased and they are in continuous physical possession and enjoyment of the suit schedule properties as joint owners thereof even to date. The plaintiffs and defendants No.1 to 5 & 9 being the grand-children and daughter-in-law of said Late M.Munigangappa are having joint right, title and interest over the suit schedule properties and they are in physical possession and enjoyment of the schedule properties as owners thereof. Either during the lifetime of the said Munigangappa or after his death, the suit schedule properties have not been divided amongst the plaintiffs and defendant Nos.1 to 5 & 9. The plaintiffs and the defendant Nos.1 to 5 & 9 being the Class-I Legal Heirs of deceased Munigangappa, are continuing in possession, cultivation and enjoyment of the suit schedule properties as joint owners thereof without any body's interruption of whatsoever nature. The defendant Nos.6, 7 & 8 are stranger's and trying to knock off the schedule property and the defendant 6 & 7 without consent and knowledge of these plaintiffs have illegally and surreptitiously transferred 13.04 guntas of agricultural land in favour of Defendant No.8 through an unauthorized sale in the total 5 Acres 36 Gunta's of Suit Schedule Property. The said sale deed Dtd.15.12.2004 is concocted, fabricated and created one and the alleged transfer of schedule B's 13.04 guntas land is not vest in the eyes of law.
Therefore, the alleged sale deed is void abinitio and same does not bind on these plaintiffs in any manner. Some legal heirs of Munigangappa appointed an agent late M.Krishnappa by granting 24 O.S.No.7594/2010 c/w O.S.No.7444/2009 GPA on 20.5.1992, which is automatically terminated or itself revoked after the death of a principal on 27.7.1992 and after that there was no any kind of relationship between late M.Krishnappa and the granters and also the said GPA not renewed, not re- granted or not legalized by original owners, which was also not granted by all the original owners. Any sale or illegal transaction made by Late M.Krishnappa & defendant Nos.6 and no.7 based on this dead and revoked GPA dtd.20.5.1992 does not bind on these plaintiffs in any manner and these plaintiffs being the grand- children and daughter-in-law of late M.Munigangappa are in joint possession, enjoyment an cultivation, interest of the suit schedule properties as on today. When the plaintiffs requested the defendants to effect partition of suit schedule properties, they refused to do so.
14. The defendant No.6 in O.S.No.7954/2010 in his written statement has contended that, one Sri.Munigangappa was the owner of land bearing Sy.No old No.17 New No. 5 measuring 5 acre 36 guntas situated at Channasandra village, Uttarahalli Hobli, Bangalore South Taluk and the same was purchased on 23.8.1943 from one Gali Hanumaiah. Said Munigangappa Died leaving behind 4 sons Viz Ramaiah, Shatrugna, Shantaraju and Muniyappa. Due to some domestic and legal necessities, above said B.M.Ramaiah, Sri. B.S. Munirathana (D5) Sri. B.S.Sathyakumar (D3) Sri B.S.Manjunatha (D4) Smt. Yellamma (P4) B.S. Shivashankar (P3) B.S. Rajashekar (D9) B.S. Ravishankar (P2) Smt. Lakshmamma w/o Muniyappa Sri Sathyanarayana (D2) Sri. Srinivasa(D1) were agreed to sell the Land bearing Sy. No old No 17 New No.5 measuring 5 Acre 36 guntas Situated at Channasandra Village. After negotiation, one 25 O.S.No.7594/2010 c/w O.S.No.7444/2009 Sri.M.Krishnappa, the father of this defendant agreed to purchase the above said land for valuable consideration of Rs.8,26,000/-. As per discussion on 29.4.1992 above said parties have entered into written Agreement of sale. At the time of Agreement, the vendors have received the entire sale consideration of Rs.8,26,000/- from M.Krishanappa and as part performance of contract, they delivered the vacant possession to this defendant's father. On the same day, all the vendors have executed an irrevocable registered General power of attorney infavour of this Defendant's father to manage the affair of the suit schedule property. The said General power of attorney registered on 20.5.1992. It is submitted that, based on the agreement of sale and irrevocable registered general power of attorney, this defendant's father M.Krishnappa formed a residential layout in the Land bearing Sy.No old No.17 new No.5 measuring 5 acre 36 gutnas. After forming the residential layout, this defendants father sold the sites to intending purchasers and the said purchasers are in possession of their respective sites on their own right, title and interest, this fact is very well aware to the plaintiffs, even then, intentionally the plaintiffs have not included the site owners as parties in this suit. This defendant's father died on 04.12.2003 leaving behind Smt. Smt.Jayamal, Sri.M.K. Shashidar, Sri.M.K.Gopinath and Sri.K.Kumar Swamy as his legal heirs. This defendant father left behind few sites and these sites are divided between these defendant family members and they are in peaceful possession and enjoyment of the same. After agreement of sale, GPA and affidavit, this Defendant father sold site bearing Nos.36,37,38 and 39 in favour of Smt. K.Vijaya W/o S.Rajashekar, the 9th Defendant herein and site bearing No.49 in favour of 9 th Defendant herein. Inspite of agreement of sale and inspite of selling 26 O.S.No.7594/2010 c/w O.S.No.7444/2009 all the sites formed in this layout in land bearing Sy.No 5. The Revenue entries pertaining to suit schedule property is continued in the name of D.M.Ramaiah, B.M.Shathrugna, M.Kantharaj, In spite of names continued in RTC in column No.12/9 shows that "building and no crop information. Taking undue advantage of this entry by suppressing the fact of buildings constructed on suit schedule property in collusion with the Revenue Authorities, they have managed to change the entry in column No.12/9 as Paddy. Based on tampered entries, the Plaintiff Nos.1 to 3 have filed a suit for permanent injunction in O.S.No.7444/2009 on the file of this Court (CCH-2). After this suit, now the plaintiffs have filed this suit in O.S.No.7594/2010 for partition.
15. plaintiff B.S.Suresh Kumar in support of his case has relied upon 36 documents at Ex.P.1 to Ex.P.36. Ex.P.1 is the genealogy tree and Ex.P.2 is the family tree affidavit. The genealogy tree discloses that, Late B.M.Ramaiah B.M.Shathrugna B.M.Shantharaju, Muniyappa
- No issues - 1. Late Lepakshamma, 1. Yellamma, 1. Late Lakshmamma
2. Munirathnam 2. B.S.Shivshankar, 2. B.M.Sathyanarayana
3. B.S.Sathyakumar 3. S.Rajshekar 3. B.M.Srinivas.
4. B.S.Manjunath. 4. S.Ravishankar
5. B.S.Sureshkumar There is no dispute between the parties regarding the relationship.
16. Ex.P.3 is the Patta and receipt Book in respect of Khatha No.43. Ex.P.4 to Ex.P.13, Ex.P.17 are the RTCs for the years 1989-90 to 2006-2007, 2007-08, respectively, standing in the names of D.M.Ramaiah, B.M.Shathrugna, M.Kantharaj and G.Mayappa in respect of Sy.No.5. Ex.P.18 and Ex.P.19 are the 27 O.S.No.7594/2010 c/w O.S.No.7444/2009 RTCs for the year 2008-09 and 2009-2010 standing in the name of D.M.Ramaiah, B.M.Shathrugna, M.Kantharaj, G.Mayappa and G.Leelavathi W/o. P.D.Prasad in respect of Sy.No.5. The RTC at Ex.P.18 and 19 accepted in the name of Lellavathi in respect of the land bearing Sy.No.5 measuring 13.04. Ex.P.14 is the death certificate of Munigangappa, wherein, it discloses that, he died on 02.02.1964. Ex.P.15 and Ex.P.16 are the tax paid receipts from 2006-07 to 2010-11.
17. Ex.P.20 is the certified copy of the sale deed dated 15.12.2004 executed by M.Krishnappa through his GPA holder Smt.P.Leelavathi in favour of K.Ramakrishna in respect of property Nos.94, 95, 96 i.e. item No.1 and 99, 100, 101 i.e., item No.2 in Sy.No.5. Ex.P.21 and Ex.P.22 are the ECs. Ex.P.23 is the death certificate of B.M.Ramaiah, wherein, it discloses that, he died on 26.07.1992. Ex.P.24 is the death certificate of M.shantharaju, who died on 04.02.1995. Ex.P.25 is the final decree for partition under Order 20 Rule 18 of CPC in O.S.No.1135/2010. Ex.P.26 is the mutation extract for 2008-09. Ex.P.27 is the RTC for the year 2022- 23 standing in the names of B.M.Ramaiah, B.M.Shathrugna, M.Shantharaju, G.Muniyappa and K.Ramakrishna in respect of Sy.No.5. Ex.P.28 is the certified copy of the sale deed executed by Gali Hanumaiah in favour of Munigangappa in respect of the suit schedule properties. Ex.P.29 is the representation given to the Tahsildar by Suresh Kumar in respect of Sy.No.5, Khatha No.43 requesting not to do any conversion. Ex.P.30 is the mutation extract for the year 2012-2013 in respect of Sy.No.5/1. Ex.P.31 is the EC. Ex.P.32 is the RTC for the year 2020-21. Ex.P.33 is the tax paid receipt. Ex.P.34 is the photo. Ex.P.35 is the CD. Ex.P.36 is the Kannada Hosa Digantha daily newspaper dated 22.07.2011.
28 O.S.No.7594/2010c/w O.S.No.7444/2009
18. From the oral and documentary evidence placed by the plaintiffs, it disclose that, Late Sri.Munigangappa had acquired the suit schedule properties from one Gali Hanumaiah by virtue of the registered sale deed dated 23.08.1943. He died intestate leaving behind his four children namely Late B.M.Ramaiah, Late M.Shathrugna, Late M.Shantharaju and Late G.Muniyappa. Some legal heirs of Muniganappa executed a GPA dated 20.05.1992 in favour of M.Krishnappa to sell the suit properties. Thereafter, said Krishnappa through his GPA holder Leelavathi sold the suit property in favour of R.Ramakrishnappa.
19. The LR of defendant No.6 S.Kiran in his written statement and evidence has admitted that, Munigangappa was the owner of the suit A and B schedule properties and also admitted regarding the relationship between the parties. Further, he has contended that, due to some domestic and legal necessities, above said defendant Nos.1, 2 3, 4, 9 and plaintiff Nos.2 to 4 have agreed to sell the land bearing Old No.17, New No.5 measuring 5 Acre 36 guntas Situated at Channasandra Village. After negotiation, Sri.M.Krishnappa, the father of this Defendant agreed to purchase the above said land for valuable consideration of Rs.8,26,000/-. As per discussion on 29.4.1992, above said parties have entered into written agreement of sale. At the time of agreement, the vendors have received the entire sale consideration of Rs.8,26,000/- from M.Krishanappa and as part performance of contract, they delivered the vacant possession to this defendant's father. On the same day, all the vendors have executed a irrevocable registered General power of attorney infavour of this defendant's father to manage the affair of the suit schedule property. The said General power of attorney registered on 20.5.1992. It is submitted that, based on the 29 O.S.No.7594/2010 c/w O.S.No.7444/2009 agreement of sale and irrevocable registered general power of attorney, this Defendant's father M.Krishnappa formed a Residential layout in the Land bearing Sy.No old No.17 new No.5 measuring 5 acre 36 gutnas. After forming the residential layout, this defendants father sold the sites to intending purchasers and the said purchasers are in possession of their respective sites on their own right, title and interest, this fact is very well aware to the plaintiffs, even then, intentionally the plaintiffs have not included the site owners as parties in this suit. Based on the tampered entries, the Plaintiff Nos.1 to 3 have filed a suit for permanent injunction in O.S.No.7444/2009 on the file of this Court (CCH-2).
20. In support of the case of the defendants, DW.1 got marked the documents at Ex.D.1 to Ex.D.3. Ex.D.1 is the Original GPA executed by B.M.Ramaiah, B.M.Shathrughna's sons B.S.Munirathna, B.S.Sathyakumar, B.S.Manjunatha and Smt. Yellamma W/o. M.Shantharaju, B.S.Shivashankar, B.S.Rajashekar, B.s.Ravishankar, Lakshmamma, B.Muniyappa, M.Sathyanarayan, M.Sreenivasa in favour of M.Krishnappa in respect of Sy.No.5, Old Sy.No.17, situated at Channasandra Village.
21. But nowhere in the GPA Ex.D.1, it is not stated that, right of M.Krishnappa has been created. Through this document, only authority has been given to M.Krishnappa to sell the suit properties, but till today, M.Krishnappa has not sold the entire suit properties to any party. Moreover, from 1992 till today, M.Krishnappa has not made any efforts to get the sale deed in respect of A schedule property, whatever the GPA given by the children of Munigangappa does not come to the aid of M.Krishnappa to get the right.
30 O.S.No.7594/2010c/w O.S.No.7444/2009
22. In respect of 'B' schedule property is concerned, Ex.P.20 disclose that, the sale deed dated 15.12.2004 executed by M.Krishnappa through his GPA holder P.Leelavathi in favour of K.Ramakrishna and the GPA executed by Ramaiah and others is acted upon in respect of suit B schedule property. The plaintiffs have disputed the same, but the present plaintiffs, who executed the GPA and some of the grand-children of Munigangappa have not challenged the said GPA or the sale deed executed by M.Krishnappa. After lapse of so many years, the plaintiffs have come up with these suits for partition and separate possession and also for permanent injunction stating that, the sale deed executed in respect of suit B schedule property is not binding on them. To accept the case of the plaintiffs, the GPA is not acted upon in respect of suit 'B' schedule property, the plaintiffs have not produced the documents.
23. Further, the order sheet in O.S.No.7594/2010 dated 02.04.2012 discloses that, the plaintiff Nos.1 to 4, defendant Nos.8 and 9 have compromised the matter and accepted the compromise effected between the plaintiff Nos.1 to 4 and defendant Nos.8 and this Court has directed the office to draw the final decree in respect of suit 'B' schedule property. Further, the order sheet dated 29.05.2012 discloses that, the parties have received the final decree of partition drawn on document sheets of the value of Rs.6,000/- consisting of page Nos.1 to 9 towards the share of defendant No.8. From this, it shows that, the plaintiffs have no right over the suit schedule B property.
31 O.S.No.7594/2010c/w O.S.No.7444/2009
24. Further, the order sheet dated 05.04.2013, it discloses that, the defendant No.6 filed I.A.No.4 under Sec.151 and 153 of CPC to set aside the compromise order dated 02.04.2012 with documents. Further, the order sheet dated 18.02.2019 discloses that, said I.A.4 filed by the defendant Nos.6(a) to 6(c) under Sec.151 and 153 of CPC to set aside the compromise order dated 02.04.2002 came to be dismissed. Thereafter, against the said compromise decree and against the order on I.A.No.4 dated 18.02.2019 passed by this Court, the defendant Nos.6(a) to 6(c) have not approached before the Hon'ble High Court and no documents are produced before this Court on that ground. From this, it is crystal clear that, the plaintiffs themselves have compromised the matter in respect of suit B schedule property during pendency of this suit with the leave of this Court, hence, the compromise entered between the plaintiffs and the defendant Nos.8 and 9 is binding on the plaintiffs and they have no right over the suit B schedule property. When the plaintiffs have compromised the matter, then the question of granting partition in respect of suit B schedule property and also grant of permanent injunction in O.S.No.7444/2009 do not arise and moreover the documents disclose that, the plaintiffs are not in possession of the suit B property, when the plaintiffs are not in possession of suit B property, the question of interference does not arise.
25. In respect of suit 'A' schedule property is concerned, the GPA executed by B.M.Ramaiah and others in favour of M.Krishnappa is not acted upon and to show that, the GPA is created with vested interest, no documents are produced before this Court. Under the said circumstances, after the death of M.Ramaiah and his brothers, the GPA executed by B. Ramaiah and 32 O.S.No.7594/2010 c/w O.S.No.7444/2009 others in favour of M.Krishnappa do not survive when the interest is not created. If really, the interest has been created, why the defendant Nos.8 and 9 have got compromised the matter with the plaintiffs, it shows that, the GPA executed by M.Ramaiah and others is only to look after the suit property and right or interest is not created based on the GPA and hence, they are entitled to seek at any time for cancellation of the same. When the GPA is not acted upon, whatever the GPA executed by the plaintiffs and other persons is not a valid GPA. At any time, the plaintiffs can revoke the same through this suit
26. The learned counsel for the plaintiffs has relied upon the ruling reported in 2011 (6) Supreme 737 in the case of Suraj Lamp and Industries Pvt. Ltd., Vs State of Haryana and another. I have gone through the ruling. In the said ruling, it is held that, "a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless, it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan Vs Basant Nehata - 3 2005 12) SCC 77. As per this ruling, Power of attorney is not an instrument and it is only authorises to do the acts specified therein. If the grantee acted on the basis of GPA, then the said GPA will be binding on the grantor i.e., the person who given the GPA. In the instant case, the defendant No.6 has produced Ex.D.1 GPA, wherein, it shows that, the legal heirs of Munigangappa and his grand-children have executed the General 33 O.S.No.7594/2010 c/w O.S.No.7444/2009 Power of Attorney in favour of M.Krishnappa, but in order to show that, the right is created and amount was paid to the grantors, no documents are put forth by the defendant No.6. Under the said circumstances, it cannot be said that, testators have given this GPA by creating right and the testator at any time can revoke the GPA, if the said GPA is not acted upon as discussed above .
27. Further, in the instant case, Ex.P.20 sale deed discloses that, the said sale deed dated 15.12.2004 was executed by M.Krishnappa through his GPA holder P.Leelavathi in favour of K.Ramakrishna in respect of suit schedule-B property. M.Krishnappa was the GPA holder of LRs of Munigangappa and M.Krishnappa had given GPA to Leelavathi and she sold the suit schedule B property in favour of Ramakrishna and the GPA in respect of suit schedule B property is concerned, it is acted upon. In respect of A schedule property is concerned, the defendant No.6 has not produced any document to show that, M.Krishnappa had alienated the property to the purchasers by virtue of the GPA. So, whatever the GPA executed by the plaintiffs and others is binding in respect of suit B schedule property and in respect of A schedule property is concerned, the plaintiffs are having power to revoke the General Power of Attorney since, the GPA in respect of A schedule property is not acted upon.
28. Further, the defendant No.6 has produced Ex.D.2 agreement of sale, wherein, it shows that, LRs of Munigangappa and his grand-children have executed the sale agreement. Sec.54 of the T.P.Act makes it clear that, a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. A contract of sale does not of itself create any interest or 34 O.S.No.7594/2010 c/w O.S.No.7444/2009 charge on the property. This is expressly declared in section 54 of the Transfer of Property Act. As per the provisions of this Act, to create any interest or to transfer the property from the names of plaintiffs and others to the name of M.Krishnappa, there must be a registered document, but Ex.D.2 is an unregistered document. Moreover, as per this document, it shows that, on 29.04.1992, B Ramaiah and other LRs of brothers of Ramaiah have executed the sale agreement and also handed over the possession in favour of M.Krishnappa. If possession is parted, then the document must be required registration. But Ex.D.2 is an unregistered document. Further, from 1992, till today, M.Krishnappa and his LRs have not made any efforts to enforce Ex.D.2 agreement of sale. In order to show that, M.Krishnappa filed the suit for specific performance of contract, no documents are placed before this Court. On the other hand, in order to show that, Ex.D.2 agreement of sale is acted upon, no documents are placed before this Court. If really, M.Krishnappa is in possession in respect of suit schedule-A property, he could have filed an application before the concerned authority to enter his possession in Column No.11 or 12 of the RTC, but no documents are produced to show that, the sale is acted upon.
29. Further, in the pleadings and oral evidence of the defendants, the defendant No.6 has taken contention that, M.Krishanappa had purchased the suit A and B schedule properties under the GPA and sale agreement. Thereafter, based on the agreement of sale and irrevocable registered general power of attorney, this Defendant's father M.Krishnappa formed a Residential layout in the Land bearing Sy.No old No.17 new No.5 measuring 5 acre 36 gutnas. After forming the residential layout, 35 O.S.No.7594/2010 c/w O.S.No.7444/2009 this defendant's father sold the sites to intending purchasers and the said purchasers are in possession of their respective sites on their own right, title and interest, this fact is very well aware to the plaintiffs. If really, the contentions of the defendant No.6 are true, the defendants could have produced the conversion order to show that, he got converted the entire suit schedule-A property and also to show that, he formed the layout and it is approved by the BBMP, no documents are produced before this Court. In the absence of documentary evidence, it cannot be said that, the plaintiffs and other family members have executed the GPA by creating the right, interest over the suit schedule property.
30. Further, the Hon'ble Supreme Court of India in the ruling reported in 2004 (8) SCC 614 in the case of Rambhau Namdeo Gajre Vs Narayan Bapuji Dhotra, have held that, Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It dis entitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party. As observed in this ruling, if possession is transferred, protection is provided under section 53A of the Act. But in the instant case, as stated above, Ex.D.2 sale agreement is not acted upon. Further, even for the sake of argument, if the sale agreement is genuine, then also, M.Krishnappa is not the full legal owner of the property, till the property is legally conveyed through the registered sale deed.
36 O.S.No.7594/2010c/w O.S.No.7444/2009
31. Ex.D.3 is the affidavit executed by B.M.Ramaiah and others declaring that, they have sold the land bearing Old Sy.No.17, New Sy.No.5, Channasandra Village measuring 5 acres 36 guntas of land in favour of M.Krishnappa for Rs.8,26,000/-. To accept this document, this document is an unregistered document.
32. From the above discussions, it is crystal clear that, in respect of suit schedule-A property is concerned, GPA at Ex.D.1 is not acted upon and right is not created and in respect of suit schedule-B property is concerned, the GPA at Ex.D.1 is acted upon. Further, even at any time, the plaintiffs can revoke the GPA in respect of suit schedule-A property. Under the said circumstances, the LRs of Munigangappa are entitled for 1/3rd share each in the suit schedule-A property only.
33. The plaintiffs in O.S.No.7444/2009 have contended that, they are the absolute owners of the suit schedule property, who got the same from their grandfather Late Munigangappa and Late Satyamma. Said Late Sri.M.Munigangappa purchased the suit schedule property from Gaali Hanumaiah and others by virtue of a registered sale deed dated 23.08.1943. It is submitted that, subsequent to purchase of the suit schedule property, said Munigangappa had been in physical possession, enjoyment and cultivation of the said land. All Revenue Records stand in the name of Munigangappa and his son's (B.M.Ramaiah and others) name. After the death of said Munigangappa and his son's, the plaintiffs being the grand-children of said Munigangappa, they succeeded to the estate of the deceased and they continuing in physical possession and enjoyment of the suit schedule property as 37 O.S.No.7594/2010 c/w O.S.No.7444/2009 joint owners thereof and are in peaceful cultivation of the same even to date. The defendants are strangers, trying to use a void abinitio and third party GPA, which is automatically terminated after the death of a principal on 27.7.1992 and also subsequently revoked, the former agent late M Krishnappa knew this and the Plaintiffs being the Class-I legal heirs of deceased Munigangappa continuing in possession and enjoyment of the suit schedule property as joint owners thereof without anybody's interruption of whatsoever nature and the plaintiffs are in peaceful cultivation of the same even to date and the defendant nos.1 and 2 are strangers are trying to interfere with the plaintiffs' peaceful possession and enjoyment over the suit property. The defendants are trying to cheat innocent public and also the innocent plaintiffs. The defendants have no right, title and interest to create any encumbrance over the suit schedule property, but the defendants have already taken law into their hands and acted illegally on 10.06.2009 by an unauthorized sale of 13 guntas agricultural land in 5.36 acre of Suit Schedule Property land without consent and without knowledge of these plaintiffs, who are the original owners of the property. The said sale or any illegal transaction made by the defendant nos.1 and 2 does not bind on these plaintiffs in any manner, the alleged fraudulent sale is not vest in the eye of law and the purchaser/s by the said strangers or defendants will not derive any absolute ownership, right, title and interest over the suit schedule property and these plaintiffs being the grand children of late M.Munigangappa are in peaceful possession, enjoyment and cultivation, interest of the suit schedule property as on today.
34. The defendants in O.S.No.7444/2009 have disputed the case of the plaintiffs.
38 O.S.No.7594/2010c/w O.S.No.7444/2009
35. In order to prove the case in O.S.No.7444/2009, PW.1 has relied upon the documents at Ex.P.1 to Ex.P.15. Ex.P.1 is the RTC for the year 2010-2011 standing in the name of Ramaiah, Shathrugna, Shantharaj and Mayappa in respect of Sy.No.5. Ex.P.2 is the RTC for the year 2010-2011 standing in the name of Ramakrishnappa. Ex.P.3 is the Patta book. Ex.P.4 is the postal acknowledgement. Ex.P.5 is the death certificate of Munigangappa, who died on 02.02.1964. Ex.P.6 is the death certificate of B.M.Ramaiah, who died on 26.07.1992. Ex.P.7 is the family tree. Ex.P.8 is the tax paid receipt. Ex.P.9 and Ex.P.10 are the ECs. Ex.P.11 to Ex.P.14 are the RTCs. Ex.P.15 is the CC of the GPA.
36. From the documents produced in O.S.No.7444/2009, it shows that, the grandfather of the plaintiffs namely Munigangappa was the owner of the suit schedule property. After his death, his children become the owners of the suit property. While discussing in O.S.No.7594/2010, this Court has already held that, the plaintiffs have failed to prove that, the suit schedule-B property is not the joint family property of plaintiffs and defendants and also this Court has already held that, GPA dated 29.04.1992 executed by M.Ramaiah and others in favour of M.Krishnappa, it is acted upon and one Ramakrishna/defendant No.8 in O.S.No.7594/2010 is in possession of suit schedule-B property. The person, who is the owner and in possession of the suit schedule-B property has not been made as a party in O.S.No.7444/2009. Further, as stated supra, this Court has already held that, the plaintiffs have compromised the matter with the defendant No.8 and the said compromise is also accepted by 39 O.S.No.7594/2010 c/w O.S.No.7444/2009 both the parties and this Court passed an order and directed the office to draw a final decree as per the terms of the compromise and also this Court has issued the final decree certificate in favour of Ramakrishna. Under the said circumstances, it cannot be said that, the plaintiffs are the owners and in possession of the suit schedule-B property.
37. Further, DW.1 in his cross-examination has stated that, ದಾವಾ ಆಸ್ತಿ ಗೆ ಸಂಬಂಧಪಟ್ಟ ಂತೆ ಪ್ರ ತಿವಾದಿ 8 ರ ಮೇಲೆ ಪಿ.ಶಾಂತ ಇವರ ಅಸಲು ದಾವಾ ಸಂಖ್ಯೆ .8226/2009 ರಲ್ಲಿ ಸಿಸಿಹೆಚ್-53 ರಲ್ಲಿ ಘೋಷಣಾತ್ಮ ಕ ಪರಿಹಾರ ಮತ್ತು ಸ್ವಾ ಧೀನ ಕೋರಿ ದಾವೆ ಹಾಕಿದ್ದಾ ರೆ ಎಂದರೆ ಸರಿ. ಆ ದಾವೆ ವಜಾವಾಗಿದೆ ಎಂದರೆ ಸಾಕ್ಷಿ ವಜಾವಾಗಿರಬಹುದು ಎಂದು ಹೇಳುತ್ತಾ ರೆ. On perusal of the judgment and decree passed in O.S.No.8226/2009dated 29.02.2016, wherein it discloses that, the said suit was filed by Shantha P and others against Ramakrishna and the Commissioner, BBMP for declaration and injunction. The said suit came to be dismissed. From this judgment, it is clear that, the defendant No.8 Ramakrishna is in possession of the suit schedule-B property.
38. In respect of suit schedule-A property is concerned, this Court has already held that, the GPA dated 29.04.1992 executed by M.Ramaiah and others in favour of M.Krishnappa is not acted upon in respect A-schedule property and it will not create any title and possession and also held that, the plaintiffs are in possession of suit schedule-A property. So, in view of the above discussion, I am of the opinion that, the plaintiffs have proved that, suit 'A' schedule property is their ancestral joint family property and they are the lawful owners and in possession of suit schedule-A property and they are entitled for partition and 40 O.S.No.7594/2010 c/w O.S.No.7444/2009 separate possession of their 1/3rd share each in respect of suit schedule-A property only. The plaintiffs have failed to prove their ownership and possession in respect of suit schedule-B property. In O.S.No.7594/2010, the plaintiffs sought for partition in respect of A and B schedule properties. My learned predecessor has framed the issues only in respect of A schedule property and not framed issues in respect of B-schedule property. But framing of issues in respect of B schedule property are not required now in view of the compromise between the parties. Accordingly, I answer issue Nos.1 and 2 in O.S.No.7594/2010 are in the affirmative and issue Nos.1 to 3 in O.S.No.7444/2009 are partly in the affirmative.
39. ISSUE No.3 in O.S.No.7954/2009 and ISSUE No.4 in O.S.NO.7444/2010: In view of my aforesaid discussions, I proceed to pass the following: -
ORDER O.S.No.7594/2010 and O.S. No.7444/2009 are hereby partly decreed.
The LRs of Late Sri.Munigangappa namely
1) Late M.Shathrugna, 2) Late M.Shantharaju and
3) Late G.Muniyappa are entitled for partition and separate possession of their 1/3rd share each in the suit schedule-A property.
The suit of the plaintiff in O.S.No.7594/2010 is hereby dismissed in respect of suit schedule-B property.
41 O.S.No.7594/2010c/w O.S.No.7444/2009 Draw the preliminary decree accordingly.
Further, the plaintiffs are directed to file an application under Order 18 Rule 20 of CPC to pass the final decree in this case as per the verdict of the Hon'ble Apex Court. Call on 02.04.2024.
Permanent injunction is granted in O.S.No.7444/2009 restraining the defendants from interfering with the plaintiffs' peaceful and enjoyment of the suit schedule property, to an extent of 5 acres 22¾ guntas (i.e., suit schedule- A property in O.S.No.7594/2010).
Draw the decree accordingly.
Keep the copy of this judgment in O.S.No.7444/2009.
(Dictated to the Stenographer-III, transcription computerised by her, corrected and then pronounced by me in the open Court on this the 16th day of February 2024) (SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF PLAINTIFF IN O.S.NO.7594/2010:
PW.1 : Sri.B.S.Suresh Kumar. 42 O.S.No.7594/2010 c/w O.S.No.7444/2009 Ex.P.1 : Family tree. Ex.P.2 : Family tree affidavit. Ex.P.3 : Patta book. Ex.P.4 to 13 : RTCs. Ex.P.14 : Death certificate of Munigangappa. Ex.P.15 & : Tax paid receipts. 16 ExP17 to : RTC extracts. 19 ExP.20 : CC of the sale deed dated 15.12.2004. Ex.P21 & : ECs. 22 Ex.P.23 : Death certificate of B.M.Ramaiah. Ex.P.24 : Death certificate of Shantharaju. Ex.P.25 : CC of the final decree in O.S.No.1135/2010. Ex.P.26 : Mutation extract. Ex.P.27 : Digital copy of RTC. Ex.P.28 : CC of the sale deed executed by one Gali Hanumaiah in favour of Munigangappa. Ex.P.29 : Representation given by plaintiffs to the Tahsildar. Ex.P.30 : MR. Ex.P.31 : EC. Ex.P.32 : RTC. Ex.P.33 : Tax paid receipt. Ex.P.34 & : Photo with CD. 35 Ex.P.36 : Hosa Digantha kannada daily newspaper. 43 O.S.No.7594/2010 c/w O.S.No.7444/2009 WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF DEFENDANTS IN O.S.7954/2010: DW.1 : Sri.S.Kiran. Ex.D.1 : GPA. Ex.D.2 : Sale agreement. Ex.D.3 : Affidavit. WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF PLAINTIFF IN O.S.7444/2009: PW.1 : Sri.B.S.Suresh Kumar. Ex.P.1 : RTC. Ex.P.2 : RTC. Ex.P.3 : Patta book. Ex.P.4 : Postal acknowledgement. Ex.P.5 : Death certificate of Munigangappa. Ex.P.6 : Death certificate of B.M.Ramaiah. Ex.P.7 : Genealogy tree. Ex.P.8 : Tax paid receipt. Ex.P.9 & 10 : ECs. Ex.P.11 to : RTCs. 14 Ex.P.15 : CC of the GPA dated 29.04.1992. WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF DEFENDANTS IN O.S.7444/2009: DW.1 : Sri.S.Kiran. 44 O.S.No.7594/2010 c/w O.S.No.7444/2009 Ex.D.1 to : CC of the GPA, sale agreement and Ex.D.3 affidavit. (SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.