Bangalore District Court
R Kannaiyan vs R Balakrishnan on 19 April, 2024
KABC0A0022012009
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 19th day of April, 2024.
PRESENT:
Sri K.M. RAJASHEKAR, B.Sc., LL.M.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.25422/2009
PLAINTIFF : R. Kannaiyan,
S/o. Late K. Ramaswamy,
Aged about 67 years,
Residing at No.46, 11th Cross,
Udaynagar, A. Narayanapura,
Bangalore.
(By Sri K. Mohan, Advocate)
-VERSUS-
DEFENDANTS : 1. R. Balakrishnan,
S/o. Late K. Ramaswamy,
Aged about 58 years,
Residing at No.53, Ground Floor,
12th 1st A Cross,
Kodandaramapuram,
Bengaluru - 560 003.
Cont'd..
-2- O.S.No.25422/2009
2. R. Subramani,
S/o. Late K. Ramaswamy,
Aged about 53 years,
Residing at No.53, First Floor,
12th 1st A Cross,
Kodandaramapuram,
Bengaluru - 560 003.
3. Smt. Rani,
W/o. Mani,
Aged about 64 years,
Residing at No.37, 5th Cross,
Masjid Main Road, Palace
Guttahalli, Bangalore - 560 003.
4. Smt. K. Vijayakumari,
Aged about 42 years,
W/o. Late Karunakaram,
C/o. Vijaya Ambulance,
near G.H. Road, Erode,
Tamil Nadue.
(D.1 by Sri V. Srinivasan, Advocate)
(D.2 by Sri G. Balakrishna Shastry,
Advocate)
(D.3 and 4: Ex-parte)
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Date of Institution of the Suit : 27-02-2009
Nature of the Suit (Suit on : Partition Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 03-02-2020
of recording of the evidence
Date on which the Judgment : 19-04-2024
was pronounced
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Year/s Month/s Day/s
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Total duration : 15years, 1month, 22days.
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Digitally signed by K M RAJASHEKAR
K M RAJASHEKAR Date: 2024.04.20 15:43:56 +0530
(K.M. RAJASHEKAR)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
-3- O.S.No.25422/2009
JUDGMENT
This suit is filed by Plaintiff against the defendants for partition that the plaintiff is entitled for 1/3rd share in the schedule property by metes and bounds and to enquire into the mesne profits of the suit schedule properties in accordance with law. For a permanent injunction against the defendants restraining them from alienating the suit schedule property or creating any encumbrance over the same without effecting the partition and for costs and for such other reliefs.
2. The brief facts of the case of the plaintiff is as follows:-
The plaintiff and defendants are the brothers and sisters. He is the only son of late K. Ramaswamy and his first wife late Smt. Amminiyamma. The defendants are the children of late K. Ramaswamy and his second wife late Smt. Lakshmi. His father late K. Ramaswamy had purchased the suit schedule property under the registered sale deed dated 29.10.1977. The plaintiff's father was permanent resident of K.G.F and they constitute a Hindu Joint Family. He and his father were
-4- O.S.No.25422/2009 the only earning members of the family during seventies. The defendants were prosecuting their studies at the juncture and they were depending upon the earnings of him and his father. Being the elder son of the family he was handing over his entire earnings to his father. The said late Sri K. Ramaswamy has acquired the schedule property out of the Joint Family Funds as aforesaid it was got registered in the name of defendants only for nominal sake, accordingly the defendants are only the name lenders. Under the circumstances neither the first nor the second defendant have any individual right or title over the property in question.
It is further stated that, in addition to the contribution of Joint Family Funds as his father had also availed loan to meet the shortage. In order to clear the said loan, the ancestral property belonging to the family bearing House Site S.No.45E, measuring 0.06 acres situated at Kaspa Nathm, Gobi Villangoil Village, Kavadapadi was sold and out of the said consideration the loan has been cleared. Under the circumstances
-5- O.S.No.25422/2009 the property in question is out and out a Join Family Property. The said K. Ramasway died intestate leaving behind the plaintiff and defendants as his legal heirs to succeed to the schedule property. Plaintiff's mother died when he was seven months old and the defendants' mother died about 13 years back. Accordingly the parties to the suit are co-owners of the schedule property having joint possession, title and interest over the same. The schedule property was purchased out of joint family funds which also includes the contribution of the plaintiff. However, the schedule property been purchased in the name of defendants and the revenue records in respect of the schedule property also stands in their name. In spite of that, plaintiff was requests several times to defendants for partition the schedule property in metes and bounds they were protracting the same on one pretext or the other. The plaintiff has issued a legal notice dated 27.01.2009 to the defendants. But, the defendants are not replied to the said notice. Hence, sought for the relief prayed.
3. In pursuance of the suit summons, the Defendants No.1 and 2 have appeared through their
-6- O.S.No.25422/2009 Counsels and have filed their separate written statement. The Defendant No.3 and 4 have not appeared in spite of service of summons. Hence, they were placed as ex-parte.
The defendant No.1 and 2 written statement denying plaint averments in general and para-wise. The suit of the plaintiff is not maintainable either in law or on facts. Their father late K. Ramaswamy married Laxmiammal alias Kaliammal after the death of his first wife. The suit schedule property was purchased by defendants jointly through a registered sale deed dated 29.10.2017 out of their self-earnings. The 1 st and 2nd defendant have contributed money from their own earnings for purchase of the building property and they are entitled to ½ share in the suit schedule property. After purchasing the property the he residing in the ground floor and 2nd defendant residing in the first floor of the constructed building. All the aforesaid aspects are well within the knowledge of the plaintiff. The 2 nd defendant has filed a suit in O.S.No.1896/2004 for partition ½ share. The said suit came to be decreed
-7- O.S.No.25422/2009 and also filed Misc. Case No.14/2006 for setting aside the decree. The said Misc.Case No.14/2006 came to be dismissed. Thereafter, the 1st defendant filed MFA No.2369/2007 before the Hon'ble High Court of Karnataka and obtained an order of stay. When the first appeal was dismissed, the 1st defendant entered into a compromise with him. The 1 st defendant agreed to give Rs.20,00,000/- to defendant No.2 towards the ½ share of him. The said amount has to be paid within a period of 6 months. When the said period of 6 months is likely to be over, the 1st defendant has setup the plaintiff to file the present suit so as to delay the decree, payment of amount or delivery of ½ share to him.
It is further contended that, the suit schedule property is the self acquired property of defendant No.1 and 2. The said building was purchased out of their self earned money. The first defendant residing in the ground floor and 2nd defendant residing in the first floor of the constructed building. All the aforesaid aspects are well within the knowledge of the plaintiff. The plaintiff has instituted the said suit by joint hands with
-8- O.S.No.25422/2009 the 1st defendant only to defeat the claim of him towards his ½ share. Suit is liable to be dismissed by the principles of estoppel and acquiescence. The 2 nd defendant has filed FDP No.73/2005 for passing a final decree. In the said FDP, a court commissioner came to be appointed and submitted a report to the court that, the suit property is not capable of division and the same shall be sold. the court directed auctioning of the suit schedule property between the parties to the proceeding at the first instance.
It is further contended that, the plaintiff is never lived with their family. When the plaintiff is of tender age, their father late K. Ramasway married Smt. Laxmiammal alias Kaliamamal. The plaintiff was then adopted by late Smt. Ramaayee on of the sisters of late K. Ramasway. Thereafter, the plaintiff was living with his adopted mother. The plaintiff was brought up there and the plaintiff was also got married by his adopted parents and plaintiff was living separately and independently along with his two children. The plaintiff had no connection or relationship with them. Later on
-9- O.S.No.25422/2009 the plaintiff settled in Thiruvannamalai, Tamil Nadu. In spite of the adoption, late K. Ramaswamy purchased a site at Thiruvannamalai, Tamilnadu and got constructed a house, where the plaintiff lived with his 2nd wife and two children. Thereafter, the plaintiff sold the said house property and shifted to Mettur in Tamil Nadu and purchased a site in Mettur. Even at Mettur, his father gave money to the plaintiff to construct a house to the plaintiff. The defendants No.1 and 2 are entitled to the share in the said site and house property. The plaintiff was only working as a labourer all throughout and had no income or savings of purchase a property. In the absence, the aforesaid property being brought to the hatch-pot the present suit is not maintainable. The defendant No.2 has also filed separate written statement. In his written statement defendant No.2 almost reiterated the contents of written statement of defendant No.1 and sought for dismissal of the suit.
4. Based on the aforesaid pleadings this Court has framed the following issues:-
- 10 - O.S.No.25422/2009
ISSUES
1. Whether the plaintiff proves that suit schedule properties are joint family properties liable for partition?
2. Whether the plaintiff is entitle for 1/3rd share?
3. Whether the defendant No.1 and 2 are entitle for ½ share in the suit schedule property?
4. Whether the suit is hit by estoppel and acquiescence?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendant No.2 proves that in MFA 2369/2007 there was a compromise before Hon'ble High Court of Karnataka, Bengaluru however defendant No.1 failed to comply the compromise terms?
5. To prove the case of the plaintiff, the plaintiff got examined himself as P.W.1 and got marked the documents at Exs.P.1 to P.6. The power of attorney holder of defendant No.1 has got examined herself as D.W.1 and got marked the documents at Exs.D.1 to D.5 and closed their side evidence.
6. Heard both side.
7. My answers to the above issues are as under -
- 11 - O.S.No.25422/2009 ISSUE No.1 - In the Negative ISSUE No.2 - In the Negative ISSUE No.3 - In the Negative ISSUE No.4 - As per observations Addl. ISSUE No.1 - As per the observations ISSUE No.5 - As per final order, for the following -
REASONS
8. ISSUES NO.1 TO 3 :- All these three issues are inter-related, hence, answered in common, in order to avoid repetition of facts.
9. Nutshell of the plaintiff case is that, the plaintiff is the only son of late K. Ramaswamy and Amminiyamma. The defendants are the children through second wife Lakshmi. K. Ramaswamy had purchased the suit property on 29.10.1977 out of the Joint Family Funds, and also availed loan to meet the shortage. But it was got registered in the name of defendants only for nominal sake, In order to clear the loan, the ancestral property belonging to the family was sold and out of the said consideration the loan has been
- 12 - O.S.No.25422/2009 cleared. Accordingly the parties to the suit are co- owners of the schedule property having joint possession, title and interest but the defendants were protracting giving share on one pretext or the other etc. In support of her case, the plaintiff got marked at Exs.P.1 to P.6 documents i.e., Ex.P.1 is the sale deed dated 29.10.1977 executed by one Sri Chandrasekarappa. Ex.P.2 is copy of the notice dated 27.01.2009, Ex.P.3 is the sale deed dated 20.11.1978, Ex.P.4 is the Translation of sale deed from Tamil to English and Exs.P.5 and 6 are the postal acknowledgment.
10. The stand of defendant No.1 and 2 is that the suit schedule property was purchased by defendants jointly through a registered sale deed dated 29.10.2017 out of their self-earnings. and they are entitled to ½ share each in the suit schedule property. After purchasing the property they are residing in the ground floor and first floor of the constructed building. The 2 nd defendant has filed a suit in O.S.No.1896/2004 for partition of ½ share. The said suit came to be decreed and also filed Misc. Case No.14/2006 for setting aside
- 13 - O.S.No.25422/2009 the decree. The said Misc. Case No.14/2006 came to be dismissed. Thereafter, the 1st defendant filed MFA No.2369/2007 before the Hon'ble High Court of Karnataka and obtained an order of stay. When the first appeal was dismissed, the 1st defendant entered into a compromise with him. The 1 st defendant agreed to give Rs.20,00,000/- to defendant No.2 towards his ½ share. The said amount has to be paid within a period of 6 months. When the said period of 6 months is likely to be over, the 1st defendant has setup the plaintiff to file the present suit so as to delay the decree, payment of amount or delivery of ½ share to him. The plaintiff has instituted the said suit by joint hands with the 1 st defendant. Suit is liable to be dismissed by the principles of estoppel and acquiescence. In support of their stand the power of attorney holder of defendant No.1 has got examined herself as D.W.1 and got marked the documents at Exs.D.1 to D.5 i.e., Ex.D.1 is the sale deed dated 29.10.1977, Ex.D.2 is the Court Sale Deed, Ex.D.3 is the property tax receipt, Ex.D.4 is the Form No.15/Encumbrance certificate and Ex.D.5 is the Endorsement.
- 14 - O.S.No.25422/2009
11. Upon going through materials on record it is seen that, plaintiff who himself examined as P.W.1 made following admissions during his cross- examination which are relevant to decide the case on merits which reads as under:
"1975 gÀ°è zÁªÁ D¹Û £À£Àß vÀAzÉ PÉÆArzÀÝgÀÄ. zÁªÁ D¹Û Rjâ¸ÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £À£ÀUÉ ªÀAiÀĸÀÄì 30 ªÀµÀð DVvÀiÛ. D¹Û Rjâ¸ÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß vÀAzÉ PÉfJ¥sï §AUÁgÀzÀ UÀtôAiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÀÝgÀÄ DUÀ CªÀjUÉ JµÀÄÖ ¸ÀA§¼À §gÀÄwÛvÀÄÛ JA§ÄªÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®è. CªÀgÀ DzsÁAiÀÄzÀ §UÉÎ AiÀiÁªÀÅzÉ zÁR¯É E®è. £À£Àß vÀAzÉUÉ £ÁªÀÅ MlÄÖ 3 UÀAqÀÄ ªÀÄvÀÄÛ 2 ºÉtÄÚ ªÀÄPÀ̼ÀÄ. £À£Àß vÀAzÉUÉ JgÀqÀÄ «ªÁºÀ DVzÀÄÝ £Á£ÀÄ ªÉÆzÀ®£Éà ºÉAqÀwAiÀÄ ªÀÄUÀ. ¥ÀæwªÁ¢ «zÁå¨Áå¸À K£ÉAzÀÄ £À£ÀUÉ UÉÆwÛ®è. DzÀgÉ DvÀ£À ªÀQîgÀ°è PÉ®¸À ªÀiÁqÀÄwÛzÁÝ£É. ¥ÀæwªÁ¢ 1 Q¯ÉÆðøÀÌgï£À°è PÉ®¸À ªÀiÁqÀÄwÛzÀÝ. CªÀgÀ ªÀÄzÀÄªÉ DV 41 ªÀµÀð DVzÉ. £À£Àß vÀAzÉUÉ CªÀgÀ ¸ÀA§¼À ©lÄÖ ¨ÉÃgÉ AiÀiÁªÀ DzÁAiÀÄ EgÀ°®è. £À£Àß vÀAzÉ 1974 gÀ°è ªÀAiÉÆäªÀÈwÛ ºÉÆA ¢gÀ§ºÀÄzÀÄ. CªÀjUÉ D ¸ÀªÀÄAiÀÄzÀ°è gÀÆ.45,000-00 §A¢gÀ§ºÀÄzÀÄ. F §UÉÎ zÁR¯É E®è. £À£Àß vÀAzÉ zÁªÁ ¸ÀévÀÄÛ CªÀgÀ ºÉ¸ÀjUÉ Rjâ ªÀiÁqÀ¢gÀ®Ä PÁgÀtªÉãÉAzÀÄ UÉÆwÛ®è. £À£Àß vÀAzÉ zÁªÁ ¸ÀévÀÄÛ Rjâ ªÀiÁqÀ®Ä ¸Á® ªÀiÁr®è . zÁªÁ ¸ÀévÀÄÛ Rjâ ªÀiÁqÀ®Ä £À£Àß vÀAzÉUÉ £Á£ÀÄ ºÀt ¸ÀºÁAiÀÄ ªÀiÁr®è. zÁªÁ ¸ÀévÀÄÛ Rjâ ªÀiÁqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è CtôÚUÉÃjAiÀÄ°è ªÁ¸À«zÉݪÀÅ. £À£Àß vÀAzÉ zÁªÁ D¹ÛAiÀÄ£ÀÄß ¥ÀæwªÁ¢UÀ¼À ºÉ¸ÀjUÉ §gÉ¢gÀĪÀ «ZÁgÀ £À£ÀUÉ UÉÆvÀÄÛ JAzÀgÉ ¸ÀjAiÀÄ®è. F «ZÁgÀ £À£ÀUÉ 10 ªÀµÀðzÀ »AzÉ w½¬ÄvÀÄ. ............... ¥ÀæwªÁ¢ £ÀA.1 LnL ªÀiÁr ªÉ®Øgï GzÉÆåÃUÀ ªÀiÁqÀÄwÛzÀÝ JAzÀgÉ ¸Àj. CzÀjAzÀ DvÀ¤UÉ ªÉÃvÀ£À §gÀÄwÛvÀÄÛ JAzÀgÉ ¸Àj. £Á£ÀÄ ¥ÀæwªÁ¢ 1 ªÀÄvÀÄÛ 2 gÀªÀjUÉ zÁªÁ D¹Û «¨ÁUÀ ¨ÉÃPÉAzÀÄ £Á£ÀÄ 10-12 ªÀµÀðUÀ¼À »AzÉ PÉýzÉÝ. 2004 gÀ°è 1 ªÀÄvÀÄÛ 2 ¥ÀæwªÁ¢UÀ¼ÀÄ MJ¸ï1896/2004 gÀAvÉ «¨ÁUÀPÁÌV zÁªÉ ºÀÆrgÀĪÀ «ZÁgÀ £À£ÀUÉ UÉÆwÛ®è. .................... zÁªÁ D¹Û ¥ÀæwªÁ¢UÀ¼À ¸ÀA¥ÁzÀ£É¬ÄAzÀ Rjâ¹zÀÄÝ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄ ¸ÀévÀB ºÉüÀÄvÀÁÛgÉ £Á£ÀÄ PÀÆqÀ PÉÆnÖzÉÝãÉ. £À£ÀUÉ ¢£ÀA¥Àæw 10 gÀÆ ¸ÀA§¼À EvÀÄÛ. £À£ÀUÉ ªÁgÀPÉÌ ¸ÀA¸ÁgÀPÉÌ gÀÆ.20-00 ¸ÁPÁUÀÄwÛvÀÄÛ. ..................
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12. It is significant to note here that even though defendant No.1 and 2 filed separate written statement and contested the case on merits but neither of them entered the witness box to support their stands. On the other hand, one Smt. Vasanthi who is the wife of defendant No.1 entered the witness box as D.w.1. Even
- 15 - O.S.No.25422/2009 though, lengthy examination chief and cross- examination is available on record. But admittedly, this witness had no knowledge about the sale transaction or corpus used for it. Admittedly, the suit property was purchased prior to her marring defendant No.1. All the facts stated by her is not first hand information, rather she came to know about it through her husband. Even though lengthy cross-examination is done for this witness but nothing is elicited which throw light on the real dispute. D.W.1 during her cross-examination categorical admitted that:
........... I don't know about the family affairs before my marriage. Suit property was purchased for 35 thousand by defendant No 1 and 2 from Chandrashekar. This fact was brought to my knowledge by my in laws and my husband. Defendant No 1 informed these facts to my father before my engagement which took place 5 months prior to my marriage............ I don't know whether suit property was vacant site or not at the time of purchase. At the time of my marriage there was a mold house consisting of ground floor. It is true that at the time of purchase in the year 1977 there was a house consisting of ground and 1st floor. Witness volunteers that there was one out house also.
13. Upon going through the materials available on record, admitted fact this case indicates that one K. Ramaswamy is the Propositor of the family, plaintiff herein is the son of said Ramaswamy through first wife Smt. Amminiyamma. The defendant No.1 to 4 are the children of said Ramaswamy through 2nd wife Lakshmi.
- 16 - O.S.No.25422/2009 Plaintiff claims that the suit property is the joint family property purchased out of joint family funds and plaintiff is also entitled for 1/3rd share. On the other hand, defendant No.1 and 2 contended that it is the self acquired property of defendants No.1 and 2 and they have already fought before the court and in High Court as well. The said litigation ended in compromise. Hence, they claim that it is not the joint family property rather it is the self acquired property. The defendant No.3 and 4 remained absent and placed exparte.
14. Upon going through the materials on record it indicates that, in support of his claim plaintiff is relying upon his oral testimony 6 documents as per Ex.P.1 to
6. The first document is the sale deed under which defendant No.1 and 2 purchased the suit property from Chandrashekar on 29.10.1977. Plaintiff also got another sale deed as Ex.P.3 which is in Tamil, the translated version indicates that the plaintiff along with defendant No.1 and 2 and their late father Ramaswamy sold the property situated at Gobichettipalyam for Rs.6,000/- and there are two acknowledgment and legal notice, except these documents plaintiff did not placed
- 17 - O.S.No.25422/2009 any material to show that suit property is purchased from and out of joint family funds. It is also forthcoming pleading that according to plaintiff loan is also availed to purchased the suit property which is cleared by joint family funds. It is specifically pleaded by the plaintiff that K. Ramaswamy had purchased the suit property on 29.10.1977 out of the Joint Family Funds, and also availed loan to meet the shortage. But it was got registered in the name of defendants only for nominal sake, in order to clear the loan, the ancestral property belonging to the family was sold and out of the said consideration the loan has been cleared but no documents is produced. Rather in the cross- examination, plaintiff denied availing loan. It is categorically admitted by the plaintiff in the evidence that:
£À£Àß vÀAzÉ zÁªÁ ¸ÀévÀÄÛ CªÀgÀ ºÉ¸ÀjUÉ Rjâ ªÀiÁqÀ¢gÀ®Ä PÁgÀtªÉãÉAzÀÄ UÉÆwÛ®è. £À£Àß vÀAzÉ zÁªÁ ¸ÀévÀÄÛ Rjâ ªÀiÁqÀ®Ä ¸Á® ªÀiÁr®è . zÁªÁ ¸ÀévÀÄÛ Rjâ ªÀiÁqÀ®Ä £À£Àß vÀAzÉUÉ £Á£ÀÄ ºÀt ¸ÀºÁAiÀÄ ªÀiÁr®è. zÁªÁ ¸ÀévÀÄÛ Rjâ ªÀiÁqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è CtôÚUÉÃjAiÀÄ°è ªÁ¸À«zÉݪÀÅ............. £À£Àß vÀAzÉ zÁªÁ ¸ÀévÀÄÛ Rjâ ªÀiÁqÀĪÁUÀ ¨ÉÃgÉAiÀĪÀjAzÀ ¸Á® ¥ÀqÉ¢zÀÝgÀÄ JAzÀÄ zÁªÉAiÀÄ°è ºÉýzÉÝÃ£É JAzÁUÀ ¸ÁQë £Á£ÀÄ D jÃw ºÉý®è JAzÀÄ ºÉüÀÄwÛzÁÝgÉ.
15. However, in support of their stand, defendant also got placed the very same sale deed as Ex.D.1 and there is one court sale deed in FDP No.73/2005 which
- 18 - O.S.No.25422/2009 indicates that Rs.6,30,000/- deposited by defendant No.1 and got the sale deed from the court. Defendant also got placed good number of tax paid receipts. Upon going through the materials on record it is seen that, even though plaintiff made allegation that suit property is purchased in the name of defendants in spite of their father was alive and purchased out of joint family funds etc. But, not even a single scrape of paper or evidence produced by the plaintiff to prove these facts. In addition to that, during the cross-examination he categorical admitted that he do not know why the property was not registered in the name of his father. It is also categorical admitted that he never contributed anything towards purchase and no loan is availed to purchase the suit property. This categorical admission falsify the pleadings of the plaintiff. In addition to that admittedly a suit was fought between defendant No.1 and 2 in O.S.No1896/2004 which was pleaded and brought to the notice of plaintiff by way of written statement in the year 2009 itself. But, till this day plaintiff did made any efforts to challenge it. Apart from that, admittedly plaintiff never resided in the suit
- 19 - O.S.No.25422/2009 property and stayed at Annigeri since his childhood.
Even though, plaintiff claims that he also contributed but admittedly he was daily wages employee and had Rs.10/- as wages this also falsify his claim.
16. As rightly pointed out by the learned counsel for the plaintiff admittedly suit property is purchased in the year 1977 for Rs.35,000/-. Even though, plaintiff try to squat on Ex.P.3 claiming that said money is used to purchase the suit property. But admittedly Ex.P.3 is the sale deed of the year 1978 that too for Rs.6,000/- only. Absolutely, there are no evidence to show that said money is utilized to purchase the suit property. As mentioned above, before selling the property under Ex.P.3 one year one month prior to it Ex.P.1 was already registered. But absolutely there is no whisper in Ex.P.3 about utilizing sale prise for purchase of suit property. All these facts, falsify the claim of the plaintiff and probable the contention of the defendant that, suit property is the self acquired property of defendant No.1 and 2. It is also forth coming that in the floor of the court a compromise was entered. Ex.D.2 the court sale deed indicates that a suit in O.S.No1896/2004 was filed
- 20 - O.S.No.25422/2009 for partition and which was fought in MFA No.2369/2007 and ended in compromise leads to preliminary decree. In the said compromise it was agreed that the vendor will give half share for Rs.20 lakhs but failed to pay. Hence, defendant No.1 filed FDP.73/2005 and deposited Rs.6,30,000/- and withdrawn from defendant No.2. Accordingly, defendant No.1 got executed a sale deed in his favour. This fact is not disputed or challenge by plaintiff herein. Interestingly, plaintiff not whisper about this proceedings in the plaint. However, looking at the facts and circumstances of this case, I hold that plaintiff failed in establishing that the suit property is joint family property in available for partition. Hence, Issue No.1 to 3 are answered in the negative.
17. Issue No.4 and Additional Issue No.1 :- Even though, defendants contended that suit is hit by estoppel and acquiescence and as per the terms of compromise the defendant No.1 failed to comply the terms etc. But during the course of trial these issues were not pressed into service. Apart from that, there is
- 21 - O.S.No.25422/2009 no counter claim by the defendant. Hence, these two issues out of the scope of present suit. However, Ex.D.2 clearly indicates that in MFA No.2369/2007 there was a compromise and breach of terms. But, defendant not placed any supporting material in this regard except producing Ex.D.2. Hence, these two issues answered accordingly.
18. ISSUE No.5 :- In the result, this Court proceed to pass the following -
ORDER
The suit of the plaintiff is
dismissed with cost.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed and computerized by her, corrected and signed by me and then pronounced in the open Court on this the 19th day of April, 2024.) Digitally signed by K M KM RAJASHEKAR RAJASHEKAR Date: 2024.04.20 15:44:11 +0530 (K.M. RAJASHEKAR) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru. SCHEDULE - A All that piece and parcel of immovable property bearing Municipal No.53 old No.156 situated at 12 th A Cross, Vayalikaval Extention, Kodandaramapura,
- 22 - O.S.No.25422/2009 Bangalore - 560 003 measuring East to West 20' (Twenty Feet) North to South 35' (Thirty Five Feet) and bounded on:
East by : Private Property,
West by : Private Property,
North by : Private Property,
South by : 12th A Cross.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : R. Kannaiyan 03-02-2020
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : Sale Deed dated 29.10.1977.
Ex.P.2 : Copy of the notice dated 27.01.2009.
Ex.P.3 : Certified copy of sale deed dated
20.11.1978.
Ex.P.4 : Translation of sale deed from Tamil to
English.
Ex.P.5 : Postal acknowledgment.
and P.6
3. WITNESSES EXAMINED FOR THE DEFENDANT:
Examined on:
D.W.1 : Smt. Vasanthi 30-11-2022
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANT:
Ex.D.1 : Certified copy of Sale Deed.
- 23 - O.S.No.25422/2009
Ex.D.2 : Certified copy of Court Sale Deed.
Ex.D.3 : Tax receipt.
Ex.D.4 : Form No.15.
Ex.D.5 : Endorsement.
Digitally signed by K M
KM RAJASHEKAR
RAJASHEKAR Date: 2024.04.20
15:44:21 +0530
(K.M. RAJASHEKAR)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.