Bangalore District Court
Smt. Susheelamma vs Smt. S.Mary on 1 August, 2022
KABC010153872006
IN THE COURT OF THE XXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-7)
:PRESENT:
BALAGOPALAKRISHNA
C/c XXII Addl. City Civil & Sessions Judge,
Bengaluru City (CCH.07)
Dated this the 1 st day of August 2022
O.S. No.8759/2006
PLAINTIFFS: 1. Smt. Susheelamma, aged 50 years Sri.
2. Anthony, aged 31 years
3. Sri. Chinnappa, aged 28 years
4. Sri. Cheluvaraj, aged 53 years,
5. Sri. Shanthappa, aged 58 years
6. Sri. Papaiah, aged 40 years.
All are residing at Jarganahalli
Kanakapura Road, J.P.Nagar Post
Bangalore-560078.
[By Sri. NRN
Advocates for P1 to 6]
/v e r s u s/
DEFENDANTs: 1. Smt. S.Mary, Major
W/o. Late A. Ankappa.
2. Sri. Chinnappa, Major
S/o. Late A.Anskappa
2 O.S.8759/2006
3. Sri Jacob, Major
S/o. Late A.Ankappa.
Since deceased represented
by his Lrs.
3(a). Smt. Sunitha
W/o. Late JACOB
Aged about 38 years.
3(b). KUMARI ARCHANA
D/o. Late JACOB
Aged about 15 years.
3(c) MASTER AKASH
S/o. Late JACOB
Aged about 14 years
3(b) and 3(c) are minors
represented by their mother
Natural guardian
3(a) defendant herein
All are residing at Jaraganahalli
village, J.P.NAGAR Post,
Kanakapura Main Road, Bangalore.SN
4. Smt. Shantha, Major
D/o. Late Ankappa
5. Sri Prakash, Major
S/o. Late A.Ankappa
6. Sri Rajappa, aged 59 years
S/o. Late Rajappa.
7. Smt. Jayamari
W/o. Late Mark Raju.
All are residing at Jarganahalli
Kanakapura road, J.P.Nagar Post
Bangalore-560078.
3 O.S.8759/2006
[By Advocates Sri.SN for
defendant Nos.1 to 5,
Sri.MR for Defendant No.6 &7 ]
8. Sri Ananth
S/o. Late Joseph
Aged about 29 years.
9. Smt.Jaimary
D/o. Late Ananthappa &
Papamma Aged about 47 years.
10. Smt. Susheela
D/o. Late Ananthappa &
Papamma Aged about 45 years.
11. Smt. Shantha
D/o. Late Ananthappa &
Papamma Aged about 43 years.
12. Smt. Raji
D/o. Late Ananthappa &
Papamma Aged about 40 years.
13. Sri. G.A.Raju
S/o. Late Ananthappa &
Papamma Aged about 38 years.
14. Sri. G.A.Annappa
S/o. Late Ananthappa &
Papamma Aged about 34 years.
All are residing at Hosa Gabbadi
village, Harohalli Hobli,
Kanakapura Taluk, Bangalore
Rural District.
15. Smt. Rajamma
w/o. Late Papaiah
Aged about 50 years.
4 O.S.8759/2006
16. Smt. Lurdhu Mary
W/o. Late P. Anthony Raj
Aged about 39 years.
17. Kumari Anusha
D/o. Late P. Anthony Raj
Aged about 14 years.
18. Master Alvin
S/o. Late P. Anthony Raj
Aged about 12 years.
17 and 18 are minors
represented by their mother
natural guardian 16th proposed
defendant herein.
19. Sri Peter
S/o. Late Papaiah
Aged 28 years.
20. Smt. Annamma
W/o. Late Papaiah
Aged 26 years.
21. Smt. Jayamma
D/o. Late Jojappa
Aged 40 years.
All are residing at Jaraganahalli
village, J.P.Nagar Post,
Kanakapura Main Road,
Bangalore-560078.
[ Sri. SN/ Y.S.Suresh for
Defendants No.1 to 5 ]
[ Sri. Y.S.S for D3(a to c)]
[Sri. KV for Defendant Nos.8,
9, 10, 11, 12 & 21 ]
5 O.S.8759/2006
Date of Institution of the suit : 30-09-2006
Nature of the Suit : PARTITION
Date of commencement of recording
of evidence : 28-11-2018
Date on which the Judgment was
pronounced : 01-08-2022
Year/s Month/s Day/s
Total Duration : 15 10 01
(BALAGOPALAKRISHNA)
XXII Addl.City Civil & Sessions Judge,
Bengaluru City.
JUDGMENT
The plaintiffs have filed this suit against the defendants for partition and separate possession of their half share in suit schedule properties by metes and bounds, mesne profits and other reliefs as prayed in the plaint.
2. In a nutshell case of the plaintiffs are as under:-
According to the plaint averments, the propositos one Chinnappa had two sons viz., Annaiappa and Dasappa. The said Annaiappa had sons and daughters viz., Anukappa 2) Papaiaha 3) Papamma 4) Ammayamma and 5) Jayamma. The second son Dasappa had sons and daughters viz., 1) Jojappa
2)Rajappa - defendant No.6 3) Chowdamma - dead 4) 6 O.S.8759/2006 Chinnappa - unheard for more than 20 years 5) Shanthappa -
plaintiff No.6 and 6) Papaiah - plaintiff No.7.
Annaiappa's first son Anukappa died living behind him defendant Nos.1 to 3, 4 and 5. Annaiappa's daughter by name Papamma died living behind him defendant Nos.9 to 14, Annaiappa's second son Papaiah died living behind him defendant No.15,19 and 20. The first son of Dasappa by name Jojappa died living behind him his wife Susheelamma - plaintiff No.1 sons and daughter viz., Anthony - plaintiff No.2, Chinnappa
- plaintiff No.3, Cheluvaraju - plaintiff No.4 and daughter by name Jayameri defendant No.7.
3. The plaintiffs are seeking partition and separate possession of their half share in land bearing survey number 27/3 measuring one acre 14 guntas and land bearing survey number 27/2 measuring 11 guntas, both lands are situated at Jaraganahalli village, Uttarahalli Hobli, Bengaluru South, having common boundaries mentioned in the plaint schedule.
4. The plaint averments further reveals that, the suit schedule properties originally belonged to propositos by name Chinnappa and after his demise his two sons have succeeded the suit properties. It is further stated that, after the death of Annaiahappa there was a partition among Annaiappa and second son of propositos by name Dasappa under registered partition deed dated 05.07.1973. In the said partition properties were divided in the terms of money ie., Rs.2,000/- was allotted to the share of Dasappa and an amount of Rs.3,000/- was allotted 7 O.S.8759/2006 to the share of Annaiappa in the suit properties. It is further stated that, there was no actual division by metes and bounds among the branch of Annaiappa and Dasappa. Thus, contended that, the said partition is a fictitious document brought by the son of Annaiappa by name Anukappa with an intention to defeat and knock off the valuable rights of Dasappa and his sons.
5. It is further submitted that, in spite of the above fact Anukappa son of Annaiappa again brought out one more document dated 15.04.1974 styled as rectification deed. The said rectification deed is also fictitious one and got up for the purpose of knocking the valuable right of Dasappa and its sons. In spite of the above facts, the plaintiffs and defendants have continued to be in joint possession of suit schedule properties and till today, there is no partition among the sons and daughters of Annaiappa and Dasappa. Therefore, the plaintiffs are entitled for half share in the suit schedule properties.
6. It is further submitted that, over the suit schedule properties some structures have come up and 23 buildings were rented out to the tenants by the defendants and they are getting monthly rents of Rs.2,00,000/-, wherein also the plaintiffs are entitled for share. The defendants purposefully depriving the share of the plaintiff.
7. In view of the said facts, on 29.03.2006 the plaintiffs demanded the defendants to effect partition by metes and bounds but same was refused by the defendants. Hence, cause 8 O.S.8759/2006 of action was arose for the plaintiff to file the suit. Accordingly, prayed to decree the suit as prayed.
8. In response to the summons issued by this court, the defendant Nos.1 to 5 have appeared through their counsel and defendant No.1 filed written statement and defendant Nos.2 to 5 adopted the same. It reads as under:-
At the first instance, these defendants specifically denied all the averments made in the plaint as false and same is created for the purpose of this suit. It is specifically contended that, the plaintiffs and defendants who are closely related by blood and kinship and they are the Christians by caste and governed by the Roman Catholic. Thus, it is contended that under the Christianity the question of joint family and joint family properties is unknown.
9. First defendant admitted that, she is the wife of late Anukappa and defendant Nos.2 to 5 are the sons and daughters. It is submitted that, suit property bearing survey number 27/3 of Jaraganahalli village was jointly purchased by Annappa @ Annaiappa and his brother Dasappa. Again the said two brothers were sold the said property in favour of one Munisyamappa @ Chonakappa under registered sale deed dated 21.07.1965 and sale proceeds were equally divided among them. Thus, the said Annappa and his brother disposed of the said property as state above.
10. It is further defence of the defendants that, the said Annappa out of his own earnings and savings, again he has 9 O.S.8759/2006 repurchased the survey number 27/3 under registered sale deed dated 24.10.1969 from said Munisyamappa @ Chonakappa. Thus, contended that it is the absolute, self acquired and individual property of Annappa. After purchase he was / is in possession and enjoyment of the said property without any hindrance.
11. It is submitted that, Annappa's brother by name Dasappa was facing so many difficulties in his life, so Annappa out of his own free Will and volition treated survey number 27/3 as joint asset and give some share in this property to his brother Dasappa under registered partition deed dated 05.07.1973. According to that, a portion of the property was given to the possession of Dasappa and remaining portion was continued to be in the possession of Annappa. It is further submitted that, since there was some discrepancies in the partition deed dated 05.07.1973 a rectification was affected by executing registered rectification dated 15.04.1974.
12. It is further stated that, in respect of the property retained by Annappa ie., share of Annappa was converted into non agriculture purpose and constructed industrial sheds after obtaining financial assistance from KSFC.
13. It is further stated that, as per the registered partition dated 05.07.1973 and registered rectification deed dated 15.04.1974, an independent access was provided from Kanakapura road to the portion taken by the parties. In order to over come the difficulties faced by the parties for their ingress 10 O.S.8759/2006 and egress to utilize their respective portion more beneficial, the heirs of Annappa and Dasappa effected some exchange of certain areas between themselves. The terms of exchange was reduced into writing, signed and executed by them including some of the plaintiffs on 03.03.1974. The said fact was also affirmed by the heirs of Dasappa by executing affidavit. Therefore, again partition of the survey No.27/3 does not arise at all.
14. It is further submitted that, property bearing survey number 27/2 of Jaraganahalli village is the absolute property of Annappa. The said property was granted by the Government under title deed dated 16.11.1979 issued by the Tahsildar, Bengaluru South.
15. It is further submitted that, one of the son of Dasappa by name Chinnappa decided and agreed to sell his portion of the survey number 27/3 to the husband of the defendant No.1, for that other sons of Dasappa have also consented and given declaration as per the letter dated 17.12.1992. Further, the said Chinnappa had received full consideration from the husband of the defendant No.1 and given affidavit on 15.02.1993 and also executed irrevocable power of attorney coupled with consideration. Thus, contended that after partition the plaintiff and defendants are enjoying their respective shares independently and dealing with the properties independently without any hindrance.
11 O.S.8759/200616. In spite of the above fact, the plaintiffs having not tolerated the prosperity of the defendants have filed false suit with an intention to harass the defendants. Accordingly, prayed to dismiss the suit with costs.
17. The defendant No.6 has appeared through counsel and filed written statement as under:-
This defendant is representing the branch of Dasappa i.e., first plaintiff's husband's brother. He has stated that, in the entire suit schedule property he has been allotted a small share by the other defendants i.e., one shed measuring 75 x 46ft, same was let out to one Ramu for industrial purpose and fetching monthly rent of Rs.11,000/- per month. This defendant has constructed a small house in an area measuring 12 x 10ft and residing therein. This defendant had one son and three daughters and they are studying, income from the said property is not sufficient for him. There is a problem for ingress and egress. Therefore, requested to allot more share to him by the side of the Kanakapura Main Road. Hence, prayed to allot his share.
18. The defendant No.7 has appeared through counsel and filed written statement as under:-
She is the daughter of plaintiff No.1, she has stated that she is the first daughter of deceased Jojappa who died about 12 years ago. Since his father is the son of Dasappa is entitle for half share in the suit property. So far she has not received any benefit from the property of Dasappa. Therefore, her share maybe allotted in the suit schedule property.12 O.S.8759/2006
19. On the basis of the said pleadings, my learned predecessor in office has framed the following :-
ISSUES
1. Whether the plaintiffs prove that suit property is undivided family property of the plaintiffs and defendants?
2. Whether plaintiffs have a share in the suit property?
3. Whether plaintiffs are entitled for mesne profits?
4. Whether defendant Nos.6 & 7 prove that they are entitled for a share in the suit property?
5. Whether defendants No.1 to 5 prove the prior registered partition dated 05.07.1973?
6. Whether defendants No.1 to 5 prove that plaintiffs are not entitled for any share claimed by them?
7. Whether court fee paid is insufficient?
1.
8. What Order or Decree?
20. On the side of the plaintiff, PW.1 is examined, Ex.P.1 to Ex.P.15 are got marked. On the side of the defendants DW.1is examined, Ex.D1 to D19 are got marked.
21. During the trial a commissioner was appointed by this court and he has submitted his report, but he has not been examined before this court.
13 O.S.8759/200622. Heard the arguments on both the sides and perused the documents.
23. On the basis of the evidence available on record, my findings on the above issues are as under:-
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Issue No.4 : In the Negative;
Issue No.5 : In the Affirmative;
Issue No.6 : In the Affirmative;
Issue No.7 : In the Affirmative;
Issue No.8 : As per final order
for the following:-
REASONS
24. ISSUE Nos.1, 2, 5 and 6:-
These issues are interlinked and they have taken together for common discussion to avoid repetition.
It is not in dispute among the plaintiffs and defendants that Chinnappa had two sons viz., first son is Annayappa and second son is Dasappa. Anayyappa branch is represented by D1 to D5, D15 to 20, D9 to D14 and Defendant No.8. Second son Dasappa branch is represented by plaintiff Nos.1 to 4, D6, plaintiff No.5, Plaintiff No.6, defendant No.7 and 21.
25. It is also admitted fact that, the parties to the suit are not Hindus and they are Christians and governed by Roman Catholic. Therefore, the concept of Hindu Law i.e., ancestral property and joint family property is not applicable to the case on hand.
14 O.S.8759/2006Now comes to the history of suit item No.1 i.e., property bearing survey number 27/3 measuring 1 acre 14 guntas.
On careful reading of para No.2 of the plaint, it is simply stated that this survey number as well as suit item No.2 originally belonged to Chinnappa, on his demise his two sons by name Annappa @ Annaiappa and Dasappa succeeded the property. As a counter the contesting defendant No.1 to 5 have taken a contention that, this property was originally purchased by Annappa @ Annaiappa and his brother Dasappa. It further reveals that, the said two brothers sold the said property in favour of one Munisyamappa @ Chonakappa under registered sale deed dated 21-07-1965. So far as this document is concerned, the plaintiffs have not whispered anything. However, at the time of evidence of DW-1 the original sale deed dated 21-07-1965 is marked at Ex.D1. Plain reading of the said document clearly reveals that, Annappa @ Annaiappa and his sons and Dasappa and his sons have jointly executed the said document for valuable consideration of Rs.2,000/-. From this document what is gathered is both brothers Annappa @ Annaiappa & his sons and Dasappa & his sons have sold this property under Ex.D1 in favour of one Munisyamappa @ Chonakappa and divided the sale proceeds. So far as, this aspect is concerned there is no pleading and nothing has been come from the mouth of PW.1. At this stage, it can infer that 15 O.S.8759/2006 under Ex.D1 the property was sold by the said two brothers and their sons.
26. The defence of the defendant further reveals that, Annappa @ Annaiappa had purchased this property under registered sale deed dated 24-10-1969. In this regard, the pleading of the plaintiff is also silent. However, the DW.1 has produced the said original document which is marked at Ex.D2, by plain reading of the said document it is obviously clear that, Munisyamappa @ Chonakappa had sold this property in favour of Annappa @ Annaiappa. Therefore, it is contended that, this is the absolute property of the said Annappa @ Annaiappa and his sons. This document is not seriously disputed by the plaintiff. Thus, it can infer that this property is the absolute property of the Annappa @ Annaiappa.
27. The further defence of the defendant is that, though the survey number 27/3 is the absolute property of the Annappa @ Annaiappa, in order to help his brother Dasappa and meet out his family difficulties he voluntarily gave some share to his brother Dasappa under Ex.D-3. Ex.D3 is the original Partition Deed dated 05-07-1973, certified copy of the said document is marked at the side of the plaintiff at Ex.P-1, wherein it clearly reveals that, the said Annappa @ Annaiappa and Dasappa had divided this survey number into 'A and B' schedule properties, 'A' schedule property fell to the share of elder son Annappa amounting to Rs.3000/- and B schedule property was fallen to the share of Dasappa youngest son amounting to Rs.2000/-. It is pertinent to note that, at the time of partition the said survey 16 O.S.8759/2006 number measuring 1 acre 14 guntas was converted as per the order of Tahsildar under ALSR No.1839 dated 10-06-1970. The said Ex.P-1 is also enclosed with schedules.
28. Again the said two brothers namely Annappa and Dasappa entered into rectification of the partition deed as per Ex.D4 and very same document is got marked on the side of the plaintiff at Ex.P-2, whereunder they have rectified the Ex.D3/Ex.P1 wherein, it is clearly stated that:
ಜರಗನಹಳಳ ಗಗಗಮದ ಸರರರ 27-3 ನನಬರರ ಪರಪಕ ಅಣಣಪಪನಗದ ನನನ ಹಸರಸಗರ ಬನದರರವ 0-34 ಗರನಟರ ಜವವರವದಗರ ಚಕರಕಬನದ ಸರಯಗಗದರದ ಇದರ ಕನನರಷನನವ ಆಗರರವ ಪಗಯಕಕ ಇದನರನ ಅಡಗಳಗಗ ಪರವರರನರ ಮಗಡರರಗಗ ಹರಚರಚ ಕಮಮಯಗಗ ನನ. 1.66x34.2 ದಗ ಎನಬರದಗಗ ರಪಗಪಗ ನಮಮದಸರರತರಕ. ಈಗ ಇದನರನ ಗರನಟರಯನದ ಅಡಗಳಗರ ಸರಯಗಗ ಪರವರರಸ ಉದದ 454+471/2 ಅನಗಲ 90+90 ಅಡಗಳರ ಅಥರಗ 4114/37026 ಚದರ ಗಜ ಚದರಡ ಎನಬರದಗಗಯಮ ಮರರಕ ಬ .ಪರಪಡರಡಲರದಗರರಗದ ದಗಸಪಪನ ಹಸರಸ ಪರಪಡಮಡಲನಲಲ ಇದರವ ತಗಲಮಲಕನವಇದರವ ಹರಮವಬಳ, ಜರಗನಹಳಳ ಗಗಗಮದ ಸರರರ 27/3 ನರವ ನನಬರರ ಪರಪಕ ಎ-ಗರನ 0-20 ಗರನಟರ ಚಕರಕಬನದ ಸರಯಗಗದರದ ಈ ಜಮವನನರನ ಅಡಗಳಗಗ ಪರವರರಸರರಗಗ ಕಮಮಯಗಗ ನನ.1.66x34 ನನ.2 ದಗ ಎನಬರದಗಗ ರಪಗಪಗ ನಮಮದಸದರದ ಇದನರನ ಸಹಗ ಗರನಟರಯಲಲ ಅಡಗಳಗರ ಸರಯಗಗ ಪರವರರಸ ಉದದ 264 ಅಡಗಳರ ಅಗಲ 71+75/2 ಅಥರಗ 2420 ಚದರ ಗಜ / 21680 ಚದರಡ ಎನಬರದಗಗ ನಮಮದಸ ಈ ರದರದಪಡ ಪರಗವನರನ ನಮಮಗಳ ಖರದರದ ಮನರಮವರಗಜಯನದ ವಪಪ ಮಗಡಕರಮನಡ ರದರದಪಡ ಪರಗ ಸಹ.17 O.S.8759/2006
29. By reading the said rectification of partition Deed the first son Annappa took 34 guntas in survey number 27/3 i.e., 4114/37026 square yards in 'A' schedule whereas second son Dasappa took 20 guntas in Sy.No.27/3 measuring 2420/21780 square yards and also by leaving some space for ingress and egress. Ex.D5 and D6 are the encumbrance certificate in respect of the said survey number.
30. Now comes to the case of the plaintiff. According to the plaintiff the said partition was not acted upon and it is unequal partition. Therefore, they have sought for simple partition requesting the court to divide equally.
31. Now the court has to appreciate merely the plaintiff has contended that, it is unequal partition and partition was not acted upon, whether the registered partition Deed can be set aside. As discussed above, the parties to the suit are Catholic Christians governed by Christian Law. The Ex.D1 and D2 clearly reveals that, this item of the property was jointly sold by Annaiappa and Dasappa under Ex.D1. Therefore, their joint ownership over the survey number 27/3 is lost. Again under Ex.D2 Annappa had purchased this property in his independent capacity. Therefore, at this stage it can infer that this is the absolute property of the Annappa. No doubt, as per the Ex.D3 Annappa and Dasappa have divided the property by taking the share in this survey number in terms of money i.e., Rs.3,000/- to Annappa and Rs.2000/- to Dasappa and the said partition deed is also enclosed with schedules. Further, this partition was fortified by the said two brothers by entering into rectification of 18 O.S.8759/2006 the partition deed under Ex.D4 wherein, they have rectified the extent / measurement in very same survey number. This particular document was came into force on 15-04-1974. None of the parties have stated when exactly the said Annaiappa and Dasappa died. It is pertinent to note that, during the life time of Dasappa he has not questioned the said partition deed in the manner known to law. Now, the question is the plaintiff being the legal heirs of Dasappa can question the same after lapse of 33 years. As per the Article 59 of the Limitation Act, the father of the plaintiff or plaintiffs should have questioned the said Ex.D3 and D4 within 3 years, no such attempt is made, now the plaintiffs cannot contend the said partition deed is unequal. Therefore, at the first instance suit of the plaintiff is itself barred by law of Limitation.
32. The plaintiff simply sought for partition, but they have not stated what is the latches in the Ex.D3 and Ex.D4. Therefore, without questioning the Ex.D3 and D4 the plaintiff cannot seek partition. Once a partition is registered among the father of the plaintiffs by name Dasappa and grandfather of defendant Nos.2 to 5, he partition deed can be questioned on the ground of fraud, misrepresentation etc. Here in this case, no such plea has been taken by the Dasappa during his life time including unequal partition. Under such circumstances, now filing this suit the plaintiff cannot challenge the partition and they cannot reopen the partition without assigning any reason. Further, the entire case is solely depend upon the documentary evidence. So the oral evidence of PW.1 is not helpful to the plaintiffs to prove their case. Therefore, I come to conclusion 19 O.S.8759/2006 that, the plaintiffs have utterly failed to prove that, suit property is undivided family property of the defendants and on the other hand, the defendant Nos.1 to 5 have proved that under partition deed dated 05-07-1973 Annaiappa and Dasappa have divided the suit schedule property.
33. Further more, a Commissioner was appointed for local investigation at the time of filing the suit. As per the report of the Commissioner and also sketch prepared by him the plaintiffs and defendant Nos.1 to 5 branch are separately enjoying their properties.
34. Further Ex.D12 is the agreement entered into between the family of Annappa and Dasappa wherein it is clearly stated that, ಜರಗನಹಳಳ ಗಗಗಮದ ಸ.ನನ.27ಃ3 ನರವಯದರ ಅಣಣಪಪ ಮರರಕ ದಗಸಪಪರವರ ಅಣಣ ರಮಮನದರಗಗದದ ದಗಸಪಪನವರರ ಪಗವರಯಗದ ಮವಲರ ಮವಲಕನಡ ನಗವವಗಳರ ತಗರವಖರ 03-03-1977 ರಲಲ ಜಮವನರ ಭಗಗಗಳ ಬಗರಗ ರಕರಗರರ ಪರಗ ಮಗಡಕರಮನಡದರದ ಹಗಗಮ ತಗರವಖರ 02-02-83 ರಲಲ ದಗಸಪಪನ ಮಕಕಳವರ ಅವರವರ ವಭಗಗವನರನ ಪನಚಗಯರ ದಗರರ ಸಮರಮಖದಲಲಮಗಡಕರಮನಡ ಕರಗರನಲಲ ಒಪಪಗರಯಗಗ 20 ದಗರಗ ಅನರಮರ ಕರಮಟಟದ ಕರಗರರ ಪಗಕಗರವವ ನಗವವಗಳರ ಅನರಭವಸಕರಮನಡರ ಬರರರಕರರವವದರ ಸರಯಷರಟ. ಅದರ ಹನದರ ನಗವವಗಳರ ಸರಕಚನ ಪಗಕಗರ ನಮಮದಸರರವ ಸನರರಕಗಳಗರ ಹರಮವಗ ಬರಲರ ಅನದರರ ಅಣಣಪಪನವರ ಭಗಗಕರಕ ಬನದರರವ ಸನರಕನಲಲ ಕನಕಪವರ ರಸರಕಯರನದ ಸರಕಚಚನರನ ತರಮವರಸರರವನತರ I.J.C.E.F.G.H ರಸರಕಯನರನ ದಗಸಪಪನವರ 20 O.S.8759/2006 ಭಗಗಕರಕ ರರರಗಗಡಲರ ಹಕರಕ ತರಮವರಸದರದ. ಈಗ ದಗಸಪಪನ ಮಕಕಳರ ಈ ರಸರಕಯರ ನಮಗರ ಅವಶಡಕ ಇಲಲ ರರರಲಮ ಬರವರರ ರಸರಕಯನರನ ಕನಕಪವರ ರಸರಕಯನದ ಅವರ ಭಗಗದ ಜಮವನಗರ ಹರಮವಗಬರಲರ ಅವಶಡರರನದರ ಅಪರವಕಪಸದ ಪಗಕಗರ ಉಭಯರಗರಮ ಪನಚಗಯರ ದಗರರ ರವಮಗರನದನತರ ಒಪಪಕರಮನಡರ ಅಣಪಪ ಮರರಕ ಈರನ ಇಬಬರರ ಮಕಕಳಗದ ನಗವವಗಳರ ನಮಮ ಬಗಬರರ ಅನದರರ ಇದರವ ಗಗಗಮದ ಹಗಗಮ ನಮಮ ಜಮವನನ ಬಗಬರಕನಲಲರರವ ಸ.ನನ.27ಃ2 ಯಗದ ನಮಗರ ಸಕಗರರದನದ ಮನಜಮರಗಗ ನಮಮ ಹರಸರಗರ ಟರಟಟಲನವಡವಡನವನನ......."
The said recitals clearly reveals that, the plaintiffs themselves agreed the partition and subsequently, they have partitioned the share of Dasappa.
35. Ex.D13 is one of the agreement entered into between sons of Dasappa to the effect that, ಸನನವ ಸಗವರದ ಒನಬರಪನಮರ ತರಮನಬತರಕರಡನರವ ಇಸವ ಡಸರನಬರನ ಮಗಹರ ಹದನರವಳರಲಲ ಬರನಗಳಮರರ ದಕಪಣ ತಗಲಮಕರ ಉರಕರಹಳಳ ಹರಮವಬಳ ಜರಗನಹಳಳ ಗಗಗಮದ ಲರವಟನವದಗಸಪಪನ ಮಕಕಳರ 1 ನರವ ಜರಮವಸರಫನವ, ಎರಡನರವ ರಗಜಪಪ, ಮಮರನರವ ಚನನಪಪ, ನಗಲಕನರವ ಶಗನರಪಪ, ಐದನರವ ಪಗಪಯಡ ಆದ ನಗವವಗಳರ ಮಗಡಕರಮನಡ ಕರಗರರ ಕಗಮರರವನರನದರರ ಇದರವ ಜರಗನಹಳಳ ಗಗಗಮದ ಸ.ನನ.27/3 ರ ಜಮವನರ ದಗಸಪಪನವರರ ಮರರಕ ಅವರ ಅಣಣ ಅಣಣಪಪನವರರಗಳರ ಆಸಕಯಗಗದರದ ಅವರರಗಳರ ಹನದರಯವ ಭಗಗರಗಗದರದ ಸರಯಷರಷ. ನಮಮ ರನದರ ದಗಸಪಪನವರ ಹರಸರಗರ ಭಗಗಗನಶರಗಗ ಬನದ ಆಸಕಯಲಲ ನಗವವಗಳರ ಅಣಣ ರಮಮದರರಗಳರ ಸಹ ವಭಗಗ ಮಗಡಕರಮನಡರ ಬರವರರ 21 O.S.8759/2006 ಬರವರರ ಅನರಭವಸರರಕರರತರಕವರರ. ಈ ನಮಮ ಅಣಣ ರಮಮನದರ ಭಗಗಗನಶಗಲಲ ಯಗರರವ ಆಗಲವ ಅವರ ದರದನನದ ಆಸಕಯನರನ ಮಗರಲರ ಇಷಟಪಟಟಲಲ ಈ ನಮಮ ಅಣಣ ರಮಮನದರಗರ ರಳಸದಲಲ ಅವರರಗಳರ ಆಗರಕರಕ ಕಗಯಕರಕ ಪಡರಯರಕಕದರದ. ಅವರರವನಗದರರ ಬರವಡರರನದರ ಬರವರರಯವರಗರ ಮಗರಬಹರದರನದರ ಸಮಚಸದಲಲ ಅಣಣಪಪನ ಮಕಕಳಗರ ಅನದರರ ದರಮಡಡಪಪನ ಮಕಕಳಗರ ರಳಸ ಅವರರ ಕಗಯ ಪಡರಯಲರ ಒಪಪದರರ ಅವರಗರ ಆಗರಕರಕ ಬರಲರಗರ ಕರಮಡರಕಕದರದ.
This again fortifies the earlier partition among father of the plaintiffs and defendants by name Annappa & Dasappa.
36. Ex.D14 reveals that, one of the son of Dasappa by name Chinnappa has stated that in a partition taken place among himself and his brothers he got 70 x 75ft in Sy.No.27/3 out of which he has agreed to sell 70 x 35ft in favour of A.Ankappa i.e., husband of the defendant No.1 and also executed power of attorney. This document further fortifies that after the partition under Ex.D3 and D4 among Annappa and Dasappa and then sons of Dasappa had divided the share of Dasappa and dealt their share independently dealing with their respective shares. Therefore, Ex.D3 and D4 was acted upon by the parties. Further, tax paid receipts produced by the plaintiff at Ex.P11 and Ex.P13 clearly reveals that, the tax was not paid to entire extent in Sy.No.27/3 but it is on the basis of the partition. This is also one of the circumstances, to arrive at a conclusion that on the basis of Ex.D3 and D4 the parties are paying tax to the said property to their respective shares. Under such 22 O.S.8759/2006 circumstances, this property cannot be considered as a joint family property.
Now comes to suit item No.2 i.e., survey number 27/2 measuring 0.11 guntas.
According to the plaintiffs, this is also a joint family property of plaintiffs and defendants. Let me verify the documents produced by the plaintiff. Through the PW.1, as many as Ex.P1 to P15 documents are got marked, out of which none of the documents is pertaining to the suit item No.2. Therefore, through documentary evidence the plaintiffs have failed to prove that, this item is the joint family property of the plaintiff and defendants. However the PW.1 deposed in his evidence that, this item is the joint family property.
37. The defence of the defendant Nos.1 to 5 is that, it is the absolute property of the grandfather of defendant Nos.2 to 5 and it was granted by the Government. In order to substantiate the contention of the defendant Nos.1 to 5, they have produced Ex.D11 which is issued by the Tahsildar styled as Title Deed on 16-11-1979, as per that survey number 27/2 measuring 0.11 guntas was granted to Annappa for valuable consideration of Rs.5,500/-. This document is not seriously disputed by the other side. Therefore, the court can safely conclude that this property is the absolute property of Annappa. Only on the basis of oral assertion of the plaintiff the court cannot come to conclusion that, this is the joint family property. Therefore, the plaintiffs have utterly failed to prove that, suit item No.2 is also a joint family property.
23 O.S.8759/200638. In spite of the above fact, the learned counsel appearing for the plaintiff very much rely upon the ruling of ILR 2007 Kar 339 in the matter of Aralappa V/s.
Sri. Jagannath. The said ruling deals with following aspects:-
"The plaintiffs are seeking declaration that, they have become the owners of suit schedule property by virtue of partition Deed. The partition Deed is not a transfer. The Partition Deed conveys nothing, the plaintiff get nothing for the first time under the deed of partition. Therefore, they are not entitled for declaration as sought for. "
This ruling is not applicable to the case on hand, because in this case the plaintiffs are not seeking declaration but they are seeking partition as if they are the joint family members.
39. The another ruling relied on by the plaintiff reported in AIR 2009 SC 3077 in the matter of Suraj Lamp Industries (Pvt) Ltd., through Director v/s. State of Haryana. This ruling deals with the power of attorney, but in the present case no such circumstances is exist. Therefore, same is not applicable to the case on hand.
40. Another ruling relied on by the plaintiff is reported in 2022 (2) KCCR 1334, in the matter of T.Ranganath Rao dead by Lrs v/s. Smt. D.Sujatha and others, wherein the said Judgment deals with Hindu Succession Act, 1956 Sec.6 and 6(a) (as amended by Act of 2005) and daughter's right to co-parcenary property. Admittedly, the parties to the suit are Christians. How 24 O.S.8759/2006 this ruling is applicable to the case on hand has not been explained by the plaintiff. Therefore, none of the judgments relied on by the plaintiffs is applicable to the case on hand.
41. Viewed from any angle, the plaintiff utterly failed to prove that suit schedule properties are joint family properties as contended in the plaint. Accordingly, Issue Nos.1, 2 and 6 are answered in the Negative and Issue No.5 is answered in the Affirmative.
42. ISSUE NOS. 3:_ Under this issue the court has to consider the plaintiffs are entitled for mesne profits. While discussing issue No.1, 2, 5 and 6, this court come to conclusion that there was a partition among the father of plaintiffs and defendant Nos.1 to 5 under Ex.D3 & D4. This particulars documents have not been questioned by the father of the plaintiff by name Dasappa during his life time. Therefore, the defendants have proved the Ex.D3 and D4 which are taken place at an undisputed point of time. Under such circumstances, joint possession has not been established by the plaintiff. Therefore, question of awarding mesne profits does not arise at all. Accordingly, Issue No.3 is answered in the Negative.
43. Issue No.4:
Under this issue whether defendant Nos.6 & 7 are entitled for share or not has to be considered. It is pertinent to note that, the defendant No.6 and 7 are the sons of Dasappa. While discussing issue No.1,2, 5 and 6, I come to conclusion that there 25 O.S.8759/2006 was already a partition among the father of defendant No.6 and 7 and grandfather of defendant Nos.2 to 5. Under such circumstances, no partition can be given in this suit. If at all, the defendant No.6 and 7 having any right they have to seek partition in the share of Dasappa comes under Ex.D3 and D4.
Therefore, in this suit they are not entitled for share in the suit schedule property. Accordingly, Issue No.4 is answered in the Negative.
44. ISSUE NO.7:-
This issue touches the payment of court fee. Along with the plaint the plaintiffs have produced Valuation slip. As per that, they have valued the subject matter of the suit under Sec.35(2) of KCF and S.V of 1958 and market value of the suit property is valued at 10,00,000/-. As per Sec.35(2) of the KCF and S.V Act, "In a suit for partition and separate possession of Joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, ...." .
In view of the Ex.D3 and D4 and also Ex.P1 and 2 there was already a partition among father of the plaintiffs and father of the defendant Nos.2 to 5. Under such circumstances, it can infer that they were separated in the year 1973 itself, whereas suit is filed by the plaintiff in the year 2006. Therefore, possession of the plaintiffs cannot be construed it is a joint possession. Therefore, the plaintiffs are liable to pay court fee on the market value of the suit property. So valuation is not properly made. Hence, office is directed to collect the court fee 26 O.S.8759/2006 on the market value of the property. Accordingly, issue under reference is answered in the Negative.
45. ISSUE NO.8:-
As discussed above the plaintiffs have utterly failed to prove that, the suit schedule properties are joint family properties. Further, father of the plaintiffs by name Dasappa has not attacked the Ex.D3 and D4 during his life time on the basis of fraud, coercion, misrepresentation including unequal partition in respect of the suit item No.1. On the other hand, merely the plaintiffs have contended that, it is unequal partition for the first time in the year 2006, his contention cannot be accepted after 33 years. Further the plaintiffs have not produced any documents to say that suit item No.2 is the joint family property. On the other hand, the defendant No.1 to 5 have established before this court the suit item No.2 was granted in favour Annappa on his individual capacity. Therefore, the plaintiffs are not entitled for any relief as claimed in the plaint. Hence, I proceed to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open Court on this the 1st day of August, 2022).
(BALAGOPALAKRISHNA) XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.27 O.S.8759/2006
ANNEXURE List of Witnesses examined for the plaintiff : P.W.1 - Sri. SHANTHAPPA List of Documents exhibited for the plaintiff:
Ex.P.1 Original partition deed dated
05.07.1973
Ex.P.1(a) Typed copy
Ex.P.2 Certified copy of Rectification Deed
dated 15.04.1974
Ex.P2(a) Typed copy of rectification deed.
Ex.P3 Copy of legal notice dated 29.03.2006
Ex.P4 Encumbrance Certificate dated
01.04.1973 to 31.03.1989
Ex.P5 Original RTC extract in Sy.No.27/3 for
the year 2004-05 in the name of
Annayyappa.
Ex.P6 Police acknowledgment dated
09.04.2013.
Ex.P7 Another police acknowledgement
dated 12.03.2018.
Ex.P8 Representation to land Requisition
officer dated 09.07.2010.
Ex.P9 Police endorsement dated 09.04.2013
Ex.P10 Police notice dated 19.02.2010.
Ex.P11 Tax paid receipt (5 in nos)
Ex.P12 Self assessment tax declaration (5 in
nos) (issued by BBMP)
Ex.P13 Tax paid challan (5 in nos)
Ex.P14 RTC extract of Sy.No.27/3 in the
name of Sri. Annayappa
Ex.P15 RTC extract of Sy.No.27/3 for the year
2018-19 in the name of Sri.
Annayyappa
28 O.S.8759/2006
List of Witnesses examined for the Defendant :
D.W.1 - S. Mary.
List of Documents exhibited for the defendant:
Ex.D.1 Original sale deed dated 21.07.1965
executed by Sri. Annappa and Sri.
Dasappa in favor of Sri.
Munisamappa @ Sri. Chonakappa in
respect of suit schedule property.
Ex.D.2 Original sale deed dated 24.10.1969
executed by Sri. Munisamappa @ Sri.
Chonakappa in favor of Sri. Annappa
in respect of suit schedule property.
Ex.D.3 Original partition deed dated
05.07.1973 between Sri. Annappa
and Sri. Dasappa.
Ex.D.4 Original Rectification Deed dated
15.04.1974 between Sri. Annappa
and Sri. Dasappa.
Ex.D.5 Encumbrance certificate from
01.04.1957 to 28.11.1963.
Ex.D.6 Encumbrance certificate from
27.11.1961 to 03.06.1974.
Ex.D.7 Letter dated 06.06.1975 written by
City Improvement Trust Board,
Bengaluru to Sri. Annappa.
Ex.D.8 Letter dated 10.09.1975 written by
City Improvement Trust Board,
Bengaluru to Sri. Annappa.
Ex.D.9 Letter dated 09.02.1976 written by
Chairman BDA to Sri. Annappa.
29 O.S.8759/2006
Ex.D.10 Original affidavit sworn by heirs of
Late Sri. Dasappa.
Ex.D.11 Original Title Deed dated 16.11.1979
issued by Tahsildar, Bengaluru south
taluk.
Ex.D.12 Affirmation (regarding partition) dated
28.05. 1983 by the heirs of Late Sri.
Dasappa.
Ex.D.13 Original Declaration dated 17.12.1992
by the heirs of Late Sri. Dasappa.
Ex.D.14 Original affidavit dated 15.02.1993 of
Sri. Chinnappa.
Ex.D.15 Copy of legal notice dated 29.03.2006
issued by plaintiff to the defendant
along with cover.
Ex.D.16 Copy of reply dated 01.06.2006 by
Defendant no. 1 to 5.
Ex.D.17 Postal acknowledgment
Ex.D.18 General Power of Attorney dated
15.02.1993 executed by Sri.
Chinnappa in favor of Sri. Ankappa in
respect of Portion of the suit
schedule property.
Ex.D.19 Memorandum of Understanding
(marked subject to objections of other
side)
XXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
30 O.S.8759/2006
31 O.S.8759/2006
Judgment pronounced in open court
vide separate detailed judgment with
the following operative portion:-
ORDER
Suit of the plaintiff is hereby
dismissed with costs.
Draw decree accordingly.
(BALAGOPALAKRISHNA)
XXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
32 O.S.8759/2006
(note : father of the plaintiffs and grandfather of the defendant Nos.2 to 5)