Bangalore District Court
Had No Independent Right To Dispose Off ... vs To 9 And 15 To 17 Remained Ex-Parte. ... on 28 August, 2019
Government of TITLE SHEET FOR JUDGEMENTS IN SUITS
Karnataka
Form No.9
[Civil] Title Sheet IN THE COURT OF V ADDL.CITY CIVIL COURT AT
for Judgement
in Suits BENGALURU
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 28th day of August, 2019.
O.S.8956/2015
BETWEEN
1. K. Nagaraj,
S/o Late Krishnappa,
Aged about 63 years,
R/at No.1960/A, 4th Main,
HAL III Stage, New Thippasandra
Post, Bengaluru-75.
2. Smt. Bhagyamma @ Shobha,
D/o Late Krishnappa,
W/o Udayashankar,
Aged about 59 years,
R/o Dodda Mavalli,
Door No.40, Siddegowdagalli,
Bengaluru-04.
3. Smt. Gayathri,
D/o Late Krishnappa,
W/o Late Muniraju,
Aged about 44 years,
R/at No.501, 5th Floor,
Godrej Apartment,
Near Hebbala Flyover,
Bengaluru-24. Plaintiffs
( By Sri. M.S. Adv.,)
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O.S. No.8956/2015
AND
1. Basavaraju,
S/o Late Krishnappa,
Aged about 65 years,
R/o Door No.3,
B. Nagasandra, Yamalur Post,
Bengaluru-37.
2.Balaraj,
S/o Late Krishnappa,
Aged about 57 years,
R/o Door No.2,
B. Nagasandra, Yamalur Post,
Bengaluru-37.
3. Shivaraj,
Aged about 41 years,
R/o Door No.1,
B. Nagasandra, Yamalur Post,
Bengaluru-37.
4. Smt. Sudha,
W/o Late Prasad.B.K.,
Aged about 44 years,
R/o Door No.1,
B. Nagasandra, Yamalur Post,
Bengaluru-37.
5. K. Mohiddin,
S/o Abdulla,
Aged about 68 years,
R/o No.721/D,
Konena Agrahara,
HAL Road,
Bengaluru-17.
6. P.A. Aboobacker,
S/o P.A. Abdulla,
Aged about 58 years,
R/o No.P-45, Golden Enclave,
HAL Road, Bengaluru-17.
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O.S. No.8956/2015
7. Daular Revachand Lakhiani,
S/o Revachand Lakhiani,
Aged about 59 years
8. Lachman Revachand Lakhiani,
S/o Revachand Lakhiani,
Aged about 49 years
Both No.7 and 8 are R/at No.215,
KHB colony, Koramangala Layout,
Bengaluru-95.
Both are represented by their GPA holder
Sri. Suresh Revachand Lakhiani,
R/at No.215,
KHB colony, Koramangala Layout,
Bengaluru-95.
9. Dr. P.A. Ibrahim Haji,
S/o Late Abdulla Haji,
Aged about 70 years,
R/o No.93, Residency Road,
Bengaluru.
10. M/s Swire Properties,
A proprietory firm having its
registered office at 1st floor,
Embassy Point, No.150,
Infantry Road, Bengaluru-01.
Rep. by its proprietor
M/s Dynasti Developer Pvt., Ltd.,
A Company registered under the
Companies Act, having its office
Embassy Point, No.150,
Infantry Road, Bengaluru-01.
Rep. by its Director
Narpat Singh Chirabia
11. N.H. Bhasker Reddy,
S/o Late N.H.P. Shiva Reddy,
Aged about 44 years,
R/at No.5, 9th Main Road,
13th Cross Road, 6th Sector,
HSR Layout, Bengaluru.
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O.S. No.8956/2015
12. M/s Embassy Property Developments
Private Ltd., (Formerly Dyanasti
Developers Pvt., Ltd.,)
A Company registered office at
1st floor, Embassy Point, No.150,
Infantry Road, Bengaluru-01.
Rep. by its Director
Narpat Singh Chirabia
13. N.A. Ashraf,
S/o Late N.A. Abdulla,
Aged abot 46 years
14. Smt. Thahira Haris,
W/o N.A. Haris,
Aged about 42 years
Both defendant No.13 and 14 are
represented by their PA holder
Mr. N.A. Harish,
S/o N.A. Mohammed,
Both residents of No.23,
Nagarath Road, 1st Cross,
Bengaluru-25.
15. Ramalasahul Hameed,
W/o T.A. Shakeel Hameed,
Aged about 49 years
16. Smt. Fathima Haseena,
D/o N.A. Aboobacker,
Aged about 37 years
Defendant No.15 and 16 are
represented by their PA holder
Mr. Abdulla Fawaz,
S/o N.A. Aboobacker,
R/at No.P-45, Golden Enclave,
Airport Road, Bengaluru-17.
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O.S. No.8956/2015
17. Smt. Khadeeja Aboobacker,
W/o N.A.Aboobacker,
Aged about 60 years,
R/at No.P-45, Golden Enclave,
Airport Road, Bengaluru-17.
( Defendant No.1 to 9, 15 to 17 ex-parte
D.10 and 12 by Sri. RBS, advocate
D.11 by Sri. CKN, advocate
D.13 & 14 by Sri. HA advocate)
Date of institution of the Suit : 28/10/2015
Partition, Declaration and
Nature of the Suit :
permanent injunction
Date of commencement of
: 21/03/2017
recording of evidence
Date on which the Judgment was
: 28/08/2019
pronounced
Year Months Days
Total Duration :
03 10 00
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
-: J U D G E M E N T :-
This is a suit filed by the plaintiffs against the defendants for
the relief of partition and separate possession of their 1/7th share
each in the suit schedule properties and also sought consequential
relief of declaration and permanent injunction along with cost of the
suit.
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O.S. No.8956/2015
2. The brief facts are as under :
That, plaintiff and defendant No.1 to 3 and late husband of
defendant No.4 are the members of Hindu Undivided family enjoying
the suit schedule properties as their ancestral and joint family
properties. Further, the original propositus by name Sri. Bachappa
had five sons viz., Appanna, Krishnappa, Jayaramaiah,
Venkataswamy and Seetharamiah who acquired the properties in
and around Bengaluru City especially at Challaghatta, Belur
Nagasandra villages during his life time. Further it is averred that,
original propositus partitioned all the properties and pursuant thereto
each and every one were enjoying the same. Accordingly, the father
of the plaintiffs acquired schedule 'A' property bearing Sy.No. 56
measuring 20 guntas situated at Challaghatta village along with
schedule 'B" property bearing Sy.No. 25 measuring 1 acre situated at
Nagasandra village and schedule 'C' property bearing Sy.No. 63/4
measuring 5 guntas situated at Challaghatta village. But, the father
of the plaintiffs alienated schedule 'A' property in favour of the
defendants 5 and 6 and the defendants 5 and 6 in turn have
alienated the same in favour of the defendants 7 and 8 and in turn,
the defendants 7 and 8 have sold the same in favour of the 9 th
defendant and the 9th defendant in turn has sold the same in favour
of the 10th defendant and in turn, the 10th defendant after purchase of
the same, has entered into a joint development agreement with the
defendants 11 and 12 who are now trying to put up constructions on
the schedule 'A' property.
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Further, he sold schedule 'B' property in favour of defendants
13 to 16 in turn they sold the same in favour of defendant No.9.
Similarly, again father of the plaintiffs sold schedule 'C' property in
favour of defendant No.13 and 17. So the father of the plaintiffs has
sold schedule 'A', 'B' and 'C' ancestral properties without there being
any legal necessities and plaintiffs were not aware of the said
transaction. But, some constructions were taking place on the
schedule properties, on enquiry with defendant No.1 came to know
about the sale effected without their consent, though plaintiffs have
got definite share in the suit schedule properties. The father of the
plaintiffs had no independent right to dispose off the same, as such,
any alienation/sale deeds made by him will not affect the share of the
plaintiffs in the schedule properties and the sale deeds are declared
to be null and void and not binding on the plaintiffs. The cause of
action arose during the first week of March 2015 and on the
subsequent dates when the plaintiffs made a demand for partition of
the schedule properties. On these grounds prayed for decreeing the
suit.
3. Records reveal that, despite service of suit summons
defendants 1 to 9 and 15 to 17 remained ex-parte. Though,
defendant No.11, 13 and 14 appeared through their counsels, but
they did not file written statement. The defendant No.12 filed written
statement and defendant No.11 filed a memo of adoption.
4. It is contended in the written statement that, suit filed by the
plaintiffs is not maintainable either in law or on facts and liable to be
dismissed as hopelessly barred by limitation. The allegations except
admitted by the defendants are denied as false and plaintiffs be put
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to strict proof of the same. The plaintiffs have no right, title, interest
or possession over the schedule properties. Further contended that,
late Krishnappa was the absolute owner in possession of schedule
'A' property bearing Sy.No. 56 measuring 19 guntas of Challaghatta
village by virtue of a registered sale deed dated 31/07/1974. Further,
on 23/05/1995 he sold it to defendant No.5 and 6 for valuable
consideration under a registered sale deed, as such, plaintiff No.1 or
defendant 1 to 4 had any right, title or interest over schedule 'A'
property. On the other hand, defendants 5 and 6 are in enjoyment of
the same. Further, defendant No.5 and 6 subsequently sold the
schedule 'A' property in favour of defendant No.7 and 8 under a
registered sale deed dated 03/08/1995 and thereby they became
owners in possession of the same and got converted the same from
agricultural to non agriculture residential purpose vide Order of
Special D.C., Bengaluru District dated 26/08/1999. Again, defendant
No.7 and 8 sold schedule 'A' property through their GPA holder by
name Sri. Suresh Rewachand Lakhiani under a registered sale deed
dated 13/02/2004 for valuable consideration in favour of defendant
No.9 and thereby he became exclusive owner in possession of the
schedule properties.
Further, with regard to the schedule 'B' property bearing Sy.No.
25, measuring 1 acre is concerned late Sri. Krishnappa was the
owner in possession of the same vide registered document
No.630/1959-60 dated 08/05/1959. Accordingly, on 01/03/1994 the
said Krishnappa along with his wife and children sold it to defendant
No.13 to 16 for valuable consideration under a registered sale deed,
as such, since then the said defendants became the owners in
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O.S. No.8956/2015
possession of the schedule 'B' property and obtained order ot
conversion from the concerned authority for residential purpose. The
defendant No.13 to 16 represented by their GPA holder again sold
the same in favour of defendant No.9 under a registered sale deed
dated 16/02/2004 and thereby be became the owner in possession
of the same.
With regard to the schedule 'C' property bearing Sy.No. 63/4
measuring 5 guntas of Challaghatta village is concerned, the
propositus Sri. Bachappa, S/o Appanna owned several properties
including schedule 'C' property to the extent of 2 acres 16 guntas
and after his death, his son Sri. Krishnappa became entitled to an
extent of 1 acre 9 guntas. Accordingly, his name was shown as
Kathedar and occupant of the said property and thereby he became
absolute owner in possession of the said property. On 23/05/1995
the said Krishnappa along with his sons sold an extent of 5 guntas in
Sy.No. 63/4, i.e. schedule 'C' property in favour of defendant No.13
and 17 for valuable consideration under a registered sale deed and
thereby they became the owners in possession of the same and got
converted it to residential purpose as per the orders of Deputy
Commissioner, Bengaluru District vide Order dated 26/09/1999.
Defendant No.13 and 17 through their respective GPA holders again
sold schedule 'C" property for valuable consideration in favour of
defendant No.9 under a registered sale deed dated 16/02/2004 and
thereby he became absolute owner in possession of the schedule 'C"
property. Defendant No.9 who acquired the schedule property 'A', 'B'
and 'C' properties was in possession and enjoyment of the same as
absolute owner and his name was mutated in all the revenue
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records. But, again on 12/09/2007, he sold schedule properties
along with other properties for valuable consideration in favour of
defendant No.10 M/s Swire properties and thereby it became owner
in possession of the same. Accordingly, the defendant No.10 along
with defendant No.11 entered into a registered Joint Development
Agreement dated 01/08/2013 with Embassy Property Development
to develop the schedule properties along with other properties,
accordingly, defendant No.10 and 11 executed GPA dated
01/08/2013 in favour of defendant No.12 to do such act as
mentioned in JDA. Defendant No.12 being the developer became
entitled to 58% of total super built up area to be constructed on the
schedule properties along with other properties and defendant No.12
became entitled to a proportionate share along with other properties.
So, plaintiffs do not have any right or interest over the schedule
properties have filed the present suit after expiry of 21 years from
the date of first sale in respect of the schedule properties, with a
malafide intention to make unlawful gain and to defeat the legitimate
rights of the defendants. The plaintiffs be put to strict proof of the
averments made in the plaint. No cause of action arose to file the
suit. The valuation made and court fee paid by the plaintiffs is
insufficient. The suit is barred by time. On these grounds prayed for
dismissal of the suit with costs.
5. Basing on above narrated pleadings my predecessor in office
has framed the following issues.
1) Whether the plaintiffs prove that the suit
schedule properties are joint family properties
of plaintiffs and defendants?
2) Whether the plaintiffs further prove that
sale deeds dated 01/03/1994 and 16/02/2004
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O.S. No.8956/2015
and 23/05/1995 are not binding on the share of
the plaintiffs?
3) Whether the defendants prove that
plaintiffs are estopped from challenging the
validity of the sale?
4) Whether the suit of the plaintiffs is barred
by time?
5) Whether the defendants prove that suit of
the plaintiffs is not maintainable?
6) Whether the defendants prove that court fee
paid is insufficient?
7) Whether the plaintiffs are entitled for the
reliefs sought?
8) What order or decree?
6. In order to prove their case, 1st plaintiff examined himself
as PW.1 and got marked the documents at Ex.P1 to P17. On the
other hand the defendant No.12 examined himself as DW.1 and got
marked the documents at Ex.D1 to Ex.D23. Remaining defendants
did not step in to the witness box.
7. Heard and perused the written synopsis along with
material on record.
8. My findings on the above issues are as under.
Issue No.1 In the negative.
Issue No.2 In the negative.
Issue No.3 Partly in the affirmative.
Issue No.4 In the affirmative.
Issue No.5 In the affirmative.
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Issue No.6 In the affirmative.
Issue No.7 In the negative.
Issue No.8 As per final orders for the following,
-: R E A S O N S :-
9. Issue No.1 and 2 :- I take these issues together for my
discussion as they are inter related to each other.
10. It is worth to note that the plaintiffs have filed the above
numbered suit for the relief of partition, declaration & permanent
injunction in respect of the suit schedule properties. In this regard,
plaintiff No.1 filed an affidavit in lieu of the oral evidence and
examined himself as P.W. 1 stating that, plaintiffs, defendants 1 to 3
and late husband of defendant No.4 being the members of Hindu
Undivided family are in joint possession and enjoyment of the suit
schedule properties. Further states that, the suit schedule properties
are the ancestral/joint family properties of the plaintiffs and
defendants 1 to 4, but, the father of the plaintiffs by name Late
Krishnappa though he had no exclusive right, title or interest over the
suit schedule properties has alienated the same in favour of
defendant No.5 and 6 and defendant No.7 to 17 subsequent
purchasers without there being any legal necessity, as such, the
alleged sale deeds dated 01/03/1994, 23/05/1995 and 16/02/2004
are not binding on the share of the plaintiffs and they are entitled to
get their legitimate share in the suit schedule properties. In order to
support his oral testimony, P.W. 1 got marked documents at Ex.P.1 to
P.17.
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11. During the course of cross-examination by the learned
counsel for the defendant No.10 to 12, when a suggestion was put to
the witness that, as per the recital in Ex.P.5, schedule 'A' property
was the self acquired property of their father late Krishnappa, the
witness volunteers that, it was the self acquired property of their
grandfather and pleads ignorance about the extent of the property,
again states that, he has not signed Ex.P.5. Further, when a
question was put to the witness that, their father Krishnappa
purchased schedule 'A' property measuring 19 guntas in Sy.No. 56
under a sale deed dated 31/10/1974 from its owner Sri. B. Rudrappa,
he denied as false. Further, when the signature found on Ex.P.11
was being confronted to the witness stating that, it belongs to him, he
denied as false. But admits that, he has not lodged any complaint to
the concerned police and he does not know who put signature on
Ex.P.11. Again though he admits that, his father and brothers might
have executed agreement of sale, but denied that they all executed
the same in favour of one Sri. Makbul Ahamed. Further admits that,
as per Ex.P.13 copy of the sale deed dated 23/05/1995 pertains to
schedule 'C' property, his name has been shown as one of the
sellers and his GPA holder might have signed. Further admits that,
though he came to know about the said sale transaction in the year
2013, but he never verified the fact that, the properties in dispute
were being alienated prior to the year 2013. Again admits that, his
father died on 10/10/2004 and there was no cordial relationship with
his father and since 1981 he has been residing separately.
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12. On the other hand, in order to substantiate their
contentions as authorized under Ex.D.1 the defendant No.12
examined himself as D.W.1 by reproducing the entire contentions
taken in the written statement stating that, the suit schedule
properties are self acquired properties of late Krishnappa. He has
sold schedule 'A' property in favour of defendant No.5 and 6. Further
states that, late Krishnappa along with his wife and children have
sold schedule 'B' property in favour of defendant No.13 to 16 for
valuable consideration. Further states that, after the death of Sri.
Bachappa, late Krishnappa became the owner in possession of the
schedule 'C' property, accordingly, plaintiff No.1, defendant No.1, 2, 4
and defendant No.3 through his GPA have sold the said property in
favour of defendant No.13 and 17 under a registered sale deed
dated 23/05/1995. Further he has categorically stated in respect of
subsequent sale transaction taken place amongst defendant No.5 to
17 under registered sale deeds. D.W.1 further states that, the
plaintiffs have filed the above numbered suit after lapse of 21 years
from the date of first sale transaction without having any right, title,
interest or possession over the schedule properties as on the date of
the suit. Therefore, they are not entitled for any share in the schedule
properties. In order to support his oral testimony D.W.1 got marked
documents at Ex.D.1 to D.23.
13. During the course of cross-examination by the learned
counsel for the plaintiffs, though it has been elicited that, he has no
personal knowledge about the genealogical tree furnished by the
plaintiffs, but, when a suggestion was put to the witness that
schedule 'A' property had been granted by the Land Tribunal in
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favour of late Krishnappa, he denied as false. Further, when a
suggestion was put to the witness that, plaintiffs have not signed any
of the sale transactions pertaining to the schedule properties, he
denied as false. He further denied that, late Krishnappa had no
absolute right or authority to alienate the schedule properties.
Further, though it has been elicited that, he has not produced copy of
relevant sale deed, but, he has voluntarily deposed that, plaintiffs
themselves have furnished the copy of the sale deeds. Further,
when a suggestion was put to the witness that, though there was no
partition amongst the children of late Krishnappa, they purchased
the schedule properties and paid tax based on void sale deeds, as
such, they are not binding on the plaintiffs, D.W.1 denied as false. In
such circumstances, this court has to see that, in whose favour
preponderance of probability lies.
14. It is pertinent to note here that, on careful evaluation of
oral and documentary evidence on record, it is clear that, so far as in
respect of relationship between the plaintiffs and defendants 1 to 4 is
concerned there is no dispute. It is also not in dispute that, original
propositus Sri. Bachappa had five sons as per Ex.P.1 copy of the
genealogical tree. It is not in dispute that, original propositus
Sri. Bachappa is no more. During the course of cross-examination,
P.W. 1 admits that, his father late Krishnappa died on 10/10/2004,
but there is no material on record to show that, whether remaining
children of late propositus Sri. Bachappa are alive or not.
The plaintiffs being the children of late Krishnappa filed the above
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numbered suit against the remaining sons and daughters of late
Krishnappa for the relief of declaration, partition and separate
possession of their legal share in the suit schedule properties.
15. It is the specific case of the plaintiffs that, the suit
schedule properties are ancestral/joint family properties of
themselves and defendants 1 to 4, accordingly, plaintiffs would
contend that, they are in joint possession and enjoyment of the
same. Further, in this regard, it was urged on behalf of the plaintiffs
that, though late Krishnappa had no absolute right over the suit
schedule properties, but has alienated the same without legal
necessity, as such, the said sale transactions are not binding on the
share of the plaintiffs. Per contra, it is the specific contention of the
defendants 5 to 17 that, the suit schedule properties were the self
acquired properties of late Krishnappa, has alienated the suit
schedule properties in favour of the defendants. In this regard,
admittedly, plaintiffs have not furnished the relevant documents to
show that, suit schedule properties were ancestral properties of their
father late Krishnappa. Further, during the course of cross-
examination of P.W. 1, when a suggestion was put to the witness
that, schedule 'A' property was the self acquired property of their
father late Krishnappa, he denied as false. But as could be seen
from perusal of contents of Ex.P.5 copy of the sale deed that, there
is specific recital in the said document to the effect that, schedule 'A'
property was the self acquired property of father of plaintiffs late
Krishnappa which has been supported by Ex.D.2 copy of the sale
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deed dated 31/07/1974, which indicates that, father of the plaintiffs
late Krishnappa purchased the same from its erstwhile owner
Sri B. Rudrappa for valuable consideration under a registered sale
deed of the year 1974.
16. With regard to the schedule 'B; property is concerned it is
also prima facie evident from the perusal of Ex.P.11 along with
Ex.D.7 copies of the release deed dated 08/05/1959 that, father of
plaintiffs late Krishnappa has acquired the same along with other
properties for valuable consideration. However, with regard to the
schedule 'C' property is concerned if we go through the oral evidence
on record along with contents of Ex.P.13 copy of the sale deed dated
23/05/1995, we can find that, on page No.2 of the said document,
there is a recital for having inherited the said property by propositus
Sri. Bachappa from his ancestors and after his death it came to be
transferred in the name of father of plaintiffs by name late
Krishnappa.
17. So, now a question that arises at this juncture is, whether
the alienation of schedule 'A', 'B' and 'C' properties are for legal
necessities or not? Admittedly, late B. Krishnappa has alienated the
schedule 'A' property bearing Sy.No. 56 to the extent of 19 guntas of
Challaghatta village in favour of defendant No.5 and 6 under Ex.P.5
registered sale deed dated 23/05/1995, wherein it is mentioned that
the said property is the self acquired property of vendor i.e. B.
Krishnappa. So as observed supra, admittedly plaintiffs have not
furnished relevant documents to believe that, their ancestors had
some properties and they inherited the suit schedule properties and
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schedule 'A', 'B' and 'C' schedule properties are the joint family
properties of plaintiffs and defendants 1 to 4. On the other hand, in
Ex.P.5 it is stated that, since the vendor B. Krishnappa acquired the
said property as per the registered document of the year 1974 under
Ex.D.2, as such, he has got every right to alienate the same. It is not
in dispute that, plaintiffs have not challenged the same till filing of the
suit in the year 2015.
18. Further, with regard to the schedule 'B' property bearing
Sy.No. 25 measuring 1 acre situated at Nagasandra village is
concern, as observed supra the father of the plaintiffs acquired the
same by virtue of registered release deed dated 08/05/1959 under
Ex.D.7. In this regard, there is a recital on page No.4 of Ex.P.11
that, the vendors are disposing the schedule property for a fair price
to meet their financial commitments.
19. Further, with regard to schedule 'C' property bearing
Sy.No. 63/4, measuring 5 guntas out of 1 acre 9 guntas situated at
Challaghatta village is concern, it is evident from the perusal of
Ex.P.13 itself that, the matter went up to the Hon'ble Apex Court in
Civil Appeal No.3011/19-1995 dated 21/02/1995 and wherein it was
ordered to restore the possession of the lands in favour of the
vendors. So, as discussed supra, the schedule 'C' property originally
inherited by propositus Sri. Bachappa from his ancestors and
thereafter it came to be transferred in favour of late B. Krishnappa
father of the plaintiffs and he continued to be in the joint possession
and enjoyment of the same, accordingly, the late Krishnappa along
with his wife and children alienated the same for fair price as stated
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in Ex.P.13 copy of the sale deed.
20. It is to be noticed that, admittedly, late Krishnappa who
acquired the same under a registered sale deed dated 31/10/1974
became the absolute owner in possession of the schedule 'A'
property, accordingly, it was his absolute property and has alienated
the same in favour of defendants 5 and 6, as such, plaintiffs cannot
question the same after lapse of 40 years. So now it is clear that,
there are series of sale transactions in respect of the schedule
properties since from the year 1974 till the year 2004 and plaintiff
No.1 is residing separately from the year 1981 and plaintiff No.2 and
3 were given in marriage and residing with their in-laws, but, the
plaintiffs have filed the above numbered suit in the year 2015 stating
that, the sale deeds dated 01/03/1994 as per Ex.P.11, the sale deeds
dated 23/05/1995 under Ex.P.5 and 13 and another sale transaction
dated 16/02/2004 under Ex.P.7 are not binding on the them. But, as
could be seen from the perusal of oral and documentary evidence as
referred supra that, admittedly, the suit schedule 'A' property has
been alienated by late B. Krishnappa in favour of defendant No.5
and 6 on 23/05/1995 itself, in turn they sold the same in favour of
defendant No.7 and 8 under a registered sale deed dated
03/08/1995 under Ex.P.6. Again they sold the same in favour of
defendant No.9. He sold the same in favour of defendant No.10
under Ex.P.8 registered sale deed dated 12/09/2007. Thereafter, he
entered into JDA under Ex.P.10 with defendant No.11 and 12. So,
though the plaintiffs and defendants 1 to 4 were not parties to Ex.P.5
to 10 but as observed supra, the schedule 'A' property held to be the
self acquired property of late B. Krishnappa father of plaintiffs.
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21. Further, though the plaintiffs claim that the subsequent
sale transactions as stated supra are not binding on them, but it is
prima facie evident from perusal of Ex.P.11 that, the late
B. Krishnappa being the father of plaintiffs along with his wife and all
children excluding the daughters have jointly executed a registered
sale deed dated 01/03/1994 in respect of schedule 'B' property in
favour of defendants 13 to 16. Similarly, it is evident from the perusal
of Ex.P.3 that, late B. Krishnappa and his sons have executed the
registered sale deed dated 23/05/1995 in respect of schedule 'C"
property in favour of defendant No.13 and 17, wherein the plaintiff
No.1 Sri. K. Nagaraj has also been represented by his GPA holder.
Therefore, the plaintiffs cannot contend that, the aforesaid
transactions are not binding on them.
22. As could be seen from the perusal of oral evidence along
with the documents relied by the plaintiffs as per Ex.P.2 to 14 as well
as the documents relied upon by the defendants at Ex.D.2 to 23 that,
soon after completion of sale transaction, the concerned defendants
have not only got mutated their names in the revenue records, but
they have also got converted the disputed properties to residential
purpose and paying tax to the concerned authority regularly. This
being the fact, plaintiffs cannot contend that, aforesaid sale
transactions pertaining to schedule 'A', 'B' and 'C' properties are not
for legal necessities and not binding on their share.
23. So material on record indicates that, the plaintiffs have
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failed to prove their claim that, suit schedule properties are joint
family properties of themselves and defendants 1 to 4 as on the
date of the suit. On the other hand, defendants 10 to 12 who are the
contesting defendants have established by making their version
reasonably probable by adducing cogent, oral and documentary
evidence before this court and thereby rebutted the case of the
plaintiffs. For these reasons, written arguments filed by the learned
counsel for the defendants 10 and 12 holds good. On the other hand,
the written arguments filed by the learned counsel for the plaintiffs is
liable to be rejected. Hence, I answer Issue No.1 and 2 are in the
Negative.
24. Issue No.3 to 5 :- I take these issues altogether for my
discussion as the facts overlap and for the sake of convenience.
25. It is relevant to point out that, while dealing with Issue
No.1 and 2, this court observed that, plaintiffs have failed to prove
the fact that, suit schedule properties are the joint family properties
and the alleged sale transactions are not binding on their share. But,
it is another contention of the defendants that, plaintiffs also estopped
from challenging the validity of the sale transactions. In this regard,
it is to be noticed that, admittedly, late Krishnappa who acquired the
same under a registered sale deed dated 31/10/1974 became the
absolute owner in possession of the schedule 'A' property,
accordingly, it was his absolute property, accordingly, he has alienated
the same in favour of defendants 5 and 6, as such, plaintiffs cannot
question the sale deeds at the belated stage. So now it is clear that,
there are series of sale transaction in respect of the schedule
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properties since from the year 1974 till the year 2004, but, the
plaintiffs have filed the above numbered suit in the year 2015.
26. Further, though the plaintiffs claim that the subsequent
sale transactions as stated supra are not binding on them, but it is
prima facie evident from perusal of Ex.P.11 that, the late
B. Krishnappa being the father of plaintiffs along with his wife and all
children excluding the daughters have jointly executed a registered
sale deed dated 01/03/1994 in respect of schedule 'B' property in
favour of defendants 13 to 16. Similarly, it is evident from the perusal
of Ex.P.3 that, late B. Krishnappa and his sons have executed the
registered sale deed dated 23/05/1995 in respect of schedule 'C"
property in favour of defendant No.13 and 17, wherein the plaintiff
No.1 Sri. K. Nagaraj has also been represented by his GPA holder.
According to Section 115 to 117 of the Evidence Act, the rule of
estoppel is based on equity and good conscience. Admittedly,
plaintiff No.1, defendants 1 to 3 and husband of defendant No.4 have
made their representations to the alleged sale transaction, So now
they cannot rescind from such representations. For the aforesaid
reasons, it can be held that, plaintiff No.1 is estopped from
challenging the validity of the sale transactions of the year 1994 and
1995.
27. So now it is clear that, admittedly, plaintiff No.1,
defendants 1 to 3 and husband of defendant No.4 had knowledge
about the sale transaction of the year 1994, 1995 and 2004, but it is
evident that, plaintiffs have filed the above numbered suit stating
that, cause of action arose to file the suit during the first week of
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March 2015 and subsequent dates when the plaintiffs made a
demand for partition of the schedule properties,but no where in the
plaint it is stated that, cause of action arose to file the suit when their
demand to effect partition in the suit schedule properties came to be
refused by the defendants.
28. It is also worth to note that, the relief claimed by the
plaintiffs in the prayer column of the plaint is as under:-
"A. Partition and separate possession of the
schedule properties by allotting 1/7th share to each of
the plaintiffs and further directing the defendants to put
the plaintiffs in possession of their 1/7th share in the
schedule properties.
B. Consequently, declaring that the sale deeds
dated (a) 23/05/1995 which is registered as document
No.1399/95-96 registered at the office of sub-registrar of
Bommanahalli (Jayanagar), (b) 03/08/1995 which is
registered as document No.3662/95-96 registered at the
office of sub-registrar of Bommanahalli (Jayanagar)
(Court) 13/02/2004 bearing document No.BNG(U)
BLR(S)/4932/2004-05, registered at the office of sub-
registrar Bengaluru south Taluk, (defendant) 12/09/2004
which is registered as document No.BNG(U) VRT-
4932/2004-05 registered at the office of senior sub-
registrar, Varthur, Bengaluru Urban district, (e)
supplementary sale deed executed on 01/08/2013
registered as document No.BNG(U) VRT 177/2008-09
registered at the office of senior sub-registrar, Varthur,
Bengaluru urban district, (f) the Joint Development
Agreement dated 01/08/2013 registered as document
No.INR-1-03650-2013-14, in Book -1, stored IBN CD NO
INRD 73 dated 02/08/2013 (g) sale deed dated 01/03/1994
which is registered as document No.5226/93-94 registered
at the office of sub-registrar of Bommanahalli (Jayanagar)
(h) sale deed dated 16/02/2004 which is registered as
document No.BAS-1-24018-2003-04 in book NO.-1, stored
in CD NO.BASD 21 dated 24/02/2004 registered at the
office of the sub-registrar of Bommanahalli (I) sale deed
dated 23/05/1995 registered as document No.1397/1995-96
registered at the office of sub-registrar of Bommanahalli
(Jayangar) are not binding on the shares of the plaintiffs.
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C. For a permanent injunction restraining the
defendants 9, 10, 11, 12, 13 and 17 their men, their agents,
their representatives or any person or persons acting
under or through them from alienating or encumbering or
creating any charge on the schedule properties
D. Award cost of the suit.
E. Grant such other relief or reliefs as this Hon'ble
Court deems fit under the facts and circumstances of the
case, in the interest of justice and equity.
29. But, as observed supra when plaintiff No.1 and defendants
1 to 3 and husband of defendant No.4 were parties to Ex.P.11 and 13
sale transactions of the year 1994 and 1995, nature of acquisition of
the schedule properties by their father late B. Krishnappa mentioned,
then what prevented the plaintiffs to file the above numbered suit
within three years from the date of knowledge when first become
known to them as required under Article 59 of the Limitation Act, by
claiming the relief of declaration to set aside the aforesaid sale
transactions, there is no explanation on this aspect. Further no
reasons shown in the plaint for delay in filing the suit. Cause of
action shown in the plaint appears to be imaginary and created for
the purpose of the suit. Accordingly, it can be held that, suit of the
plaintiffs is clearly barred by time and without seeking the relief of
declaration to set aside the sale deeds, the suit of the plaintiffs is
also not maintainable. Hence, I answer Issue No.3 partly in the
affirmative and Issue No.4 and 5 are in the affirmative.
30. Issue No.6:- With regard to the payment of court fee is
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concerned, it is contended in the written statement that, valuation
made and the court fee paid by the plaintiffs is insufficient. So,
though in a suit for partition, if the plaintiffs averred in the plaint that,
they are in joint possession and enjoyment of the suit schedule
properties along with defendants, they can file the suit by paying
court fee as required under Section 35(2) of the Act, but, plaintiffs
have also sought for the relief of declaration and injunction along
with the relief of partition, after full fledged trial now it is found that,
plaintiffs are not in physical possession of the suit schedule
properties as on the date of the suit and excluded by virtue of
registered sale deeds. As such, it requires payment of court fee
under Section 35(1) of the Act. Hence, I answer Issue No.6 in the
affirmative.
31. Issue No.7:- It is worth to note that, in view of my
discussion made supra, while dealing with Issue No.1 to 6, it is held
that, plaintiff No.1 and defendants 1 to 4 are not entitled for the relief
of partition and separate possession of their legal share as the sale
transactions of the year 1994, 1995 and 2004 under Ex.P. 5, 7, 11
and 13 are binding on them, but, another question that arises before
this court is, admittedly plaintiff No. 2 and 3 being the daughters of
late B. Krishnappa were not the parties to any of the sale
transactions. This being the fact, whether the plaintiffs 2 and 3
daughters of Late B. Krishnappa are entitled for any share in the suit
schedule properties or not? It is pertinent to note here that, during
the course of cross-examination of P.W. 1 dated 30/01/2018 admits
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that, his father died on 10/10/2004. In this regard, it is settled position
of law as on today, as held by the Hon'ble Apex Court in the case of
Prakash and others Vs. Phulavathi and others {(2016) 2 SCC 36}
that, the provisions of the Hindu Succession (Amendment) Act, 2005,
applicable only when both the co-parcener and his daughters were
alive on the date of commencement of the Act i.e. on 09/09/2005
irrespective of date of birth of daughters. Further, by virtue of
proviso to sub-section (1) and main sub-section 5, the amended
Section 6 of the Act, disposition, alienation, partition which had taken
place before 20/12/2004 under unamended provision would remain
unaffected. So, in the case on hand it is not in dispute that, the
alleged sale transactions have taken place on 01/03/1994,
23/05/1995 and 16/02/2004. Further it is also not in dispute that,
father of the plaintiffs late Krishnappa died on 10/10/2004.
32. So, now it is clear that, alleged sale transactions have
taken place prior to the cut off date i.e. 20/12/2004. Further, it is
evident that, the father of the plaintiffs died on 10/10/2004. So, he
was not alive as on 09/09/2005 when the amended Act came into
force. For these reasons, it can be held that, plaintiffs 2 and 3 being
the daughters of late B. Krishnappa are not entitled any share in the
suit schedule properties under the notional partition also. Therefore,
having regard to the facts and circumstances of the case and
considering the relationship between the parties, I am of the opinion
that, the suit of the plaintiffs is liable to be dismissed without cost.
Hence, I answer Issue No.7 in the negative.
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33. Issue No.8 :- For the foregoing reasons, I proceed to
pass the following :
ORDER
The suit of the plaintiffs is hereby dismissed. No order as to cost.
Draw decree accordingly.
[ Dictated to the Stenographer, transcribed and typed by her, corrected by me and then pronounced in the Open Court on 28 th day of August 2019 ].
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ANNEXURE List of witness examined on behalf of Plaintiffs PW.1 K. Nagaraj List of documents exhibited on behalf of Plaintiffs Ex.P1 Certified copy of the genealogical tree issued by village accountant H.A. Sanitary board area Ex.P2 Certified copy of the extract of survey settlement register Ex.P3 Certified copy of mutation register extracts (3) Ex.P4 Certified copy of RTC extracts (6) Ex.P5 Certified copy of sale deed dated 23/05/1995 28 O.S. No.8956/2015 Ex.P6 Certified copy of sale deed dated 03/08/1995 Ex.P7 Certified copy of sale deed dated 13/02/2004 Ex.P8 Certified copy of sale deed dated 12/09/2007 Ex.P9 Certified copy of supplementary deed dated 15/04/2008 Ex.P10 Certified copy of Joint Development agreement dated 01/08/2013 Ex.P11 Certified copy of sale deed dated 01/03/1994 Ex.P12 Certified copy of sale deed dated 16/02/2004 Ex.P13 Certified copy of sale deed dated 23/05/1995 Ex.P14 Certified copy of sale deed dated 16/02/2004 Ex.P15 Death certificate of Sri. B. Krishnappa Ex.P16 Death certificate of Smt. Lakshmamma Ex.P17 Death certificate of Sri. B.K. Prasad` List of witness examined on behalf of Defendants DW.1 C.R. Prakash List of documents exhibited on behalf of Defendants Ex.D1 Authorization letter Ex.D2 Certified copy of the registered sale deed dated 31/07/1974 Ex.D3 to 6 Certified copy of the Form No.15 (4) Ex.D7 Certified copy of the Release Deed dated 08/05/1959 Ex.D8 & 9 Certified copy of the Mutation registered extract (2) Ex.D10 to 14 Certified copy of Form No.15(5) Ex.D15 Certified copy of the General Power of Attorney dated 01/08/2013 Ex.D16 Certified copy of Conversion Order dated 23/08/1999 Ex.D17 Certified copy of the Conversion Order dated 06/02/1998 Ex.D18 Certified copy of Conversion Order dated 26/08/1999 Ex.D19 Certified copy of Katha certificate issued by BBMP dated 11/12/2018 Ex.D20 Certified copy of Katha extract for the year 2018-19, dated 11/12/2018 issued by BBMP 29 O.S. No.8956/2015 Ex.D21 Tax paid receipt issued by BBMP 2017-18 Ex.D22 Certificate under Section 65(B) of the Indian Evidence Act Ex.D23 Computerized copy of the tax paid receipt issued by BBMP for the year 2018-19 [ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU Judgment pronounced in Open Court vide separate order:-
ORDER The suit of the plaintiffs is hereby dismissed. No order as to cost. Draw decree accordingly.
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU