Bangalore District Court
Sri P.Venkateshulu Naidu vs Sri P.Sundar Raj on 10 February, 2020
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY
Dated this the 10th Day of February 2020
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil Judge,Bangalore City.
ORIGINAL SUIT NO.1442/2009
Plaintiffs:
1. Sri P.Venkateshulu Naidu, S/o Late
G.N.Padmanabha Naidu , Since dead
by his legal representatives
1(a)Smt.V.Kupamma, aged about 69
years, W/o P. Venkateshulu Naidu
1(b)Smt.G.V.Sampathkumar, aged
about 41 years, S/o P.
Venkateshulu Naidu
1(c)Sri G.V.Yathirajlu, aged about 39
years, S/o P.Venkateshulu Naidu
All are R/at No.52, 1st Cross,
Prashanth Nagar, T.Dasarahalli,
Bangalore-560 057
2. Sri Krishnamurthy, aged about 76
years, S/o Late G.N.Padmanabha
Naidu and Smt.Yashodamma, R/at
No.98, KSRTC Layout,
Chikkalasandra, Subramanyapura
Road, Bangalore-560 061
Sri G.P.Hari @ P.Hari since dead by
legal representatives
3. Smt.G.H.Bharathi, D/o Late Sri
G.P.Hari @ P.Hari, aged about 31
2 O.S.No.1442/2009
years, R/o at First Floor, Ramaiah
complex, above Balaji Store,
Hulimavu, Bannerugatta Road,
Bangalore-560 076
4. Smt.Usharani D/o Late Sri G.P.Hari
@ P.Hari, aged about 29 years.
5. Kum.Roopa Devi, D/o Late Sri
G.P.Hari @ P.Hari, aged about 27
years
Plaintiff Nos.4 and 5 are R/at
No.291, 7th Cross,
Kavalabyrasandra, R.T.Nagar Post,
Bangalore-560 032
[by advocate Sri M.C.Mallikarjuna Swamy ]
V/s
Defendants:
1. Sri P.Sundar Raj, S/o Late
G.N.Padmanabha Naidu, since dead
by his legal representatives
1(a) Smt.Bhagavathi G.S., aged about
36 years, D/o Late Sundar Raj
1(b) Smt.Suchitra G.S., aged about 33
years
2. Smt.G.S.Shantha Kumari, aged about
60 years, W/o late P.Sundar Raj,
All are R/at No.14, 1st Cross,
Ganesha Block, R.T.Nagar,
Bangalore-560 032
[by Advocatet Raksha Bhavikatti ]
3 O.S.No.1442/2009
Date of Institution of the suit : 27/02/2009
Declaration and
Nature of suit : Permanent injunction
Date of commencement of
Evidence : 24/11/2014
Date on which the judgment
is pronounced : 10/02/2020
Years Month Days
Duration taken for disposal :
10 11 13
JUDGMENT
This suit is filed by the Plaintiffs for Declaration and permanent injunction.
2. The case of the plaintiffs, as per the plaint averments, is that one Late G.N.Padmanabha Naidu and his wife Late Smt.Yashodamma have begotten four sons by name P.Venkateshulu Naidu(Plaintiff No.1), P.Krishna Murthy(Plaintiff No.2), Late Sri G.P.Hari @ P.Hari and P.Sundar Raju(Defendant No.1). The Plaintiffs 3,4 and 5 are the daughters of Late Sri G.P.Hari @ P.Hari and his wife Late Smt.Kasturi. Late Sri G.P.Hari @ P.Hari died on 30.6.1983 and Smt.Kasturi died on 1.7.1983.
The plaintiffs further submit that their father Late G.N.Padmanabha Naidu was the absolute owner of the property bearing 4 O.S.No.1442/2009 No.14(Old No.13 & 16) measuring 60' x 40' consists of Mangalore tile roofed house situated at 1st Cross, Vasanthnagar, Bangalore,which is suit schedule property, having purchased the same from one Sri G.R.Krishnamanaidu under Sale Deed dt.22.02.1939. During the life time of Late G.N.Padmanabha Naidu, himself and his wife Late Smt.Yashodamma and their children were living jointly in the suit schedule property and after death of Late G.N.Padmanabha Naidu, his wife Late Smt.Yashodamma and her sons continued to live in the said house .
The plaintiffs further submit that Late Smt.Yashodamma, Plaintiff No.2- P.Krishnamurthy and Defendant No.1- P.Sundarraj have jointly availed loan of Rs.5000/- from one Sri D.S.Sampangiram Shetty, by mortgaging the house property and constructed 4 RCC roofed shops and one Mangalore tile roofed shop in the schedule property to have rental income. The rent was 5 O.S.No.1442/2009 being collected by Late Smt.Yashodamma during her life time. After death of Late Smt.Yashodamma, the defendant No.1 is collecting rents from the tenants, but not paying any amount to the plaintiffs towards their share.
The plaintiffs further submit that said Sri D.S.Sampangiram Shetty got prepared a deed alleged to be a Conditional Sale Agreement executed by Plaintiff No.2, defendant No.1 and Late Smt.Yashodamma and filed a suit in O.S.No.1522/1964, which was decreed by Judgment and Decree dt.28.1.1969, against which an Appeal in R.A.No.39/1971 was preferred by Plaintiff No.2, defendant No.1 and Late Smt.Yashodamma. In the said Appeal, the Judgment and Decree passed in O.S.No.1522/1964 was confirmed. Against the said Order R.S.A.No.291/1974 was preferred before the Hon'ble High Court of Karnataka, in which Judgment and Decree was passéd as per 6 O.S.No.1442/2009 the compromise petition filed by the parties on 14.10.1981.
The plaintiff further submits that in the meantime, the Plaintiff No.1 and Late Sri G.P.Hari @ P.Hari had also filed O.S.No.263/1970 against Sri D.S.Sampangiram Shetty. The said suit was dismissed by the Court below and hence R.F.A.No.57/1974 was filed by the parties before Hon'ble High Court of Karnataka. Said R.F.A.No.57/1974 was allowed by the Hon'ble High Court of Karnataka on 27.8.1979 by reversing the Judgment of the Court below declaring that the plaintiffs in the said suit i.e., Plaintiff No.1 in this case and Late Sri G.P.Hari @ P.Hari are entitled to 9/20th share in the suit schedule property. The Hon'ble High Court of Karnataka has directed the Court below to draw Preliminary decree and to make an enquiry on the question of mesne profits received by the defendant No.1-Sri 7 O.S.No.1442/2009 D.S.Sampangiram Shetty in O.S.No.262/1970 and the same shall be adjusted in the final decree.
The plaintiffs further submit that the defendant No.1 is well aware of the above proceedings. The R.S.A.No.291/1974, preferred by Plaintiff No.2, defendant No.1 and Late Smt.Yashodamma was compromised with said Sri D.S.Sampangiram Shetty, and paid a sum of Rs.15,000/- to Sri D.S.Sampangiram Shetty on 14.10.1981 i.e., on the date of compromise before the Hon'ble High Court of Karnataka. The said amount of Rs.15,000/- was paid by Plaintiff No.2-P.Krishnamurthy to Sri D.S.Sampangiram Shetty in the Court hall itself by way of cash.
The plaintiffs further submit that after the case was compromised before the Hon'ble High Court of Karnataka, the Sri D.S.Sampangiram Shetty has no right or title over the schedule property and the same was stated by the 8 O.S.No.1442/2009 Hon'ble High Court of Karnataka. It was further observed by the Hon'ble High Court of Karnataka that the appellants i.e., present plaintiffs 1 and 2, Late Sri G.P.Hari @ P.Hari, Defendant No.1 and their mother Late Smt.Yashodamma are having absolute right over the schedule property jointly. As per the Order passed by the Hon'ble High Court of Karnataka, plaintiffs 1 and 2, Late Sri G.P.Hari @ P.Hari(father of plaintiffs 3,4 and 5) and defendant No.1 have become the absolute owners of the suit schedule property.
The plaintiffs further submit that after the death of Late Smt.Yashodamma, the plaintiffs approached the defendant No.1 and demanded their share in the suit schedule property. But the Defendant No.1 went on postponing the same. Hence the plaintiffs got issued a legal notice to the defendant No.1 on 14.7.2008 to make arrangement either for development or share equally the suit schedule property among 9 O.S.No.1442/2009 the legal co-parceners of Late G.N.Padmanabha Naidu, who constitute joint family. But even after receiving the notice sent through COP, the defendant No.1 neither replied the said notice nor arranged for share in the suit schedule property.
The plaintiffs further submit that they have got issued legal notice to the Revenue Officer, Vasanthnagar, BBMP,Bengaluru on 14.10.2008 to change khatha of the suit schedule property in the name of plaintiffs and defendant No.1 jointly.Though the said notice was received by the Revenue Officer, neither he replied nor changed the khata of the suit schedule property in the names of plaintiffs and defendant No.1 jointly.
The plaintiff further submits that they have obtained certified copies of khatha and khata extract of suit schedule property on 3.12.2008, which shows that defendant No.2 is the owner of the suit schedule property. But 10 O.S.No.1442/2009 the defendant No.2 has no right, title and interest over the suit schedule property to get change the khata of the suit schedule property in her name. The plaintiffs have not executed any document in favour of defendant No.2. The revenue authorities have changed the khata of the suit schedule property in the name of defendant No.2, without consulting the plaintiffs. The suit schedule property is the ancestral property and the plaintiffs are the Class I legal heirs of the Late G.N.Padmanabha Naidu and Late Smt.Yashodamma, and only they are entitled to succeed to the suit schedule property as per Hindu Succession Act. The original Sale Deed dt.22.2.1939 was taken by the defendant No.1 when he was living along with the other brothers and the same is in the custody of the defendant No.1.
The Cause of action for the suit arose on 14.10.2008 when the plaintiffs got issued a legal notice to defendant No.1 and when the 11 O.S.No.1442/2009 plaintiffs came to know the change of katha of the suit schedule property in the name of defendant No.2 and after the plaintiffs obtained the certified copy of khata on 9.2.2009. Hence the plaintiffs requested the Court to decree the suit as prayed for in the prayer column of the plaint. The suit schedule property is located within the territorial jurisdiction of this Court and hence this Court has got jurisdiction to adjudicate this case.
3. On the other hand, the Defendants filed Written Statement submitting that the suit filed by the Plaintiffs is not maintainable either in law or on facts. The defendants admitted the averments made in para 2 to 4 of the plaint as true. But the defendants denied collection of rent by Late Smt.Yashodamma during her life time and also collection of rent by defendant No.1 at present. The defendants admitted the averments made in para 5 and 6 in respect of the legal proceedings initiated by various parties, as correct and true. The defendants 12 O.S.No.1442/2009 admitted the averment in respect of RSA No.291/1974 being settled through compromise between the parties. But denied that the same being settled by payment of Rs.15,000/- to Sri D.S.Sampangiram Shetty by Plaintiff No.2. Further submitted that DW1 alone had arranged for payment of said money through his sources and he had personally paid the same to Sri D.S.Sampangiram Shetty.
The defendants denied the averments made in para 8 to 12 of the plaint as false. But admitted the averment made in para 13 of the plaint that defendant No.2 being the present owner of the suit schedule property as correct. The defendants contended that the suit is barred by res-judicata and also by limitation. Further contended that the Court Fee paid is not sufficient.
At para 20(d) of the Written Statement, the defendants submitted that sometime before 1959 Late Smt.Yashodamma suggested to the 13 O.S.No.1442/2009 defendant No.1 that the schedule property being a corner site and on the main road, could be developed and some income could be derived by constructing some shops in front of the residential house. The defendant No.1 agreed and made arrangement for the same. When the construction work was going on, the Contractor who was in-charge went absconding after taking the entire money with which he was supposed to complete the construction work.
At para 20(f) it is submitted by the defendants that at that time defendant No.1 was working in Postal Department. Late Smt.Yashodamma and Plaintiff No.2 were unemployees. The Plaintiff No.1 was married and was residing with his family. Hence the entire funding was to be arranged by defendant No.1 alone to develop the property without any help from anyone.
14 O.S.No.1442/2009
At para 20(g), it is submitted by the defendants that defendant No.1 and Plaintiff No.2 met one Sri D.S.Sampangiram Shetty and availed loan of Rs.5000/- from him. Said Sri D.S.Sampangiram Shetty on the pretext of obtaining security for the said loan, obtained signatures of Late Smt.Yashodamma, Plaintiff No.2 and defendant No.1 on a document on 11.3.1959. The defendant No.1, Plaintiff No.2 and Late Smt.Yashodamma were given to an understanding that it was a Mortgage Deed, but the same was a conditional Sale Deed being executed in favour of Sri D.S.Sampangiram Shetty with a condition of repayment of entire loan along with interest within 3 years, failing which Sri D.S.Sampangiram Shetty had right to execute the same and become the owner.
At para 20(h), the defendants submit that defendant No.1 realized that the expenses for completion of construction work have gone overhead to higher rate of interest on the said 15 O.S.No.1442/2009 loan. Being unaware of the contents of the document, the amount was not repaid within three years. Hence Sri D.S.Sampangiram Shetty filed O.S.No.32/1963 against the parties to the transaction for recovery of sum due to him and also filed HRC No.12/1963 and obtained an exparte eviction order in his favour.
At para 20(i), the defendants submit that at the same time, Late Smt.Yashodamma, Plaintiff No.2 an defendant No.1 initiated O.S.1522/1964 against Sri D.S.Sampangiram Shetty and Plaintiff No.1 and Late Sri G.P.Hari @ P.Hari were also arrayed as defendants, for declaration that the advancement of Rs.5000/- by Sri D.S.Sampangiram Shetty was only a loan. The above two suits were clubbed and disposed of by a common order dt.28.1.1969, wherein O.S.No.1522/1964 was dismissed and O.S.No.32/1963 came to be allowed.
16 O.S.No.1442/2009
At para 20(j), it is submitted that against the said Order, appeal was preferred by Late Smt.Yashodamma, Plaintiff No.2 and defendant No.1 in R.A.No.39/1971 and R.A.No.40/1971, which were clubbed together and a common order was passed by the Hon'ble High Court of Karnataka confirming the earlier order passed in O.S.No.1522/1964 in R.A.No.39/1971 on 12.1.1973.
At para 20(k), it is submitted that against the said order, Late Smt.Yashodamma, Plaintiff No.2 and defendant No.1 preferred R.S.A.No.291/1974 which was ended with compromise and the matter was settled on payment of Rs.15,000/- to Sri D.S.Sampangiram Shetty by the Appellants. The entire amount was arranged by defendant No.1 alone. The right, title and interest as claimed by Sri D.S.Sampangiram Shetty did not survive after the said compromise on 14.10.1981.
17 O.S.No.1442/2009
At para 20(l), it is submitted that the Plaintiff No.1 and Late Sri G.P.Hari @ P.Hari had filed O.S.No.263/1970 against Sri D.S.Sampangiram Shetty, Late Smt.Yashodamma, Plaintiff No.2 and defendant No.1 seeking declaration that Plaintiff No.1 and Late Sri G.P.Hari @ P.Hari are entitled to half the share of the suit schedule property and also for partition and separate possession. The said suit was dismissed on 29.9.1973. The prayer made in the aid suit and in the present suit are one and the same and hence amounts to res- judicata.
At para 20(m), the defendants submit that against the Judgment and Decree passed in O.S.263/1970, Plaintiff No.1 and Late Sri G.P.Hari @ P.Hari preferred an appeal in RFA No.57/1974 and the same came to be allowed and the Hon'ble High Court of Karnataka declared that Plaintiff No.1 and Late Sri G.P.Hari @ P.Hari are entitled to 9/20th share 18 O.S.No.1442/2009 in the suit schedule property and the Hon'ble High Court of Karnataka has directed the Court below to decide the issues in respect of allotment of the respective shares of the parties and mesne profits borne out of the suit schedule property. Accordingly a Preliminary Decree was drawn in O.S.201/1980 and Final Decree Proceedings were initiated in FDP No.31/1981. During pendency of said FDP No.31/1981, the RSA No.291/1974 came to be settled on 14.10.1981 and the claims of Sri D.S.Sampangiram Shetty ceased to exist.
At para 20(o) it is submitted by the defendants that since defendant No.1 had arranged for the entire money paid to Sri D.S.Sampangiram Shetty, it was mutually agreed between plaintiffs 1 and 2, Late Smt.Yashodamma and Late Sri G.P.Hari @ P.Hari that the defendant No.1 would succeed and continue with the possession and ownership of the suit schedule property as 19 O.S.No.1442/2009 desired by Late G.N.Padmanabha Naidu and further Late Smt.Yashodamma asked defendant No.1 to arrange for funds equaling to the shares of plaintiffs 1and 2 and Late Sri G.P.Hari @ P.Hari in order to balance the entire equation and also hoped for a litigation free future among her sons. The defendant No.1 with due respect to his mother, sought for some time to arrange for funds.
At para 20(p)of the written statement, it is submitted by defendants that the khata of the suit schedule property was transferred to defendant No.1 during pendency of FDP No.31/1981 with the knowledge and consent of all the parties on 31.3.1982. The ordersheet in said FDP No.31/1981 dt.2.6.1982 clearly shows that the defendant No.1 sought permission of the Court for release of funds for payment of taxes, which proves that the litigants were aware of all facts.
20 O.S.No.1442/2009
It is further submitted at para 20(q) that since defendant No.1 could not arrange the entire funds in cash on time, he gave jewelry which belonged to defendant No.2 along with cash equaling to the shares of the plaintiffs 1 and 2 and Late Sri G.P.Hari @ P.Hari in the suit schedule property. Though the same was her Sthridhan, the defendant No.2 agreed and generously cooperated with defendant No.1.
At para 20(r), it is submitted by the defendants that Plaintiff No.1 and Late Sri G.P.Hari @ P.Hari filed an affidavit reporting out of Court settlement of the matter on 10.9.1982 in FDP No.31/1981 and he same was taken on record by the Court and the Court, based on the contents of the said affidavit on 10.12.1982 passed an order and thus all the issues were closed once for all amicably. The question of executing the said Order does not exist.
21 O.S.No.1442/2009
At para 20(s) of the Written Statement, the defendants submit that the defendant No.1 succeeded and continued to be in possession and ownership of the suit schedule property and got transferred water and electricity connections in his name. He developed the suit schedule property by investing his hard earned money. He has given shops on rents and continued to collect the rents as earlier. His brothers have purchased other immovable properties by reinvesting the cash and gold jewelry given to them by the defendant No.1.
At para 20(t), the defendants submit that defendant No.1 being the owner of the suit schedule property was involved into more than 30 HRC proceedings from 1982 to 2008. The respective courts have confirmed his ownership over the suit schedule property . The claims of plaintiffs 3,4 and 5 do not survive since they have not come with a claim in respect of suit 22 O.S.No.1442/2009 schedule property within limitation period after attaining majority.
At para 20(u), the defendants submit that due to the reasons of health, defendant No.1 has transferred the suit schedule property to defendant No.2 on 8.4.2002 by way of Gift Deed much prior to the death of Late Smt.Yashodamma on 6.3.2003. The plaintiffs and Late Smt.Yashodamma had the knowledge of the said Gift Deed and never objected for the same. The defendant No.2 is enjoying the benefits of the same as lawful absolute owner.
The Defendants further submitted that the plaintiffs cannot claim any right, title and interest over the suit schedule property, since such claims are barred by res-judicata and assuming if ever existed, are barred by limitation.Hence the defendants requested the Court to dismiss the suit filed by the plaintiff.
4. On the basis of the averments made in the plaint and the written statement filed by defendants, 23 O.S.No.1442/2009 my predecessor has framed the Issues 1 to 9 on 10.4.2014 as follows :-
1. Whether the plaintiffs prove that they have succeeded to the schedule property from G.N.Padmanabha Naidu and Smt.Yashodamma?
2. Whether the defendants prove that it was mutually agreed by the plaintiffs No.1 and 2, Yashodamma and P.Hari that defendant No.1 would succeed and continue with possession and ownership of the schedule property?
3. Whether the defendants prove that the defendant No.1 has given jewellery with cash, equaling to the shares of plaintiffs No.1 and 2 and P.Hari in the schedule property?
4. Whether the suit is barred by res- judicata?
5. Whether the suit is barred by limitation?
6. Whether the valuation of the suit is proper and court fee paid is sufficient?
7. Whether the suit is maintainable?
8. Whether the plaintiffs are entitled for the reliefs claimed?
9. What order or decree?
5. In this case, the plaintiff No.2 adduced his oral evidence as PW1 by filing sworn affidavit in lieu of chief examination and in further chief 24 O.S.No.1442/2009 examination of PW1, the documents produced by him are marked as Ex.P1 to P28 and closed the evidence by the side of plaintiffs. On the other hand, the legal representative of deceased defendant No.1 i.e., d1(b) adduced her oral evidence as DW1 by filing sworn affidavit in lieu of chief examination and in further chief examination of DW1 in further chief examination of DW1 on 6.12.2017, the documents produced by her are marked as Ex.D1 to D47; on 16.1.2018, the documents Ex.D48 to D63 are marked and on 29.1.2018 Ex.D64 to Ex.D94 are marked. No independent witness is examined on both sides.
6. Heard oral arguments on both sides and perused the written arguments submitted on both sides and then the case posted for judgment.
7. My findings on the above Issues are as follows:-
Issue No.1 : In the Affirmative Issue No.2 : In the Negative Issue No.3 : In the Negative 25 O.S.No.1442/2009 Issue No.4 : Already answered in the Negative by Order Dt.15.9.2014 Issue No.5 : In the Negative Issue No.6: Already answered in the Affirmative by Order dt.15.9.2014 Issue No.7: Already answered in the Affirmative by Order dt.15.9.2014 Issue No.8: In the Affirmative Issue No.9 :As per final order, for the following reasons:-
REASONS Issue No.1 :
8. Before analyzing the reasons for the above Issue, it is just and proper to know the admitted facts in this case. One Late G.N.Padmanabha Naidu is the main propositor and his wife was Late Smt.Yashodamma. During the life time of Late G.N.Padmanabha Naidu he purchased the suit schedule property from one Sri G.R.Krishnamanaidu under Sale Deed dt.22.02.1939. Said Late G.N.Padmanabha Naidu had four sons by name P.Venkateshulu Naidu(deceased Plaintiff No.1), P.Krishna Murthy(Plaintiff No.2), Late Sri G.P.Hari @ 26 O.S.No.1442/2009 P.Hari and P.Sundar Raju(deceased Defendant No.1).
The Plaintiffs 3,4 and 5 are the daughters of Late Sri G.P.Hari @ P.Hari and his wife Late Smt.Kasturi. The Plaintiff No.1 died during pendency of this suit and his legal representatives were brought on record. So also the defendant No.1 died during pendency of this suit and his legal representatives were brought on record as Defendant No.1(a) and 1(b). The defendant No.2 is the wife of deceased defendant No.1. Here there is no controversy with regard to relationship of Plaintiffs with defendants. In the Written Statement filed by defendants, they have also admitted the relationship between the Plaintiff and defendants as pleaded in the plaint.
9. As per the plaint, it is the case of the plaintiffs that during the life time of Late G.N.Padmanabha Naidu, himself and his wife Late Smt.Yashodamma and their children were living jointly in the suit schedule property and after death of Late G.N.Padmanabha Naidu, his wife Late 27 O.S.No.1442/2009 Smt.Yashodamma and her sons continued to live in the said house.
10. In order to prove Issue No.1, Plaintiff No.2 adduced his oral evidence by way of filing his sworn affidavit considered as PW1 and in further chief examination of PW1 the documents produced by him are marked as Ex.P1 to P28.
11. In the Written Statement filed by defendants 1 and 2 dt.3.11.2009, at para 2 they admitted that the suit schedule property has been purchased by Late G.N.Padmanabha Naidu and also admitted that all the family members were staying together during the life time of Late G.N.Padmanabha Naidu and after his death, his widow Late Smt.Yashodamma and other sons continued to stay in the suit schedule property.
12. Here the legal representative of deceased defendant No.1 by name Smt.G.S.Suchitra G.S. who is brought on record as D1(b) has adduced her oral evidence as DW1 and in further chief examination of DW1 on 6.12.2017, the documents produced by her 28 O.S.No.1442/2009 are marked as Ex.D1 to D47; on 16.1.2018, the documents Ex.D48 to D63 are marked and on 29.1.2018 Ex.D64 to Ex.D94 are marked. DW1 in her cross-examination dt.6.6.2018, she deposed and admitted that her father deceased defendant No.1- Sri P.Sundar Raj and brothers of her father i.e., deceased Plaintiff No.1-Sri P.Venkateshulu Naidu, Plaintiff No.2-Sri Krishnamurthy and Late Sri G.P.Hari @ P.Hari who is father of plaintiffs 3 to 5 were residing jointly in the suit schedule property. In the cross-examination of DW1 at page 33 dt.30.10.2018, she admitted that her grand-father Late G.N.Padmanabha Naidu died in the year 1943 and after death of her grand-father, her grand- mother Late Smt.Yashodamma and her father deceased defendant No.1-Sri P.Sundar Raj and her uncles deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Plaintiff No.2-Sri Krishnamurthy and Late Sri G.P.Hari @ P.Hari were residing in the suit schedule property jointly. Further she also admitted that after the marriage of her father deceased 29 O.S.No.1442/2009 Plaintiff No.1-Sri P.Venkateshulu Naidu and her uncles deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari and Plaintiff No.2-Sri Krishnamurthy were residing separately as per their convenience. This goes to show that after death of Late G.N.Padmanabha Naidu, who died intestate, the suit schedule property devolved to his wife Late Smt.Yashodamma and other minor children now, deceased Plaintiff No.1-Sri P.Venkateshulu Naidu, Plaintiff No.2-Sri Krishnamurthy and deceased defendant No.1-Sri P.Sundar Raj. Therefore the plaintiffs and Deceased defendant No.1-Sri P.Sundar Raj have succeeded to the suit schedule property after death of Late G.N.Padmanabha Naidu and were in joint possession and enjoyment of the suit schedule property. Therefore after death of Late G.N.Padmanabha Naidu, Late Smt.Yashodamma who was acting as a karth was managing the joint family affairs as Head of the family. In the cross-examination of DW1, it reveals that Late Smt.Yashodamma during her life 30 O.S.No.1442/2009 time has given three RCC roofed sheds which are situated in the suit schedule property, on rental basis and collecting rent for herself and managing the joint family consisting of herself, plaintiffs and deceased defendant No.1-Sri P.Sundar Raj. So here Late Smt.Yashodamma died on 6.3.2003 as per Ex.D94. Before death of Late Smt.Yashodamma, there was so many litigations held in between the sons of Late Smt.Yashodamma with one Sri D.S.Sampangiram Shetty. But here in the chief examination of PW1 and also in the plaint, he stated that in order to improve the suit schedule property, which was in dilapidated condition, his mother Late Smt.Yashodamma, himself and deceased defendant No.1-Sri P.Sundar Raj have jointly availed loan of Rs.5000/- from one Sri D.S.Sampangiram Shetty by mortgaging the entire suit schedule property. In the written statement filed by the defendants at para 20(g), it is stated that deceased defendant No.1 and Plaintiff No.2 met one Sri D.S.Sampangiram Shetty and availed loan of Rs.5000/- from him. So This 31 O.S.No.1442/2009 goes to show that there was community interest as whole to develop the suit schedule property as Late Smt.Yashodamma and her sons were jointly residing, and deceased defendant No.1-Sri P.Sundar Raj, Plaintiff No.2-Sri Krishnamurthy and Late Smt.Yashodamma executed a document on 11.3.1957 in favour of Sri D.S.Sampangiram Shetty for availing the loan of Rs.5000/-. This fact is admitted by the defendants in the pleadings of the Written Statement.
13. In this case Late G.N.Padmanabha Naidu was working in Railway Department in Wakala. After his retirement, after purchase of suit schedule property as per Ex.D48, he along with his wife Late Smt.Yashodamma and all his children came to suit schedule property situated at Vasanthnagar. The contention of the defendants is that the loan of Rs.5000/- taken from Sri D.S.Sampangiram Shetty, has been discharged by deceased defendant No.1-Sri P.Sundar Raj alone out of his self earned money and not from joint family funds or with the assistance of 32 O.S.No.1442/2009 plaintiffs. In this case the defendants relied on Ex.D49. But the recitals mentioned in Ex.D49 will not depict that deceased defendant No.1-Sri P.Sundar Raj only contributed and paid Rs.15000/- to discharge the loan as per the compromise held in R.S.A.No.291/1974 before the Hon'ble High Court of Karnataka dt.14.10.1981. So here in one or the other way, the Plaintiff No.2-Sri Krishnamurthy, deceased defendant No.1-Sri P.Sundar Raj and Late Smt.Yashodamma participated in all the proceedings held before the Court in O.S.No.1522/1964 and O.S.No.32/1963 filed by Sri D.S.Sampangiram Shetty and O.S.No.1522/1964 was dismissed and O.S.No.32/1963 was decreed. Aggrieved by the Judgment and Decree passed in O.S.No.1522/1964 and O.S.No.32/1963, R.A.No.39/1971 and R.A.No.40/1971 were preferred. in R.A.No.39/1971, the Hon'ble High Court of Karnataka by Order dt.12.1.1973, confirmed the earlier order passed in O.S.No.1522/1964 and the Plaintiff No.2-Sri Krishnamurthy, deceased defendant No.1-Sri 33 O.S.No.1442/2009 P.Sundar Raj along with Late Smt.Yashodamma have preferred R.S.A.No.291/1974. In the meanwhile deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari had filed O.S.No.263/1970. Before that P.Misc.No.29/1970 was filed by deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari before the Additional Civil Judge, Bangalore against Sri D.S.Sampangiram Shetty claiming their share in the mortgaged property which was mortgaged by Late Smt.Yashodamma, Plaintiff No.2- Sri Krishnamurthy and deceased defendant No.1-Sri P.Sundar Raj contending that without their knowledge that the said mortgage is not binding on their share, which came to be numbered as O.S.No.263/1970. Said suit was dismissed on 29.9.1973. Aggrieved by the said Order, the plaintiffs in O.S.No.263/1970 preferred an appeal before the Hon'ble High Court of Karnataka in R.F.A.No.57/1974. In the said R.F.A. it was declared that deceased Plaintiff No.1-Sri P.Venkateshulu 34 O.S.No.1442/2009 Naidu and Late Sri G.P.Hari @ P.Hari who were the sons of Late G.N.Padmanabha Naidu and defendant No.2 being the widow of Late G.N.Padmanabha Naidu are entitled to ½ share in the share of her husband and in the remaining property, allotted 9/20th share to the plaintiffs in O.S.No.263/1970. So here all these proceedings goes to show that in order to safeguard the family property i.e., suit schedule property, the deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari filed O.S.No.263/1970 against Sri D.S.Sampangiram Shetty and also Late Smt.Yashodamma, Plaintiff No.2-Sri Krishnamurthy and deceased defendant No.1-Sri P.Sundar Raj as defendants for claiming their legitimate share. But only preliminary decree passed in O.S.No.263/1970 and there is no Final Decree proceedings held by allotting the shares of deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari who were plaintiffs in O.S.263/1970. Further R.S.A.No.291/1974 was preferred by the Plaintiff 35 O.S.No.1442/2009 No.2-Sri Krishnamurthy and deceased defendant No.1-Sri P.Sundar Raj along with Late Smt.Yashodamma being aggrieved by the Order passed in R.A.No.31/1971. Said R.S.A.No.291/1974 was disposed of as per the compromise and it was ordered to pay Rs.15,000/- to Sri D.S.Sampangiram Shetty. So here as per the contention of the defendants, the deceased defendant No.1-Sri P.Sundar Raj only paid the entire amount of Rs.15,000/- as per the compromise held in R.S.A.No.291/1974, whereas it is the contention of the plaintiffs in the plaint as well as in the chief examination of PW1 that Plaintiff No.2-Sri Krishnamurthy(PW1) alone has paid the amount of Rs.15,000/- to Sri D.S.Sampangiram Shetty, relying on the documentary evidence Ex.P5 and P6. So here there is no scrap of paper or documentary evidence produced by DW1 in order to prove that deceased defendant No.1-Sri P.Sundar Raj alone has paid amount of Rs.15,000/- out of his self earned money, but the defendants relied on Ex.P48, which is the 36 O.S.No.1442/2009 receipt shows that the amount of Rs.15,000/- received on 14.10.1981. But here this Ex.D49 would not indicate that deceased defendant No.1-Sri P.Sundar Raj had paid Rs.15,000/- to Sri D.S.Sampangiram Shetty. Therefore in this case from the oral evidence and admissions in the cross- examination of DW1 and admissions in the Written Statement at para 20(g) goes to show that the plaintiffs have proved Issue No.1 that after death of Late G.N.Padmanabha Naidu and Late Smt.Yashodamma, all were in joint possession and enjoyment of the suit schedule property. Hence I answered Issue No.1 in the Affirmative.
Issue Nos.2 & 3:
14. In the Written Statement filed by the defendants, it is the contention took that defendant No.1 and Plaintiff No.2 met one Sri D.S.Sampangiram Shetty and availed loan of Rs.5000/- from him. Said Sri D.S.Sampangiram Shetty on the pretext of obtaining security for the said loan, obtained signatures of Late 37 O.S.No.1442/2009 Smt.Yashodamma, Plaintiff No.2 and defendant No.1 on a document on 11.3.1959 which later found to be an absolute Sale Deed with a condition of repayment of entire loan along with interest within 3 years, failing which Sri D.S.Sampangiram Shetty had right to execute the same and become the owner, and not a Mortgage Deed. On the basis of the said document, Sri D.S.Sampangiram Shetty had collected interest from the deceased defendant No.1-Sri P.Sundar Raj for the amount availed as loan. The amount was not repaid within three years, as agreed in the document and hence Sri D.S.Sampangiram Shetty filed O.S.No.32/1963 against Late Smt.Yashodamma, Plaintiff No.2-Sri Krishnamurthy and deceased defendant No.1-Sri P.Sundar Raj for recovery of sum due to him and also filed HRC No.12/1963 and obtained an exparte eviction order in his favour. In the meanwhile Late Smt.Yashodamma, Plaintiff No.2 and defendant No.1 initiated O.S.1522/1964 against Sri D.S.Sampangiram Shetty and Plaintiff No.1 and Late Sri G.P.Hari @ P.Hari were also arrayed as 38 O.S.No.1442/2009 defendants, for declaration that the advancement of Rs.5000/- by Sri D.S.Sampangiram Shetty was only a loan. The above two suits were clubbed and disposed of by a common Order dt.28.1.1969, wherein O.S.No.1522/1964 was dismissed and O.S.No.32/1963 was decreed in favour of Sri D.S.Sampangiram Shetty. Against the said Order, Appeal was preferred by Late Smt.Yashodamma, Plaintiff No.2 and defendant No.1 in R.A.No.39/1971 and R.A.No.40/1971,which were clubbed together and a common order was passed by the Hon'ble High Court of Karnataka confirming the earlier order passed in O.S.No.1522/1964 in R.A.No.39/1971 on 12.1.1973. Against the said order, Late Smt.Yashodamma, Plaintiff No.2 and defendant No.1 preferred R.S.A.No.291/1974 which was ended with compromise and the matter was settled on payment of Rs.15,000/- to Sri D.S.Sampangiram Shetty. The contention of Defendants is that entire amount of Rs.15,000/- was arranged by defendant No.1 alone.
The right, title and interest as claimed by Sri 39 O.S.No.1442/2009 D.S.Sampangiram Shetty did not survive after the said compromise on 14.10.1981.
15. Here the legal representative of deceased defendant No.1 by name Smt.G.S.Suchitra G.S. who is brought on record as D1(b) has adduced her oral evidence as DW1 and in further chief examination of DW1 on 6.12.2017, the documents produced by her are marked as Ex.D1 to D47; on 16.1.2018, the documents Ex.D48 to D63 are marked and on 29.1.2018 Ex.D64 to Ex.D94 are marked. Here Ex.D49 is the receipt dt.14.10.1981 for Rs.15,000/- paid in presence of Court. But here on the basis of Ex.D49, the defendants cannot assert that deceased defendant No.1-Sri P.Sundar Raj himself has paid Rs.15000/- out of his self earned income. On the other hand PW1 produced Ex.P5 and P6 which are the S.B.Passbooks of Syndicate Bank, wherein the entries made in the passbook clearly goes to show that he himself paid the amount by way of cheque and paid the cash before the Hon'ble High Court of Karnataka wherein Hon'ble High Court of Karnataka 40 O.S.No.1442/2009 passed order that due to the compromise and the amount of Rs.15,000/- had been paid to the Sri D.S.Sampangiram Shetty itself shows that the appellants have absolute right and possession over the suit schedule property and Sri D.S.Sampangiram Shetty had no right or possession over the suit schedule property. So here there is no counter document produced by the side of defendants in order to disprove the documentary evidence i.e., Ex.P5 and Ex.P6 contending that the PW1 has not at all paid any amount for discharging loan as per the compromise held in R.S.A.No.291/1974.
16. The defendants in their Written Statement at para 20(d) took contention that it was the intention of Late G.N.Padmanabha Naidu that deceased defendant No.1-Sri P.Sundar Raj should succeed to the suit schedule property. To prove this fact there is no document produced by DW1 which is admitted in her cross-examination. Again the defendants in their Written Statement contended that sometime before 1959 Late Smt.Yashodamma 41 O.S.No.1442/2009 suggested to the defendant No.1 that the schedule property being a corner site and on the main road, could be developed and some income could be derived by constructing some shops in front of the residential house, for which the defendant No.1 agreed and made arrangement for the same and Plan for construction of five shops was approved and the construction work begun. Here Ex.D55 is the Plan prepared by a registered Engineer, but it is not approved by the then Corporation or Municipality in order to prove that five shops have been constructed by deceased defendant No.1-Sri P.Sundar Raj alone by raising the loan and also out of the money of his self earned income. In the cross-examination of DW1, she admitted that her father joined the General Post Office in the year 1960 as Clerk temporarily. In the cross-examination of DW1 dt.5.4.2018, admitted that her father and all family members of him were residing in R.T.Nagar in a rented house. She also admitted that her father was retired in the month of October, 1997. But here DW1 42 O.S.No.1442/2009 was not able to depose the monthly salary which was being drawn by her father in the year 1960 when he joined the services. Further in the cross-examination of DW1 she deposed that she had no idea about the salary which was being drawn by her father after her birth and she cannot say the retirement benefits availed by her father after his retirement. Here DW1 admitted Ex.P19 and 20 are the documents to show the gross salary of her father from 1980 to 1987. On perusing Ex.P19 and 20 in the year 1981, the gross salary of deceased defendant No.1-Sri P.Sundar Raj was only Rs.764/- and in the year 1983 he was drawing salary of Rs.1068.25. So looking to Ex.P19 and 20, the deceased defendant No.1-Sri P.Sundar Raj was not economically sound to pay or discharge the loan amount received from Sri D.S.Sampangiram Shetty as per the compromise held in R.S.A.No.291/1974. This goes to show that deceased defendant No.1-Sri P.Sundar Raj could not able to maintain his entire family on that meager amount of salary which was being drawn by him in the year 43 O.S.No.1442/2009 1981 as per Ex.P19 and 20. This goes to show that there is no documentary evidence to prove that plaintiffs 1 and 2 and Late Smt.Yashodamma and Late Sri G.P.Hari @ P.Hari mutually agreed that deceased defendant No.1-Sri P.Sundar Raj would succeed and continue with possession as absolute owner over the suit schedule property.
17. In this case DW1 produced Ex.D50 which is the application filed by deceased defendant No.1- Sri P.Sundar Raj requesting the Bangalore City Corporation for entering his name in the katha extract in respect of suit schedule property. Here the katha extract is not produced to show that the name of deceased defendant No.1-Sri P.Sundar Raj has been got entered as per Ex.D50. But DW1 relied on document Ex.D56 application submitted by deceased defendant No.1-Sri P.Sundar Raj to the Assistant Executive Engineer, KEB for transfer of R.R.Number, enclosing katha certificate and tax paid receipts. Ex.D1 to D26 are tax paid receipts, electricity bill charges and correspondence letters 44 O.S.No.1442/2009 made to the Revenue Department and KEB in the name of deceased defendant No.1-Sri P.Sundar Raj. Ex.D27 to 47 are electricity and water bill receipts. So here relying on these documents, it cannot be presumed that deceased defendant No.1-Sri P.Sundar Raj is the absolute owner in possession and enjoyment of suit schedule property since 1981. Further it is also contention took in the Written Statement filed by the defendants that deceased defendant No.1-Sri P.Sundar Raj had filed HRC proceedings against the tenants who were residing in the suit schedule shops. To prove this fact, DW1 has produced Ex.D67 to D86 which are the HRC proceedings and also produced Ex.D87 to D89 which are the Lease Agreements and Ex.D90 to 93 which are cash receipts for having received rents from the tenants who were residing in the suit schedule property. So here mere relying on the above documents is not itself suffice to prove that deceased defendant No.1-Sri P.Sundar Raj is the absolute owner in possession and enjoyment of the suit 45 O.S.No.1442/2009 schedule property. As per the contention of the defendants, deceased defendant No.1-Sri P.Sundar Raj is the absolute owner in possession and enjoyment of the suit schedule property since 1981 as per the Final Decree Proceedings in FDP No.31/81 in O.S.No.201/1980, wherein the Preliminary Decree was passed. In the said Final Decree proceedings, it is stated that Plaintiff-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari have filed affidavit stating that they have no objection. But said affidavit is not produced by DW1 in this case. Therefore whether settlement took a place as per the affidavit filed in FDP No.31/81 is still not clear, because DW1 ought to have produced the said affidavit which is said to be filed by deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari. Therefore the Preliminary Decree passed in O.S.No.201/80 has not reached for passing the Final Decree. In the meantime deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and his brother Late Sri 46 O.S.No.1442/2009 G.P.Hari @ P.Hari have filed P.Misc.No.29/1970 seeking permission for filing a pauper suit. That was allowed and a suit was filed in O.S.No.263/1970, wherein it was the contention took that the property was mortgaged by Late Smt.Yashodamma, Plaintiff No.2-Sri Krishnamurthy and deceased defendant No.1-Sri P.Sundar Raj without their knowledge and therefore the said mortgage was not binding on them. Said suit was dismissed on 29.9.1973. Therefore the plaintiffs in O.S.263/1970 i.e., deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari preferred RFA No.57/1974 before the Hon'ble High Court of Karnataka wherein it was ordered that the plaintiffs are the sons of Late G.N.Padmanabha Naidu and defendant No.2-Late Smt.Yashodamma being the widow of Late G.N.Padmanabha Naidu was entitled to one-half of her husband's share and in the remaining property, the share of the plaintiffs has been quantified at 9/20th share. But in the said suit, a Court Commissioner was appointed for effecting 47 O.S.No.1442/2009 equal partition and deliver the possession of said shops to the plaintiffs. But no Final Decree proceedings held. Therefore the FDP No.31/81 was filed, wherein it is stated that deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari filed an affidavit stating that they have settled the matter out of Court. But no such affidavit is produced. Therefore on the date of proceedings in FDP No.31/81, the suit schedule property was joint and ancestral property of Plaintiffs and defendants.
18. Here in the cross-examination of DW1 dt.6.6.2018, she admitted that her father deceased defendant No.1-Sri P.Sundar Raj was receiving rent of five shops situated in the suit schedule property. Therefore deceased defendant No.1-Sri P.Sundar Raj has improved the suit schedule property by constructing the shops and also by renovating the existing dilapidated house situated in the suit schedule property with the help of amount accrued by collecting the rent from the tenants. Hence 48 O.S.No.1442/2009 deceased defendant No.1-Sri P.Sundar Raj has not invested any money of his own or by raising loan from any others. No such document is produced to show that deceased defendant No.1-Sri P.Sundar Raj only himself contributed money for renovation of dilapidated house and also construction of five RCC shops situated in the suit schedule property.
19. Here Ex.P.No.1571/1993 was filed in view of the compromise petition filed in RSA 291/1974 by the deceased defendant No.1-Sri P.Sundar Raj before the Civil Judge Court, Bangalore at the fag end of expiry of limitation, as per the Order passed in O.S.No.1552/1964. The certified copy of the said Execution Petition and Ordersheet are produced by PW1 which is marked as Ex.P15. In the said Ex.P.No.1571/1993, Sri D.S.Sampangiram Shetty was the Judgment Debtor No.1 and Late Smt.Yashodamma and Plaintiff No.2- Sri Krishnamurthy in this case were Judgment Debtor Nos.2 and 3. Here in the sworn affidavit filed by Decree Holder i.e., deceased defendant No.1-Sri 49 O.S.No.1442/2009 P.Sundar Raj in Ex.P.No.1571/93 which is marked as Ex.P16, he stated that himself and Judgment Debtor Nos.2 and 3 i.e., Late Smt.Yashodamma and Plaintiff No.2-Sri Krishnamurthy have filed O.S.No.1522/1964 on the file of Munsiff, Bangalore which was dismissed on 28.1.1969. Then deceased defendant No.1-Sri P.Sundar Raj, Late Smt.Yashodamma and Plaintiff No.2-Sri Krishnamurthy have filed RFA No.39/1971 which also came to be dismissed on 12.1.1973. Then RSA No.291/1974 was filed before Hon'ble High Court of Karnataka which was allowed on 14.19.1981 and the compromise arrived between the parties, wherein Rs.15,000/- was paid to Sri D.S.Sampangiram Shetty. In para 4 of the said affidavit which is marked as Ex.P16 filed in Ex.P.No.1571/93, deceased defendant No.1-Sri P.Sundar Raj stated that his mother Late Smt.Yashodamma and his elder brother Krishnamurthy were not in Bangalore City, therefore due to expiry of limitation time, he filed Execution Petition and impleaded Late 50 O.S.No.1442/2009 Smt.Yashodamma and P.Krishna Murthy as Judgment Debtor Nos.2 and 3. So this goes to show that deceased defendant No.1-Sri P.Sundar Raj in order to obtain order in his favour and gain the suit schedule property and re-convey the property from Sri D.S.Sampangiram Shetty in his own name, leaving other two Judgment Debtors i.e., Late Smt.Yashodamma and Plaintiff No.2-Sri Krishnamurthy, filed the Execution Petition, in order to knock of the suit schedule property. But as per the Ordersheet of Execution Petition No.1571/93 which is marked as Ex.P18 and as per the Ordersheet dt.11.2.2002, the said Execution Petition was closed for non-prosecution on the request of Decree Holder i.e., deceased defendant No.1-Sri P.Sundar Raj. Therefore on the date of closure of Ex.P.No.1571/93, the suit schedule property was the joint family property of deceased Plaintiff No.1-Sri P.Venkateshulu Naidu, Plaintiff No.2-Sri Krishnamurthy, Late Sri G.P.Hari @ P.Hari, deceased 51 O.S.No.1442/2009 defendant No.1-Sri P.Sundar Raj and Late Smt.Yashodamma.
20. Here the defendants relied on the unregistered Relinquishment Deed which is marked as Ex.D51. But only two sons of Late G.N.Padmanabha Naidu i.e., deceased Plaintiff No.1- Sri P.Venkateshulu Naidu and Plaintiff No.2-Sri Krishnamurthy have put signatures on Ex.D51, whereas deceased defendant No.1-Sri P.Sundar Raj and Late Sri G.P.Hari @ P.Hari have not put signatures on Ex.D51. This goes to show that Ex.D51 is not a genuine document and it has been created fraudulently in order to knock of the property by deceased defendant No.1-Sri P.Sundar Raj. The unregistered Relinquishment Deed cannot be relied in order to prove that deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Plaintiff No.2-Sri Krishnamurthy have relinquished their right over the suit schedule property. So here, how can the defendants prove that on the basis of Ex.D51, the name of deceased defendant No.1-Sri P.Sundar Raj 52 O.S.No.1442/2009 has been entered in katha extract in respect of suit schedule property. This goes to show that the katha extract which was standing in the name of deceased defendant No.1-Sri P.Sundar Raj is a created document in collusion with the revenue authorities or authorities belong to the Corporation. Therefore Ex.D51 is not a legally enforceable document and no right or ownership would be accrued to deceased defendant No.1-Sri P.Sundar Raj on the basis of Ex.D51.
21. Here Ex.D52 is produced by DW1 which is the Final Decree proceedings in FDP No.31/81. The affidavit filed by deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari in the said Proceedings has not been produced in this case in order to prove that the Final Decree Proceedings is disposed of and settled out of Court. What settlement has taken place in the Final Decree Proceedings as per Ex.D52 is not seen the day light even today also. Therefore mere relying on the tax paid receipts, electrical and water bills as per 53 O.S.No.1442/2009 Ex.D27 to 47 and some of the applications submitted by deceased defendant No.1-Sri P.Sundar Raj for transfer of R.R.Number in his name as per Ex.D56 and the HRC proceedings as per Ex.D67 to D86 and lease Agreements as per Ex.D87 to D89 and cash receipts for having received rents from the tenants who were residing in the suit schedule property as per Ex.D90 to 93 would not at all helpful to prove that deceased defendant No.1-Sri P.Sundar Raj is the absolute owner in possession and enjoyment of the suit schedule property.
22. Here in order to prove that deceased defendant No.1-Sri P.Sundar Raj is the absolute owner in possession and enjoyment of the suit schedule property, the defendants relied on Ex.D53, which is the registered Gift Deed dt.8.4.2002 executed by deceased defendant No.1-Sri P.Sundar Raj in the name of his wife defendant No.2. But how can deceased defendant No.1-Sri P.Sundar Raj would execute Ex.D53 when he was not at all absolute owner in possession and enjoyment of the 54 O.S.No.1442/2009 suit schedule property. Here the suit schedule property is the self acquired property of main propositor Late G.N.Padmanabha Naidu who is father of deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Plaintiff No.2-Sri Krishnamurthy, Late Sri G.P.Hari @ P.Hari and deceased defendant No.1-Sri P.Sundar Raj. During the life time of Late G.N.Padmanabha Naidu, as admitted in the cross- examination of DW1, all the plaintiffs and defendants along with their father Late G.N.Padmanabha Naidu and mother Late Smt.Yashodamma were living in the suit schedule property and even after death of Late G.N.Padmanabha Naidu, all the plaintiffs and their mother Late Smt.Yashodamma were in joint possession and enjoyment of the suit schedule property. When such being the truth, soon after death of Late Smt.Yashodamma, how can the defendants assert that deceased defendant No.1-Sri P.Sundar Raj is the absolute owner in possession and enjoyment of the suit schedule property. Even 55 O.S.No.1442/2009 on perusal of Ex.D53, there is ambiguity to know its validity which is the registered Gift Deed said to has been executed by deceased defendant No.1-Sri P.Sundar Raj in favour of his wife defendant No.2.
23. Here it is pertinent to know the tenor of Ex.D53. In Ex.D53 at page 2, it is mentioned that that suit schedule property has been allotted to Sri P.Sundar Raj under Partition deed or paluparikattu. Here how can deceased defendant No.1-Sri P.Sundar Raj execute the registered Gift Deed in favour of defendant No.2 in respect of suit schedule property even during the life time of his mother Late Smt.Yashodamma who died on 6.3.2003 after execution of Gift Deed dt.8.4.2002. So here in the contents of Ex.D53, there is no any arrangement made as a shelter to Late Smt.Yashodamma who is mother of deceased defendant No.1-Sri P.Sundar Raj. This goes to show that in order to knock of the suit schedule property, again deceased defendant No.1-Sri P.Sundar Raj created this Ex.D53. Here deceased defendant No.1-Sri P.Sundar Raj was not 56 O.S.No.1442/2009 at all remained as owner of the suit schedule property when he executed registered Gift Deed in favour of defendant No.2 on 8.4.2002 as per Ex.D53. In the chief examination of DW1 and also in the contention took in the Written Statement filed by the defendants, the defendants utterly failed to prove whether actually deceased defendant No.1-Sri P.Sundar Raj became absolute owner only on the say of Late Smt.Yashodamma who advised deceased defendant No.1-Sri P.Sundar Raj to arrange for funds equaling to the shares of plaintiffs 1 and 2 and Late Sri G.P.Hari @ P.Hari in order to balance the entire equation and also hoped for a litigation free future among her sons. In the Written Statement as well as in the oral evidence of DW1, it is stated that since deceased defendant No.1-Sri P.Sundar Raj could not able to arrange the entire funds in cash on time, he gave jewelry which belonged to defendant No.2 along with cash equaling to the shares of deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Plaintiff No.2-Sri Krishnamurthy and Late Sri 57 O.S.No.1442/2009 G.P.Hari @ P.Hari in the suit schedule property. But there are no documents produced to prove that deceased defendant No.1-Sri P.Sundar Raj had made arrangement by paying the cash in the manner of jewelry and to prove that plaintiffs 1 and 2 have received those jewelry in respect of their shares in the suit schedule property. In the cross-examination of DW1, she admitted that there is no document to prove that defendant No.2 also contributed money by way of jewelry to give the same to deceased Plaintiff No.1-Sri P.Venkateshulu Naidu, Plaintiff No.2-Sri Krishnamurthy and Late Sri G.P.Hari @ P.Hari as equivalent to their share while executing the Relinquishment Deed as per Ex.D51. Hence Ex.D51 cannot be taken into consideration as it is an unregistered Relinquishment Deed not legally enforceable. Therefore deceased defendant No.1-Sri P.Sundar Raj would not get any right and ownership over the suit schedule property by relying on Ex.D51. Therefore the dual contention took in the Written Statement by the defendants contending on 58 O.S.No.1442/2009 one breath that deceased defendant No.1-Sri P.Sundar Raj has paid the entire amount of Rs.15,000/- as per the compromise arrived in RSA No.291/1974. In the cross-examination of DW1 dt.24.1.2019, she admitted that as per Ex.P15, E.P.No.1571/1993 was filed. Further DW1 admitted that since Sri D.S.Sampangiram Shetty has not complied the terms of compromise petition arrived at RSA No.191/74, her father deceased defendant No.1-Sri P.Sundar Raj filed Ex.P.No.1571/93. This itself goes to show that deceased defendant No.1-Sri P.Sundar Raj, in order to grab the suit schedule property, intentionally made Late Smt.Yashodamma and Plaintiff No.2-Sri Krishnamurthy as Judgment Debtor Nos.2 and 3 stating that they were not available at that time at Bangalore. This fact is admitted in the cross-examination of DW1. DW1 also admitted that said Execution Petition as per Ex.P15 is closed. Hence the compromise arrived in RSA No.291/1974 was not executed in E.P.No.1571/93. Therefore even in the year 2002 i.e., on 11.2.2002, 59 O.S.No.1442/2009 the suit schedule property was the joint family property of plaintiffs and Sri D.S.Sampangiram Shetty. Here in FDP No.31/81 also though affidavit was filed by deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari as mentioned in the ordersheet, said affidavit is not produced. Therefore the Preliminary Decree was passed in O.S.No.1522/64, which was dismissed and in the Appellate Court RSA No.291/74 was filed, wherein it was decreed that deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari were entitled to 9/20th share. Therefore FDP No.31/81 was filed, wherein the Final Decree was not passed. Hence at that time the suit schedule property was the ancestral and joint family property of plaintiffs and defendants.
24. Here PW1 produced Ex.P9 to P14, which are the proceedings held before the revenue authorities of Bangalore City Corporation, Shivajinagar, Bangalore with regard to entry of name 60 O.S.No.1442/2009 of defendant No.2 who is wife of deceased defendant No.1-Sri P.Sundar Raj on the basis of the registered Gift Deed executed dt.8.4.2002 which is marked as Ex.D53. But here in Ex.D53, another strange thing has been inserted by mentioning that suit schedule property has been fallen to the share of deceased defendant No.1-Sri P.Sundar Raj who is husband of defendant No.2 under Partition deed or paluparikattu. But here in the cross-examination of DW1, she categorically admitted that there is no such paluparikattu produced pertaining for the year 1982. So under these circumstances Ex.D53 is created document by deceased defendant No.1-Sri P.Sundar Raj during the life time of his mother Late Smt.Yashodamma and there is no such arrangement with regard to shelter to Late Smt.Yashodamma in the suit schedule property, itself goes to show that Ex.D53 is the fabricated and concocted document. There is no legal sanctity with regard to Ex.D2 and Ex.D9 to D14 which are the proceedings held before revenue authorities of Bangalore City Corporation, 61 O.S.No.1442/2009 Shivajinagar, Bangalore in order to get enter the name of defendant No.2. Therefore the defendant No.2 cannot claim that she is the owner of the suit schedule property on the strength of Ex.D53 and also on the strength of Ex.D9 to D14. Then defendant No.2 who is the wife of deceased defendant No.1-Sri P.Sundar Raj filed an application dt.16.2.2005 requesting to change the name in respect of R.R.Number, as per Ex.D58. So as per Ex.D58 even in the year 2005, the R.R.No.2165/ND3-165 was standing in the name of Sri D.S.Sampangiram Shetty. Under these circumstances how can defendant No.2 claiming that she is the owner of the suit schedule property on the basis of the Gift Deed executed as per Ex.D53. Therefore as per the contention of the defendants, they utterly failed to prove that deceased defendant No.1-Sri P.Sundar Raj succeeded and continued in possession of the suit schedule property as absolute owner. Deceased defendant No.1-Sri P.Sundar Raj also utterly failed to prove his name got entered in 62 O.S.No.1442/2009 katha extract legally on the basis of the proceedings held before the Court. Further DW1 also failed to prove that deceased defendant No.1-Sri P.Sundar Raj gave jewelry which belongs to defendant No.2 along with cash equaling the share of plaintiffs 1 and 2 and Late Sri G.P.Hari @ P.Hari in the suit schedule property.
25. Further the defendants have relied on Ex.D67 to D86 which are the HRC proceedings initiated in the name of deceased defendant No.1-Sri P.Sundar Raj and also Ex.D87 to 89 which are the lease Agreements entered in between deceased defendant No.1-Sri P.Sundar Raj with tenants in order to establish that deceased defendant No.1-Sri P.Sundar Raj is the owner in possession of the suit schedule property. But here in this case as already Court has come to the conclusion that the entry of the name of deceased defendant No.1-Sri P.Sundar Raj in katha extract is illegal and not in accordance with law. Therefore under such circumstances whatever the documents produced by DW1 with 63 O.S.No.1442/2009 regard to payment of electricity bills and water charges and tax paid to the suit schedule property, would not itself sufficient to prove that deceased defendant No.1-Sri P.Sundar Raj who is the husband of defendant No.2 and father of D1(a) and D1(b) was the absolute owner of the suit schedule property during his life time, since deceased Plaintiff No.1-Sri P.Venkateshulu Naidu, Plaintiff No.2-Sri Krishnamurthy, Late Sri G.P.Hari @ P.Hari and deceased defendant No.1-Sri P.Sundar Raj are coparceners and therefore they are equally entitled to their share in the suit schedule property.Hence the defendants utterly failed to prove Issue Nos.2 and 3. Hence I answered Issue Nos.2 and 3 in the Negative.
Issue No.4:
26. This Issue does not arise for consideration since already answered in the Negative by Order dt.15.9.2014.
Issue No.5:
64 O.S.No.1442/2009
27. In the written statement filed by the defendants, they took contention that the suit is barred by limitation. Here admittedly the suit schedule property has been purchased by Late G.N.Padmanabha Naidu who is father of deceased Plaintiff No.1-Sri P.Venkateshulu Naidu, Plaintiff No.2-Sri Krishnamurthy and deceased defendant No.1-Sri P.Sundar Raj. But the contention of the defendants is that the suit schedule property has been in possession and enjoyment of deceased defendant No.1-Sri P.Sundar Raj from the year 1981. Thereafter in the year 2002, deceased defendant No.1-Sri P.Sundar Raj executed registered Gift Deed in favour of his wife i.e., defendant No.2 as per Ex.D53. Since 2002, defendant No.2 has been in possession and enjoyment of the suit schedule property. The tax as well as electricity and water bill charges were being paid by deceased defendant No.1-Sri P.Sundar Raj since from 1981 and thereafter when katha was changed in the name of defendant No.2, she is paying the same. Therefore it 65 O.S.No.1442/2009 is the contention of the defendants that the plaintiffs have not been in possession and enjoyment of the suit schedule property for more than 20 years and this suit is filed in the year 2009 and therefore the suit filed by the plaintiffs is barred by limitation.
28. But here the defendants have not proved when actually deceased defendant No.1-Sri P.Sundar Raj took possession of the suit schedule property legally so also not proved how the name of deceased defendant No.1-Sri P.Sundar Raj got entered in the katha extract before the Bangalore City Corporation. No doubt there is no partition held in between the sons of Late G.N.Padmanabha Naidu and in the Written Statement filed by the defendants, plea of ouster has not been taken in order to prove that the plaintiffs have been excluded from the possession of the suit schedule property. Here deceased Plaintiff No.1-Sri P.Venkateshulu Naidu, Plaintiff No.2-Sri Krishnamurthy, Late Sri G.P.Hari @ P.Hari and deceased defendant No.1-Sri P.Sundar Raj are the coparceners. The possession of any one of the 66 O.S.No.1442/2009 coparceners shall be presumed to be the possession of all the coparceners in the property which is in jointness. Therefore in a joint family property, if any one of the coparceners dispute about his legitimate share and the suit is filed by said co-sharer in order to establish his right over the joint family properties, under such circumstances, the suit filed by such a coparcener at any point of time is not barred by limitation. Because in a suit for partition, Cause of action is a recurring one till any one of the coparceners get his legitimate share in the ancestral or joint family property. Even in the cross- examination of PW1 by the counsel for the defendants, there is no specific suggestion suggested that the plaintiffs have been excluded from the possession of the suit schedule property by establishing the plea of ouster.
29. Therefore the counsel for the plaintiffs relied on a reported decision in ILR 2008 KAR 1773 in the case between Sri Veerayya Mahantayya Koppad and Others Vs.Smt.Geetha and Others, 67 O.S.No.1442/2009 wherein in Caption (B), the Hon'ble High Court of Karnataka commented on Article 110 of the Limitation Act, 1963 and held that there is no foundation laid to prove the factum of exclusion, the limitation under Article 110 will not start unless it is shown that a person was excluded from a joint family property to enforce his rights to share therein. Further held that there is no evidence placed by the defendants to show that the plaintiffs were excluded completely in claiming their share in any of the suit schedule properties. Further held that it has come in the evidence that the plaintiffs as well as the 1st defendant were residing together following the death of Somayya. So here also looking to the facts and circumstances and the cross-examination of DW1 in this case on hand goes to show that after death of Late G.N.Padmanabha Naidu, all his sons including their mother Late Smt.Yashodamma were living jointly in the suit schedule property. So here after retirement of Late G.N.Padmanabha Naidu who was working in Railway Department, he purchased the 68 O.S.No.1442/2009 suit schedule property as per Ex.P1 and Ex.D48 and then he shifted all his family members to the suit schedule property. Even after the death of Late G.N.Padmanabha Naidu, all his sons and wife Late Smt.Yashodamma were residing in the suit schedule property. This itself goes to show that the Limitation Act will not applicable in a suit for partition. Mere relying on the katha extract stood in the name of deceased defendant No.1-Sri P.Sundar Raj and also katha extract stood in the name of defendant No.2 who is wife of deceased defendant No.1-Sri P.Sundar Raj, is not itself suffice to contend that the suit filed by the plaintiffs is barred under Limitation Act.
30. Here counsel for the defendants relied on the reported decision in AIR 2019 SUPREME COURT 813 in the case between Poona Ram V.Moti Ram(D) Th.Lrs. and Ors, wherein the Hon'ble Supreme Court of India commented on Sec.64 of the Limitation Act(36 of 1963 ) and held that Title by continuous possession-No material in favour of Plaintiff to show his possessory title-In absence of documentary proof 69 O.S.No.1442/2009 of possession of Plaintiff, he cannot be allowed to succeed on basis of minor discrepancies in evidence of defendants. In Caption(PW2) it is commented that mere casual possession, that too relying on a motor vehicle body lying on part of the property, would not prove settled possession of Plaintiff. Here this suit is filed for the relief of possession. But the present suit on hand is filed for partition in the ancestral joint family property. Therefore giving due respect to the above decision, the facts and circumstances of the case in the above cited decision and the facts and circumstance and nature of the suit on hand are quite different. Therefore the principles observed in the above reported decision would not at all applicable in this case. Further in this case when defendants admitted the relationship of plaintiffs and defendants as coparceners and suit schedule property is the joint family property and the plaintiffs are claiming a share by filing this suit for partition, the point of limitation does not arise. Hence I answered Issue No.5 in the Negative. 70 O.S.No.1442/2009 Issue Nos.6 and 7:
31. These Issues are already answered in the Affirmative by Order dt.15.9.2014.
Issue No.8:
32. In this case the plaintiffs proved that the suit schedule property is the joint family property of them and deceased defendant No.1-Sri P.Sundar Raj. It is also proved by the plaintiffs that the katha was transferred in the name of deceased defendant No.1-Sri P.Sundar Raj in the year 1982 based on the unregistered Relinquishment Deed Ex.D15 which is not legally enforceable under law. This goes to show that the deceased defendant No.1-Sri P.Sundar Raj got entered his name in the katha extract of the suit schedule property by colluding with the authorities of Bangalore City Corporation. Further when deceased defendant No.1-Sri P.Sundar Raj is not the absolute owner of the suit schedule property, he could not have right to execute the registered Gift Deed in favour of his wife as per Ex.D53, wherein it is mentioned that the suit schedule property has 71 O.S.No.1442/2009 been fallen to the share of deceased defendant No.1-
Sri P.Sundar Raj through Partition deed or Palupatti. But no such document i.e., Partition Deed or Palupatti has been produced as admitted in the cross-examination of DW1 in order to prove that there has been a partition held in between plaintiffs and deceased defendant No.1-Sri P.Sundar Raj in respect of suit schedule property. Further in this case the plaintiffs proved that no partition held by metes and bounds in respect of suit schedule property after death of Late G.N.Padmanabha Naidu and Late Smt.Yashodamma in between the plaintiffs and deceased defendant No.1-Sri P.Sundar Raj. But here the defendants only relied on Ex.D1 to D26, the tax paid receipts, Ex.D27 to 47, the electricity and water bill charges and correspondence made by deceased defendant No.1-Sri P.Sundar Raj with Revenue Department and KEB, Ex.D67 to D86 which are the HRC proceedings, Ex.D87 to D89 which are the Lease Agreements and Ex.D90 to 93 which are cash receipts for having received rents 72 O.S.No.1442/2009 from the tenants who were residing in the suit schedule property, which do not suffice to prove that deceased defendant No.1-Sri P.Sundar Raj during his life time enjoyed the suit schedule property as absolute owner by excluding his brothers by establishing plea of ouster and after his death,his wife defendant No.2 has become owner of the suit schedule property.
33. Here counsel for the defendants relied on the reported decision in AIR 2002 PATNA 60 in the case between Hardeo Yadav and others V/s Dinanath Yadav and others, wherein it is commented by the Hon'ble Patna High Court on Order 20 Rule 18 of C.P.C. that documentary evidence such as rent receipts, canal purchase etc., not establishing partition-Held, there was unity of title and possession in respect of property which might be subjected to partition between parties- Moreso, when parties belongs to Mitakshara School of Hindu Law under which there is presumption of jointness.
73 O.S.No.1442/2009
34. Further counsel for the plaintiffs relied on the reported decision in AIR 2004 MADRAS 70, wherein the Hon'ble Madras High Court commented on Order 20 Rule 18 of C.P.C. - Partition Suit- Plaintiff claiming share in properties left by his father - Plea of Ouster not proved by defendants co- sharers with legal evidence nor admitted by Plaintiff
- Failing to establish that Plaintiff's right of succession has been extinguished - Adverse possession by defendants co-sharers not proved - Plaintiff entitled to decree for partition and separate possession of share. So here also it is not the specific case of the defendants that the plaintiffs have been excluded from the possession of the suit schedule property by taking plea of ouster. So the observation made in the above cited decision of Hon'ble Patna High Court and Hon'ble Madras High Court,goes to show that though DW1 produced so many revenue documents, tax paid receipts, electricity and water bill charges, HRC proceedings and lease Agreements, itself not suffice to prove that the suit schedule 74 O.S.No.1442/2009 property is the absolute property of deceased defendant No.1-Sri P.Sundar Raj, when in the cross- examination of DW1, she herself admitted that the suit schedule property has been purchased by Late G.N.Padmanabha Naidu and after his death, the suit schedule property has become the joint family property of plaintiffs and defendants. When the plaintiffs and deceased defendant No.1-Sri P.Sundar Raj are coparceners and sons of Late G.N.Padmanabha Naidu, then under Mitakshara law, all the co-sharers are entitled to their share in the suit schedule property equally u/S 8 of the Hindu Succession Act.
35. Here the counsel for the defendants relied on the proceedings held in FDP No.31/81 which was filed on the Preliminary Decree passed in O.S.No.201/1980. But here no doubt in the said FDP, deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari filed affidavit with regard to compromise and then the case was disposed of. So the Preliminary Decree was passed, 75 O.S.No.1442/2009 but that has not been effected by way of Final Decree Proceedings. Therefore at the end of said Final Decree Proceedings and also at the end of Ex.P.No.1571/93, which closed due to absence of Decree Holder. Therefore the Preliminary Decree passed as per the compromise held in R.S.A.No.291/74 was not come into effect by passing the Final Decree Proceedings. Therefore counsel for the Plaintiffs relied on the reported decision in AIR 2007 SUPREME COURT 1011 in the case between Hasham Abbas Sayyad V. Usman Abbas Sayyad and Ors. wherein the Hon'ble Supreme Court of India commented on Sec 2(2), S.54, Order 20 R.18-suit for partition-Preliminary Decree-Auction sale of suit property-Not permissible without initiating formal Final Decree Proceedings. Further commented that the Preliminary Decree declares the rights and liabilities of the parties. A decree may be partly preliminary and partly final. A Final Decree Proceeding may be initiated at any point of time. There is no limitation. However, what can be 76 O.S.No.1442/2009 executed is a Final Decree, and not a Preliminary Decree, unless and until Final Decree is a part of the Preliminary Decree. So here also admittedly there is a Preliminary Decree in the hands of deceased defendant No.1-Sri P.Sundar Raj as per the Preliminary Decree passed in R.S.A.No.291/1974. But in FDP No.31/81, the affidavit filed by deceased Plaintiff No.1-Sri P.Venkateshulu Naidu and Late Sri G.P.Hari @ P.Hari who are the sons of Late G.N.Padmanabha Naidu has not been produced in this case. Therefore unless there is a Final Decree, the Preliminary Decree cannot be executed .
36. Further the counsel for the plaintiffs relied on another reported decision in AIR 1995 SUPREME COURT 1211 in the case between Shankar Balwant Lokhande(dead) by L.Rs V/s Chandrakant Shankar Lokhande and another, wherein the Hon'ble Supreme Court of India commented on Order 20 Rule 18(2) of C.P.C. -Drawing up of Final Decree and then to engross it on stamped paper of required value- both acts together constitute 'Final Decree'. 77 O.S.No.1442/2009 The observation made in the above reported decision, goes to show that there is no Final Decree in the hands of deceased defendant No.1-Sri P.Sundar Raj and Final Decree was not drawn in accordance with Order 20 Rule 18 of C.P.C. as commented by the Hon'ble Supreme Court of India in the above reported decision. Under these circumstances the contention of the defendants that there is a Final Decree available in the hands of deceased defendant No.1-Sri P.Sundar Raj is a futile effort made by the defendants in order to prove that they are the absolute owners in possession and enjoyment of the suit schedule property. Hence the defendants failed to prove that deceased defendant No.1-Sri P.Sundar Raj has been in possession and enjoyment of the suit schedule property as absolute owner since there is no plea of ouster and exclusion in the pleadings of the Written Statement filed by the defendants. Therefore the plaintiffs are entitled to their share as prayed for. Hence I answered Issue No.8 in the Affirmative.
78 O.S.No.1442/2009Issue No.9:
37. In view of forgoing discussion and observations made in all the above Issues, this Court proceeds to pass the following:
ORDER Suit filed by the plaintiffs is hereby decreed. Further decreeing that legal representatives of deceased Plaintiff No.1-Sri P.Venkateshulu Naidu i.e., P1(a)-Smt.Kupamma, P1(b)-Sri G.V. Sampathkumar and P1(c)-Sri G.V.Yathirajlu are together entitled to 1/4th share; Plaintiff No.2-Sri Krishnamurthy is entitled to 1/4th share; Plaintiff No.3-Smt.G.H.Bharathi, Plaintiff No.4-Smt.Usharani and Plaintiff No.5-Kum.Roopa Devi are together entitled to 1/4th share; The legal representatives of deceased defendant No.1-Sri P.Sundar Raj i.e., D1(a)-Smt.Bhagavathi G.S. and D1(b)-Smt.Suchitra G.S. and defendant No.2-Smt.G.S.Shantha Kumari are together entitled to 1/4th share, in the suit schedule property.79 O.S.No.1442/2009
The division of the suit schedule property as per the above Order, shall be effected by metes and bounds u/S 54 of C.P.C.
The Order passed on I.A.No.1 filed by the plaintiffs u/O XXXIX Rules 1 and 2 of C.P.C. dt.7.9.2012 is merged with this Judgment.
Since the parties are relatives, there is no order as to costs.
Draw preliminary decree accordingly. (Dictated to the Judgment Writer, corrected, signed and then pronounced by me in the open Court on this the 10th day of February 2020) (Devanand P.Nayak) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.
ANNEXURE
1. List of witnesses examined for plaintiffs:
PW1 P.Krishna Murthy
2. List of documents exhibited for plaintiffs :
Ex.P1 certified copy of sale deed dated 22.02.1939 Ex.P1(a) typed copy of Ex.P1 Ex.P2 Katha extract Ex.P3 & P4 Legal notices to revenue officers Ex.P5 & Bank pass books Plaintiff No.6 Ex.P7 & P8 two assessment orders pertaining 80 O.S.No.1442/2009 to the business run by defendant No.2 Ex.P9 true copy of representation submitted by defendant No.1 to BBMP.
Ex.P10 true copy of representation submitted by defendant No.2 to BBMP.
Ex.P11 & P12 two endorsements issued from BBMP.
Ex.P13 true copy of Tippani Sheet
pertaining to Khatha transfer
proceedings
Ex.P14 Khatha certificate.
Ex.P15 certified copy of execution petition
in execution case No.1571/1993
Ex.P16 affidavit submitted by defendant
No.1 in execution case
No.1571/1993
Ex.P17 affidavit filed u/O 5 R 20 of C.P.C.
in execution case No.1571/1993
Ex.P18 certified copy of Order Sheet in
Ex.No.1571/1993.
Ex.P19 & P20 Information received from
department of posts under RTI Act
Ex.P21 to P24 Four photographs
Ex.P25 C.D.
Ex.P26 Salary slip
Ex.P27 Order of Superannuation
Ex.P28 application for issuance of identity
card
3. List of witnesses examined for defendants:
DW1 Smt.Suchitra G.S.
4. List of documents exhibited for defendants:
Ex.D1 Property Tax receipt for the year 1880-81 and 1882.81 O.S.No.1442/2009
Ex.D2 Receipt of property tax for the year 1983.
Ex.D3 Receipt of property tax for the year 1985.
Ex.D4 Receipt of property tax for the year 1986.
Ex.D5 Receipt of property tax 30.7.1987. Ex.D6 Receipt of property tax 16.9.1989. Ex.D7 Receipt of property tax 3.11.1988. Ex.D8 Property tax receipt dt. 16.5.1990. Ex.D9 Property tax receipt dt. 4.1.1991. Ex.D10 Property tax receipt dt. 27.6.1996. Ex.D11 Property tax receipt dt. 20.9.1998. Ex.D12 Acknowledgement given by BBMP dated 14.12.1998.
Ex.D13 Property tax receipt dated 11.1.1999.
Ex.D14 Acknowledgement given by BBMP dated 28.5.2000.
Ex.D15 Property tax receipt dt. 28.7.2000. Ex.D16 Property tax receipt dt. 20.9.2002. Ex.D17 Show cause notice dt. 21.1.1983. Ex.D18 Show cause notice dt. 28.6.1985. Ex.D19 Special notice issued by BCC dated 30.10.1985.
Ex.D20 Special notice issued by BMP dated 29.9.1986.
Ex.D21 Special notice dated 11.9.1987. Ex.D22 Show cause notice dated 23.6.1993.
Ex.D23 Notice issued by BMP.
Ex.D24 Receipt dated 9.4.1986 issued by BCC.
82 O.S.No.1442/2009Ex.D25 Notice issued by BMP dated 14.2.2001.
Ex.D26 Receipt issued by BWSSB dated 12.1.1983.
Ex.D27 Demand notice (4) & 30 Ex.D31 Water bill 27.10.2005.
Ex.D32 Water bill 27.6.2006.
Ex.D33 Letter by defendant No.1 address to KEB,GandhiNagar dated 14.11.1985.
Ex.D34 Endorsement of KEB dated 22.11.1985.
Ex.D35 Letter by defendant No.1 address to KEB, Gandhi Nagar dated 14.61986.
Ex.D36 KEB Form of requisition for supply of energy .
Ex.D37 Electricity Bill of meter No. 1544 dated 9.3.1985.
Ex.D38 Electricity Bill of meter No. 1544 dated 9.1.1986.
Ex.D39 Electricity Bill of meter No. 1544 dated 27.2.1989.
Ex.D40 RR No.LG 1544 in the name of Sundr Raj .P Ex.D41 RR No.LG 31741 in the name of Gajanana Restaurant Ex.D42 RR No.LG 31741 in the name of Gajanana Restaurant ( 5 No.s ) Ex.D43 RR No.LG 1544 in the name of Sundraj .P ( 5 No.s ) Ex.D44 RR No. 1544 Electricity bill and 2 receipts Ex.D45 Electricity Bill dated 9.8.1999. 83 O.S.No.1442/2009 Ex.D46 Electricity Bill dated 9.11.1999. Ex.D47 Electricity Bill dated 9.5.2000.
Ex.D48 Registered Sale Deed dated
22.2.1939.
Ex.D49 Certified copy of the receipt dated
14.10.1981.
Ex.P.50 Endorsement dated 31.3.1982. Ex.D51 Unregistered relinquishment Deed dated 17.8.1982. ( Marked subject to objection) Ex.D52 Certified copy of the order in FDP 31/81 dated 10.12.1982.
Ex.D53 Original Gift Deed dated 8.4.2002. Ex.D54 Registered Rectification Deed dated 28.10.2002.
Ex.D55 Plan prepared by Engineer.
Ex.D56 Requisition letter of P.Sundr Raj
dated 4.12.1982.
Ex.D57 Replay letter dated 5.12.1986 with
acknowledgement.
Ex.D58 The letter issued by Asst. Exe.
Engineer to defendant No.2. dated
16.2.2005.
Ex.D59 Estimate made by Private Engineer
dated 3.11.2005.
Ex.D60 Tax paid receipt dated 26.4.2017
with acknowledgement.
Ex.D61 BWSSB Bills ( 8 )
Ex.D62 Letter dated 21.5.1979 issued by
Indian postal telegraph
department. ( Marked Subject to
objection )
Ex.D63 The Identity card issued by Chief
post master, Bangalore belongs to
P.Sundra Raj.
84 O.S.No.1442/2009
Ex.D64 KEB Bills of R.R.No.LG54152( 3) Ex.D65 KEB Bills of R.R.No.LG1545 (2) Ex.D66 Summons HRC No.2737/85.
Ex.D67 Order of Registrar Small Cause Court Bangalore in HRC No. 2737/85 dated 29.10.1985.
Ex.D68 Certified copy of the memo of withdrawal HRC No. 1451/85 dated 7.10.1985.
Ex.D69 Certified copy of the order passed in HRC No.1987/85 dated 31.10.1985.
Ex.D70 Certified copy of the order passed on I.A.No.5 in HRC No.1987/85 dated 23.4.1993.
Ex.D71 Copy of the complaint with acknowledgement dated 17.7.1986.
Ex.D72 Office copy of the Ex.No.2927/86. Ex.D73 Acknowledgement in CRP. No. 3527/87 dated 26.8.1987.
Ex.D74 Acknowledgement in CRP. No. 3527/87 dated 5.8.1987.
Ex.D75 Notice issued by Rent control authority Bangalore dated 9.9.1986.
Ex.D76 Letter addressed to Rent control authority Bangalore dated 19.9.1986. Ex.D77 Certified copy of the notice dated 23.2.1987.
Ex.D78 Certified copy of the order passed in CRP No. 5729/89 dated 20.11.90.
Ex.D79 Certified copy of the order passed in CRP No. 5729/89 dated 12.10.89.
Ex.D80 Certified copy in CCC No.707/91 dated 8.1.92.
85 O.S.No.1442/2009Ex.D81 Copy of the complaint with acknowledgement dated 28.4.92.
Ex.D82 Certified copy of the order passed in the HRC No.606/96 dated 24.6.98.
Ex.D83 Office copy of the petition in HRC No. 861/96.
Ex.D84 Certified copy of the order passed in HRRP No.443/2000 dated 26.9.2000 Ex.D85 Certified copy of the order sheet in HRC No. 1891/96.
Ex.D86 Certified copy of the order passed in Misc.No.314/86 dated 7.4.87.
Ex.D87 Lease agreement dated 9.11.85. Ex.D88 Lease agreement dated 1.6.87. Ex.D89 Lease agreement dated 20.12.87. Ex.D90 Cash receipt dated 1.10.87.
Ex.D91 Cash receipt dated 8.3.98.
Ex.D92 Delivery receipt dated 18.1.92. Ex.D93 Receipt of advance paid dt. 17.7.85. Ex.D94 Death certificate of Yashodamma.
(Devanand P.Nayak) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.