Bangalore District Court
Chikkathayamma vs Chikka Muniswamy Muniswamy on 2 January, 2024
1
O.S.No.5855/1992
KABC010019941992
IN THE COURT OF THE XVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-12) AT BENGALURU
Dated this the 2nd day of January 2024
PRESENT: Smt. Jyothsna D., LL.B., LL.M.,
XVI Addl. City Civil & Sessions Judge,
Bengaluru
ORIGINAL SUIT No.5855/1992
PLAINTIFF/S : 1. Smt. Chikkathayamma,
Since dead,
2. Muniranga,
Aged about years,
Son of Late Rangappa,
3. Krishna Murthy,
Aged about years,
Son of late Rangapp,
All are R/at Hebbal Village,
Bangalore North Taluk.
Represented by Smt/Sri
K.S.R., Advocate
- Vs --
2
O.S.No.5855/1992
1. Sri. Chhikkamuniswamy @
DEFENDANTS :
Muniswamy
Since dead by his LR's
(A) Smt. Muniyamma,
W/o late Chikkamuniswamy,
Aged about 45 years,
(B) Raju @ Munihanumappa,
Aged about 30 years,
(C) Muniyappa @ Gowda,
Aged about 28 years,
(D) Smt. Munirathna,
Aged about 25 years,
(B) to (D) are all the children
of late Chikka Muniswamy,
(A) to (D) all are R/at 'A'
Black, Hebbal Village,
Bangalore North Taluk,
Bangalore-24.
2. The Tahsildar,
Bangalore North Taluk,
Bangalore.
3. Smt. Sakamma,
W/o late Dodda Muniswamy,
4. Smt. Muniyamma,
D/o late Dodda Muniswamy,
Major
5. Smt. Amaravathi,
D/o Dodda Munishamy,
3
O.S.No.5855/1992
Major by age,
6. Muniyamma,
D/o late Dodda Muniswamy
through 1st wife.
7. Smt. Akkayyamma,
D/o Narayanamma and 1st
wife
of late Dodda Muniswamy,
3 to 6 all R/at
Shivashankara Block,
Hebbal Farm Post,
Hebbal, Bangalore-24
8. Munithimmamma,
Aged about 70 years,
W/o Late Narasappa,
9. Smt. Narayanamma,
Aged about 65 years,
W/o. Narasimhamurthy,
10. Smt. Gowramma,
Aged about 63 years,
W/o Late Thimmarayappa,
11. Smt. Susheela,
Aged about 40 years,
W/o Gunashekar,
Applicants are residing
at.No.141,
'A' Block, K.H. Farm Post,
Hebbal, Bangalore-560024.
4
O.S.No.5855/1992
Defendants No.1(A) & (B)
by Smt/Sri VMS Advocate
Defendants No.1(C) & (D) -
Absent
Defendants 2 & 6 - by
Smt/Sri C., Advocate
Defendants 4 & 5 by Smt/Sri
NM., Advocate.
Defendant No.7 by Smt/Sri
GM., Advocate
Defendant No.8 to 11 by
Smt/Sri M.R., Advocate
Date of Institution of the 09.09.1992
Suit
Nature of the Suit (Suit on Declaration and
Money Suit pronote, Suit
Injunction suit
for declaration and
possession, Suit for
injunction etc.)
Date of the commencement 27.03.2003
of recording of evidence
Date on which Judgment 02.01.2024
was pronounced
Duration Year/s Month/s Day/s
31 03 23
(SMT. JYOTHSNA D.,),
XVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU
JUDGMENT
Originally, this suit was filed by the plaintiffs for declaration 5 O.S.No.5855/1992 that the plaintiffs are the absolute owners in possession and enjoyment of the schedule properties and khatha and entries found in the revenue records in favour of the plaintiffs in respect of the schedule properties as having been correct and cannot be altered or changed and to grant such other reliefs.
2. The brief facts of the case are that :-
It is the case of the plaintiffs that one Sri. Munihanuma @ Muniranga was the barawardhar attached to the Village office of Hebbal and performing the duties of Thoti. Munihanuma @ Muniranga survived by his three sons Rangappa, Dodda Muniswamy and Chikka Muniswamy @ Muniswamy. The plaintiffs are the wife and children of Rangappa. Dodda Muniswamy and his wife Narayanamma have passed away. Dodda Muniswamy had a daughter who has been married and given to a far off place. The defendant No.1 is the third son of late Munihanuma. Properties bearing Sy.No.49 measuring 1 Acre 33 guntas, Sy.No.62 measuring 39 guntas and Sy.No.111 measuring 1 Acre 12 guntas are situated in Hebbal in Hebbal Village. These lands are Thoti Inam Lands. Survey No.67 measuring 3 Acres 10 guntas situated 6 O.S.No.5855/1992 at Hebbal Village is Neeraganti Inam Land. The first plaintiff, her husband Rangappa and the second and third plaintiffs and Doddamuniswamy, younger brother of the Rangappa were in possession and enjoyment of the said lands. However, Dodda Muniswamy and Chikka Muniswamy were not performing the duties of the Village Office. Chikka Miniswamy, the 1 st defendant was employed in the Central Government Services. Thus, late Rangappa was the only person performing the duties of the Village Office. The said Rangappa passed away on 14.05.1987.
It is further stated that late Rangappa and his two brothers Dodda Muniswamy and Chikka Muniswamy were re-granted lands bearing Sy.No.49 measuring 1 Acre 33 guntas, Sy.No.62 measuring 39 guntas, Sy.No.111 measuring 1 acre 12 guntas, which are Thoti Inam Lands and Sy.No.67 measuring 3 acres 10 guntas, which are neerganti lands, by exercising power under Section 5 of the then Mysore Village Offices Inam Abolition Act by the Asst.Commissioner, Bengaluru Sub Division on 06.06.1973 along with other Hakdars. Thus, as per the orders of the Asst.Commissioner dated 06.06.1973, the deceased Rangappa 7 O.S.No.5855/1992 and his two brothers along with other hakdars were re-granted various lands in Hebbal Village. Though re-grant mentioned the names of Dodda Muniswamy and Chikka Muniswamy, they were never in possession of the land and they were not cultivating the same and they were not performing duties of the village office. In fact, late Rangappa was performing the duties of the village office and was in actual possession and enjoyment of the said lands and was cultivating the same.
After re-grant of the said lands, they came to be divided amongst the deceased Rangappa and his brothers as well as other re-grantees and have sold away the entire extent of 1 acre 33 guntas in Sy.No.49 of Hebbal Village under registered sale deed in favour of M/s. United Associates and Jaybee (Private) Ltd., and the remaining land in Sy.No.62, 111 and 67 were in possession and enjoyment of late Rangappa.
As the brother of Rangappa viz., Dodda Muniswamy and Chikka Muniswamy were not willing to perform the duties of the village office and as they had received the entire sale consideration of their share and as well as the share of Rangappa 8 O.S.No.5855/1992 under the registered sale deed, the said Doddamuniswamy and Chikkamuniswamy partitioned the properties before Panchayatdars on 01.02.1975. In view of their having received the entire sale consideration from the sale of land in Sy.No.49 and in view of their not willing to perform the duties of village office and after having recognized the possession and enjoyment as well as right, title and interest of late Rangappa, they agreed to relinquish their rights in the remaining lands viz., Sy.No.62 measuring 9 guntas, Sy.No.111 measuring 13 guntas and Sy.No.67 measuring 32 ½ gunta, in all total extent of 1 acre 15 ½ guntas, all situated at Hebbal Village, Bengaluru North Taluk, which are the suit schedule properties absolutely in favour of deceased Rangappa and in pursuance thereof, on 05.02.1975, under a partition before the Panchayatdars, the schedule properties fell to the share of late Rangappa and the same was acted upon. Thus, Rangappa became the absolute owner in possession and enjoyment of the schedule properties by virtue of his being in possession and enjoyment as barawardar and performing the duties of the village office and in pursuance of his long uninterrupted continuous 9 O.S.No.5855/1992 possession and enjoyment of the property as well as under the panchayat before the panchayatdars.
After the death of Rangappa on 4.5.1987, the plaintiffs succeeded to the estate of Rangappa and they are in physical possession and enjoyment of the same as absolute owners thereof. Katha was also made out in the name of the first plaintiff by the second defendant in respect of the schedule properties and pahanies have also been made out in the name of the first plaintiff. The same substantiates the claim of the plaintiffs and the 1 st defendant or any other person, for that matter, have no right, title or interest whatsoever over the schedule properties. During November 2018, inquiries revealed the execution of the sale deed by Chikkamuniswamy, Sakamma, Muniyamma, Amaravathi, Munihanumappa and Muniyappa on 24.01.2004, during the pendency of this suit in favour of M.S.Mahadevaiah selling Sy.No.67 of Hebbal Village measuring 21 guntas and the said document was produced before this Hon'ble Court. At the instance of 1st defendant, the 2nd defendant ignoring the rights of the plaintiffs and their being in actual possession and enjoyment of 10 O.S.No.5855/1992 the schedule properties, is attempting to change the name of the 1st plaintiff and enter the name of the first defendant as owner thereof contrary to the rights of the plaintiffs in the revenue records. Hence, in so far as mutation entries to be made in the name of the 1st defendant in the revenue records, contrary to the rights of the plaintiff, the second defendant has been made as party in the above proceedings. The second defendant has no right to change or effect mutation entries and transfer the same to the name of the first defendant. Hence, the plaintiffs have approached this Court.
3. The 1st defendant filed his written statement, wherein he admitted that his father Munihanuma was the village barawardar attached to the village office of Hebbal was performing the duties as thoti. He has also accepted the genealogy as narrated by the plaintiffs. The fact of re-grant of the land in favour of all the brothers is also admitted, but the defendant No.1 has disputed the factum of schedule properties having been given to the exclusive share of Rangappa as contended by the plaintiffs. There was no division as contended. He has got equal interest over the suit 11 O.S.No.5855/1992 schedule properties. It is in the joint possession. There was no disruption of joint-possession. When defendant No.1 is another coparcener, cannot be restrained by way of injunction nor that the plaintiffs are entitled to have the declaration of title as sought for. As Rangappa was the eldest son and kartha of the family, entries have been effected in the revenue records that automatically does not mean that the schedule properties were given to his share. Defendant No.1 has got equal right, title or interest over the schedule properties. The claim of the plaintiffs is baseless and false. They are not entitled to have the change in katha as claimed otherwise the defendant No.1 will be put to great hardship and prejudice. Amongst these grounds, the defendant No.1 has prayed for the dismissal of the suit.
4. In their written statement, the defendants No.4 and 5 have contended that the suit is not maintainable either in law or on facts and hence, the same is liable to be dismissed in limine.
The plaintiffs have filed the suit by suppressing the material facts and figures.
Averments in paras 2 to 4 of the plaint are admitted by these 12 O.S.No.5855/1992 defendants.
Averments in paragraph 5 of the plaint with regard to division among the deceased Rangappa and his brothers as well as other grantees and selling away the entire extent of 1 acre 33 guntas of land in Survey No.49 of Hebbala Village under the registered sale deed dated 27.08.1973 in favour of M/s. United Associates and Jaybee Space (Pvt.,) Ltd., and also remaining lands in survey No.62, 111 and 67 were in possession and enjoyment of late Rangappa are contended to be false and fictitious. These defendants have no knowledge with regard to the sale deed dated 27.08.1973. The averment that all the members of the family are in joint possession and enjoyment of survey Nos.62, 67 and 111 and that Rangappa alone was in possession of the same are contended to be false.
Averments in Para 6 to the effect that brothers of Rangappa were not willing to perform the duties of village office and as they had received the entire sale consideration of their share as well as the share of Rangappa under the registered sale deed, Doddamuniswamy and Chikkamuniwamy partitioned the 13 O.S.No.5855/1992 properties before the panchayatdars on 01.02.1975 are not with in the knowledge of these defendants. The plaintiffs have created these documents to knock of the ancestral properties of these defendants and further averment that on 5.2.1975, under partition before panchayatdars, the schedule properties fell to the share of late Rangappa is also created and concocted for the purpose of this suit.
Averments in paragraph 7 of the plaint with regard to change of katha, it is contended that the plaintiffs has got effected the same behind the back of these defendants and informed that they are the son of elder brother and hence the katha has to be restored in their names. It is contended that some pahanies are made out in the name of the 1 st plaintiff, it does not mean that the first plaintiff or any other plaintiffs have become the absolute owner as the same is not supported by any inquiry or hearing and the same does not bind the defendants and their share in the properties.
Suit schedule properties and other properties are all the joint family properties held and possessed jointly by the plaintiffs and 14 O.S.No.5855/1992 these defendants. No partition or division took place in between the parties to the suit. Therefore, the plaintiffs cannot seek the declaratory relief as if they are the absolute owners and are not entitled for the other declaratory relief that the katha and entries found in the revenue records as correct. This Hon'ble Court cannot grant the reliefs prayed in the plaint as the plaintiffs are only the joint owners. There cannot be injunction against other co- owners.
The plaintiffs have not approached this Court with clean hands and the suit is speculative and vexatious. There is no cause of action for the suit since Rangappa died during May 1987 and the suit is brought by the plaintiffs in 1992 by suppressing all material facts and the cause of action shown in the suit is imaginary. The sole intention of the plaintiffs is to knock off the property from the defendants.
The suit schedule properties are joint family properties of Doddamuniswamy, Chikkamuniswamy and Rangappa. The land was granted jointly to all by the Government. During the life time or even after the death of above three persons, there was no 15 O.S.No.5855/1992 partition and the schedule properties are not divided by metes and bounds. All the family members were enjoying the schedule lands jointly as joint owners. These defendants being legal heirs of late Doddamuniswamy are entitled to share in the schedule properties.
All other allegations contrary to the above, are denied as false and prayed to dismiss the suit.
5. The 7th defendant has filed his written statement in the form of counter claim and additional written statement, contending that the suit is not maintainable either in law or on facts and deserves to be dismissed in limine. 7 Th defendant prayed the Court to treat the Counter claim filed by him as part and parcel of this written statement.
It is contended that one Munihanuma was the grandfather of 7th defendant. He died intestate leaving behind him Doddamuniswamy, Chikkamuniswamy and Rangappa. The plaintiffs are representing Rangappa, while the defendant No.1(a) to (d) are representing Chikkamuniswamy. There is no claim against the 2nd defendant. The defendant No.3 is the second wife of Doddamuniswamy. The defendant No.4 and 5 are the children 16 O.S.No.5855/1992 of Smt.Sakamma (second wife of Doddamuniswamy). Doddamuniswamy married one Smt.Narayanamma and out of their wedlock, the defendant No.6 and defendant No.7 were born. The suit schedule properties are the ancestral properties. One Munihanuma was the barawardar attached to the Village Office of Hebbal and performing the duties of thoti.
The averments in paragraph 3 of the plaint to the effect that lands bearing Sy.No.49 measuring 1 Acre 33 guntas, Sy.No.62 measuring 39 guntas, Sy.No.111 measuring 1 acre 12 guntas are Thoti Inam Lands and Sy.No.67 measuring 3 acres 10 guntas are neerganti lands, are admitted. However, other averments of the said paragraph are denied as false.
The averments in paragraph 4 of the plaint that late Rangappa and his two brothers Dodda Muniswamy and Chikka Muniswamy were re-granted lands bearing Sy.No.49 measuring 1 Acre 33 guntas, Sy.No.62 measuring 39 guntas, Sy.No.111 measuring 1 acre 12 guntas are Thoti Inam Lands and Sy.No.67 measuring 3 acres 10 guntas are neerganti lands by exercising power under Section 4 of Mysore Village Officers Inam Abolition Act by the 17 O.S.No.5855/1992 Asst.Commissioner along with other Hakdars, is admitted. Vide order of the Asst.Commissioner dated 06.06.1973, the deceased Rangappa and his two brothers along with other Hakkudars were re-granted. All the schedule properties were re-granted in the names of Doddamuniswamy and Chikkamuniswamy. The further averments in the said paragraph that they were never in possession of the land and they were not cultivating the same and they were performing the duties of the village office and late Rangappa who was performing the duties of the village office and was in actual possession and enjoyment of the said lands and was cultivating the same, are all denied as false. In fact, all the three brothers of late Munihanuma i.e., Rangappa, Doddamuniswamy and Chikkamuniswamy were all in joint possession and enjoyment of all the properties. Since there is no partition took place in the joint family, this defendant is in joint and constructive possession of all the suit schedule properties. It is denied that Rangappa was only performing the duties of village office and was in actual possession and enjoyment of suit schedule properties.
The averments in paragraph 5 of the plaint that after the 18 O.S.No.5855/1992 grant of said lands, they came to be divided amongst the deceased Rangappa and his brothers as well as other regrantees and have sold away the entire extent of 1 acre 33 guntas in Sy.No.49 of Hebbal Village is not within the knowledge of this defendant. The further averments that remaining lands in Sy.No.62 and 67 were in possession and enjoyment of late Rangappa is denied.
The further averment that brothers of Rangappa were not willing to perform the duties of village office and as they had received the entire sale consideration of their share as well as the share of Rangappa are denied as false. In fact, all the family members have received the sale consideration amount. The allegation that only Doddamuniswamy and Chikkamuniwamy have received the sale consideration is denied. In view of their having received the entire sale consideration from the sale of property in Sy.No.49 and in view of they not willing to perform the duties of village office and after having recognized the possession and enjoyment as well as right, title and interest of late Rangappa, they agreed to relinquish their rights in the remaining lands in all to an 19 O.S.No.5855/1992 extent of 1 acre 15 ½ guntas situated at Hebbal Village, Bengaluru North Taluk which are described in the schedule to the written statement, absolutely in favour of Rangappa and in pursuance thereof, on 5.2.1975, under a partition before the panchayatdars, the schedule property was allotted to the share of Rangappa and the same was acted upon and thus, Rangappa became the absolute owner in possession and enjoyment of the suit schedule properties, are all denied as false. Doddamuniswamy and Chikkamuniswamy have not relinquished their rights in favour of Rangappa during their life time. The allegation that the partition have been placed before the Panchayatdars are all false. No partition took place among the Hindu joint family in respect of all the suit schedule properties. Ex.P.1 and P.2 relied on by the plaintiffs are concocted documents. The further allegation that Rangappa was in uninterrupted possession and enjoyment is denied. Averments in paragraph No.7 and 8 of the plaint are denied. Cause of action for filing the suit as narrated in paragraph 9 of the plaint is invented and there is no cause of action for the suit. The plaintiffs have not paid proper court fee on 20 O.S.No.5855/1992 the plaint. The plaint schedule properties are joint in nature, all the suit schedule properties are in joint possession and enjoyment of all the three branches of late Munihanuma, who is his grandfather. Since no partition tookplace between the joint families in respect of the suit schedule properties, the suit filed by the plaintiffs is not maintainable.
It is contended that defendant No.7 and defendant Nos.3 to 6 on several occasions demanded for partition and separate possession of their 1/3rd legitimate share, right in respect of the suit schedule properties. The plaintiffs and the 1 st defendant Chikkamuniswamy postponed the same for one or the other reason. He has paid proper court fee on the counter claim as per the annexed valuation slip. Cause of action arose to him to file counter claim when he received suit summons on 28.8.2013 and on 9.9.1992 when the suit was filed and also when she demanded for partition and separate possession of her share in the suit schedule properties and has prayed the Court to effect partition and separate possession of the suit schedule properties by metes and bounds and for mesne profits.
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O.S.No.5855/1992 Defendant No.7 has also filed additional written statement contending that the plaintiffs amended the plaint by incorporating paragraph No.7 belatedly. The plaintiffs are colluding with one M.S.Mahadevaiah, who is the alleged purchaser under the sale deed dated 24.1.2004 said to have been executed by Chikkamuniswamy, Sakkamma, Muniyamma, Amaravathi, Munihanumappa and Muniyappa represented by their GPA Holder by one R.Venkatesh. The said sale deed is not binding on the legitimate right of the defendant No.7. Though the plaintiffs having knowledge about the alleged sale deed, they have not come forward for cancellation of the said sale deed. Plaintiffs in collusion with the said Mahadevaiah, have intentionally suppressed the said fact till the completion of trial. The said amendment is carried out only after PW1 was completely cross- examined by the 7th defendant. Plaintiffs have also suppressed whether they have filed a separate suit for cancellation of the alleged sale deed or not. The said fact is not brought to the notice of this Court. Pleadings carried out in the amendment instead of the suitable prayer. The plaintiffs ought to have sought prayer 22 O.S.No.5855/1992 against the said purchaser M.S.Mahadevaiah and also sought for cancellation of the alleged sale deed. The defendant No.7 is not a party to the said sale deed and hence, it is not binding on him. The said sale deed is concocted, created and it is a sham document and the same is not enforceable in law. Moreover, the said sale deed is hit by KOVA Act 2003. The alleged executants have no right to execute the sale deed in favour of the said M.S.Mahadevaiah, who is an unauthorised holder as defined under Section 5 and 7 of the KOVA Act, 2003. Hence, prayed to dismiss the suit with costs.
The plaintiff have filed their Rejoinder to the Counter Claim of defendant No.7, interalia, contending that one Sri Munihanuma @ Muniranga was the barawardhar attached to the Village office of Hebbal and performing the duties of Thoti. Munihanuma @ Muniranga survived by his three sons Rangappa, Dodda Muniswamy and Chikka Muniswamy @ Muniswamy. The plaintiffs are the wife and children of Rangappa. Dodda Muniswamy and his wife Narayanamma have passed away. Dodda Muniswamy had a daughter who has been married and given to a far off place. The 23 O.S.No.5855/1992 defendant No.1 is the third son of late Munihanuma. Properties bearing Sy.No.49 measuring 1 Acre 33 guntas, Sy.No.62 measuring 39 guntas and Sy.No.111 measuring 1 Acre 12 guntas are situated in Hebbal in Hebbal Village. These lands are Thoti Inam Lands. Survey No.67 measuring 3 Acres 10 guntas situated at Hebbal Village is Neeraganti Inam Land. The first plaintiff, her husband Rangappa and the second and third plaintiffs and Doddamuniswamy, younger brother of the Rangappa were in possession and enjoyment of the said lands. However, Dodda Muniswamy and Chikka Muniswamy were not performing the duties of the Village Office. Chikka Miniswamy, the 1 st defendant was employed in the Central Government Services. Thus, late Rangappa was the only person performing the duties of the Village Office. The said Rangappa passed away on 14.05.1987 at Hebbal Village, leaving behind the plaintiffs as the sole surviving heirs.
Late Rangappa and his two brothers Dodda Muniswamy and Chikka Muniswamy were re-granted lands bearing Sy.No.49 measuring 1 Acre 33 guntas, Sy.No.62 measuring 39 guntas, Sy.No.111 measuring 1 acre 12 guntas, which are Thoti Inam 24 O.S.No.5855/1992 Lands and Sy.No.67 measuring 3 acres 10 guntas, which are neerganti lands, by exercising power under Section 5 of the then Mysore Village Offices Inam Abolition Act by the Asst.Commissioner, Bengaluru Sub Division on 06.06.1973 along with other Hakdars. Thus, as per the orders of the Asst.Commissioner dated 06.06.1973, the deceased Rangappa and his two brothers along with other hakdars were re-granted the following lands at Hebbal Village:-
1. An extent of 39 guntas in Sy. No.49
2. An extent of 13 guntas in Sy. No.111
3. An extent of 9 guntas in Sy. No.62
4. An extent of 32 ½ guntas in Sy. No.67.
Though re-grant mentioned the names of Dodda Muniswamy and Chikka Muniswamy, they were never in possession of the land and they were not cultivating the same and they were not performing duties of the village office. In fact, late Rangappa was performing the duties of the village office and was in actual possession and enjoyment of the said lands and was cultivating the same.
It is further contended that after re-grant of the said lands, 25 O.S.No.5855/1992 they came to be divided amongst the deceased Rangappa and his brothers as well as other re-grantees and have sold away the entire extent of 1 acre 33 guntas in Sy.No.49 of Hebbal Village under registered sale deed in favour of M/s. United Associates and Jaybee (Private) Ltd., and the remaining land in Sy.No.62, 111 and 67 were in possession and enjoyment of late Rangappa.
As the brother of Rangappa viz., Dodda Muniswamy and Chikka Muniswamy were not willing to perform the duties of the village office and as they had received the entire sale consideration of their share and as well as the share of Rangappa under the registered sale deed, the said Doddamuniswamy and Chikkamuniswamy partitioned the properties before Panchayatdars on 01.02.1975. In view of they having received the entire sale consideration from the sale of land in Sy.No.49 and in view of they not willing to perform the duties of village office and after having recognized the possession and enjoyment as well as right, title and interest of late Rangappa, they agreed to relinquish their rights in the remaining lands viz., Sy.No.62 measuring 9 guntas, Sy.No.111 measuring 13 guntas and Sy.No.67 measuring 26 O.S.No.5855/1992 32 ½ gunta, in all total extent of 1 acre 15 ½ guntas, all situated at Hebbal Village, Bengaluru North Taluk, which are the suit schedule properties absolutely in favour of deceased Rangappa and in pursuance thereof, on 05.02.1975, under a partition before the Panchayatdars, the schedule properties fell to the share of late Rangappa and the same was acted upon. Thus, Rangappa became the absolute owner in possession and enjoyment of the schedule properties by virtue of his being in possession and enjoyment as barawardar and performing the duties of the village office and in pursuance of his long uninterrupted continuous possession and enjoyment of the property as well as under the panchayat before the panchayatdars. Chikkamuniswamy was also residing in Bangalore and was doing business. After the death of Chikkamuniswamy, the 1 st defendant Smt.Muniyamma has been drawing pension and her pension is distributed through State of Bank of India. Therefore, there was no joint family as such and it was late Rangappa by virtue of Muchalike Patra and subsequent Panchayati Parikhat was the absolute owner of the schedule properties. In view of the above contentions, it was late 27 O.S.No.5855/1992 Rangapa who was the owner and there was no joint family within the meaning of Hindu Succession Act. The contentions raised in the Counter Claim seeking partition is neither maintainable in law nor on facts. Hence the allegations made in the Counter Claim are all denied as false.
The defendants No.1(b)(i), 1(b)(ii) and 1(b)(iii) have filed their Additional Written Statement, contending that the suit of the plaintiffs is not maintainable either in law or on facts and is liable to be dismissed in limine. These defendants prayed the Court to treat the written statement filed by them on 27.03.1993 as part and parcel of this additional written statement. These defendants being the legal heirs of first defendant have equal right over the suit schedule properties along with plaintiffs and other defendants. Allegations made in para 7 in respect of the Sale Deed dated 24.01.2004 is not binding on them. The defendants were not party to the alleged Sale Deed said to have obtained by the M.S.Mahadevaiah by Chikkamuniswamy, Sakamma, Muniyamma, Amaravathi, Munihanumappa and Muniyappa represented by their GPA holder R.Venkatesh and it will not bind on the legitimate rights 28 O.S.No.5855/1992 of these defendants, as the same is concocted and a sham document and the same is not enforceable in the eye of law and the alleged executents have no right to execute the alleged sale deed in favour of the said M.S. Mahadevaiah and hence, the said M.S. Mahadevaiah has no right to claim any right under the alleged sale deed against these defendants.
The suit schedule properties are joint family properties and all family members are entitled to equal partition in respect of the suit schedule properties. Further, suit in O.S.No.7145/2011, a suit for partition, is pending before the City Civil and Sessions Judge (CCH 6) in respect of the very same properties. Hence, these defendants pray the Court to dismiss the suit with exemplary costs.
6. Based on the above pleadings, the following issues and additional issues came to be framed:
1) Whether the plaintiffs prove the re-grant order dated 6.6.73 in favour of deceased Rangappa and his two brothers?
2) Whether the plaintiffs prove that the 29 O.S.No.5855/1992 right was relinquished in favour of deceased Rangappa on 5.2.75 under a partition as pleaded in paragraph 6 of the suit properties?
3) Whether the plaintiffs prove that Rangappa became the absolute owner of the suit properties?
4) Whether the plaintiffs prove that they have become the absolute owners after the death of Rangappa?
5) Whether plaintiffs prove that they have been in absolute lawful possession of the suit properties?
6) Whether the plaintiffs prove interference?
7) Whether the first defendant proves that the suit schedule properties are the joint family properties held and possessed by the plaintiffs and defendants?
8) To what relief and decree the parties are entitled for?
ADDITIONAL ISSUE:
Addl. Issue No.8: Whether LRs of defendant No.1(b) (i), (ii), (iii) prove that the sale deed dated 24.01.2004 is not 30 O.S.No.5855/1992 binding on them?
7. Heard both sides and perused the materials on record.
8. In the evidence, the plaintiff No 2 entered into witness box as PW1 on behalf of himself and his brother that is plaintiff No 2 and Ex.P 1 to 19, Ex.P 18(a) and 19(a) got marked. One Ramya the Special Power of Attorney Holder of 7 th defendant examined as DW1 on behalf of 7th defendant and Ex.D1 to Ex.D 22 are got marked. Next to her Smt Pushpavathi the defendant No 1(b) (i) examined herself as DW2 on behalf of herself and her children Defendant No 1(b) (iii) and 1(b)(iii) and Ex.D 24 to Ex.D 35 got marked. Ex.D 23 marked through confrontation in cross examination of PW 1.
9. This court answers above issues as under;
Issue No 1 : In the Affirmative;
Issue No 2 : In the Negative;
Issue No 3 : In the Negative;
Issue No 4 : In the Negative;
Issue No 5 : In the Negative;
Issue No 6 : In the Negative;
Issue No 7 : In the Negative;
31
O.S.No.5855/1992 Addl. Issue No 8 : In the Negative;
Issue No 8 : As per final order;
For the following;
REASONS
10. Issue Nos. 1 to 6:- These 6 issues are interconnected to each other, therefore to avoid repeated discussion on same facts and circumstances, they are taken up together for discussion here under.
11. Admittedly, this suit is filed against the defendants for declaration that the plaintiffs are the absolute owners in possession and enjoyment of the schedule properties and for further declaration that the khatha and entries found in the revenue records in favour of the plaintiffs in respect of the schedule properties as having been correct and cannot be altered or changed and for an order of permanent injunction as consequential relief and for other reliefs as deemed fit.
12. Earlier, on 05-09-2003, this suit was decreed ex-parte, but the same was set aside as per order in Misc No 248/04 and the suit was restored to file and defendant Nos. 1(a) to(d) are 32 O.S.No.5855/1992 provided with opportunity to put up their defence. Eventually, on the demise of defendant No.1(b), his legal representatives ie., defendant Nos.1(b) (i) to (iii) came on record.
13. The relationship among the parties to this suit is undisputed one. As per plaint averments, there are three kavalu in the family of Late Sri Munihanuma @ Muniranga who was the pripositus of the family and his wife Muniyamma is also died. That three sons were Rangappa, Doddamuniswamy and Chikkamuniswamy. Originally at the time of filing of this suit, it was filed by the plaintiffs who are the wife of Late Rangappa as plaintiff No 1 and Sri Muniranga and Sri Krishnamurthy who are the 2 children of Late Rangappa against Sri Chikka Muniswamy @ Muniswamy as defendant No.1 and The Tahasildar as defendant No 2. Later other defendants are impleaded. Chikkathayamma, who is plaintiff No.1 died during the pendency of proceedings. Out of said 5 children, Muniranga and Krishnamurthy are plaintiff Nos. 2 and 3 and remaining children are defendant Nos. 10 and 11, who were later impleaded. Doddamuniswamy and his wife Narayanamma demised prior to filing of this suit as stated in 33 O.S.No.5855/1992 paragraph 2 of the plaint. The plaintiffs stated in the plaint that Dodda Muniswamy had a daughter who has been married and given to a far off place, but they had not made her as party to the suit. But later wife of Late Doddamuniswamy Smt Sakamma and his daughter Muniyamma and Amaravathi are impleaded as defendant Nos.3 to 5 as the said Sakamma is 2 nd wife of Late Dodda Muniswamy. Next to that, the defendant Nos.6 and 7 namely Muniyamma and Smt Akkayyamma were impleaded as defendants as they are the daughters of Late Dodda Muniswamy through his 1st wife Narayanamma. That means this Late Dodda Muniswamy has two wives which is not stated in the plaint. Moreover the remaining children of Late Rangappa are impleaded as defendant Nos.10 and 11. The defendant No.1 is the 3 rd son of Late Munihanuma and younger brother of Late Rangappa. Surprising point of this case is that this suit is filed for declaration of the ownership, possession and enjoyment of plaintiffs over the suit schedule property on the basis of Ex.P 1 and Ex.P 2. Ex.P 1 and Ex.P 2 are alleged to be executed by Doddamuniswamy and Chikkamuniswamy in favour of Late Rangappa. But at the time of 34 O.S.No.5855/1992 filing of this suit, the plaintiffs had made only Chikkamuniswamy as party to the suit and they had not made legal representatives of Doddamuniswamy as the parties. Moreover, they did not made other children of Late Rangappa as parties though they all are the residents of Hebbal as given in the address in the cause title of the plaint which shows the suppression of material facts by the plaintiffs. In page No.10 of his cross examination, PW1 admitted that he knew that his uncle Dodda Muniswamy has two daughters namely Muniyamma and Amaravathi through Sakamma and he has not produced family genealogical tree.
14. For better understanding of the above narrated case, this Court extracted the gist of the plaintiffs' case as follows; Originally Sri Munihanuma @ Muniranga was the original Barawardar and his three children were his surviving Hakdars and 1 acre 33 guntas in Sy.No 49, 0-39 guntas in Sy.No 62 and 1 acre 12 guntas in Sy.No 111 were Neeraganti Inam Lands situated at Hebbala Village was granted to original Barawardar and only Rangappa was in the possession and enjoyment of the same as he was only the person performing the duties of the village office and the 35 O.S.No.5855/1992 Doddamuniswamy was not the resident of said village Hebbal and Chikkamuniswamy was employed in the central Government services. Though these lands were re-granted under Section 5 of then Mysore Village Offices Inams Abolition Act in the name of above three brothers who were the survivors of Munihanuma @ Muniranga, but Late Rangappa was only in possession and enjoyment of said properties as he was only performing village duties. After the said re-grant, the above said lands were divided between three children of said Munihanuma @ Muniranga and entire extent of 1 acre 33 guntas in Sy.No 49 was sold by them to M/s. United Associates and Jaybee Space Pvt.Ltd. and remaining lands were in possession and enjoyment of Rangappa which are mentioned in plaint schedule. According to the plaintiff, Doddmuniswamy and Chikkamuniswamy had received the sale consideration of their shares and partitioned the properties before panchayathdars on 01-02-1975. After obtaining the entire sale consideration, said Doddamuniswamy and Chikkamuniswamy agreed to relinquish their rights in respect of plaint schedule properties in favour of Rangappa on 05-02-1975. After the said 36 O.S.No.5855/1992 relinquishment, said Rangappa who is the husband of 1 st plaintiff became the absolute owner in possession and enjoyment of plaint schedule properties. After the death of said Rangappa on 14-05-1987, the khatha of the said properties transferred in the name of 1st plaintiff but suppressing the facts, the 1st defendant tried to change the khatha to his name from the 1 st plaintiff's name and succeeded in doing the same. The cause of action considered by the plaintiff is that on 10-08-1992 when the 2 nd defendant issued notice to 1st plaintiff at the instance of 2 nd defendant and in the result, filed this suit for declaration as mentioned supra.
15. Defendant Nos.4 and 5 together and defendant No.7 separately filed written statement and additional written statement with counter claim with similar contention as narrated supra and prayed for dismissal of the suit claim and prayed for partition of suit schedule properties by metes and bounds, contending that the suit schedule properties are joint in nature and all the properties are in joint possession and enjoyment of all the three branches of Late Munihanuma @ Muniranga.
16. The defendant No.1 filed his written statement and after 37 O.S.No.5855/1992 his death, his legal representatives ie., defendant No 1 (A) to (D) came on record and subsequently, on the death of defendant No.1(B), his legal representatives ie., defendant No.1(B) (i) to (iii) came on record and filed their additional written statement. In the written statement of 1st defendant, mainly contended that the plaint schedule property is joint family property as the three brothers being the beneficiaries of re-grant orders, certain re-grant lands were sold-out and all the three brothers got shared the sale proceeds which show that all the sons of Munihanuma were joint beneficiaries under re-grant order and even after re-grant, all three enjoyed the lands and submitted that the said Rangappa was kartha of the family as eldest son of deceased Munihanuma and mere entry of the name of the 1st plaintiff does not make them as absolute owners and further in the additional written statement of defendant Nos.1(B)(i) to (iii), it is contended about the sale deed dated 21-04-2004 obtained by M. S. Mahadevaiah by Chikkamuniswamy, Sakamma, Muniyamma, Amaravathi, Munihanumappa and Muniyappa represented by their GPA holder R. Venkatesh, not binding on them but they have not prayed for 38 O.S.No.5855/1992 partition, but submitted that there is a suit for partition over the suit schedule property in OS No 7145/2011 pending before CCH-6. But here one point to be noted is that this suit is filed in the year 1992 and the above referred partition suit is filed in the year 2011.
17. Here in this case, from the version of plaintiff, this is a suit for declaration as explained above and in this regard issue Nos.1 to 6 are framed. After filing of written statement and counter- claims, it has taken colour of partition suit and on the basis of the same, Issue No.7 was framed and though defendant Nos.1(B)(i) to
(iii) has not prayed for partition in this suit, but on the basis of their additional written statement. additional issue No 8 is framed.
18. To prove the case of the plaintiffs, the 2 nd plaintiff entered into witness box as PW1 and filed sworn affidavit in chief and further affidavit under which the plaint averments are reiterated. To substantiate their case they have produced certain documents which were marked as Exs.P 1 to Ex.P 19 and Exs.P. 18(a) and 19(a). This PW1 has been cross examined by the learned counsels for defendant No 7, defendant No 3, defendant No 4 and 5 and defendant No 1(B) (i) to (iii) separately. On the 39 O.S.No.5855/1992 other hand, to disprove the case of the plaintiff, the Special Power of Attorney of 7th defendant ie., her grand daughter Ramya entered into witness box as DW1 and filed her sworn affidavit in lieu of examination in chief under which she has reiterated the contention of the written statement of defendant No 7 and produced certain documents which are marked as Exs.D1 to Ex.D 22. The defendant No.1(B)(i) entered into witness box as DW2 and filed sworn affidavit in chief as DW2 on behalf of herself and defendant Nos.1(B)(ii) and (iii) in which the contents of written statement of defendant No.1 and their additional written statement are reiterated. They have produced Exs.D 24 to 35. Ex.D.23 is marked through confrontation to PW 1 in her cross examination by the learned counsel for defendant Nos.1(B)(i) to (iii).
19. Ex.P 1 is the "Muchchalike Pathra" dated 1-2-1975 in which the brothers of Late Rangappa namely Dodda Muniswamy and Chikka Muniswamy relinquished their right over the suit schedule properties after obtaining money from the sale of property in Sy.No 49 and specifically mentioned as " ರೀ ಗ್ರಾಂಟ್ ಜಮಿಾನಿನ ಒಟ್ಟು ವಿಸ್ತೀರ್ಣದ ¼ ಬಾಗವನ್ನು ಮೂರು ಜನರ ಪಾಲು ಮೇಲ್ಕಂಡ ಸರ್ವೆ 40 O.S.No.5855/1992 ನಂಬರುಗಳ ಪೈಕಿ 49 ನೇ ನಂಬರು 1 ಎಕರೆ 33 ಗುಂಟೆ ಜಮಿಾನನ್ನು ಎಲ್ಲಾ ರೀಗ್ರಾಂಟ್ ಬಾಗಸ್ತರು ಹಾಗೂ ನಾವುಗಳು ಸೇರಿ ಬೇರೆಯವರಿಗೆ ಮಾರಾಟ ಮಾಡಿ ಅದರಿಂದ ಬಂದ ಪೂರಾ ಮೊಬಲಗಿನಲ್ಲಿ ¼ ಬಾಗದ ನಮ್ಮ ಮೂರು ಜನರ ಹಣವನ್ನು ಎರಡನೇ ದೊಡ್ಡ ಮುನಿಸ್ವಾಮಿ ಮೂರನೇ ಚಿಕ್ಕ ಮುನಿಸ್ವಾಮಿಯಾದ ನಾವಿಬ್ಬ ರೇ ಪೂರ್ತ ಮೊಬಲಗನ್ನು ಪಡೆದುಕೊಂಡಿರುತ್ತೇವೆ. ಸದರಿ ಜಮಿಾನಿನ ಕ್ರಯದ ಹಣ ಅಥವಾ ಫಲವನ್ನು ನಮ್ಮ ಹಿರಿಯ ಅಣ್ಣ ನಾದ ಪಿ.ಸಿ.ರಂಗಪ್ಪ ಆದ ನಿಮಗೆ ಕೊಟ್ಟಿರುವುದಿಲ್ಲ . ಆದುದರಿಂದ ಮೇಲ್ಕಂಡ ಗ್ರಾಮದ ಉಳಿಕೆ ಸರ್ವೆ 62 ನೇ ನಂಬರಿನಲ್ಲಿ 9 ಗುಂಟೆ ಜಮಿಾನು ಸರ್ವೆ 111 ನೇ ನಂಬರಿನಲ್ಲಿ 13 ಗುಂಟೆ ಜಮಿಾನು ಮತ್ತು ಸರ್ವೆ 67 ನೇ ನಂಬರಿನಲ್ಲಿರುವ 32 ½ ಗುಂಟೆ ಜಮಿಾನುಗಳನ್ನು ನಮ್ಮ ಗಳ ಖಾಸಃ ಅಣ್ಣ ನವರಾದ ಮೇಲ್ಕಂಡ ಪಿ.ಸಿ.ರಂಗಪ್ಪ ಆದ ನಿಮಗೆ ನಿಮ್ಮ ಬಾಗಕ್ಕೆಂದು ಬಿಟ್ಟು ಕೊಟಿರುತ್ತೇವೆ. ಹಾಗೂ ಈ ಮುಚ್ಚ ಳಿಕೆ ಪತ್ರ ಬರೆಸಿದ ಒಂದು ವಾರದೊಳಗೆ ಪಂಚಾಯತ್ ವಿಭಾಗ ಪತ್ರವನ್ನು ಸಹ ಬರೆಸಿಕೊಡುತ್ತೇವೆ. ಎಂಬುದಾಗಿ ನಮ್ಮ ಖುದ್ದು ಮನೋರಾಜಿಯಿಂದಲೂ ಆತ್ಮ ಸಂತೋಷದಿಂದಲೂ ಒಪ್ಪಿ ಬರೆಸಿಕೊಟ್ಟ ಮುಚ್ಚ ಳಿಕೆಪತ್ರ." Ex.P 2 is the Partition Deed which is styled as Panchayat Palupatti dated 5-2-1975. Both the documents are original documents, but there was an objection raised by the 7th defendant about this document to consider it for evidence and the order of this Court dated 08-07-2017 was challenged by the plaintiffs in WP No 51255/2017, which was allowed by Hon'ble High Court of 41 O.S.No.5855/1992 Karnataka and quashed the said order and directed to decide it as part of its final adjudication as to whether Ex.Ps.1 and 2 are mere records of past transactions and even if they are not, whether these documents must be looked into for collateral purposes. During the pendency of the suit, the plaintiffs have paid duty and penalty on these documents on 18-08-2017 and impounded.
20. Learned counsel for defendant Nos.1(B) (i) to (iii) argued that these documents are created documents and signature put as Muniswamy are not the signatures of Chikkamunswamy and it is created one and highlighted the cross examination of PW1 in this regard in which, it is said by him that the signature put by same pen and it is put by his son. But in support of the case, the plaintiffs have produced the certified copy of two sale deeds dated 27-06-1973 executed by sons of Late Munihanuma that are Rangappa, Doddamuniswamy and Chikkamuniswamy along with other allottees in favour of M/s United Associates in respect of property in Sy.No 49 which is undisputed one which is marked as Exs.P.18 and Ex.P 19 and its typed copy in Kannada language are marked as Exs.P.18(a) and 19(a). But these certified copies 42 O.S.No.5855/1992 do not contain the signature of Chikkamuniswamy as they are in the form of handwriting. But in these documents, it is stated that Doddamuniswamy put his LTM and Chikkamuniswamy put his signature. But this document was executed prior to execution of Ex.P 1 and Ex.P 2. In these documents, particularly it is mentioned as the said property sold for the purpose of improving their family conditions for family benefit and for maintenance and education of their minor children. That means at the time of execution of said sale deeds admittedly that property was joint family property.
21. Earlier, in this suit, there was judgment pronounced on 5-3-2003 before restoration of this suit. At that time, there was no evidence from defendants' side. Only the plaint version was in picture before the Court. But after restoration, another version of the suit from the side of the defendants revealed by their oral and documentary evidence and the cross examination of PW 1 started on 01-09-2015 only after restoration of the suit. About the question of validity of Exs.P.1 and Ex.P.2, in page 11 of his cross examination PW1 said that, "ನನ್ನ ಚಿಕ್ಕ ಪ್ಪ ಚಿಕ್ಕ ಮುನಿಸ್ವಾ ಮಿಯವರು ಸಹಿ ಮಾಡುತ್ತಿದ್ದ ರು. ದೊಡ್ಡ ಮುನಿಸ್ವಾಮಿಯವರು ಹೆಬ್ಬೆಟ್ಟು ಹಾಕುತ್ತಿದ್ದ ರು. 43
O.S.No.5855/1992 ದೊಡ್ಡ ಮುನಿಸ್ವಾಮಿಯವರು ಕೂಡಾ ಸಹಿ ಮಾಡುತ್ತಿದ್ದ ರು ಎನ್ನು ವುದು ನಿಜವಲ್ಲ . ನಿ.ಪಿ.1 ರಲ್ಲಿರುವ ಹೆಬ್ಬೆಟ್ಟ ನ್ನು ಗುರುತಿಸಿದವರು ಅದರ ಪಕ್ಕ ಸಹಿ ಮಾಡಿರುವುದಿಲ್ಲ . ನಿ.ಪಿ.1 ನನಗೆ ಈ ದಾವಾ ಹಾಕಿದ ನಂತರ ನನ್ನ ಮನೆಯಲ್ಲಿ ಸಿಕ್ಕಿ ತು. ಆ ದಾಖಲೆ ಯಾವ ವರ್ಷ ನನಗೆ ಸಿಕ್ಕಿ ತು ಎಂದು ನನಗೆ ಹೇಳಲಾಗುವುದಿಲ್ಲ . ನಿ.ಪಿ.1 ರ ಸಾಕ್ಷಿದಾರರು ನಮ್ಮ ಊರಿನವರು. ನನಗೆ ಆ ಸಾಕ್ಷಿದಾರರ ಪರಿಚಯವಿಲ್ಲ . ಆ ಸಾಕ್ಷಿದಾರರನ್ನು ಈವರೆಗೆ ಈ ದಾವೆಯಲ್ಲಿ ವಿಚಾರಣೆ ಮಾಡಿಲ್ಲ . ನಿ.ಪಿ.1 ನಮ್ಮ ಮನೆಯಲ್ಲಿ ನನ್ನ ತಂದೆಯ ಪೆಟ್ಟಿಗೆಯಲ್ಲಿ ಇತ್ತು . ನಿ.ಪಿ.1 ನ್ನು ಈ ದಾವಾಗೋಸ್ಕ ರ ನಾನು ಸೃಷ್ಟಿಮಾಡಿರುತ್ತೇನೆ ಎನ್ನು ವುದು ನಿಜವಲ್ಲ . ನಿ.ಪಿ.1 ಕ್ಕೆ ನನ್ನ ತಂದೆಯ ಇನ್ನೊಬ್ಬ ಮಗ ಮತ್ತು ನಮ್ಮ ಚಿಕ್ಕ ಪ್ಪಂದಿರ ಮಕ್ಕ ಳನ್ನು ಸೇರಿಸಿರುವುದಿಲ." Further in page No 13 and 14 he has stated that "ನಿ.ಪಿ.1 ಮತ್ತು 2 ನ್ನು ಒಬ್ಬ ರೇ ಬರೆದಿದ್ದ ರು. ನಿ.ಪಿ.1 ಮತ್ತು 2 ರಲ್ಲಿ ಇರುವ ಮುನಿಸ್ವಾಮಿ ಮತ್ತು ರಂಗಪ್ಪ ಎನ್ನು ವ ಸಹಿಗಳನ್ನು ಒಂದೇ ಪೆನ್ನಿನಿಂದ ಮಾಡಲಾಗಿದೆ ಎನ್ನು ವುದು ನಿಜ. ನಿ.ಪಿ.2 ರ ಛಾಪಾ ಕಾಗದವನ್ನು ಎಲ್ಲಿ ಖರೀದಿ ಮಾಡಲಾಗಿತ್ತು ಎನ್ನು ವುದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ನಿಪಿ 2 ರಲ್ಲಿ ತಾರೀಖು ಮತ್ತು ಹೆಸರುಗಳನ್ನು ರೀರೈಟ್ ಮಾಡಲಾಗಿದೆ ಎನ್ನು ವುದು ನಿಜವಲ್ಲ . ನಿಪಿ2 ರ ಛಾಪಾ ಕಾಗದ ದೊಡ್ಡ ಮುನಿಸ್ವಾಮಿ ಅವರ ಹೆಸರಿನಲ್ಲಿ ಖರೀದಿ ಮಾಡಿದ ಛಾಪಾ ಕಾಗದಗಳಲ್ಲ ಎನ್ನು ವುದು ನಿಜವಲ್ಲ . ನಿಪಿ1 ಮತ್ತು 2 ರಲ್ಲಿ ಇರುವ ಹೆಬ್ಬೆಟ್ಟು ಗುರುತುಗಳು ಒಂದಕ್ಕೊಂದು ತಾಳೆ ಆಗುವುದಿಲ್ಲ ಎನ್ನು ವುದು ನಿಜವಲ್ಲ . ನಿಪಿ2 ರ ಛಾಪಾ ಕಾಗದವನ್ನು ನಾನೇ ಖರೀದಿ ಮಾಡಿದ ಈ ದಾವೆಗೋಸ್ಕ ರ ಆ ದಾಖಲಾತಿಯನ್ನು ಸೃಷ್ಟಿಮಾಡಲಾಗಿದೆ ಎನ್ನು ವುದು ನಿಜವಲ್ಲ . ಸಾಕ್ಷಿಗೆ ಈಗ 1 ನೇ ಪ್ರತಿವಾದಿ ಪರ ಈ ದಾವೆಯಲ್ಲಿ ಹಾಕಿರುವ 44 O.S.No.5855/1992 ತಕರಾರಿನ ಮೇಲಿನ ಸಹಿಯನ್ನು ತೋರಿಸಿ ಅದು ಚಿಕ್ಕ ಮುನಿಸ್ವಾಮಿಯವರು ಸಹಿ ಎಂದು ಕೇಳಿದಾಗ ಸಾಕ್ಷಿ ಆ ಸಹಿಯನ್ನು ಅವರ ಮಗ ಮಾಡಿದ್ದು ಎಂದು ಹೇಳುತ್ತಾರೆ. ಚಿಕ್ಕ ಮುನಿಸ್ವಾಮಿ ಅವರ ಮಗ ಆ ಸಹಿಯನ್ನು ನನ್ನ ಸಮಕ್ಷಮ ಮಾಡಿಲ್ಲ . 1 ನೇ ಪ್ರತಿವಾದಿ ಪರ ಈ ದಾವೆಯಲ್ಲಿ ಹಾಕಿರುವ ವಕಾಲತ್ತು ನಾಮೆಗೂ ಕೂಡ ಚಿಕ್ಕ ಮುನಿಸ್ವಾಮಿಯವರ ಸಹಿಯನ್ನು ಅವರ ಮಗನೇ ಮಾಡಿದ್ದು ಎಂದು ನಾನು ಹೇಳುತ್ತೇನೆ. ಚಿಕ್ಕ ಮುನಿಸ್ವಾ ಮಿಯವರ ಸಹಿಯನ್ನು ಅವರ ಮಗ ಮಾಡಿದ್ದು ಎಂದು ನನಗೆ ಆ ದಾಖಲೆಗಳನ್ನು ಈಗ ನೋಡಿದಾಗ ತಿಳಿಯಿತು. ಚಿಕ್ಕ ಮುನಿಸ್ವಾ ಮಿಯವರು ಯಾವಾಗಲುಾ ಚಿಕ್ಕ ಮುನಿಸ್ವಾ ಮಿ ಎಂದು ಸಹಿ ಮಾಡುತ್ತಿದ್ದ ರು. ಮತ್ತು ನಿಪಿ1 ಮತ್ತ 2 ರಲ್ಲಿ ಇರುವಂತೆ ಮುನಿಸ್ವಾಮಿ ಎಂದು ಸಹಿ ಮಾಡುತ್ತಿರಲಿಲ್ಲ ಎನ್ನು ವುದು ನಿಜವಲ್ಲ .
ನಿಪಿ1 ರಲ್ಲಿ ಮತ್ತು 2 ರಲ್ಲಿ ಮುನಿಸ್ವಾ ಮಿ ಎಂದು ಇರುವ ಸಹಿಯನ್ನು ನಾನು ಸೃಷ್ಟಿ ಮಾಡಿದ್ದು ಎನ್ನು ವುದು ನಿಜವಲ್ಲ ."
22. When the matter of validity of the said document is the crucial question of controversy, though there is opportunity in Section 45 of Indian Evidence Act 1872 to prove these documents by expert evidence and even though there is burden of proof of said documents on the plaintiffs, because the case of the plaintiffs mainly based on these documents, but plaintiffs have not taken any pain to prove these documents by adducing expert evidence. Chikkamuniswamy is none other than defendant No.1 who put his 45 O.S.No.5855/1992 signature to written statement and Vakalathnama as there is no difference in all the signatures and the plaint documents itself ie., Exs.P.18, 19, 18(a) and 19(a) reveal that to the said documents, he had put his signature as Chikkamuniswamy. Then it creates cloud of doubts in the mind of Court that why he has put his signature in Ex.P.1 and Ex.P.2 as only 'Muniswamy'. Moreover, though there are three witnesses to Exs.P.1 and 2, the plaintiffs have not taken any pain to lead their evidence to prove the said documents. Though in his cross examination PW 1 has stated that they are no more, but neither death certificate of said persons were produced nor adduced evidence of any person who has knowledge about the signature of these persons to the witness box to prove the said documents. PW1 admitted that he has not produced any documents to prove that sale consideration amount in sale deed dated 27-06-1973 was given to Doddamuniswamy.
23. Next to that, though in Ex.P 2, it is mentioned that the 1 st defendant has relinquished his right for the reason that he was in Central Government job, but no documents are produced in support of the same. Ex.P.15 is the order of Assistant 46 O.S.No.5855/1992 Commissioner, Sub Division Bangalore dated 6-6-1973 in which it was affirmed that the above mentioned lands were granted jointly to the Hakdaars specifically mentioning the names of Rangappa, Dodda Muniswamy and Chikka Muniswamy. Ex.P.13 tells that the grant of suit schedule property including property in Sy.No.49 were granted jointly to the Hakdaars of Munihanuma who are Rangappa, Dodda Muniswamy and Chikkamuniswamy, then it is clear that plaintiffs are mainly relying upon Ex.P.1 and Ex.P.2 regarding their suit claim. Then if they prove the genuineness of said documents when is needed, because it is alleged to be executed after execution of Ex.P.18 and 19, then it is their bounden duty to prove these documents. A question arises in the mind of the Court that if the plaintiffs are in physical possession and enjoyment of suit schedule property and there is no prior partition of the property among plaintiffs and defendants herein, then how the sale deed dated 24-01-2004 taken place in respet of some portion of property in Sy.No.62 and 67 by some of the parties to this suit under Ex.P.17. Though plaintiffs have themselves produced Ex.P.17 but there is no evidence adduced by 47 O.S.No.5855/1992 them about this document.
24. Further, Exs.P 3 to 12 are the RTCs pertaining to Sy.Nos.62, 67 and 111 of Hebbal village in which, it is noted as the said land is 'Thoti Inam Neeraganti' and name of Rangappa and other persons were mentioned. The RTCs for the years 1981-1982 and 1987-88 are produced. They are the RTCs pertaining to the period after execution of alleged Ex.P.1 and Ex.P 2. But in these documents, there is no entry of execution of Ex.P.1 and Ex.P.2. Moreover in page No.15 of cross-examination of PW1 it is admitted that, " ಆ ಆರ್ ಟಿ ಸಿ ಯಲ್ಲಿ ಕುಟುಂಬದಲ್ಲಿ ಹಿಸ್ಸೆ ಯಾದ ಬಗ್ಗೆ ಯಾವುದೇ ನಮುಾದು ಇರುವುದಿಲ್ಲ . ನಿಪಿ 4 ರಲ್ಲಿ ಆ ಜಮಿಾನು 1981 ರವರೆಗೆ ತೋಟಿ ಇನಾಂ ಜಮಿಾನು ಎಂದು ಕಾಣಿಸಲಾಗಿದೆ ಎನ್ನು ವುದು ನಿಜ. ಆ ಆರ್ ಟಿ ಸಿ ಯಲ್ಲೂ ಕೂಡಾ ನಮ್ಮ ಕುಟುಂಬದಲ್ಲಿ ವಿಭಾಗವಾದ ಬಗ್ಗೆ ಯಾವುದೇ ನಮೂದು ಇರುವುದಿಲ್ಲ . ನಿಪಿ5 ರಲ್ಲಿ ಕೂಡಾ ಆ ಜಮಿಾನು ತೋಟಿ ಇನಾಂ ಜಮಿಾನು ಎಂದೇ ಕಾಣಿಸಲಾಗಿದೆ. ರೀಗ್ರಾಂಟ್ ಆದೇಶದ ಆಧಾರದ ಮೇಲೆ ನಿಪಿ 6 ರಲ್ಲಿ ದೊಡ್ಡ ಯ್ಯ , ಚಿಕ್ಕ ಯ್ಯ , ಕೆಂಚ, ನಾರಾಯಣ ಮತ್ತು ದೊಡ್ಡ ಮುನಿಸ್ವಾಮಿಯ ವಾರಸುದಾರರ ಹೆಸರುಗಳನ್ನು ಬರೆಯಲಾಗಿದೆ ಎನ್ನು ವುದು ನಿಜ. ಆ ಪಹಣಿಯಲ್ಲೂ ಕೂಡಾ 1992 ರವರೆಗೆ ಅವರ ನಡುವೆ ವಿಭಾಗ ಆಗಿರುವ ಬಗ್ಗೆ ಯಾವುದೇ ಎಂಟ್ರಿ ಇರುವುದಿಲ್ಲ ." The plaintiffs have not produced recent RTCs pertaining to suit schedule 48 O.S.No.5855/1992 properties, but on the other hand defendants have produced recent RTCs which are marked as Exs.D.2 to Ex.D 22 that is of plaint schedule properties which show the name of different persons than the plaintiffs, that is, one M. A. Verghese in respect of Sy.No 67. In Ex.D-13, RTC in respect of Sy.No.111, there is mention of name of Doddaiah Bin Muniga as per IHC 10/89-90 entered in the name of Chikkathayamma as pauthi of Rangappa. It is well known that RTCs are not the documents to prove the possession over the suit schedule property. Moreover, Ex.D.23 marked through confrontation to PW1 in his cross examination that is the sale deed dated 6-4-2004 in respect of 3 acre 10 guntas in Sy.No 67 for the sale consideration of Rs 1,82,00,000/-. This Ex.P.23 is the Sale Deed dated 06-04-2004 executed by 34 members as vendors in which including the plaintiffs herein, sold 3 acres 10 guntas excluding 9 guntas of phut kharab land to one Mr. M. A. Varughese and as per Ex.P.17, Chikka Muniswamy, Sakamma, Muniyamma, Amaravathi, Muni Hanumappa and Muniyappa sold 21 guntas of land in Sy.No.67 as A schedule in that deed to one M. S. Mahadevaiah. In the said document, it is 49 O.S.No.5855/1992 mentioned about execution of General Power of Attorney by the vendors in favour of R. Venkatesh on 19-06-1993. In page No.4 paragraph No.1 of the cross examination of PW1 by the learned counsel for 3rd defendant, he has admitted that " ನಮ್ಮ ತಂದೆಗೆ ಹೆಣ್ಣು ಮಕ್ಕ ಳು ಸಹ ಇದ್ದಾರೆ ಎಂದರೆ ನಿಜ. ನಿಪಿ18 ಮತ್ತು 19 ಕ್ಕೆ ನಮ್ಮ ತಂದೆ ಸಹ ಪಾಟಿರ್ದಾರ ಎಂದರೆ ನಿಜ. ನಮ್ಮ ತಂದೆ ಹೊರತುಪಡಿಸಿ, ನಿಪಿ18 ಮತ್ತು 19 ಕ್ಕೆ ಇತರೆ ಯಾರು ಮಾರಾಟಗಾರರು ಎಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ನಿಪಿ18 ಮತ್ತು 19 ಆದ ನಂತರ ರೀಗ್ರಾಂಟ್ ಆಗಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಿಪಿ15 ರಂತೆ ರೀಗ್ರಾಂಟ್ ಆಗಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಿಪಿ15 ರತೆ ರೀಗ್ರಾಂಟ್ ದಿನಾಂಕ 6.6.1973 ಎಂದರೆ ನಿಜ. ನಿಪಿ18 ಮತ್ತು 19 ಕ್ಕೆ ಯಾವುದೇ ಮೌಲ್ಯ ಇಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಸದರಿ ಕ್ರಯಪತ್ರಗಳ ಮಾರಾಟಗಾರರೆಲ್ಲ ರೂ ಖರೀದಿ ಹಣ ಪಡೆದಿದ್ದಾರೆ ಎಂದರೆ ನಿಜ. ಈ ದಾವೆಗೆ ಮೊದಲು, ಮಾರಾಟ ಮಾಡಿದ ಖರೀದಿದಾರರನ್ನು ಪಕ್ಕ ಗಾರರನ್ನು ಮಾಡಿಲ್ಲ . ಸದರಿ ಕ್ರಯಪತ್ರಗಳನ್ನು ನಾವು ತಹಶೀಲ್ದಾ ರ್ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಪ್ರಶ್ನಿಸಿಲ್ಲ . ನಿಪಿ17 ಕ್ಕೆ ಅಕ್ಕ ಯ್ಯ ಮ್ಮ 7 ನೇ ಪ್ರತಿವಾದಿ ಪಕ್ಷಗಾರಳಲ್ಲ ಎಂದರೆ ನಿಜ. ಖರೀದಿದಾರನಾದ ಮಹದೇವಯ್ಯ ನನ್ನು ಈ ದಾವೆಯಲ್ಲಿ ಪಕ್ಷಗಾರರನ್ನಾಗಿ ಮಾಡಿಲ್ಲ . ಸದರಿ ಕ್ರಯಪತ್ರ ರದ್ದು ಗೊಳಿಸಬೇಕೆಂದು ನಾವು ಈ ದಾವೆಯಲ್ಲಿ ಕೋರಿಲ್ಲ . ನಿಪಿ17 ರ ಕ್ರಯಪತ್ರದಂತೆ 7 ನೇ ಪ್ರತಿವಾದಿ ಹಣ ಪಡೆದಿಲ್ಲ ಎಂದರೆ ನಿಜ." And also in respect of Sy.No 111 it is stated by him that, " ಹೆಬ್ಬಾಳ ಗ್ರಾಮದ ಸರ್ವೆ ನಂ.111 ರ 13 ಗುಂಟೆ ಜಮಿಾನು ಭೂ ಸ್ವಾ ಧೀನ ಆದ ಬಗ್ಗೆ ನಮಗೆ ನೋಟಿಸ್ ಬಂದಿದೆ. ಸದರಿ ಪರಿಹಾರದ 50 O.S.No.5855/1992 ಹಣವನ್ನು ನಾನು ಪಡೆದಿಲ್ಲ . ಸದರಿ ಪರಿಹಾರದ ಹಣ ಬರಬೇಕೆಂದು ನಾನು ಅರ್ಜಿ ಹಾಕಿದ್ದೇನೆ. ಸದರಿ ಪರಿಹಾರದ ಹಣದಲ್ಲಿ 7 ನೇ ಪ್ರತಿವಾದಿಗೂ ಸಹ ಬರಬೇಕು ಎಂದರೆ ಸರಿಯಲ್ಲ . ಪರಿಹಾರ ಹಣ ಬರಬೇಕು ಎಂದು ನಾನು ಬಿಡಿಎಗೆ ಕೊಟ್ಟ ಅರ್ಜಿ ಇತ್ಯ ರ್ಥ ಆಗಿಲ್ಲ ." The said property in Sy.No 111 is the B schedule property herein and then how these plaintiffs can claim absolute ownership over the said property despite such knowledge as stated in his cross examination. Therefore, grant of the property as Neeraganti Inam land to the three children of Late Sri Munihanuma @ Muniranga is undisputed fact and proved as per Ex.P 15, but plaintiffs failed to establish the case in respect of Exs.P.1 and Ex.P
2. And in last paragraph of Ex.P.15 it is specifically mentioned by the Assistant Commissioner that the said re-granted land should not be alienated except for partition among members of the applicants without prior permission of the office of Assistant Commissioner. But there are no documents to show such prior permission for sale of that properties even though both the sides relied upon different subsequent sale deeds after such re-grant.
25. Though the plaintiffs claimed in paragraph 7 of the plaint that they are in physical possession and enjoyment of the suit 51 O.S.No.5855/1992 schedule property as absolute owners after the death of Rangappa, but no single document is produced by them to prove their physical possession and enjoyment over the suit schedule property.
26. The plaintiffs, in support of their case, relied upon the decision reported in AIR 1966 SC 323 (Ram Charan Das vs Girja Nandini Devi and others) about the consideration for family settlement as the transaction of a family settlement entered into by the parties who are members of a family bonafide to put an end to the dispute among themselves, is not a transfer. Here in this case family settlement are Exs.P.1 and Ex.P.2. But as discussed above, the plaintiffs have failed to prove said documents. Therefore, the principles enunciated in the above reported decision are not applicable to the case on hand.
27. The defendant Nos.4 and 5 relied upon the decisions reported in 1976(3) SCR 202, 2021(11) SCR 836 and 2018(10) SCR 503 regarding admissibility of Exs.P.1 and 2 in the evidence. But as discussed above supra, regarding admissibility of Ex.P.1 and P.2, the Hon'ble High Court of Karnataka in WP 52 O.S.No.5855/1992 No.51255/2017 (GM-CPC), directed this Court to decide them as part of final adjudication as to whether Ex.Ps.1 and 2 are mere records of past transactions and even if they are not, whether these documents must be looked into for collateral purposes. During the pendency of the suit, the plaintiffs have paid duty and penalty on these documents on 18-08-2017 and impounded. This Court elaborately went into the admissibility of those documents and found them inadmissible in evidence, since they are not proved in accordance with law.
28. Therefore, as discussed above and as per the facts and circumstances of the case, the plaintiffs proved the re-grant order dated 6.6.73 in favour of deceased Rangappa and his two brothers. But failed to prove the right was relinquished in favour of deceased Rangappa by his brothers on 5.2.75 under a partition as pleaded in paragraph 6 of the suit properties as they have failed to prove Exs.P.1 and 2. Further, they have failed to prove that Rangappa became the absolute owner of the suit properties by their documentary and oral evidence as discussed supra and when they failed to prove the absolute ownership of Rangappa, 53 O.S.No.5855/1992 then resultantly, it is obvious that they failed to prove that they have become the absolute owners after the death of Rangappa. In consequence of failure to prove their ownership over the suit schedule property and as there is no document to prove their lawful possession and enjoyment of the schedule property, then the plaintiffs have utterly failed to prove that they have been in absolute lawful possession of the suit properties. When they have failed to prove their possession over the suit schedule property, then question of interference of the defendants over the suit schedule property does not arise.
29. Hence, as per above findings, this Court answers Issue No 1 in the Affirmative, but Issue No 2 to 6 in the Negative.
30. Issue No.7 and Addl.Issue No 8 : These two issues are inter-related, hence they are taken up together for discussion to avoid repetition. As stated above, the plaintiffs have filed this suit for declaration and their possession over the suit schedule property and declaration of revenue entries as correct and for relief of permanent injunction as consequential reliefs. The 54 O.S.No.5855/1992 defendant No.1 prayed to dismiss the suit and in the additional written statement of defendant No.1 (b) (i) to (iii), it is stated in paragraph 6 of their additional written statement that the suit schedule properties are joint family properties and all family members are entitled to equal partition and all family members are entitled to equal partition in respect of suit schedule properties and OS No 7145/2011 for partition is pending before CCH 6 in respect of very same properties. But defendant Nos.4 and 5 have prayed for partition by allotment of their 1/3 rd share and defendant No 7 also prayed for partition.
31. On the side of the defendants, the Special power of Attorney holder of defendant No.7 is examined as DW1 on behalf of defendant No. 7 and produced Exs.D 1 to Ex.D11. Ex.D 1 is the Special Power of Attorney dated 03-07-2018 executed by 7 th defendant in favour of DW1 named Ramya K., who is her grand daughter. Exs.D 1 to 12 are the RTCs pertaining to Sy.No.67 which shows the names of M. A. Verghese and M. S. Mahadevaiah. Exs.D 13 to 22 are the RTCs pertaining to Sy.No 111 which shows the entries of the names of number of persons. 55
O.S.No.5855/1992 Ex.D 23 is the sale deed, in respect of which already stated above marked through confrontation to PW1 in his cross examination through which plaintiffs and others sold some portion of property in Sy.No 67 to M. A. Varghese. Ex.D 24 is the notice dated 5-08-2003 issued by BDA by mentioning the owner's name as Munihanuma (dead) inviting objection if any and regarding compensation pertaining to acquirement of the property in Sy.No 111 of Hebbala as per Gazatte notification in UDD/566/MNX/02 dated 19-12-2002. Ex.D.25 is the meeting notice of Advisory Committee of Karnataka Industrial Regional Development Society dated 24-04-2003 about compensation for acquirement of land in Sy.No. 62 and 67 to the extent of 0-39 guntas and 3 acres 19 guntas of Hebbala. In the said document, the name of Dodda Muniswamy, Chikkamuniswamy and Chikka Thayamma W/o. Rangappa are mentioned. Ex.D.26 is the Endorsement dated 08-12-2022 issued to one Pushpavathi in respect of 3 acres in Sy.No 67 of Hebbala, but she is not party to this suit. Ex.P.27 is the copy of Gazette Notification dated 11-05-2004 about acquirement of properties. In that document, in serial No.26, it is mentioned that in Sy.No 67 to 56 O.S.No.5855/1992 the extent of 3 acre 19 guntas referring the khathedaars names as Doddaiah, Chikkaiah Kencha, Narayana bin Muniga, Dodda Muniswamy, Chikkamuniswamy Bin Munihanumaiah, Sambamma, Munimariga, Muny Kapanappa, Rayappa, Chikkamunithimmaiah and Chikkathayamma and in the column for Anubhavadhaars who is enjoying the property as Doddaiah, Chikkaiah Kencha, Narayana, Chikkatayamma kom Rangayya, Kampanappa, Kempaiah and T.Chikkamuniyappa. But as per Ex.D.23, the plaintiffs sold 3 acre 10 guntas in Sy.No 67. Ex.D.29 is the certified copy of amended plaint in OS No.7145/2011 in which there are 15 plaintiffs including Legal representatives of plaintiff No. 7 as 7(a) to
(c) and Legal representatives of plaintiff No.15 as 15(a) to (c) and 43 defendants and there are other properties than the plaint schedule properties herein and measurements of the properties which are coming under Sy.No 111, 67 and 62 are different than in this suit. Ex.D.30 is the Family Tree issued by Deputy Tahsildar in respect of family of Late Chikkamuniswamy only, which will not establish family relationship with other co-parceners who are the plaintiffs and other defendants. Ex.D.31 is the Endorsement of 57 O.S.No.5855/1992 above mentioned industrial society. Ex.P. 32 is the same Gazette Notification dated 11-05-2004 and Ex.D 33 is Aadhaar Card of DW2 and Ex.D 34 and 35 are the Aadhaar Cards of the daughters of DW 2, but they will not give any weightage to the case for partition. Therefore, though the plaintiffs failed to prove their case regarding ownership and possession of them over the plaint schedule property, the defendants No.4, 5 and 7 also failed to establish their case for partition over the suit schedule properties in this case. Though the defendant No.7 prayed for partition of the properties and he has mentioned same schedule of the plaint property in her counter claim schedule, but Ex.D 29 shows totally different property schedules. It is well known that partial partition is less appreciated. Here in this case originally, suit is for declaration of title of the plaintiffs and later through counter claim, some defendants have prayed for partition. But on perusal of materials on record, as per Ex.P.29, there are other parties for partition who are not the parties in this case.
32. Next to that, the defendant Nos.4 and 5 prayed for 1/3 rd share in the suit schedule property and submitted in paragraph 8 58 O.S.No.5855/1992 of their written statement as the suit schedule properties and other properties are all the joint family properties held and possessed jointly by the plaintiffs and the said defendants. But no descriptions are given that which are the other properties. Though the plaintiffs failed to prove their ownership and possession over the suit schedule property, but these defendants also failed to prove joint possession over the suit schedule properties and other properties. These defendants have not lead any documentary or oral evidence to prove their case. In the cross examination of DW1, there is nothing established about the suit schedule properties being joint family properties held and possessed by the plaintiffs and defendants.
33. In cross examination of DW2 it is elicited that, " ನಮ್ಮ ವಿವಾಹ ನೊಂದಣಾ ಕಛೕೆರಿಯಲ್ಲಿ 1992 ರಲ್ಲಿ ಆಗಿರುತ್ತದೆ. 1992 ರ ಹಿಂದೆ ಕುಟುಂಬದಲ್ಲಿ ಏನು ವಿಚಾರ, ವ್ಯ ವಹಾರಗಳು ಆಯಿತು ಎಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ದಾವಾ ಆಸ್ತಿಯನ್ನು ನಾನು ನೋಡಿರುತ್ತೇನೆ. ನಿಡಿ 24 ರ ಆಸ್ತಿಯು ಯಾವಾಗ ನನಗೆ ಬಂತು ಎಂದರೆ ಅದು ಪಿತ್ರಾರ್ಜಿತ ಆಸ್ತಿ ಎನ್ನು ತ್ತಾರೆ. ನಿಡಿ 25 ರಲ್ಲಿ ಇರುವ ದೊಡ್ಡ ಯ್ಯ ದಾವಾ ಆಸ್ತಿಗೆ ಸಂಬಂಧಿಸಿದವರಲ್ಲ . ನಿಡಿ 25 ರಲ್ಲಿ ತೋರಿಸಿರುವ ವ್ಯ ಕ್ತಿಗಳು ದಾವಾ ಆಸ್ತಿಗೆ ಸಂಬಂಧಿಸಿದವರಲ್ಲ ಎಂದರೆ ಸಂಬಂಧಪಟ್ಟ ವರಾಗಿರುತ್ತಾರೆ. ನಿಡಿ25 ನನಗೆ ಬಂದಿಲ್ಲ . 59
O.S.No.5855/1992 ನಿಡಿ27 ನ್ನು ವಾರಸುದಾರರಿಗೆ ಅಧಿಕಾರ ಇದೆ ಎಂದು ಮಾಡಿರುತ್ತಾರೆ.
2. ಜಯರಾಮ ಅವರನ್ನು ನಾನು ನೋಡಿದ್ದೇನೆ. ಅವರ ತಂದೆಯ ಹೆಸರು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಗಂಗಾಧರ ಸ್ವಾ ಮಿಯವರನ್ನು ನಾನು ನೋಡಿಲ್ಲ . ಮುನಿಯಮ್ಮ ಅವರನ್ನು ನಾನು ನೋಡಿದ್ದೇನೆ. ಗಂಗಾಧರಸ್ವಾಮಿಯವರಾಗಲೀ ಜಯರಾಮ ಅವರಿಗೆ ಆಗಲೀ ದಾವಾ ಆಸ್ತಿಯಲ್ಲಿ ಹಕ್ಕಿ ಲ್ಲ ಎಂದರೆ ಹೌದು. ನಿಡಿ29 ರಲ್ಲಿ ಇರುವ ವ್ಯ ಕ್ತಿಗಳಿಗೆ ದಾವಾ ಆಸ್ತಿಯಲ್ಲಿ ಪಾಲು ಇಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷ್ತಿಯು ನಿಡಿ29 ನ್ನು ನೋಡಿದ್ದು ಸಾಕ್ಷಿಯು ಹಕ್ಕಿ ಲ್ಲ ಎನ್ನು ತ್ತಾರೆ." But the said Jayarama, Gangadharaswamy are not the parties to this suit. Therefore, the LRs of defendant No.1(b) (i), (ii), (iii) have failed to prove that the sale deed dated 24.01.2004 is not binding on them in this case.
34. Therefore, as discussed above and as per facts and circumstances of the case, the defendants who claimed for partition, have failed to prove the relationship among the parties as there are more number of parties in OS No. 7145/2011 than in this suit who are all different than the parties herein. The property descriptions are different than in this case. These defendants have not produced the Family Tree to establish family relationship clearly and have not made out that they are in joint possession over the suit schedule property as pleaded in their written 60 O.S.No.5855/1992 statement.
35. Hence, this Court answers Issue No 7 and Additional issue No. 8 in the Negative.
36. Issue No 8 :- For the foregoing reasons and findings of this Court on above issues, this Court is of the considered opinion that the plaintiffs and the defendants have failed to prove their respective claims as prayed in the plaint and their counter claims. In the result, this Court proceed to pass the following :
ORDER The suit of the plaintiffs' is hereby dismissed. The Counter Claims filed by the defendants No.4 and 5 and 7 are dismissed.
No order as to costs.
(Dictated to Steno Grade I on computer, revised by me and after corrections, signed and pronounced in open Court on this the 2nd day of January 2024) (JYOTHSNA D.,) XVI Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE 61 O.S.No.5855/1992 List of Witnesses examined for the plaintiffs PW1 - R. Munirangaiah List of witnesses examined for the defendants DW 1 - Ramya K., DW 2 - Pushpavathi List of documents marked for the plaintiffs Ex.P.1 Mucchalike Patra Ex.P.2 Partition Memo Ex.P.3 to 6 RTC Extracts Ex.P.7 to 9 RTC Extracts Ex.P.10 to RTC Extracts 12 Ex.P.13 Certified copy of Order in RA No.185/92 by the Asst.Commissioner Ex.P.14 Certified copy of the Order passed by the Tashildar Ex.P.15 Certified copy of Re-Grant Order Ex.P.16 Paper Publication in Sanjevani dated 15.10.1993 Ex.P.17 Certified copy of the Sale Deed dated 24.01.2004 Ex.P.18 Certified copy of the Sale Deed dated 27.06.1973 Ex.P.18(a) Typed copy of Ex.P.18 Ex.P.19 Certified copy of sale deed dated 27.06.1973 Ex.P.19(a) Typed copy of Ex.P.19 List of documents marked on behalf of the defendants. Ex.D1 Special Power of Attorney dated 03.07.2018 executed by defendant No.7 in favour of DW 1 62 O.S.No.5855/1992 Ex.D2 to 12 11 RTC Extracts in respect of survey No.67 Ex.D.13 to 10 RTC extracts in respect of survey No.101 22 Ex.D.23 Sale Deed dated 06.04.2004 marked in the evidence of PW1 Ex.D.24 BDA Notice dated 05.08.2003 Ex.D.25 Notice Dated 24.04.2023 of Advisory Committee of KIADB Ex.D.26 Endorsement dated 08.12.2022 issued by KIADB Ex.D.27 Karnataka Gazette dated 11.05.2004 Ex.D.28 Certified copies of two RTC in respect of Sy.No.67 Ex.D.29 Certified copy of Amended plaint in OS No.7145/2011 ExD.30 Family Tree Ex.D.31 Endorsement dated 15.03.2023 issued by KIADB Ex.D.31(a) Postal Cover Ex.D.32 Karnataka Gazette dated 11.05.2004 ExD.33 Aadhaar Card of DW2 Ex.D.34 Aadhaar Card of daughter of DW2 Ex.D.35 Aadhaar Card of Kavana P.R., the 2nd daughter of DW2 (JYOTHSNA D.,) XVI Addl. City Civil & Sessions Judge, Bengaluru 63 O.S.No.5855/1992 64 O.S.No.5855/1992 Order pronounced in open Court vide separate detailed order. The operative portion is as hereunder:
ORDER The suit of the plaintiffs' is hereby dismissed.
The Counter Claims filed by the defendants No.4 and 5 and 7 are dismissed.
No order as to costs.
XVI Addl. City Civil & Sessions Judge, Bengaluru