Bangalore District Court
Pooja Venkatamma vs Narasimhaiah on 4 July, 2024
KABC010046132013
IN THE COURT OF THE III ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-25) AT BENGALURU.
DATED: THIS THE 4TH DAY OF JULY, 2024.
PRESENT : Smt. Nisharani A.C., B.A., LL.B.,
III Addl. City Civil and Sessions
Judge, Bengaluru)
O.S.NO.7967/2013
Plaintiffs : 1. Mrs.Pooja Venkatamma,
Dead by her Lrs,
P-1(a). Smt.Lakshmamma,
D/o late Pooja Venkatamma,
W/o Rajanna,
A/a 62 yrs,
Residing at Challahalli village,
Dodda Tamakuru post,
Hesaraghatta hobli,
Yelahanka taluk
Bengaluru Urban Dist-561203
P-1(b). Smt.Anjinamma,
D/o Late Pooja Venkatamma,
W/o Vishnu Gangaram,
A/a 47 yrs,
R/at Shanubhoganahalli,
Arakere, Bengaluru-561203
P-1(c). Sri.T.Venkatesh,
S/o Late K.Thippaiah,
A/a 49 yrs,
P-1(d). Sri.T.Anjanappa,
S/o late K.Thippaiah,
A/a 46 yrs,
O.S.NO.7967/2013
2
P-1(e) Sri.T.Suresh,
S/o Late K.Thippaiah,
A/a 31 yrs,
P-1(f) Sri.T.Gururaj,
S/o late K.Thippaiah,
A/a 31 yrs,
P-1(c) to P-1(f) are residing at
No.D-54, MRS quarters,
Hebbal Campus, Bengaluru-560024
P-1(g). Kum.Tejaswini.C.
D/o Late Prema,
Granddaughter of
late Pooja Venkatamma,
A/a 23 yrs,
R/at # 1, 4th 'A' cross road,
Shivapura, Kattigenahalli,
Yelahanka Tq
Bengaluru-560064
P-1(h) Kum.Bhagya Shree.C.
D/o late Prema,
Granddaughter of Late Pooja
Venkatamma,
A/a 22 yrs, #398,
Opp: Doddamma Temple,
Jakkur Layout, Near Govt.School,
Bengaluru North,
Bengaluru-560064
P-1(i). Kum.Shubha Shree.C.
D/o late Prema,
Granddaughter of Late Pooja
Venkatamma,
A/a 20 yrs, #1, 4th 'A' cross road,
Shivapura, Kattigenahalli,
Yelahanka Taluk,
Bengaluru-560064
2. Mrs.Venkatamma,
W/o late Mariyappa,
D/o late Byathada Subbaiah,
O.S.NO.7967/2013
3
A/a 55 years,
3. Mrs.Radhamma,
W/o Chikkathimmappa,
D/o late Bhathada Subbaiah,
a/a 51 yrs,
All are residing at No.156,
Opp: Govt.School,
Jakkur village, Jakkur post,
Bangalore-560064
(By Sri.CHS., Advocate)
V/S
Defendants : 1. Mr.NARASIMHAIAH
S/o late Byathada Subbaiah,
A/a 53 years,
2. Mr.NARASIMHA MURTHY,
S/o late Byathada Subbaiah,
A/a 47 yrs,
3. Mr.CHIKKANARASIMAHAIAH,
S/o late Byathada Subbaiah,
A/a 45 yrs,
All are residing at No.398,
Doddamma Temple Road,
Opp: Govt.School,
Jakkur Layout, Bangalore-560 064
4. Mr.R. VENKATESH,
S/o M.V.Ramanna,
Major, No.21/1, 4th block,
Katharguppe Main road,
Ashoknagar BSK 1st stage,
Bangalore-560 050 (Abated)
O.S.NO.7967/2013
4
5. SACHIN KAMATH,
S/o G.N.Kamath,
Major, NO.S-1, Naveen Apartments,
13th main, Vasanthnagar,
Bangalore-560 052
6.Mr.MAHESH BHUPATHI,
S/o C.G.Krishna Bhupathi,
a/a 60 yrs,
No.7, Eagle Street,
Eagle Rock,
Bangalore-560 025
7. Mr.RAGHUNATHA VISHWANTH
DESHPANDE
S/o V.R.Deshpande,
A/a 67 yrs, No.372,
NILAY, R.T.Nagar Main Road,
Opp: Police Station,
Bangalore-560032
8.M/s. Raghudha Enterprises,
Registered partnership firm,
Office at No.37, Ground Floor,
"Vaishnavi Classic",
Kasturba Cross Road,
Shantalangar,
Bengaluru-560001
R/by its Partners
Mr.Raghunath V.Deshpande
Mr.Prashant R.Deshpande
(By Sri. RB., Adv., for D-2 & 3, Sri.LMA.,
Adv., D4 to 7, Sri.KSS for D-6, D-1
Exparte)Sri.AMR ., Adv.for D-8
Date of institution of Suit 31-10-2013
Nature of the Suit Partition and such other
consequential reliefs.
Date of commencement 24-08-2017
of recording of evidence
Date on which Judgment 04-07-2024
was pronounced
O.S.NO.7967/2013
5
Total duration Year/s Month/s Day/s
10 08 03
(Nisharani A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU)
JUDGMENT
This present suit is filed by the plaintiffs against the defendants seeking the relief of declaration that plaintiffs have got ½ share in joint in the suit schedule property, pass a preliminary decree with suitable direction to proceed with the matter in the final decree proceedings, directing partition of suit schedule property by metes and bounds into equal shares and put the plaintiffs in joint possession of their ½ share in the suit schedule property, declare that the alleged sale deed, dated:
27-01-1998 executed by defendants No.1 to 3 and their mother Venkatamma through their GPA holder R.Venkatesh in favour of Rachin Kamath and Sale deed, dt;06-03-2002 executed by Sachin Kamath i.e. 5th defendant in favour of 6th defendant Mahesh Bhupathi in favour of 7th defendant Mr.Raghunath Vishwanth Deshpande, are not binding on the plaintiffs as far as their share is concerned and for permanent injunction and such other consequential reliefs.
O.S.NO.7967/2013 6
2. The brief facts of the Plaintiffs case is as under-
One Byathada Subbaiah out of his wedlock with Venkatamma had six children namely (a) Pooja Venkatamma i.e. 1st plaintiff, (b)) Venkatamma, i.e., 2nd plaintiff herein, (c) Narasimhaiah i.e. 1st defendant herein, (d) Radhamma, i.e., 3rd plaintiff, Narasimha Murthy, i.e., 2nd defendant herein, (f) Chikka Narasimhaiah 3rd defendant herein. Byathada Subbaiah died intestate long wife Venkatamma died intestate on 17-02-2003. The land bearing Sy.No.1, 'B' Block No.40 measuring 1 acre, situated at Jakkur Plantation Village, Yelahanka Hobli, Bangalore North Taluk, which is more fullyin the Schedule hereunder and hereinafter referred as the Suit Schedule Property, Originally granted (Free Grant) in favour of the father of the Plaintiffs Byatada Subbaiah, vide Government order No.R-6979-81, LR.468.49.7, dated 30-08-1952, communicated in Deputy Commissioner Memo No. M 2/2853/48-49, Dated 31-10-1952 and Assistant Commissioner Memo No. B. 4 POR/42/52-53, Dated: 10-11-1952. During the lifetime of Byatada Subbaiah, he acquired, owned and possessed Suit Schedule Property, and the same had been in joint possession and enjoyment of Byatada Subbaiah and his O.S.NO.7967/2013 7 children, i.e., Defendants 1 to 3, including the Plaintiffs, and after demise of Byatada Subbaiah, his children Defendants 1 to 3, including the Plaintiffs, continued to be in possession and enjoyment of the same, without any sort of hindrance, interruption, from anybody, exercising all rights of Ownership as Co-Owners, to the exclusion of others, and in pursuant to the said grant, the revenue records pertaining to the Suit Schedule Property, had been transferred to the name of Byathada Subbaiah in the Revenue Records.
2(a). It is stated that, during the lifetime of Byathada Subbaiah by violating the condition imposed in the said free grant, he has executed an document styled as Sale deed, dated : 02-02-1966, pertaining to Suit Schedule Property in favour of Doddamarappa, which Instrument was registered as No. 7048/65-66, Book- Volume 2555, pages 139 to 142, in the office of the sub- registrar Bangalore North. The said transaction pertaining to the Suit Property, was hit by principles of PTCL Act and same was in of the non-alienation condition, Byatada Subbaiah during his life initiated a proceedings before the Assistant Commissioner, Bangalore, in KSC ST No. 52/91- 92 to restore the aforesaid land against Smt.Chennamma W/o late Doddamarappa, and during the pendency of the O.S.NO.7967/2013 8 proceedings, Byatada Subbaiah died, and his wife Venkatamma being the head of the Joint family, came on record as Lr of Byatada Subbaiah, and contested the proceedings on behalf of the Joint family, and the Assistant Commissioner, Bangalore, after considering the merits of the case, has allowed the said petition, Vide Order Dated: 19-12- 1994 and restored the said land in favour of Legal heirs of original grantee.
2(b). It is stated that being aggrieved with the said Order Dated: 19-12-1994 passed by the Assistant Commissioner in KSC.ST. No. 52/91-92, Mrs. Chennamma W/o late Dodda Marappa has preferred the appeal before the Special Deputy Commissioner, Bangalore District, in SC.ST.(A) 19/94-95 and 22/94-95 and after hearing the matter, the Special Deputy Commissioner has upheld the orders of Assistant Commissioner, and dismissed the appeal, Vide Its Order, Dated: 26-04-1996. Said Mrs. Chennamma W/o late Dodda Marappa have not challenged the said Order passed by the Special Deputy Commissioner in SC.ST. (A) 19/94-95 and 22/94-95, and the Order passed by the Assistant Commissioner restoring the Land in favour of Lrs. of Byatada Subbaiah, became final. After the restoration of the land in favour of LRS O.S.NO.7967/2013 9 of original grantee, the Revenue Records transferred to the name of the mother of the Plaintiffs and Defendants 1 to 3 Venkatamma. Due to mismanagement of the suit schedule Properties the Plaintiffs during the Last Week of September, 2013, orally demanded the Defendants 1 to 3 to effect partition and seperate possession of their legal share to be divided and allotted to them, pertaining to suit schedule property, and though the Defendants 1 to 3 have agreed effect partition and separate possession of the suit schedule property metes and bounds, have been postponing the same on one pretext or the other for the reasons best known to them and with malafide intentions and ulterior motives. There has been no division of Suit Schedule Property either by oral or otherwise between the Defendants 1 to 3 and the Plaintiffs, at any time, by metes and bounds or otherwise and even as of now the nature, character and possession of the same remains to be in joint. The Plaintiffs and Defendants 1 to 3 continued to be in Joint possession and enjoyment of the Suit Schedule Property. They recently learnt that, the 4th Defendant behind the back of the Plaintiffs has created an alleged document styled as GPA, alleged to have been executed by Plaintiffs' mother Venkatamma and Defendants 1 to 3, for the management of the Suit Schedule O.S.NO.7967/2013 10 Property with malafide intentions and ulterior motives, with a sole Intention to make wrongful gains, though the Defendants 1 to 3, and Venkatamma, have no exclusive right over the Suit Schedule Property, and moreover, there was no necessity for delegating the powers in favour of the 4th Defendant, for the management of the Suit Schedule Property, who is residing far away from the Suit Schedule Property, and the Plaintiffs recently further learnt that, the 4th Defendant, based on the said alleged GPA, created another document styled as Sale Deed, Dated: 27-01-1998, in favour of Mr. Sachin Kamath, i.e., 5th Defendant, behind the back of the Plaintiffs, which Instrument was registered as No. 7202/1997-98, Book I, in the office of the sub-registrar Yelahanka, Bangalore, with malafide intentions and ulterior motives, with a sole intention to make wrongful gains, and to knock off the Suit Schedule Property. Even after existence of the said alleged documents, no right, interest, muchless possession of Suit Schedule transferred to the 5th Defendant, and the said alleged document had been created by the 5th Defendant in collusion with the defendant No.1 to 4, behind the back of the Plaintiffs and without their consen, with a sole intention to make wrongful gains and to harass the plaintiffs, and the said alleged document is void and O.S.NO.7967/2013 11 do not have any force in the eye of law and the same is not binding on the Plaintiffs.
2(c). It is state that, plaintiffs recently learnt that, 5th defendant based alleged Sale Deed, Dated : 27-01-1998, bearing Regn. No.7202/1997-9, has created another document styled as Sale Deed, Dated :06-03-2002, in favour of Mr. Mahesh Bhupathi, i.e., 6th Defendant, behind the back of the Plaintiffs, which Instrument was registered as No.9316/2001-02, Book I, in the office of the sub-registrar Yelahanka, with malafide intentions and ulterior motives, with a sole to make wrongful gains, and to knock off the Suit Schedule property. Further, they recently learnt that, 6th defendant based on the said alleged Sale Deed, Dated : 06-03-2002, bearing Regn. No. 9316/2001-02, through his GPA holder, C.G. Krishna Bhupathi, has created another document styled as Sale Deed, Dated : 20- 04- 2006, in favour of Mr. Raghunath Vishwanath Deshpande, i.e., 7th Defendant, behind the back of the Plaintiffs, which Instrument was registered as No. 1785/2006-07, Book I, in the office of the sub-registrar Yelahanka, Bangalore with malafide intentions and ulterior motives, with a sole intention to make wrongful gains, and to knock off the Suit Schedule Property. The said alleged documents have been created by the O.S.NO.7967/2013 12 Defendants in collusion with each other, behind the back of the Plaintiffs and without their consent, with a sole intention to make wrongful gains and to harass the Plaintiffs, and the said alleged documents are void and do not have any force in the eye of law and the same is not binding on the Plaintiffs, as far as their share is concerned.There has been no division of Property either by oral or otherwise between the Defendants No.1 to 3 and Plaintiffs, at any time, by metes and bounds or otherwise and even as of now the nature, character and possession of the same remains to be in joint. The Plaintiffs and Defendants 1 to 3 Continued to be in Joint enjoyment of the Suit Schedule Property. Recently they learnt that, the 6 th defendant based on the said alleged documents, in collusion with the revenue officials has got changed the revenue records, pertaining to the Suit Property, and the possession of the same continues to be with the plaintiffs and defendants 1 to 3 as stated supra. When the things stood thus, very strangely enough, on 20-10-2013, the 7th Defendant, who is stranger to the Plaint and to the suit schedule Property, having no right, title or interest over the same, abruptly and suddenly and without any cause or reason whatsoever, appeared near the Suit Schedule Property, along with materials with the assistance of O.S.NO.7967/2013 13 rowdy elements and tried to interfere with Plaintiffs possession over the suit schedule property with an intention to form sites and roads, in Suit Schedule Property and also made threats of dispossession over the same, belonging to the Plaintiffs. The Plaintiffs somehow with the assistance of neighbors have thwarted the illegal acts of the 7th Defendant, but the 7th Defendant being a very influential and powerful person, having support of men and money power, and political influence, have threatened the Plaintiffs with dire consequences of dispossession of the Plaintiffs from the Suit Schedule Property, and to form sites and roads, in the same. Thus there is constant threat of interference and dispossession by the 7th Defendant and his men, henchmen, servants, etc., from peaceful, lawful possession, occupation, and enjoyment of the Suit Schedule Property of the Plaintiffs, Hence, the Plaintiffs approached the Jurisdictional police, but the police did not deliberately take any action against the 7th Defendant and advised the Plaintiffs to approach this Hon'ble Court for the relief of Injunction. The 7th Defendant is moneyed and influential person, and it is very difficult for the Plaintiffs to resist the illegal attempts of the 7th Defendant from interfering with their peaceful possession and enjoyment of their Property and to resist him from forming sites O.S.NO.7967/2013 14 and Roads, in the Suit Schedule Property. Hence, the plaintiffs filed this suit.
3. The defendant No.2 to 8 have appeared before the Court through their respective counsels. The Defendant No.1 placed exparte. The written statement of defendant No.4 is as follows.
3(a). The suit is not maintainable against these defendants either in eye of law or facts and circumstances of the case. The same is liable to be dismissed in limine. The suit of the plaintiffs is not maintainable as the same is totally misconceived, misleading, mischievous, false, frivolous, very vague and vexatious and the same is liable to be dismissed with heavy cost. The plaintiffs have not approached this court with clean hands. With an intention and oblique motive of gaining wrongfully and to hold these defendants for huge ransom, the plaintiffs lave concealed true and material facts from the notice of this Court. The suit schedule property was granted to one Byatha Subbaiah, who is none other than the father of the defendant No. 1 to 3 herein, in the year 1952-53, by the Government of Karnataka. The suit schedule property is a land granted to Byatha Subbaiah. After his death the revenue documents was mutated in the name of his wife O.S.NO.7967/2013 15 Smt.Venkatamma as per MR.No.4/1990-91 and since then the said Venkatamma was in possession and enjoyment of the same as absolute owner. Said Smt.Venkatamma along with her children namely Narasimhaiah, Narasirnha Murthy and Chikkanarasimhaiah the defendant No.1 to 3 in the above case entered into a registered Agreement of sale dated 05/09/1994 in favour of one J.Devraju, which is registered as document bearing No.2846/1994-95. Smt Venkatamma and with Defendants 1 to 3 executed another Agreement to Sell dated 20th September 1995 in respect of the suit schedule property. They, also, executed a registered General Power of Attorney dated:20/09/1995 registered vide document bearing No.232/1996-97, in favour of his Defendant and one S.Raghuntath to complete the sale transaction either in favour of said H.Yeshwanth Shenoy or his nominee or nominees. Subsequently, the said J.Devaraju nominated H.Yeshwant Shenoy by way of a registered General Power of Attorney dated 31st December 1997 empowering him to acquire the suit Schedule Property along with other lands. The said H.Yeshwanth Shenoy nominated the 5th Defendant herein as his nominee to take the sale deed and this defendant being the GPA Holder of the said Smt.Venkatamma and defendants 1 to O.S.NO.7967/2013 16 3 have executed a registered sale deed dated:27/01/1998 in favour of the 5th defendant herein, which is registered as document bearing No.7202/1997-98. 10. It is submitted that, subsequently the 5th defendant sold the same to 6th defendant under a registered sale deed dated:06/03/2002, which is registered as document 9316/2001-2002 and since then the 6th defendant was in possession and enjoyment of the same. It is further submitted that on 04/10/2004, the 2nd defendant herein executed a registered need of Declaration admitting the earlier sale deeds and the ownership of 6th defendant and the same is registered as document bearing No.13834/2004-05. Later on 10/02/2005, the Defendants No.1 and 3 along with another family member executed Deed of declaration admitting earlier sale deeds and ownership of 6th defendant, the same is registered as document No.23181/2004-05. The 7th defendant has purchased schedule property from the 6th defendant under a registered deed dated 20/04/2006 and the same is registered vide document bearing No.YAN-1-01785-2006-07 in CD No.YAND189 in the office of sub registrar Yelananka, Bangalore. Since the date of purchase the 7th Defendant is in possession and enjoyment of the suit schedule property. The 7th Defendant has obtained BBMP Khata and has been paying O.S.NO.7967/2013 17 property tax. Tthe relief claimed by the plaintiffs is hopelessly barred by limitation. In the guise of seeking partition, the plaintiffs are seeking to set aside a sale deed/power of attorney executed 20 years back. Plaintiffs were all majors when the power of attormey/sale deed was executed by their mother and brothers. This defendant and his vendor have perfected title to the suit schedule property by adverse possession since the possession of every purchaser beginning defendant No.5 has been open, hostile to that of the plaintiffs and at the same time setting up their own title adverse to that of the plaintiffs. Further, the suit of the plaintiffs is barred by the principal of ouster. The sale of the suit schedule property was done to the knowledge of the plaintiffs. However, the plaintiffs did not protest. It is nobody's case that defendants 1 to 3 and late Venkatamma had recognized the plaintiffs as to co-owner earlier and that they suddenly ousted. The ouster happened plaintiffs from the death of late Byatha Subbaiah. From the above it is clear that the claim of the plaintiff is not legally tenable. This defendant is producing the genealogical tree of said Venkatamma and defendants 1 to 3 which has the LTI of Venkatamma who is the mother of defendant No.1 to 3. When the mother herself swears that she had only three sons, the question of plaintiffs O.S.NO.7967/2013 18 proclaiming themselves to the daughters of Venkatamma does not arise. The suit schedule property as narrated above was granted to Byata Subbaiah. During his lifetime he was in possession of the suit schedule property and after his death, his wife Venkatamma and defendants 1 to 3 were in possession. The plaintiffs were never in possession and enjoyment of the suit schedule property and the plaintiff is put to strict proof of the same. This defendants strongly disputes the relationship between the plaintiffs and defendants No.1 to 3. The plaintiffs are not entitled for any share in the suit schedule property. When the property was sold by Venkatamma and defendant No.1 to 3 in the year 1995, seeking partition in the year 2013 feigning ignorance of the sale is ridiculous. Further, claiming that they are in joint possession is even more ridiculous since not one attempt has been by them all these years to get their names into the revenue records. The right, title, interest and possession of the suit schedule property is with the 7th defendant only and no documents have been created by this Defendant. The suit schedule property has been transferred from one to another person for a valuable consideration. Plaintiffs and defendant Nos.1 to 3 are not in joint possession of the property. Revenue records have changed based on the sale O.S.NO.7967/2013 19 of the suit schedule property and there is nothing illegal about it. Owner of the property going near his property does not amount to interference. Plaintiffs who are staking claim on suit schedule property through a false genealogical tree and who were never in possession cannot make such allegations. The plaintiff's have filed this case in order to harass these defendants. There is no cause of auction to file this suit, the cause of auction is shown in the plaint for the purpose to file this case and this court has no jurisdiction to decide this suit. Hence prayed to dismiss the suit.
3(b). The written statement of defendant No.8 is as follows:
The above case is wholly baseless and untenable on facts and in law and is liable to be dismissed in limine for the following reasons:
a) It is true that the Suit Schedule Property was granted to father of Plaintiff Nos. 1 to 3 and Defendant Nos. 1 to 3 i.e., Byathada Subbaiah, during the life time of Byathada Subbaiah had alienated the Suit Schedule Property in favour of Doddamarappa way back in the year 1966 for valuable consideration, since the said Sale Deed was in violation of the grant order, at the instance of Venkatamma the wife of O.S.NO.7967/2013 20 Byathada Subbaiah, proceedings for restoration of the land was initiated before the authority for restoring the land in favour of Byathada Subbaiah, during the said proceeding the said Byathada Subbaiah passed away, and Venkatamma was brought on records and the Suit Schedule Property was restored to her, since she was de facto kartha of the family even prior to death of the husband.
b) Venkatamma even much prior the death of her husband, was solely responsible to lead/running the family and to overcome the legal and family necessities, the said Venkatamma entered into Agreement of Sale in respect of Suit Schedule Property dated 05-09-1994 in favour of one J.Devraju, bearing Document bearing No.2846/1994-95. And also entered another Agreement of Sale dated 20-09-1995 in favour of H.Yeshwanth Shenoy by receiving valuable consideration. Further in order to complete the sale transaction in favour of agreement holder or his nominees, the said Venkatamma along with defendant No.1 to 3 executed registered G.P.A. dated:20-09-1995 in favour of defendant No.4 and S.Raghunath.
d) Venkatamma along with Defendant No. 1 to 3, represented by General Power of Attorney Holder alienated the O.S.NO.7967/2013 21 Suit Schedule Property in favour of Defendant (the nominee of H.Yeshwanth Shenoy) via Sale Deed dated 27-01-1998, wherein the aforesaid person i.e., J.Devaraju and H.Yeshwanth Shenoy where consenting witness to said sale deed, from thereon this Defendant No.5 was in lawful and peaceful possession of Suit Schedule Property and all revenue record was mutated in his name.
e) Defendant No.5 herein was in possession of the Suit Schedule Property, from the date of purchase and Suit Schedule Property is converted from agricultural to Residential purpose via Official Memorandum bearing No. ALN: SR (NA):27/2001- 02 dated 23-10-2001 issued by the Special Deputy Commissioner.
f) Thereafter Defendant No.5 alienated the Suit Schedule Property in favour of Defendant No.6 by Sale Deed dated 06-03-2002, bearing Document No.9316/2001-02, before the Sub Registrar, Yelahanka, Bengaluru. Further Defendant No.2, Defendant No.1 and 3 have also executed two Deed of Declaration in favour of Defendant No.6, dated 04-10-2004, bearing Document No.13834/2004-05 and Document No.23181/2004-05 dated 10-02-2005 respectively, and all revenue records was mutated in the name of Defendant No.6 O.S.NO.7967/2013 22 who was in peaceful/lawful possession of Suit Schedule Property from the date of purchase.
g) Defendant No.6 alienated the Suit Schedule Property in favour of Defendant No.7 by Sale Deed dated 20-04-2006, bearing Document No.1785/2006-07, Book-1, stored in C.D.No.YAND189, registered before the Senior Sub- Registrar, Yehalanka, Bengaluru, from thereon this Defendant No.7 is in peaceful/lawful possession of Suit Schedule Property, and revenue records was mutated in the name of Defendant No.7 herein, further the Suit Schedule Property comes within the jurisdiction of Bruhat Bengaluru Mahanagara Palike and khatha and all records stands in the name of Defendant No.7 herein and paying taxes to the said authority.
h) Later on Defendant No.7 has entered into a registered deed of partnership dated 16-05-2012 along with other partners in name of M/s.Raghudha Enterprises i.e., Defendant No.8, and Defendant No.7 has contributed Suit Schedule Property as his capital to the Partnership Firm along with other properties, later on vide Deed of Reconstitution dated 18-08-2022, there are only two partners i.e., Defendant No.7 and one Mr.Prashant R.Deshpande from thereon the firm is the absolute owner in lawful and peaceful possession of suit schedule property. The O.S.NO.7967/2013 23 suit is barred by limitation since the first alienation of the suit schedule property was way back in the year 1998, since all the transactions are registered documents which act as right in Rem and are binding upon the plaintiffs. The suit is not maintainable on the ground for non-joinder of necessary parties and also for partial partition. It is quite evident from the foregoing that the plaintiffs have no right, title, interest over the suit schedule property and the only remedy is against the defendant No.1 to 3 to claim the consideration amount received under the sale deed by them and the court fee paid is insufficient as plaintiffs are not in possession of the suit schedule property is converted from agricultural to non-
agricultural purpose and comes within the jurisdiction of BBMP. 3(c). This defendant submits that Venkatamma even much prior to the death of husband, was solely responsible to lead/running the family and overcome the legal and family necessities, the said Venkatamma entered Agreement of sale in respect of Suit Schedule Property dated 05-09-1994 in favour of one J.Devraju, bearing Document bearing No.2846/1994-95. And also entered another Agreement of Sale dated 20-09-1995 in favour of H.Yeshwanth Shenoy by receiving valuable O.S.NO.7967/2013 24 consideration. Further in order to complete the sale transaction in favour of agreement holder on his nominees, the said Venkatamma along with Defendant Nos. 1 to 3 executed registered General Power of Attorney dated 20-09-1995,in favour Defendant No. 4 and S.Raghunath. Further Venkatamma along with Defendant No. 1 to 3, represented by General Power of Attorney Holder alienated the Suit Schedule Property in favour of Defendant No.5, (the nominee of H.Yeshwanth Shenoy) via Sale Deed dated 27-01-1998, bearing Document No.BNG(U) YLNK/7202/1997-98, Stored in Book-1, before the Sub Registrar, Yelahanka, Bengaluru wherein the aforesaid person i.e., J.Devaraju and H.Yeshwanth Shenoy where consenting witness to said sale deed, from thereon this Defendant No.5 was in lawful and peaceful possession of Suit Schedule Property and all revenue record was mutated in his name. The aforesaid Sale Deed is binding upon the Plaintiffs since the same was for legal and family necessities, if any claim shall be as against the Defendant No.1 to 3 in respect of amount received under the sale deed. Hence prayed to dismiss the suit.
O.S.NO.7967/2013 25 3(d). The defendant No.5 and 7 filed memo of adoption, adopt the written statement filed by 4th defendant.
4. On the above rival contentions my predecessor in the office framed the following issues :-
ISSUES
1. Whether the plaintiffs proves that they are the daughters of late Byathada Subbaiah?
2. Whether the plaintiffs prove that sale deeds referred in plaint paras 12 to 15 are not binding on them?
3. Whether the suit is within limitation?
4. Whether the plaintiffs prove that they are having ½ share in the suit property?
5. Whether the plaintiffs are entitled for the reliefs as prayed?
6. What order or decree?
Additional issue No.1 dated: 17-02-2017
1. Whether the defendant No.4 proves that, suit is barred by principle of ouster? Additional Issue No.1 dated:13-03-2024
1. Whether defendant No.8 proves that the defendant No.7 entered into a Registered Deed of Partnership dated:
16-05-2012 along with defendant No.8 and later on defendant No.7 has contributed suit schedule property as his capital to the Partnership Firm along with O.S.NO.7967/2013 26 other properties, later on vide deed of Reconstitution dated: 18-08-2022?
5. In order to prove/substantiate their case, original plaintiff No.1 (Pooja Venkatamma) examined as PW-1 as she died before cross-examination. Her examination-in-chief cannot be considered. Then Legal heir of plaintiff No.1 i.e. P-1(c) himself examined as PW.2 and got marked documents as per Ex.P1 to P.17. On the other hand one of Partner of defendant No.8 examined as D.W.1 and got marked 12 documents and closed their side.
6. Heard arguments of both the sides.
7. My findings on the above issues are as under -
ISSUE NO.1 : In the Negative, ISSUE NO.2 : In the Negative, ISSUE NO.3: In the Affirmative, ISSUE NO.4 : In the Negative ISSUE NO.5 : In the Negative, ISSUE NO.6 : As per final order, for the following-
ADDL.ISSUE No.1 :- Does not survive for consideration.
ADDL.ISSUE No.1 :- In the Affirmative [13-03-2024] O.S.NO.7967/2013 27 REASONS
8. ISSUE NO.1: According to plaintiffs, the plaintiffs are the legal heirs of Byathada Subbaiah. The defendant No.1 to 3 are the brothers of plaintiffs. Defendants No.4 to 7 are the purchasers. Plaintiff in para-3 of the plaint averments mentioned regarding genealogical tree of one Byathada Subbaiah, Byathada Subbaiah got totally 6 children. Among them 3 children are daughters and defendants No.1 to 3 are sons of Byathada Subbaiah. However, except the genealogical tree no documents filed by the plaintiff to show that they are the Legal heirs of Byathada Subbaiah. Genealogical tree marked as Ex.P-1 wherein that genealogical tree was prepared on the instructions given by plaintiff No.1 Pooja Venkatamma. Subsequently, plaintiff No.1 died and her legal heir examined as PW-2 i.e. T.Venkatesh. However, he represented the other children of plaintiff No.1 and plaintiff No.2. Besides, the plaintiff No.2 and 3 have not given any G.P.A. to the PW-2 Lrs of plaintiff No.1 to proceed the matter. Hence non examination of PW.2 and 3 would be fatal.
9. PW-1 original plaintiff No.1 (Pooja Venkatamma) examined as PW-1 as she died before cross-examination. Her O.S.NO.7967/2013 28 examination-in-chief cannot be considered. No material available on record to show that PW-2 and 3 have given G.P.A. to proceed with the matter to PW-2 who is son of plaintiff No.1. Then again Ex.P-6 is the document the orders of Assistant Commissioner, this order passed on 19-12-1994. Wherein, the plaintiffs claiming their rights by virtue of this document. In para No.7 of Ex.P-6 it clearly mentioned that Smt.Venkatamma who is none other than the mother of plaintiff and defendant No.1 to 3 and also defendant No.1 to 3 herein are the Legal heirs of one Byathada Subbaiah. If the plaintiffs are really legal heirs of Byathada Subbaiah they would have questioned or challenged that order in the Appellant Authority. But, the plaintiffs, herein have not challenged the order on Ex.P-6, wherein, it is clearly observed by the Assistant Commissioner in which he passed an order of re-grant the land to legal heirs of Byathada Subbaiah, Venkatamma and defendant No.1 to 3 are the legal heirs of Byathada Subbaiah. Hence the plaintiff have failed to prove that they are the legal heirs of Byathada Subbaiah. With this discussion I answer Issue No.1 in Negative.
10. ISSUE NO.2: Originally the plaint schedule property granted to one Byathada Subbaiah. As per Section 4 and 5 of O.S.NO.7967/2013 29 PTCL Act, once the property granted to any minor community i.e. schedule caste/schedule tribe it is for the family necessity. Hence, wholly the granted land has to be considered as joint family property. Hence, once the land is granted to one Byathada Subbaiah under PTCL Act, the same can be considered as joint family property of the plaintiffs. Byathada Subbaiah sold the plaint schedule property granted land in favour of Doddamarappa by executing Sale Deed, dated:
02-02-1966. It is produced by the plaintiff and the same is marked as Ex.P-4. Ex.P-4 is the typed copy of the document, the recitals of Ex.P-4(a) clearly shows that the right, title and ownership of the property hand over to Doddamarappa. After alienating the property again the legal heirs i.e. Venkatamma and defendant No.1 to 3 filed appeal before Assistant Commissioner questioning the sale deed executed by Byathada Subbaiah in favour of Doddamarappa dated: 02-02- 1966. Subsequently, Byathada Subbaiah died. Then the plaint schedule property regranted in favor of Legal heirs of Byathada Subbaiah i.e. Venkatamma and defendant No.1 to 3 passed on 19-12-1994. The same is produced by the plaintiff and it is marked as Ex.P-6. Ex.P-6 is the document by virtue of which the plaintiff claiming partition over the plaint schedule O.S.NO.7967/2013 30 property. Then the defendant No.8 subsequently impleaded and filed his written statement in para-3(d) of his written statement he contends that Venkamamma along with defendant No.1 to 3 represented by General Power of Attorney holder alienated the suit schedule property in favour of defendant No.5 [nominee of Yashwanth Shenoy] in vide sale deed, dated:
27-01-1998. After alienating to defendant No.5 he was in peaceful possession and enjoyment over the suit schedule property. All revenue records was mutated in the name of defendant No.5.
11. Again defendant No.5 alienated suit schedule property in favour of defendant No.6 by sale deed,dated:
06-03-2002, then subsequently the revenue records were mutated in the name of defendant No.6. Again defendant No.6 alienated the suit schedule property infavour of defendant No.7 vide sale deed dated: 20-04-2006. Then defendant No.7 herein, further was in suit schedule property which comes under the jurisdiction of B.B.M.P. By virtue of the Sale Deed dated:20- 04-2006 the katha and all records stands in the name of defendant No.7. Later on defendant No.7 entered into a Registered Deed of Partnership dated:16-05-2012 along with other partners in the name of M/s Raghudha Enterprises, i.e. O.S.NO.7967/2013 31 defendant No.8. The defendant No.7 and 8 contributed their capital to the partnership firm over properties. Later on, in vide Deed of Reconstitution dated:18-08-2022, they are only two partners and their on Firm is the absolute owner in lawful possession of suit schedule property. Keeping this contention of defendant No.8 in view, on going through the recitals of Ex.P- 9 which is the registered Sale Deed, dated: 27-01-1998, Venkatamma and defendant No.1 to 3 on the strength of registered General Power of Attorney holder Venkatesh-
defendant No.4 herein executed the same in favour of Sri.Sachin Kamath, who is defendant No.5 herein. Suit against defendant No.4 abated. Ex.P-9 clearly shows that defendant No.4 is the General Power of Attorney Holder of Venkatamma and defendant No.1 to 3 legal heirs of Byathada Subbaiah.
12. However, again Ex.P-10 is the vide registered Sale Deed, dated: 06-03-2002, in which defendant No.5 executed sale deed in favour of defendant No.6. Then the General Power of Attorney holder defendant No.4 was consent witness to Ex.P-
10. Then Ex.P-11 is the sale deed, dated: 20-04-2006, in which defendant No.6 executed in favour of defendant No.7 by virtue of which defendant No.8 and 7 claiming their right over the suit schedule property. Now the question is whether the plaintiffs O.S.NO.7967/2013 32 are not binding to these transactions entered into between defendant No.4 with Venkatamma and defendant No.1 to 3, defendant No.5 to 6, defendant No.6 to 7. Here, it is very much necessary that whether the plaintiffs can claim their share over suit schedule property.
As per Proviso appended to Sec.6 of Hindu Succession Act, the daughters even though they are co-parcener of their father they cannot question alienations prior to 20-12-2004.
Here, I seek to cite one Judgment of Hon'ble High Court of Karnataka In ILR 2015 KAR 5725 in the case of Smt.Lakshmi and Others vs. Smt.Neelamma and Others, wherein it is held as under.
"The plaintiffs have not sought for cancellation of the sale deed dated: 26.6.1972 or for declaration that the said sale deed was not binding on the plaintiffs. Plaintiffs have simply added item No.1 and have arrayed the purchasers of the said property to the suit. In other words, no relief is sought against the present petitioners/defendant No.6 to 8.
Contention of the revision petitioners is that in view of the proviso to sub-Section (1) of Section 6 of the Hindu O.S.NO.7967/2013 33 Succession Act, 1956, as amended, any disposition or alienation of the property which had taken place before 20.12.2004 will not be affected or invalidated by virtue of the amendment made to Section 6 clothing the daughters with co-parcenery rights in the property governed by the Mitakshara Hindu family. All the plaintiffs are the daughters of late Annaiah Reddy. Annaiah Reddy, during his life time, along with his brother has sold suit schedule item No. 1 on 26.6.1972. After lapse of nearly 39 years from the date of sale, the daughters of Annaiah Reddy have filed the suit without seeking any relief against the purchasers and without making any specific prayer respect of the alienation made by their father."
13. It is true that the daughters are equally got their right over the suit schedule property which is ancestral property. Herein, the case on hand as the schedule property is granted land. No doubt as per Section 4 and 5 of PTCL Act, the granted land to any person of a minor community is for family welfare. Hence the same can be considered as joint family property.
O.S.NO.7967/2013 34
14. Section 6 of Hindu Succession Act, there is Amendment and Proviso appended to Section 6 in the year 2005. In that Proviso appended it is clearly held that " the declaration of right in favour of a daughter as a co-parcener though it takes effect by birth i.e. anterior to the amendment, the same would not affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20th day of December 2004." Keeping this position of law in view of proviso appended to Section 6 of Hindu Succession Act, if we verify the transactions entered into herein between defendant Nos.4, 5, 6 and 7 are prior to 20-12-2004. The position of law as per Amendment of the year 2005 to Section 6 of Hindu Succession Act, is clear that even though the daughters get coparcenery right over the joint family property by birth itself cannot question the transactions, alienation, partition whichever had taken place prior to 20-12-2004. Hence, here in the case on hand the transaction between defendant No.4 and Venkatamma and defendant No.1 to 3 prior to 20-12-2004. According to Ex.P-9 the transaction entered in the year 27-01- 1998. Hence, it is clear from Ex.P-9 sale deed that the transaction is prior to 20-12-2004. Even assuming for a O.S.NO.7967/2013 35 moment that this plaintiffs are the daughters of Byatada Subbaiah, then also the plaintiff cannot question those alienations, because those alienations has been made much earlier to 20-12-2004. Hence plaintiffs cannot question the transactions and besides they are not entitled for equal share in the suit schedule property. With all these I answer Issue No.2 in Negative.
15. ISSUE No.3: As per Article 110 of the Limitation Act, right to claim partition is a continuing right. It continue so land land as the parties continued as co-owners.
If the ouster proven by the defendant also rights to sue occurs and it is not first accrues. Here, in the case on hand, the defendant has to prove the ouster, however, the plaintiff failed to prove that they are the legal heirs of one Byathada Subbaiah, hence in joint family or even in the exclusion in the family, as the word exclusion is not defined in the limitation Act. The Limitation factor does not occur.
Though what constitute exclusion may in some cases to be a question of law, yet, the fact of exclusion from the joint estate must be prove like another fact. A part of the joint family property does not affect plaintiff's right to sue for partition. Infact, whether the plaintiff is in possession of part of the joint O.S.NO.7967/2013 36 family property. The cause of action does not accrues for a partition suit and limitation does not start to run. Hence, with these discussion I answer this issue in Affirmative.
16. ISSUE NO.4: In view of my findings to Issue No.1 & 2 this issue is answered in Negative.
17. ADDITIONAL ISSUE No.1 DATED:17-02-2017: In view of my observation made in Issue No.1, when the plaintiffs fails to prove that they are legal heirs of Byathada Subbaiah. No question of defendant proving ouster arises, hence this Issue does not survive for consideration.
18. ADDITIONAL ISSUE No.1 DATED:13-03-2024: In view of my observation on Issue No.2, this additional issue is answered in Affirmative.
19. ISSUE No.6 : In view of my findings to above issues plaintiffs are not entitled for any reliefs sought in the suit. Hence, I answer this issue in Negative.
ORDER The suit of the Plaintiffs is hereby DISMISSED with cost.
O.S.NO.7967/2013 37 Draw decree accordingly.
(Dictated to the Steno Gr.II, transcribed and typed by him on Computer, after corrections pronounced by me in the open Court on this 4th day of July, 2024).
(NISHARANI A.C) III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU Witnesses examined on behalf of Plaintiff:
PW.1 : Pooja Venkatamma
PW.2 : T.Venkatesh
Documents marked on behalf of Plaintiff:
Ex.P1 : Genealogical tree
Ex.P2 : Death certificate of Venkatamma
Ex.P3 : RTC
Ex.P4 : Certified copy of sale deed, dt: 2.2.1966
Ex.P5 : Certified copy of hand written RTC
Ex.P6 : Order of A.C. in Kar.SC/ST 52/1991/92
Ex.P7 : CD of photographs
Ex.P8 : Computerized RTC
Ex.P9 : Certified copy Sale Deed, 27.01.1998
Ex.P.10 : Certified copy of Sale Deed, dt:06-03-2002
Ex.P-11 : Certified copy Sale Deed dt;20-04-2006
Ex.P-12 : 5 photographs
to 16
Ex.P-17 Certified copy of order of Spl.D.C. in
Kar.SC/ST 19/94-95 C/w 94-95
Witness examined on behalf of Defendants:
DW.1 : Prashant R.Deshpande
O.S.NO.7967/2013
38
List of Documents Marked on behalf of Defendants:
Ex.D.1 Katha Certificate dated 28.09.2012.
Ex.D.2 Katha Extract dated 28.09.2012.
Ex.D.3 Re constitution Deed dated 18.08.2022.
Ex.D.4 Certified copy of registered Agreement of Sale
dated 05.09.1994.
Ex.D.5 Certified copy of registered General Power of
Attorney.
Ex.D.6 Tax paid receipts (2 Nos.)
Ex.D.7 Certificate of Registration of Firm.
Ex.D.8 Memorandum of Acknowledge in receipt of
document issued by Registrar of Firms ,
Bengaluru.
Ex.D.9 Certified copy of Conversion order dated
23.10.2001.
Ex.D.10 Original katha Extract (2 Nos.)
Ex.D11 Certified copy of the Partner Ship Deed dated
16.05.2012.
(NISHARANI A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU)
O.S.NO.7967/2013
39