Bangalore District Court
Muthappa vs Aralappa on 29 January, 2024
KABC010013971995
Presented on : 19-10-1995
Registered on : 19-10-1995
Decided on : 29-01-2024
Duration: 28 years, 3 months, 10 days
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH67)
DATED: This the 29th day of January, 2024
PRESENT
Sri. S. Nataraj, BAL., L.L.B.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
OS.No. 7034 of 1995
PLAINTIFF: Sri. Muthappa,
S/o Yagappa,
Aged about 50 years,
R/at Rachenahalli,
KR Puram Hobli,
Bangalore South Taluk.
(By Sri.GNR, Advocate.)
- VERSUS-
DEFENDANTS: 1. Sri. Aralappa,
S/o Yagappa,
R/at Mariyappanapalya,
Nagavara Post,
Bengaluru South Taluk.
2
OS.No.7034/1995
2. Sri. Chowdappa,
S/o Yagappa,
Aged about 28 years,
R/at Mestripalya,
Rachenahalli Post,
KR Puram Hobli,
Bengaluru south Taluk.
Dead by LRs
2(a) Smt. Jayamma,
W/o late Chouriraj @ Chowdappa,
Aged about 66 years.
2(b) Sri. Anthonyraj,
S/o late Chouriraj @ Chowdappa,
Aged about 44 years.
2(c) Sri. Sampathkumar,
S/o late Chouriraj @ Chowdappa,
Aged about 40 years.
LR D2(a) to (c) are residing at:
No.55, Rachenahalli Main Road,
Near Church, Mestripalya,
Bengaluru 560 077.
2(d) Smt. Savitha Mary,
D/o late Chouriraj @ Chowdappa,
Aged about 42 years.
R/at No.451, Namo Maria
Chikkammanahalli Road,
Near last Bus stop,
Hommadevanahalli,
Gottigere, Bengaluru 560 083.
3. The Tahasildar,
Bangalore South Taluk,
Bengaluru.
3
OS.No.7034/1995
4. Sri. Chowrappa,
S/o Shanthappa,
Mestripalya,
Bengaluru south Taluk.
Dead by LRs
4(1) Sri. Arulappa,
S/o late Chowrappa,
Aged about 32 years.
4(2) Sri. Bhishek,
S/o late Chowrappa,
Aged about 30 years.
4(3) Smt. Lourd Mary,
D/o late Chowrappa,
Aged Major.
LRs 4(1) to (3) are residinig at:
Church Road, Near BBMP
Office Byrathi Village,
Dr.SRK Nagar Post,
Bengaluru 560077.
5. Sri. K.Gangaiah,
S/o Shivaramaiah,
R/at No.13, Puttappa Compound,
Ashwathnagar Post,
Bengaluru.
6. Sri. K.N.Rao,
S/o KV Rao,
R/at lake View Defence colony,
Jalahalli West,
Bengaluru 560015.
4
OS.No.7034/1995
7. Smt. Seema Rao,
W/o Capt.S.Ravi,
Aged about 46 years,
R/at No.9091, Royal Enclave,
Srirampura Village,
Jakkur post,
Bengaluru 560064.
8. WG.CDR.GK.Chetty (Retd).
S/o late S.G.Krishnan,
Aged about 52 years,
R/at Jal Vayu Tower,
NGEF Layout, Indiranagar,
Bengauru 560038 .
9. Smt. Poornima Chetty,
W/o Wg.Cdr.GK Chetty,
Aged about 52 years,
R/at Jal Vayu Tower,
NGEF Layout,
Indiranagar,
Bengaluru 560038.
10. Sri. N.Janardana Menon,
S/o late Madhava Kartha,
R/at No.302, Sipani Grande,
868, 5th A Cross, 17E Main,
6th Block, Koramangala,
Bengaluru 560 095.
11. Sri. Arun J Menon,
S/o N.Janardana Menon,
Aged about 43 years,
R/at No.D603,
Nagarjuna Green Ridge Apartments,
HSR Layout, Sector II,
Bengaluru 560 102.
5
OS.No.7034/1995
12. Smt.Balamma,
D/o late Yagappa,
Aged about 67 years.
13. Smt.Papamma @ Yagamma,
D/o late Yagappa,
Aged about 57 years.
14. Smt.Anthoni Meri @ Rani,
D/o late Smt.Rajamma,
Aged about 31 years.
15. Sri.Balaraj,
S/o late Smt.Rajamma,
Aged about 28 years.
16. Sri.Anthoni Raj,
S/o late Smt.Rajamma,
Aged about 26 years.
Defendant Nos.12 to 16 are residing at:
Mariyappanapalya,
Nagwara Post, KR Pura Hobli,
Bengaluru East Taluk.
(D1 Sri.TR, Adv., D2(a)to(d) Sri.MRG,
Adv, D3 Exparte, LRs of D4 Sri.BLR,
Adv, D5&6 Sri.NTG,Adv, D7 Sri.CKN
and D8 to 11 Absentees
D12 to 16 Sri.BSK)
Date of institution of the suit: 20.10.1995
Nature of the suit (suit on Declaration, possession and
pronote, suit for declaration Injunction
and possession suit for
injunction,etc) :
Date of the commencement of 25.07.2001
recording of the evidence:
6
OS.No.7034/1995
Date on which the Judgment 29.01.2024
was pronounced:
Total duration Year/s Month/s Day/s
28 03 10
(Sri.S.Nataraj.)
LXVI Addl. City Civil & Sessions Judge
Bengaluru.
JUDGMENT
The suit is for;
a) To declare that the plaintiff and Shanthappa are the owner of the schedule property acquired under registered sale deed dated 18.4.1972 vide registration No.463/72 73 and;
b) To hold the inheritant proceedings initiated in IRC 2/9091 are made without jurisdiction and the entry of the same is illegal and direct the third defendant to change the entries in the name of plaintiff, and;
c) Consequential relief of permanent injunction restringing the defendant Nos.1 and 2 from interfering with the plaintiffs peaceful possession and enjoyment of the schedule property; and 7 OS.No.7034/1995
d) for recovery possession of the portion of the schedule property from defendant Nos. 7 to
11.
2. The brief facts of plaintiff's case are as follows:
a) The father of plaintiff late Yagappa and his brother late Shanthappa purchased the suit schedule property bearing Sy.No.70, 71/3, 72 and 73 measuring 2 acres 31 guntas situated at Rachenahalli village, KR Puram Hobli, Bengaluru south taluk from one Kempanna under the registered sale deed dated 25.11.1957. Thereafter, the said Yagappa and his brother Shanthappa sold the said property to Muniswamappa through sale deed dated:
23.1.1959. Thereafter the plaintiff with his own income purchased the suit schedule property jointly with his uncle late Shanthappa from Muniswamappa under the registered sale deed dated 27.10.1964. Thereafter the plaintiff and his uncle Shanthappa again sold the suit property in favour of Muniswamappa on 5.12.1965. After that the plaintiff and Shanthappa again purchased the very same property through registered sale deed dated 18.4.1972 from 8 OS.No.7034/1995 Muniswamappa from their own income. The defendants 1 and 2 are the brothers of plaintiff, have no right over the said lands. The vendor Muniswamappa had delivered possession to the plaintiff and his uncle. The Tahasildar without considering the sale deed of plaintiff in the RTC the name of defendant Nos.1 and 2 are entered.
b) The defendant Nos.1 and 2 without any right over the suit schedule properties colluding with the revenue officials created the RTC. The plaintiff become the owner of suit schedule property as per the registered sale deed. The IHC 2/1991 proceedings were held and incorporated the name of defendants in RTC duirng life time of plaintiff, it is not valid. Defendant Nos.1 and 2 on the basis of illegal revenue entries denying plaintiff right over the Suit schedule property, the defendant Nos.1 and 2 on the basis of revenue entires created illegal charge over the Suit schedule property and executed agreement of sale and GPA in favour of defendant Nos.5 and 6 on 17.8.1996. The said documents are created during pendency of suit and after receipt of suit summons by defendant Nos.1 and 2. 9
OS.No.7034/1995 Defendant Nos.5 and 6 on the basis of bogus and sham documents executed by defendant Nos.1 and 2 have illegally created 3rd party rights over the schedule properties in favour of defendant Nos.7 to 11. Defendant Nos.7 to 11 on the basis of uncautionable documents have trespassed over the suit schedule properties and put up illegal structures in portion of Suit schedule property. Defendant Nos.5 to 11 are strangers to the Suit schedule property have no right, title or interest over the same. Their transaction is subsequent to appearance of defendant Nos.1 and 2 before the Court on 19.12.1995. The documents are not binding on plaintiffs and prayed for decreeing the suit.
3. After issuance of suit summons defendant No.1 and 2, 4 , 5, 6, 7, 8 to 11 appeared through their counsels, defendant Nos.12 to 16 got impleaded by themselves on 27.8.2013. Defendant No.3 is exparte. Defendant Nos.1, 2, 4, 4 LRs, 5, 6, 7, 8 and 11 filed written statement, defendant Nos.9 and 10 adopted written statement of defendant Nos.7, 8, 11. Defendant Nos.12 to 16 filed joint 10 OS.No.7034/1995 written statement. LRs of D2, 4, defendant Nos.5, 6, 12 to 16 filed additional written statements.
4. The written statement of defendant Nos.1 and defendant No 2 LRs 2(a) to (d) are as follows:
a) The Suit schedule property was purchased by Yagappa and his brother Shanthappa jointly through sale deed dated 25.4.1957. In the said property, the Shanthappa had got l acre 9½ guntas of land and remaining 21½ guntas of land belongs to late Yagappa.
Subsequently, 1 acre 21½ guntas was partitioned between plaintiff and defendant Nos.1 and 2 (the sons of Yagappa) through Panchayath Parikath dated 6.1.1963. As per the panchayath parikath 'C' and 'B' schedule properties were allotted to share of defendant Nos.1 and 2. 'A' schedule was allotted to share of plaintiff.
b) On 29.4.1998 the plaintiff in respect of panchayath parikath admitting rights of defendant Nos.1 and 2, executed affidavit. Thereafter, the plaintiff in respect of his share he has executed sale agreement dated 18.6.1988 and 5.2.1990 by receiving full sale consideration and delivered 11 OS.No.7034/1995 possession of his share in Sy.No.70 of Rachenahalli, KR Puram Hobli, Bengaluru in favour of defendant No.1. The plaintiff had also executed General Power of Attorney in favour of 1st defendant. The share of plaintiff was transferred in the name of defendant No.1. Defendant No.1 name was shown as kathedar on the basis of sale agreement and General Power of Attorney. The plaintiff has not right, interest over the Suit schedule property. Defendant Nos.1 and 2 are the absolute owners of 33 guntas and 16½ guntas in Sy.No.70.
c) The plaintiff created the sale deed dated 18.4.1992 by inserting his name. The plaintiff has not valued the suit property and they prayed for dismissal of the suit.
5. The deceased defendant No.4/Chowrappa had filed a written statement admitting that Sy.No.70 measuring 2 acres 31 guntas is the self acquired property of plaintiff and his father Shanthappa purchased under the sale deed dated 18.4.1972 and they were put in possession, they purchased the above land with their own earnings. After death of his father Shanthappa he is in possession with 12 OS.No.7034/1995 plaintiff. The Tahasildar/defendant No.3 illegally entered the name of defendant No.2 in RTC. He is entitled to half share in the land. The plaintiff is entitled to half share. The plaintiff and his father (Shanthappa) were not signatory to partition and affidavits. The revenue entries are to be modified and no objection to declare the plaintiff and himself are the joint owners of land in question and prayed for decreeing the suit.
6. Defendant No.5 and 6 written statement that the suit is not maintainable, the suit is not valued properly, court fee paid is incorrect. The suit is barred by limitation. They contended that Yagappa the father of plaintiff and defendant Nos.1 and 2 and his brother had purchased Sy.No.70. During life time of Yagappa there was a family partition between plaintiff and defendant Nos.1 and 2 on 6.1.1963. 14 guntas was allotted in favour of plaintiff out of 1 acre 3 guntas. The remaining 14 guntas was allotted to defendant No.2 and another 15 guntas of land in the said survey number was allotted in favour of defendant No.1. The plaintiff and his legal heirs have sold their 13 OS.No.7034/1995 share of 14 guntas in favour of defendant No.1 under the agreement of sale and executed GPA and affidavit. The defendant No.1 had transferred katha and RTC. Defendant Nos.1 and 2 are the owners of 33 guntas. Thereafter, defendant Nos.1 and 2 have sold 33 guntas and 16 ½ guntas in Sy.No.70 in favour of defendant Nos.5 and 6. Defendant No.1 and his legal heirs have executed registered General Power of Attorney and agreement of sale dated 17.8.1996 in respect of 33 guntas of land in Sy.No.70 and another agreement of sale and GPA to the extent of 16 ½ gutnas. Defendant Nos.5 and 6 converted the land from agricultural to non agricultural purpose, in ALNSR/NA 298/199596 dated 20.6.1996 and in ALN SR/NA 169/199697 dated 22.7.1996. The defendant Nos.5 and 6 after purchasing the lands have formed layout and sold sites to various purchasers, they are in possession and enjoyment of respective properties, they got changed katha in their names, some of them have already put up construction and prayed for dismissal of suit. 14
OS.No.7034/1995
7. Defendant Nos.7 to 11 written statement that the suit is not maintainable, they are the bonafide purchasers of portion of suit schedule property. Defendant Nos.5 and 6 developed the layout and building has been constructed by them. The plaintiff fabricated the various documents, the suit is barred by limitation, court fee paid is incorrect. The Suit schedule property is a part of layout called Royal Enclave surrounded by the compound and prayed for dismissal.
8. Defendant Nos.12 to 16 in their written statement contended that the suit is not maintainable, the suit is bad for non joinder of necessary parties, the valuation of suit and payment of court fee is incorrect. The defendant Nos.12, 13 and Smt.Rajamma the mother of defendant Nos.14 to 16 as well as plaintiff and defendant Nos.1 and 2 are the children of Yagappa. The Suit schedule property was originally purchased by Yagappa and his brother Shanthappa jointly through registered sale deed dated:
25.11.1957. Subsequently, Yagappa and his brother Shanthappa during their life time partitioned the schedule 15 OS.No.7034/1995 property. 1 acre 9 ½ guntas was allotted to share of Shathappa. 1 acre 21 ½ gunta was allotted to share of Yagappa. The Yagappa had owned Sy.No.70 measuring 1 acre 21 ½ guntas, Sy.No.42 33 guntas and Sy.No.88 30 guntas of Rachenahalli Village. The Yagappa died leaving behind him the plaintiff, defendant Nos.1, 2 and 12 to 16 as his legal heirs to succeed his estate. After his death they are in joint possession of above said properties. They are entitled to legitimate share under the provisions of Indian Succession Act as there is no partition.
9. They filed a suit in OS.1290/2012 before CCH7 for partition. Defendant Nos.1 and 2 colluded themselves created a partition deed without consent of defendant Nos.12 to 16. It is illegal not binding on them. The plaintiff being the elder member of joint family has no absolute right to alienate. The revenue entries in the name of defendant Nos.1 and 2 is without their consent. The suit schedule property was acquired and purchased in the name of plaintiff on behalf of joint family, it is not self 16 OS.No.7034/1995 acquired property of plaintiff. The plaintiff has no right to seek for declaration and they prayed for dismissal.
10. After death of defendant No.4 his legal heirs have filed separate written statement that the suit property is ancestral property of plaintiff Nos.1 to 4 and defendant Nos.1 to 16. It is not the self acquired property of plaintiff and Shanthappa. The written statement filed by the deceased defendant without the consent of the LRs is not binding on them and they prayed for dismissal of suit.
11. Initially on framing 8 issues the suit was decreed vide judgment dated 27.11.2008. Thereafter, the said judgment was challenged before Hon'ble High Court of Karnataka in RFA 381/2009. Hon'ble High Court set aisde the judgment and decree vide judgment dated 20.3.2013 and remanded the matter for fresh trial.
12. Thereafter on the basis of pleadings issues were recasted on 20.9.2008 and framed 8 issues, thereafter on from time to time 11 additional issues are framed. Additional issue No.7 was treated as preliminary issue and answered on 5.8.2019.
17
OS.No.7034/1995 ISSUES
1. Whether the plaintiff proves that Shanthappa and he jointly purchased the schedule property?
2. Whether the proceedings in IHC 2/9091 are without jurisdiction and illegal?
3. Whether 1st defendant proves that Yagappa and Shanthappa jointly purchased the schedule property?
4. Whether the 1st defendant proves panchayat parikath dated 6.1.63?
5. Whether the 1st defendant proves that the plaintiff had executed an agreement of sale on 18.6.88 in his favour?
6. Whether the plaintiff is entitled to the declaration sought for?
7. Whether the plaintiff is entitled to permanent injunction sought for?
8. To what decree or Order?
ADDITIONAL ISSUES:
1. Whether defendants 12 to 16 prove that suit is bad for non joinder of necessary parties?
2. Do they prove that suit is barred by law of limitation?
3. Whether Court fee paid on the plaint is insufficient?
4. Whether defendants 12 to 16 prove that Yagappa died intestate leaving behind plaintiff, 18 OS.No.7034/1995 defendants 1, 2 and 12 to 16 as his only LRs to succeed his estate?
5. Do they prove that they are entitled for their legitimate share as there is no partition effected in the joint family by metes and bounds in respect of suit schedule property and the property measuring 0.33 guntas in Survey No.42 of Srirampura village?
6. Whether defendants 1 and 2 prove that schedule property was available with them for entering into panchayat parikath on 6.1.1963?
7. Whether the suit is hit by Section 133 of the Karnataka Land Revenue Act, 1964?
(Treated as preliminary issue and answered in negative as per order dated 5.8.2019)
8. Whether the LRs of the defendant No.4 proves that the written statement dated 2.7.1997 filed by their father Sri.Chowdappa is not binding on them?
9. Whether LRs of the defendant No.4 proves that the suit schedule properties are ancestral and joint family properties of their father and defendant No.4 Sri.Chowdappa, the plaintiff, the defendant No.1, 2, 12 to 16?
10. Whether plaintiff is entitled for possession of portion schedule property from the defendant No.7 to 11?
11. Whether the LRs of defendant No.2 proves that the defendant Nos.1 and 2 are the absolute owners of 01 acres 7 ½ guntas of land in Sy.No.70 of Rachenahalli Village as per the 'B' and 'C' schedule properties allotted to them under panchayath parikath dated 6.1.1963? 19
OS.No.7034/1995
13. Plaintiff himself examined as PW1 and in his support PWs2 and 3 are examined and Exs.P1 to 13 documents are marked. Defendant No.1 examined as DW 4, he got marked Ex.D60 to 64, 91 to 93. Defendant No.2(b) examined as DW7 got marked Exs.D171 to 197, defendant No.5 examined as DW3 and got marked Exs.D 132 to 157 documents. Defendant No.6 examined as DW2 got marked documents D65 to 131. Defendant No.7 power of attorney holder examined as DW1 got marked documents Exs.D3 to 58. Defendant Nos.12 to 16 and LRs of defendant No.4 power of attorney holder examined as DW6 and got marked documents Exs.D158 to 170 are marked. DW5 witness was examined on behalf of defendant No.1. In the cross examination of PW1 by way of confrontation on behalf of defendant Nos.5 and 6 Exs.D 1 and 2 were got marked.
14. Heard the arguments of counsel for plaintiff and defendants. The counsels for plaintiff filed written arguments dated 7.3.2023, 4.10.2023 and 8.12.2023 with citations. Defendant No.2 LRs filed written arguments 20 OS.No.7034/1995 dated 21.12.2023. Defendant No.12 to 16 and D4 LRs filed the written arguments on 29.11.2023. Defendant No.7 filed written arguments dated 19.12.2023 with judgments separately. Defendant No.5 and 6 counsel filed citations with list dated 4.1.2024.
15. The findings of this Court on the above Issues are;
Issue Nos.1 & 2 : Affirmative
Issue No.3 : Partly Affirmative
Issue No.4 : Negative
Issue No.5 : Negative
Issue No.6 : Partly Affirmative
Issue No.7 : Negative
Additional Issue
Nos.1 to 9 and 11: Negative
Additional Issue
No.10 : Affirmative
Issue No.8 : As per the final order
for the following reasons.
21
OS.No.7034/1995
REASONS
16. ISSUE Nos.1 to 5 and additional Issue Nos.1, 4, 5, 6, 8, 9 and 11 : Since these issues are interlinked with each other, they are taken together for discussion in order to avoid repetition of facts.
The plaintiff specific case is that the Suit schedule property bearing Sy.No.70 was jointly purchased by himself and his uncle late Shanthappa through sale deed dated 19.4.1972 form their own income. The defendant Nos.1 and 2 and other defendants have no right over the same. The vendor Muniswamappa had delivered the possession. Defendant Nos.1 and 2 obtained illegal IHC katha during life time of plaintiff from defendant No.3, it is not binding on him. The defendant Nos.1 and 2 base don illegal katha created agreement and GPA in favour of defendant Nos.5 and 6 who have fraudulently created 3 rd party rights. Defendant Nos.7 to 11 on the basis of fraudulent documents trespassed into property and put up illegal construction in a portion of Suit schedule property. The said transactions are not binding on plaintiff. 22
OS.No.7034/1995
17. The defendants 1 and 2 have pleaded that the Suit schedule property is the ancestral property jointly purchased by Yagappa and his brother Shanthappa in the year 1956. Subsequently, the property was sold. In the name of plaintiff as elder member of joint family it was purchased along with Shanthappa, the plaintiff and Shanthappa have no absolute right. During life time of Yagappa and his brother Shanthappa 2 acre 31 guntas in Sy.No.70 was partitioned between Yagappa and Shnathappa. 1 acre 24½ guntas was allotted to share of Yagappa, 1 acre 9½ gutnas was allotted to share of Shanthappa. That on 6.1.1963 the sons of Yagappa i.e., plaintiff and defendant Nos.1 and 2 entered into panchayath Palupatti. Defendant Nos.1 and 2 were allotted 33 guntas. The plaintiff was allotted 16½ guntas. Later on the plaintiff executed affidavit confirming the rights of defendant Nos.1 and 2 under palupatti. The names of defendant Nos.1 and 2 were changed in RTC. The plaintiff in respect of his share sold by way of agreement and GPA 23 OS.No.7034/1995 in favour of defendant No.1. The plaintiff is not the owner of suit schedule property.
18. Defendant Nos.5 and 6 contended that the Suit schedule property were absolutely belongs to defendant Nos.1 and 2 acquired from ancestors, under palupatti dated 6.1.1963 entered into between plaintiff and defendant No.1 and 2. Defendant Nos.1 and 2 have executed agreement and GPA in favour of defendant Nos.5 and 6 for sale consideration. The defendants converted the lands. They also purchased remaining 1 acre 9½ guntas in Sy.No.70 from defendant No.4 LRs through registered agreement and GPA. Defendant Nos.5 and 6 after conversion of entire 2 acres 31 guntas in Sy.No.70 formed a layout, sites were formed and sold sites to various purchasers, they got katha and some of them have put up construction. The land has been part of Royal Enclave surrounded by compound. The plaintiff suit is not maintainable it is barred by limitation and it is not valued property.
24
OS.No.7034/1995
19. Whereas defendant 7 has contended that he is a bonafide purchaser, constructed a house the plaintiff has created and manipulated the documents. The plaintiff is not in possession. The proper relief is not sought and it is barred by limitation.
20. Defendant Nos.12 to 16 have specifically contended the suit schedule property is the ancestral property. Upon death of Yagappa the plaintiff, defendant Nos.1 and 2 and 12 to 16 succeeded the estate, it is to be partitioned as per Indian Succession Act, the plaintiff has no locus standi to file a suit for declaration and they are entitled to their legitimate share prayed for dismissal of suit.
21. As per the contentions the plaintiff/PW1 in his chief examination affidavit reiterated the plaint averments. He got marked Ex.P1 and 6 the certified copy of the registered sale deed dated 18.4.1974 executed by Muniswamappa in favour of plaintiff and his uncle late Shanthappa in respect of Sy.No.70, 71/3, 72 and 73 measuring 2 acres 31 guntas, Rachenahalli village, 25 OS.No.7034/1995 Krishnarajapura hobli, Bengaluru South Taluk. Ex.P2 is the certified copy of the registered sale deed dated 25.11.1957 executed by Kempanna in favour of Yagappa and his brother Shanthappa in respect of Sy.No.70, 71/3, 72 and 73 measuring 2 acres 31 guntas, Rachenahalli village, Krishnarajapura hobli, Bengaluru South Taluk. Ex.P4 is the certified copy of the registered sale deed dated 27.10.1964 executed by Muniswamappa in favour of plaintiff and Shanthappa. Ex.P5 the certified copy of the registered sale deed dated 6.12.1965 executed by plaintiff and Shanthappa in favour of Muniswamappa.
22. In all the four registered sale deeds the property described as Sy.No.70, 71/3, 72 and 73 measuring 2 acres 31 guntas, Rachenahalli village, Krishnarajapura hobli, Bengaluru South Taluk. Ex.P7 is the Encumbrance certificate disclosing the above said transactions at undisputed point of time showing all the 4 survey numbers. The revenue documents produced by the defendants at Ex.D88 to D93 would show the total extent of Sy.No.70 is 5 acres 1 gunta. The alleged 26 OS.No.7034/1995 panchayath palupatti, the GPA at Ex.D60 to 64 and the documents relied by defendant Nos.5 and 6 at Exs.D65 to D84 are all in respect of Sy.No.70. It is not in dispute Sy.No.70 measuring 2 acres 31 guntas was originally purchased by Yagappa and his brother Shanthappa in the year 1957. The main dispute is in respect of Sy.No.70 measuring 2 acres 31 guntas. In the plaint schedule as per Exs.P1 and 6 the registered sale, the plaintiff described Sy.No.70, 71/3, 72 and 73 measuring 2 acres 31 guntas, Rachenahalli village, Krishnarajapura hobli, Bengaluru South Taluk. The plaintiff is not claiming any rights in respect of Sy.No.71/3, 72, 73, his claim is also in Sy.No.70 in respect of 2 acres 31 guntas, as per his cross examination page No.18 explicitly admitted that he has filed the suit in respect of Sy.No.70. He has no title and interest over Sy.No.71/3, 72 and 73. Therefore it is to be decided and adjudicated whether the plaintiff and late Shanthappa had joint owners of Sy.No.70 measuring 2 acres 31 gutnas in their individual capacity. Whether 2 acres 31 guntas of land in Sy.No.70 is the ancestral 27 OS.No.7034/1995 property of plaintiff, defendant Nos.1, 2 , 4 and 12 to 16 and they are having right over it.
23. It is not in dispute the relationship between plaintiff, defendant Nos.1, 2, 4, and defendant Nos.12 to
16. The plaintiff and defendant Nos.1, 2 defendant Nos.12, 13 and late Rajamma the mother of defendant Nos.14 to 16 are the children of late Yagappa. The said Yagappa and father of deceased defendant No.4 and grand father of defendant Nos.4(1) to (3) late Shanthappa are the brothers and sons of Sowrappa.
24. The plaintiff and defendants tracing their title to Sy.No.70, 2 acres 31 guntas on the basis of Ex.P1 to 6 registered sale deeds. It is not in dispute originally Yagappa and Shanthappa jointly purchased Sy.No.70 through registered sale deed dated 25.11.1957 from Kempanna. As per Ex.P3 registered sale deed dated 23.1.1959 the very Shanthappa and Yagappa had sold Sy.No.70 in favour of Muniswamappa. Thereafter, on 27.10.1964 the said Muniswamppa again sold the Sy.No.70 at Ex.P4 in favour of plaintiff and his uncle Shanthappa, thereafter on 28 OS.No.7034/1995 6.2.1965 under Ex.P5 sale deed plaintiff and Shanthappa again sold in favour of Muniswamappa, ultimately under Exs.P1 and 6 sale deeds dated 18.4.1972 plaintiff and Shanthappa had purchased Sy.No.70 measuring 2 acres 31 guntas from Muniswamappa. Thereafter, there is no sale transaction in respect of Sy.No.70.
25. The defendants 1 and 2 and defendant Nos.4 and 12 to 16, that apart the purchasers i.e., defendant Nos.5 to 11 have also contended that it is a joint family property purchased by the plaintiff and Shanthappa on behalf of joint family. The said property is ancestral property in which they are also having legitimate interest over the property. The defendants have also raised deence that the plaintiff has not produced original sale deeds at Exs.P1 to 6 more particularly Ex.P1. Therefore, they contended that the plaintiff has not entitled for instituting the suit. It is true that plaintiff in his cross examination at one breath he has stated the original has been lost, in another breath he has stated it has been misplaced and in latest cross examination he has contended that it is in his custody. 29
OS.No.7034/1995 The fact remains that the original sale deeds at Ex.s.P1 to 5 are not produced before the court. It is also not the case of defendants Nos.1, 2, 4 and 12 to 16 that the original documents are in their custody.
26. Exs.P1 to 6 documents are certified copies of sale deeds marked by the plaintiff. It is to be observed those documents are marked without any objections from the defendants. The defendants are not disputing the contents and its execution of Exs.P1 to 5 documents. In fact they too are claiming the rights through Exs.P1 to 5 certified registered sale deeds. The learned counsel for plaintiff has submitted that even the certified copy of the sale deed is admissible and he relied upon the recent judgment of Hon'ble Apex court in Civil Appeal No.14630/2015 dated 20.9.2023 in case of Appaiya Vs Adimuthu @ Tangapandi wherein it is held as follows:
" Going by Section 65(e) when the original of a document is a public document within the meaning of Section 74, secondary evidence relating its original viz., as to its existence, condition or contents may be given by 30 OS.No.7034/1995 producing its certified copy. Ex.A1, indisputedly is the certified copy of the sale deed No.1209/1928 dated 27.8.1928 of SRO Andipatti. In terms of Section 74(2) of the Evidence Act, its original falls within the definition of public documents and there is no case that it is not certified in the manner provided under the Evidence Act. As noticed herein before, the sole objection is that what was produced as Ex.A1 is only a certified copy of the sale deed and its original was not produced in evidence. The hollowness and unsustainability of the said objection would be revealed on an application of the relevant provisions under the Evidence Act and Registration Act 1908.
27. Hon'ble Apex Court has held the certified copy issued thereunder is not a copy of original, but it is a copy of registration entry which is itself a copy of original and it is a public document under Section 74(2) of Evidence Act and Sub Section 5 thereof, makes it admissible in evidence for proving the contents of its originals and admissible in evidence for the purpose of proving the contents of original documents.
31
OS.No.7034/1995
28. The above said ratio is applied to the case on hand, first of all the marking of Exs.P1 to 5 is not disputed. Secondly, the contents and execution of Exs.P1 to 5 is not disputed. Thirdly, the defendants claiming their right through Exs.P1 to 5 registered sale deeds. Fourthly, Exs.P1 to 5 are not challenged by the defendants or any other persons till now. Exs.P1 to 5 being the certified copies of originals, it is a public document under Section 74(2) of Evidence Act. Therefore, Exs.P1 to 5 are admissible in evidence proving the contents of said original documents. The non production of original does not take away the case of the plaintiff.
29. The recitals of Ex.P1 to 5 it is explicitly mentioned that plaintiff and Shanthappa are belongs to Roman Catholic religion. PW1 in his cross examination, to the Court question he answered that he belongs to Christianity. In fact, defendant Nos.12 to 16 in their written statement they sought for share in the suit schedule property as per Indian Succession Act. It means to say they are not governed by Hindu Law. Now, the 32 OS.No.7034/1995 question for consideration whether the concept of ancestral property and joint family is applicable to the case on hand in which the plaintiff and defendant Nos.1 to 4, 12 to 16 belongs to Christians. In this regard, the learned counsel for plaintiff relied upon the judgment of Hon'ble Andra Pradesh High Court 2007(5) ALD 140 in Jujjavarapu Yesurao Vs Nadakuduru Kamalakumar wherein it has held:
" The concept of joint Hindu family, co parcenery and doctrine of blending etc., are very unique to Hindu Law. These cannot be made applicable to Christians, Muslims or Parsis or Jews to whom succession Act has no application nor Hindu Law has any application.
30. Hon'ble Apex Court in Lalitha Theresa Siquaria (since dead) by LRs Vs Dolfi A Pias @ Adolphys Joseph Pais and another, reported in (2014) 10 SCC 731, wherein it was held "The concept of coparceners or joint family properties was exclusive to Hindu Law and not existent amongst Christians."
33
OS.No.7034/1995
31. Therefore, the Christians have been kept away from the ambit of the Hindu Succession Act. The Hindu Succession Act recognises ancestral properties, coparcenery rights, it also recognises the concept of joint family property. These provisions are totally alien to the Indian Succession Act where the rules of succession are governed strictly by the terms of the Act. Such being the case, the contention of defendant Nos.1, 2 LRs of defendant No.4 and defendant Nos.12 to 16 that the properties purchased by plaintiff and Shanthappa are joint ancestral properties, the plaintiff being the elder member is functioning as a kartha and also properties have been purchased not from his own income and from ancestral property income has no basis. Since the joint family concept and blending is unknown to Christians. Therefore, the contention of defendants that the sale deed at Ex.P1 in the name of plaintiff and Shanthappa as a joint family property is not acceptable.
32. Under Ex.P3 sale deed dated 23.1.1959 the Yagappa and Shanthappa had sold the property to 34 OS.No.7034/1995 Muniswamappa. Thereafter, there were purchase and sale by the plaintiff and Shanthappa with Muniswamappa. The recitals does not reveal either it is a loan transaction or mortgage transaction. DW2 and 3 in their cross examination have admitted that they came to know about the suit schedule property from 1996 onwards. Therefore, their evidence and defence that it is a joint family property has no basis. The evidence of DW6 the power of attorney holder of LRs of D4 and defendant Nos.12 to 16 has stated that he has born in the year 1968, he had no personal knowledge about Exs.P1 to 5 transactions, all that he had borrowed the information from his mother. The mother is not entered the witness box. Therefore, there is no basis for the defendants to contend that the sale deed at Ex.P1 dated 18.4.1972 by the plaintiff and Shanthappa as a joint family property was purchased and they are also having right over it.
33. Defendant Nos.1 and 2 and their purchasers defendant Nos.5 to 11 have contended that defendant Nos.1 and 2 and plaintiff have partitioned the properties 35 OS.No.7034/1995 under Palupatti at Ex.D60 on 6.1.1963, later on the plaintiff by executing the affidavit at Ex.D61 confirmed the rights of defendant Nos.1 and 2 and thereafter, the plaintiff and his family members in respect of his share executed agreement at Ex.P63 and GPA at Ex.P64. Therefore, it is contended that the plaintiff has no right over the suit schedule property, the revenue entires have been effected.
34. The plaintiff disputed the partition at Ex.D60 and execution of affidavit at Ex.D61, the agreement at Ex.D62, GPA and affidavit at Exs.D63 and 64. First of all, the concept of joint family is not existing in the Christians. Defendant No.4 who had filed written statement originally before the Court on 2.7.1997 admitted the plaint averments and the plaintiff half share in the suit schedule property. Subsequently, after his death the legal heirs of defendant No.4 turn around and filed a separate additional written statement disputing plaintiff right over the suit schedule property contending that it is a ancestral property. According to them the written statement filed by the defendant No.4 is not binding on them. In Balakishan 36 OS.No.7034/1995 Vs Omprakash, AIR 1986 SC 1952, the Hon'ble Apex Court held as follows:
" Sub Rule (2) of Rule 4 of order 22 authorised the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased defendant had or could have raised except those which were personal deceased defendant or respondent."
35. It is not in dispute that defendant No.4(1) to (3) have been brought on record in the capacity of legal heir of original defendant No.4. The impleadment of defendant Nos.4(1) to (3) is under provisions of Order 23 Rule 4 CPC. As per provisions of order 22 Rule 4(2) of the Code, the defence appropriate to the character of defendant Nos.4(1) to (3) has legal representatives of deceased No.4 was permissible to be taken. The impleadment being as legal heir of deceased defendant No.4, the legal representative would merely step into the shoe of defendant No.4. A plea contrary to the one taken by the deceased defendant No.4 37 OS.No.7034/1995 as well as a plea personal to the legal representative could not be permitted to be taken by them by virtue of such impleadment. Therefore, the defendant Nos.4(1) to (3) the legal representatives of defendant No.4 come into picture only as legal representatives of the deceased defendant No.4 and not in their own independent right. They cannot pitch their case higher than the original defendant No.4. What has to be appreciated is that the legal heirs do not have any independent right as an independent party in the suit. They have only stepped into the shoes of the original defendant No.4. Therefore, they entered into the suit at the later stage where the suit is and cannot set the clock back.
36. The written statement filed by defendant No.4 binding on legal heirs wherein he has clearly admitted he and plaintiff in their individual capacity pruchased the suit schedule property under Ex.P1 in which the other defendants have no right, is to be acceptable as an admission.
38
OS.No.7034/1995
37. The plaintiff counsel has addressed arguments that Exs.D60 to 64 are manipulated documents on the date of alleged execution of Palupatti Yagappa was not alive, he was died in the year 1961. The plaintiff relied upon the evidence of PW3 father Fransis Crystopher, who speaks regarding Ex.P8 the burial register extract maintained by the Church stating that Yagappa has died on 12.10.1961. Ex.P8 is the burial certificate issued by him on the basis of Ex.P8(a) register entry.
38. The defendants counsels submitted that the plaintiff himself in his cross examination has admitted that Yagappa had died in the year 1963, his admission is to be acted upon. That the death certificate issued by the competent authority is not been produced. Without there being a death certificate the evidence of PW3 and Ex.P8 is not admissible in evidence.
39. On perusal of the evidence of PW1, in one place he has admitted that his father Yagappa was died in the year 1963. However, subsequently, in the cross examination that too in a recent cross examination he has 39 OS.No.7034/1995 stated that his father was died in the year 1961. The evidence of PW1 is read as a whole, the evidence is consistant the father Yagappa was died in the year 1961. The evidence of PW1 is corroborated with the admission given by DW6/Sagaraj in para No.35, 38, 41 and 46, many times admitted that Yagappa has died in the year 1961. That apart DW7 defendant No.2(b) in his cross examination pleads ignorance that Yagappa was died on 12.10.1961 and in para No.22 explicitly admits Yagappa was died on 12.10.1961. The oral evidence of above said witnesses are appreciated with that of Ex.P8 burial certificate and Ex.P8(a) the entry in the register maintained by the concerned Church, would corroborate with each other that Yagappa was died on 12.10.1961. The defendants apart from above said material evidence they have not placed any iota of evidence to show that in the year 1963 Yagappa was died. Therefore, there is no basis to hold that Yagappa was died in the year 1963, on the other hand he was died on 12.10.1961. 40
OS.No.7034/1995
40. Now, coming to Ex.D60 the alleged Palupatti, it is unregistered Palulpatti dated 6.1.1963. As per the words mentioned in the first line of Ex.D60 it is typed as "ಅರವತತ ವದನಯ". As per the word, it was executed in the year 1961. Whereas, in numbers in second line, it is mentioned as 6.1.1963. The highlighted portion in kannada and in numbers are altered by erasing, it is seen by bare eyes. Thus, in words the document came to be executed in the year 1961, whereas, in the numbers mentioned as 1963. There is material alteration about the year of execution of alleged Palupatti. In the place of material alteration, there is no signatures of parties, there is no evidence on behalf of defendant Nos.1, 2 or any other defendants. Once the document is materially altered without the consent of other parties, the entire document is void and not binding on the parties who have not consented for alteration.
41. That apart on reading the contents of Ex.D60 it is not a memorandum of partition. In other words it is not the recitals that the partition was took place orally long 41 OS.No.7034/1995 back, for the purpose of record, they are entering into Palupatti. On the other hand the recitals are on 6.1.1963 the plaintiff, defendant Nos.1 and 2 have partitioned as "A"
"B" and "C" schedule from that day onwards each one has no objection to enjoy their respective shares. Therefore, as on 6.1.1963 right has been created and extinguished as per the said recitals. Once in respect of immovable property, right is created and extinguished the documents must be registered under Section 17 of Registration Act compulsorily. Thus, Ex.D60 is unregistered document, stamp duty has not been paid, therefore, it cannot be looked into for any purpose.
42. In Ex.D60 the Yagappa allegedly put his thumb impression to each page. As on 1963 the Yagappa was not alive as discussed herein above, he was died on 12.10.1960. As on 6.1.1963, that Sy.No.70 measuring 2 acres 31 guntas was not at all the property belongs to Yagappa nor it was standing in his name. The Yagappa and Shanthappa had sold under Ex.P3 to Muniswamappa in the year 1959 itself. The plaintiff and Shanthappa had 42 OS.No.7034/1995 purchased Sy.No.70 under Ex.P1 registered sale deed on 18.4.1972, as on 1963 the ownership and title of above said land was vested with Muniswamppa, when such being the fact, that the partition of said land in the year 1963 is without basis. The signatories to Ex.D60 as a witness are not examined or identified their signatures by the persons who are known to them. Therefore, Ex.d60 is not a valid document cannot be acceptable in evidence for the following reasons;
(1) There is no concept as joint family in Christians which the parties belongs.
(2) That the suit schedule property was purchased by the plaintiff and Shatappa jointly under Ex.P1 registered sale deed on 18.4.1972.
(3) Defendant Nos.1 and 2 or defendant Nos.12 to 16 have no preexisting right over Sy.No.70 so as to enter into a partition.
(4) Yagappa was died on 12.10.1960 as per Ex.P8, 8(a) and admission of Dws 7 and 8.
(5) On 6.1.1963 Sy.No.70 land ownership was vested with Muniswamappa;
(6) That Ex.D60 is unregistered Palupatti, the recitals require it is a compulsory registered document, under Section 17 of Registration Act. 43
OS.No.7034/1995 (7) Based on Ex.D60 mutation was not accepted. On the other hand the IHC 2/199091 was affected not on the basis of Ex.D60.
(8) The Ex.D60 has been materially altered as 1961 and 1963 without any consent and signature of other parties.
43. From the above said circumstances which probabilise that Ex.D60 has been entered into without any right, on the basis of which no right, title interest is flown to defendant Nos.1 and 2 to the extent of 33 guntas and 16½ guntas to plaintiff as per schedule "A" to "C". Thus, the defendants very foundational document upon which they are claiming rights has been shuttered.
44. The defendants have also relied upon Ex.D61 the alleged affidavit dated 29.4.1988 allegedly executed by the plaintiff confirming the rights of defendant Nos.1 and 2 under Ex.D60 Palupatti. Again the year 1963 has been altered. Once the Ex.D60 itself is not valid and no right is transferred that Ex.D61 would not survive independently, no right would be transferred and created under Ex.D61 affidavit.
44
OS.No.7034/1995
45. Ex.D62 the alleged agreement of sale dated 18.6.1988 allegedly executed by the plaintiff in favour of defendant No.1 Aralappa for a sale consideration of Rs.30,000/ and received Rs.7000/ as advance in respect of 14 guntas of land allotted to share of plaintiff under Ex.D60. Ex.D63 the affidavit said to have been executed by the plaintiff in support of alleged agreement and Ex.D 64 the unregistered notarised GPA dated 5.2.1990 in respect of 14 guntas in favour of defendant No.1. The plaintiff disputed these documents. Whereas, defendant No.4 LRs and defendant Nos.12 to 16 have supported the plaintiff to the extent of Ex.D60 to 64 documents. DW6 in his cross examination has stated those documents are created and manipulated by defendant Nos.1 and 2.
46. First of all, Ex.D62 is a unregistered agreement of sale. an agreement of sale does not create any right in the immovable property. The affidavit and unregistered notarised GPA would not get any right as a ownership in the immovable property. The agreement of sale and GPA are not the mode of conveyance. The mode of conveyance is 45 OS.No.7034/1995 to be executed in accordance with Section 17 and 49 of Registration Act and Section 54 of Transfer of Property Act. Hon'ble Apex Court in case of Suraj Lamps and Industries Pvt. Ltd. Vs State of Hariyana and another reported in (2012) 1 SCC 656 Hon'ble Apex Court has declared that there cannot be transfer of title by GPA/SA/WILLS transactions. Only registered sale deed/conveyance is a valid mode of transfer of title in immovable property. GPA, agreement to sell, WILL or SPA connectively or separately shall not be recognised as a valid mode of transfer of title. These documents do not give ownership rights in an immovable property.
47. The defendants including defendant No.1 and purchasers have also supported Ex.D62 to 64 the alleged sale of 14 guntas of land by the plaintiff under GPA, SA and affidavit. They may argue that the Suraj Lamp case is not applicable in prospective. The Suraj Lamps case was delivered on 11.10.2011. Whether the said judgment is a prospective or retrospective has been considered by Hon'ble Apex Court in a recent decision reported 2023 46 OS.No.7034/1995 SCC OnLine SC 1526, in case of Shakeel Ahamed Vs Syed Akhlaq Hussain, wherein the facts of that case the suit was filed on the basis of power of attorney, an agreement of sale, an affidavit and WILL. The suit for possession with mesne profits was granted, on appeal Hon'ble High Court has uphold the decree of possession. Hon'ble Apex Court has held that the Suraj Lamps Case is not prospective application. The agreement to sell and power of attorney would not have acquired title over the property. Para 10 to 13 of the judgment reads as follows:
" 10. Having considered the submissions at the outset,it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right,much less a legally enforceable right to approach a Court of Law on its basis. Even if 47 OS.No.7034/1995 these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries(supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i).Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others
(ii).Balram Singh Vs. Kelo Devi
(iii).M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to 48 OS.No.7034/1995 immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant,who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries(supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non registration emanates from the statutes,in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries(supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view."
48. Therefore, as per the above said judgment of Hon'ble Apex Court Ex.D62 agreement to sell dated 18.6.1988, Ex.D63 affidavit and Ex.D64 notarised GPA dated 5.2.1990 would not have acquired title over the property in question in favour of defendant No.1. At the best, on the basis of the said document defendant No.1 49 OS.No.7034/1995 could have claimed relief of specific performance in appropriate proceedings. No right, title or interest in immovable property can be conferred without a registered document. Therefore, Ex.D62 to D64 would not get any right in favour of defendant No.1. The said documents are not valid documents for the following circumstances:
(a) The plaintiff and Shanthappa have purchased under Ex.P1 Sy.No.70 measuring 2 acres 31 guntas jointly, the defendant Nos.1 and 2 and other defendants have no right.
(b) That Ex.D60 the Palupatti is not proved, it is not valid document.
(c) That once Ex.D60 is not valid document, upon which Ex.D62 to 64 were came into existence does not stand independently.
(d) Ex.D62 and D65 are unregistered sale agreement and GPA, no title and interest in respect of immovable property would be transferred, it is contrary to Suraj Lamp Case. Therefore, those documents do not stand independently on its own.
50
OS.No.7034/1995
49. The IHC Katha 2/199091 made by defendant No.3/Tahasildar on the basis of Ex.D60 to D64 is without jurisdiction. The IHC Katha would be made on a death of a holder of land. The plaintiff and Shanthappa had purchased, the plaintiff is alive, during his life time the acceptance of IHC katha is contrary to law. The defendants have not produced inherent katha before the Court except producing RTC. The revenue entries are not the title documents, those documents are only meant for the purpose of collection of revenue. Therefore, the case of the defendant that defendant Nos.1 and 2 and plaintiff entered into a partition in respect of 1 acre 24 ½ guntas, the plaintiff was allotted 16 ½ guntas, defendant Nos.1 and 2 were allotted 33 guntas and later on the plaintiff had sold 16½ guntas in favour of defendant No.1 under agreement of sale and GPA are invalid documents.
50. Defendant Nos.5 and 6 who are the purchasers of 1 acre 33 guntas in Sy.No.70 under Ex.D65 registered agreement, Dated 17.8.1996 from defendant No.1, Ex.D66 the registered GPA dated 17.8.2016 and declaration 51 OS.No.7034/1995 executed by Defendant No.1 and his son. Ex.D69 the registered agreement dated 17.8.1996, Ex.D70 the registered GPA and declaration executed by defendant No.2 Ex.D71 is the declaration. Defendant Nos.5 and 6 have also relied upon the Ex.D68 and D72 the conversion order passed by the Deputy Commissioner, Bengaluru District in respect of 33 gutnas and 16½ gutnas in Sy.No.70. No doubt the agreements and GPAs are registered. Defendant Nos.5 and 6 said to have been purchased under agreement of sale and GPA to an extent of 1 acre 9 ½ gutnas out of 2 acres 31 guntas in Sy.No.70 from defendant Nos.1 and 2 and their family members. As per the Shakeel Ahamed case stated supra, even the document of sale agreement and GPA is registered he would not have acquired title over the property in question unless, registered under Section 17 and 49 of Registration Act and Section 54 of Transfer of property Act. The documents relied by defendant Nos.5 and 6 at Exs.D65 to 72 are out of purview of Section 17, 49 of Registration Act and Section 54 of Transfer of Property Act. Above all those 52 OS.No.7034/1995 documents are came into existence on the basis of Ex.D60 to D64 documents, which are held to be unenforceable under law. It is needless to say once Exs.D60 to 64 documents are not enforceable under law, the defendant Nos.5 and 6 who claims the title to the extent of 1 acre 9½ guntas in Sy.No.70 through defendant Nos.1 and 2 under Ex.D60 to 64 would not derive any right, title and interest over the said extent of land. The sale deeds at Exs.D132 to D143 executed by defendant Nos.5 and 6 has a GPA holders of defendant Nos.1 and 2 in fvour of prospective purchasers in respect of sites in the said extent is not binding on plaintiffs. Therefore, the foundational documents itself i.e., Exs.D60 to 64 does not stand test of law, the documents relied by defendant Nos.5, 6 and 7 and oral evidence of DW1 to 3 has no legs to stand to claim title and interest over the properties. One of the confirmation deed executed by th eplaintiff does not give right to defendants.
51. The defendant Nos.5 and 6 have also relied upon Exs.D73 the registered agreement dated 20.8.1996, Ex.D 53 OS.No.7034/1995 74 the registered GPA, Ex.D75 declaration and Ex.D76 conversion order to an extent of 1 acre 1½ guntas whereas Exs.D72 to D75 are the registered agreement of sale and GPA to the extent of 1 Acre 9½ guntas executed by deceased defendant No.4 and his family members. As per Shakeel Ahamed case those documents are not the title deeds, however, defendant No.4 LRs have not challenged these documents, the sale deeds came to be executed by defendant Nos.5 and 6 in favour of its purchasers. As per the plaint, Shanthappa had half share in survey No.70 out of 2 acres 31 guntas. Therefore, after death of Shanthappa defendant No.4 and his children have executed registered GPA and agreement based on which the sale transactions were made at Ex.D144 to D155 in which the sites were formed.
52. As for as right of Shanthappa and his son defendant No.4 is not disputed by he plaintiff. Those documents no doubt were executed during pendency of suit. The plaintiff without pleadings and bringing on record the material legally and produced the partition deed 54 OS.No.7034/1995 dated 8.1.2010 along with written arguments said to have been entered into between plaintiff and deceased defendant No.4 Chowrappa. Wherein, the entire 2 acres 31 guntas in Sy.No.70 was said to have been allotted to plaintiff as "A' schedule. Whereas, defendant No.4 by receiving Rs.5,00,000/ allegedly relinquished his rights in favour of plaintiff as "B' schedule of said partition deed. The said document has not been marked before the Court. There is no pleadings, so in absence of any such material, the above said partition deed does not confir any right in respect of half right held by Shanthappa out of 2 acres 31 guntas in Sy.No.70. Therefore, the sale deeds executed by defendant Nos.5 and 6 on behalf of defendant No.4 and his children to an extent of 1 acre 9 guntas in Sy.No.70 of Rachenahalli village bounded on East :land of Gurappa and sons, West:
by water tank, North: by property of Sowraj Aralappa, south: by property of Rayappa Ineshappa and others is held to be valid and binding on plaintiff on defendant No.4.
53. Whereas the sale deeds of defendant No.7 to 11, the agreement and GPA of defendant Nos.5 and 6 and 55 OS.No.7034/1995 Ex.D132 to 143 in respect of other portion measuring 1 acre 9 ½ guntas in Sy.No.70 came into existence during pendency of suit.
54. The learned counsel for defendants conrtended that all the purchasers of various sites are not made as a parties to the suit without impleading them, the decree cannot be passed. The defendant Nos.5 to 11 and the purchasers in Exs.D133 to D143 came into existence during pendency of suit. Defendant No.1 and 2 appeared before the court on 19.12.1995. Thereafter, the uncautionable documents were came into existence and it is hit by Section 52 of Transfer of Property Act. The learned counsel for plaintiff has relied upon the judgment of Hon'ble Apex Court in Civil Appeal 12215/2011 dated 29.3.2023 Shivshankara Vs HP Vedavyasachar wherein the scope of Section 52 of Transfer of Property Act and its implications are considered in detail.
55. Hon'ble Apex Court in AIR 2014 SC 279 KN Ashwathanarayana Shetty Vs State of Karnataka and others expressed the meaning of lis pendens holding that: 56
OS.No.7034/1995 "The principles of lis pendence is in accordance with the equity, good conscience and justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendent lite is bound by the decree just as much as he was a party to the suit. A litigating party is exempted from taking notice of a title acquired during the pendency of the litigation."
It is further held:
" The transferee cannot deprive the successful plaintiff of the fruits of the decree if he purchased the property pendente lit."
56. AIR 1973 SC 2537 Rajender Singh Vs Santa Singh and others, it was observed by the Supreme Court that:
" The doctrine of lis pendent was intended to strive at attempts by the parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interest in immovable property is spending by private dealing which may remove the subject matter of litigation form the ambit of court power to decide pending 57 OS.No.7034/1995 dispute or frustrate its decree. Alienees acquiring any immovable property during pending litigation, are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of doctrine of lis pendent is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of litigation to the power and jurisdiction of the Court so as to prevent the object of pending action from being defeated. (emphasis is applied)
57. In view of above said settled principles, by application of Section 52 of Transfer of Property Act that the contention of defendant Nos.5 to 11 that they have purchased the suit schedule property for valuable consideration, put up construction, invested amount, the layout has been formed sourrounded by compound and gated community would not come to their aid simply because those transactions are during pendency of suit. That defendant Nos.5 to 11 transactions and Exs.D132 to 143 sale deeds have came into existence through 58 OS.No.7034/1995 defendant Nos.5 and 6 as power of attorney holders of defendant Nos.1 and 2 in respect of 1 acre 9 ½ guntas in Sy.No.70 held to be invalid, those transactions are not binding on plaintiff. The defendants 5 to 7 and purchasers in Exs.D132 to D143 are bound by the decree that is passed in favour of plaintiff. Impleading of those purchasers is not necessary as per the judgment of Rajendra Singh Case. The defence of the defendants that the suit is bad for non joinder of necessary parties is no basis. Accordingly answered Issue No.1 and 2 in Affirmative, Issue No.3 partly affirmative, Issue Nos.4, 5 in Negative, additional Issue No.1, 4, 5, 6 , 8 to 11 in the Negative.
58. Additional Issue No.3 : The defendants in their written statements as well as arguments contended that the suit schedule property is the converted landed property, the valuation of the suit and payment of court fee is incorrect. The plaintiff ought to have been valued the suit on market value of the property and to pay court fee accordingly.
59
OS.No.7034/1995
59. The counsel for plaintiff submtited that as on the date of filing of suit, the suit schedule property was the agricultural land, the suit has been valued under Section 7(1) read with 24(b) of KCF & SV Act and valued at Rs.1000/ and court fee of Rs.387/ is sufficient. The suit schedule property was converted, the plaintiff is not required to pay the court fee on converted land.
60. After considering their submissions. The plaintiff initially filed the suit on 19.10.1995 in respect of Sy.No.70, 2 Acres 31 guntas as agricultural land. In fact the defendants did not dispute that as on the date of filing of suit the Sy.No.70 was agricultural land. During pendency of suit, defendant Nos.1 and 2 after their appearance have made transactions with defendant Nos.5 and 6, through them Sy.No.70 was converted for non agricultural purpose as per Ex.D68 and D72 conversion orders dated 20.6.1996 and 22.7.1996 respectively. Thus, after institution of suit as per the above said orders, the land in question was converted for agricultural purpose. Therefore, the conversion of land after institutiion of suit is 60 OS.No.7034/1995 not relevant for the purpose of valuation of suit and computing the court fee.
61. The Suit has to be valued and court fee has to be computed as on the date of presentation of plaint. The documents produced by the defendants themselves would show the suit schedule property was the agricultural land and valued the suit under Section 7(1) read with 24(b) of Karnataka Court Fee & Suit Valuation Act and valued at Rs.1000/ ad paid court fee on 25 times of assessment. Therefore, there is no basis for the defendants to contend that the valuation of suit and payment of court fee is incorrect and insufficient. Accordingly, answer the Additional Issue No.3 in Negative.
62. Issue Nos.6 & 7 and Additional Issue Nos.2 :
The defendants 5, 6, 7 and 12 to 16 in their written statements have set up plea that the suit of the plaintiff is barred by limitation. The learned counsel for defendant Nos.5 and 6 contended that the suit is not maintainable under Section 133 of Karnataka Land Revenue Act, as on that day the revenue records were not in the name of 61 OS.No.7034/1995 plaintiff. The counsel also submitted that the plaintiff himself had admitted that mutation was accepted in the name of defendants in the year 197475 and he was aware of the said mutation, the suit ought to have been filed within 3 years from the date of his knowledge of change of mutation. The suit is barred by limitation.
63. The counsel for defendant No.7 argued that defendant No.3 is Tahasildar, without making State as a party under Order 27 CPC suit is not maintainable. It is further submitted that Section 80 CPC prior notice was not issued the entire suit is to be dismissed. The counsel further submitted that the relief of possession was sought subsequently, it is barred by limitation. The plaintiff is not in possession since beginning, without seeking further relief under Section 34 of Specific Relief Act, the suit is not valid. The pleadings and evidence are inconsistent. The layout has been formed, the sites have been formed, surrounded by the compound and it is a gated community and relied upon the photographs, the plaintiff is not 62 OS.No.7034/1995 entitled for declaration and possession without impleading other purchasers.
64. The counsel for defendant Nos.5 and 6 relied upon following judgments:
1. AIR 2009 SC 3115 in Shyam Lal @ Kuldeep Vs Sanjeev Kumar & Ors.
2. AIR 2014 SC 3640 in Chaman Lal Vs State of Punjab & Ors.
3. AIR 1984 SC 1043 in Bihari Chowdhary and another Vs State of Bihar and others.
4. AIR 1993 SC 957 in Vinay krishna Vs Keshav Chandra & Another.
5. 1973(2) SCC 60 in Ram Saran and another Vs Ganga Devi.
6. ILR 2007 KAR 339 in Sri.Aralappa Vs Sri.Jagannath & Others.
7. AIR 2000 Madras 465 in S.Madasamy Thevar Vs A.M.Arjuna Raja.
8. 2013 AIR SCW 2752 in Union of India Vs Ibrahim Uddin and another.
9. AIR 2007 SC 1499 in mehar Chand Das Vs Lal Babu Siddique and others.
10. AIR 2018(3) KCCR 2175 in Shri Bharatesh Balasaheb Kuppantte and another Vs Shri Noorbabasab Peeraso Mantoorkar since dead by LRs.63
OS.No.7034/1995
11. 2018(4) KCCR 3075 in Balu Jyoti Chambar @ Mane and another Vs Lagamanna Birasidda Pujari.
12. 2004(1) KCCR 662 in K.Gopala Reddy (deceased) by LRs Vs Suryanarayana and others.
13. AIR 1995 (Ori.) 270 in Nirakar Das Vs Gourhari Das and others.
Whereas defendant No.7 counsel relied following judgments.
1. Union of India Vs Ibrahim Uddin & Another (2012) 8 SCC 148.
2. Muni Lal Vs Oriental Fire & General Insurance Co. Limited and another (1996) 1 SCC 90.
3. Nazir Mohamed Vs. J.Kamala (2020) 19 SCC 57
4. Amit Kumar Shaw Vs Farida Khatoon (2005)11 SCC 403.
5. B.V.Kyarakatti Vs Sattappa Shambappa Gomadi & Others in IlR 2003 Kar 4064.
6. Laxman Singh Vs Jagannath1999 SCC Online MP 271
7. Bandhu Das and Another Vs Uttam Charan Pattanaik AIR 2007 Ori 24.
8. Ambanna Vs Ghateappa AIR 1999 Kar 421
9. S.Srinivasa Vs Smt.Saraswathi, MFA No.1621/2020.
64
OS.No.7034/1995
10. Mahesh M.N. Vs Lakshmidevamma and others 2019 SCC Online Kar 1531.
65. After considering the principles laid down in the above said case laws, in the present case, admittedly as on the date of filing of suit, the revenue entries were not in the name of plaintiff, which were in the name of defendant Nos.1 and 2. Section 133 of Land Revenue Act speaks regarding presumption of RTC entries. The plaintiff has filed a suit for declaration on noticing denial of his right in respect of his property by the defendants on the basis of revenue entries. Therefore, the suit cannot be said to be not maintainable without revenue entries in his name on the date of suit. The plaintiff has sought for declaration based on the registered sale deed dated 18.4.1972
66. It is true that PW1 in his cross examination had stated that he came to know about the revenue entries in the name of defendants in the year 197475. it is not the case of defendants that in the year 197475 the revenue entries were got changed in the name of defendant Nos.1 and 2 or any other persons. Defendant Nos.1 and 2 name 65 OS.No.7034/1995 was mutated as per IHC 2/199091. The said IHC 2/1990 91 is not produced by the defendants. The Court has held those entries were illegal without any basis as per the reasons given herein before. When there is no revenue entries in the name of defendants in the year 197475 the question of plaintiff aware of revenue entries in the year 197475 is not probable.
67. The plaintiff filed suit based on title deed i.e., sale deed. As per the judgment of Hon'ble High Curt of Karnataka in RSA580/2017 dated 11.4.2023 in case of Thimmaiah Vs late Puttaiah, has formulated the substantial question of law that in a comprehensive suit, title of party has to be adjudicated based on the title documents and not on the basis of revenue record. Hon'ble High Court by answering the substantial question in affirmative observed that, if the name of the person appearing in revenue record is removed, it does not extinguish the right, title and interest if any vesting in him in respect of property. The mutation or revenue entries are made only for fiscal purpose for deciding the liability to 66 OS.No.7034/1995 pay the land revenue and mutation entries do not decide the issue of title in respect of the properties affected by the entries. Therefore, even though the name of plaintiff was not shown in the revenue records based on Ex.P1 sale deed. The plaintiff right, title and interest over the property does not extinguish for not showing his name in revenue records. The right of the plaintiff is to be decided based on the title deed at Ex.P1 and not at revenue entries. Therefore, there is no substance in the contention of defendants that without revenue entries in the name of plaintiff the suit is not maintainable.
68. The plaintiff suit initially for declaration and permanent injunction, in course of pendency of suit the plaintiff got amended the plaint and sought relief of recovery of possession on 29.11.2013. When there is no rider while allowing prayer for possession, stating that the amendment will come into effect from the date of application, once possession relief is sought by way of amendment, it relates back to date of filing of suit. The 67 OS.No.7034/1995 suit is not barred under proviso to Section 34 of Specific Relief Act.
69. Once the suit is for declaration and possession Section 54 of Limitation Act is not applicable on the other hand Section 65 of Limitation Act is applicable. Section 65 for possession of immovable property, the period of limitation is 12 years, when the possession of the defendant becomes adverse to the plaintiff. The defendants 1 and 2 have made transactions during pendency of suit at Ex.D65 to 72 subsequently, defendant Nos.5 and 6 from 1999 sale deeds at Exs.D132 to 157. Defendant No.7 sale deed at Ex.D7 was executed on 19.12.2002. Defendant No.7 has produced photographs at Exs.D1, 2, 49 to 58 and also the telephone bills Exs.D20 to 40, electricity bills at Exs.D41 to 48 and tax paid receipts Exs.D12 to 19 are produced. However, the defendants much less defendant No.7 has not placed the plan to show the year of construction of house. The other defendants and purchasers have also not placed materials regarding the sanctioned plan and date of construction of building. 68
OS.No.7034/1995 Within 12 years, when the possession of defendant Nos.7 to 11 become adverse to the plaintiff the relief has been sought, more particularly on the date of amendment without there being any rider, it relates back to date of original plaint. As such, it cannot be said the suit is barred by limitation. The transactions made by defendant Nos.1 and 2 with defendant Nos.5 to 11 and other purchasers are held to be not valid and without right. The defendant Nos.1 and 2 themselves have no right as the property in question was absolutely belongs to the plaintiff and late Shanthappa and it is not ancestral joint family property. The Ex.D60 to 64 are invalid documents not enforceable under law and no right is created in favour of defendant Nos.1 and 2. Once defendant Nos.1 and 2 did not have any right, the subsequent transactions made by them is illegal and not binding on plaintiff.
70. The plaintiff has sought for relief of possession from defendant Nos.7 to 11. The defendants have contended that the other purchasers are in possession of sites purchased by them and put up constructions. To 69 OS.No.7034/1995 show that Ex.D132 to 143 are in possession of the respective sites or made any construction there is no material. On the basis of registered sale deeds it cannot be said that they are in possession of respective sites. The plaintiff being the title holder along with late Shanthappa in so for as plaintiff half right to the extent of 1 acre 15 ½ guntas deemed to be in possession, the question of seeking possession from other purchasers without there being material is not necessary.
71. The plaintiff had sought for permanent injunction against defendant Nos.1 and 2 since they have executed unactionable documents in favour of defendant Nos.1 and
2. They are not in possession of any extent of land as per their own documents therefore, the question of temporary injunction does not arise.
72. The plaintiff is found to be owner of half extent in Sy.No.70, the transactions made by defendant Nos.1 and 2 at Exs.D60 to 64 and subsequent transactions during pendency of suit, by defendant Nos.5 and 6 at Ex.D7, 65 to 72, and D132 to 143 and any other transactions in so 70 OS.No.7034/1995 for as plaintiff 1 acre 15 ½ guntas are illegal not binding on plaintiff. Whereas the transaction made by defendant No.4 and his legal heirs in respect of the right held by Shanthappa to the extent of 1 Acre 15 ½ guntas made by them at Exs.D73 to 76, D144 to 157 are held to be valid and does not affect their rights. The suit of the plaintiff is to be declared in respect of his share, the transactions showing defendant Nos.1 and 2 name is nothing but denying the plaintiff right over the property. The claim of defendant No.12 to 16 that the suit schedule property is the joint family property is negativated as no basis. The suit against defendant No.3 Tahasildar is not maintainable without prior notice and it is to be dismissed against defendant No.3.
73. Considering the oral and documentary evidence on record, as well as the case laws relied by the defendant Nos.5 to 7, the judgments are not applicable to the facts and circumstances of this case. The plaintiff proved his title and is entitled for declaration and possession of portion of property from defendant Nos.7 to 11 in Sy.No.70 71 OS.No.7034/1995 belongs to plaintiff. Accordingly, answered Issue No.6 partly Affirmative, Issue No.7 Negative and additional Issue No.2 in Negative.
74. ISSUE NO.8.: In view of the findings on Issue Nos.1 to 7, additional Issues Nos.1 to 6 and 8 to 11 as above, this Court proceeds to pass the following order.
ORDER
The suit filed by the
plaintiff/Sri.Muthappa is decreed in part
with costs in respect of Sy.No.70,
Rachenahalli Village, KR Puram Hobli,
Bengaluru South Taluk, against defendant Nos.1, 2 and 4 to 16.
(a) The plaintiff is declared as a owner of 01 acre 15½ guntas (One Acre and fifteen and half guntas) out of 2 acres 31 guntas in Sy.No.70 situated at Rachenahalli Village, KR Puram Hobli, Begaluru South Taluk as per the registered sale deed dated 18.4.1972 registered document No.462/7273 at Ex.P1.
(b) It is declared that Ex.D7, D60 to 72 and D132 to D143 transactions made by defendant Nos.1 and 2 with defendant No.5 72 OS.No.7034/1995 to 11 and others are not binding on the plaintiff in so for as his 1 acre 15½ guntas in Sy.No.70.
(c) The revenue entries in so for as plaintiff 1 acre 15½ guntas in Sy.No.70 is not binding on him.
(d) The defendant Nos.7 to 11 are directed to handover vacant possession of property as per their registered sale deeds in favour of plaintiff.
(e) The suit in so for as defendant No.3 is concerned is dismissed.
(f) The relief of permanent injunction against defendant Nos.1 and 2 is dismissed.
(g) The transactions in respect of 1 Acre 15½ guntas out of 2 acres 31 guntas in Sy.No.70 held by late Shanthappa, the transactions which were made by defendant No.4 and his legal heirs under Exs.D73 to 76, Exs.D144 to 157 are unaffected/saved. (h) The suit in respect of Sy.No.71/3, 72 and 73 is dismissed.
73
OS.No.7034/1995 Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 29th day of January, 2024 ).
(S. NATARAJ), LXVI Addl. City Civil & Sessions Judge, Bengaluru.
SCHEDULE The land bearing Sy.No.70, 71/3, 72 and 73 measuring 2 acres 31 guntas situated at Rachenahalli, KR Puram Hobli, Bengaluru South Taluk bounded on: bounded on the:
East by : Marikuttappa and
Arogyaswamy's land
West by : Rachenahalli Tank,
North by : Kempanna's land;
South by : Yagappa's land
(S. NATARAJ),
LXVI Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE
1. List of witnesses examined on behalf of the Plaintiff:
PW.1 : Muthappa
PW.2 : MK Shivapal
PW.3 : Father Francis Christopher
74
OS.No.7034/1995
2. List of documents exhibited on behalf of the Plaintiff:
Ex.P.1 Sale deed
Ex.P.2 CC of sale deed dated 25.11.1959
Ex.P.3 CC of sale deed dated 23.1.1959
Ex.P.4 CC of sale deed dated 27.10.1964
Ex.P.5 CC of sale deed dated 6.12.1965
Ex.P.6 CC of sale deed dated 18.4.1972
Ex.P.7 Encumbrance certificate
Ex.P.8 Death certificate
Ex.P.9 Genealogical tree
Ex.P10 SPA
Ex.P11 Baptism certificate
Ex.P12 CC of judgment in CC.21547/2008
Ex.P13 CC of FIR
3. List of witnesses examined on behalf of the Defendant:
DW1 Cap.S.Ravi
DW2 KN Rao
DW3 K.Gangappa
DW4 Aralappa
DW5 Rangaswamy KM
DW6 Sagayraj
DW7 Antony Raj
4. List of documents exhibited on behalf of the Defendant:
Ex.D1 Certified copy of sale deed dated 18.4.1972 75 OS.No.7034/1995 Ex.D2 Certified copy of sale deed dated 25.11.1959 Ex.D.3 Power of attorney dated:
08/09/2014.
Ex.D.4 Endorsement dated: 05/09/2014 issued by Punjab National Bank.
Ex.D.5 Certified copy of the account ledger extract.
Ex.D.6 Certified copy of sale agreement dated: 17/08/1996.
Ex.D.7 Certified copy of the sale deed dated: 19/12/2002.
Exs.D.8 Tax paid receipts.
to 10
Ex.D.11 Tax payer's challan dated:
18/04/2008.
Ex.D.12 Tax paid receipt.
Exs.D.13 Online printouts of the tax paid to 16 receipts. (Certificate under Section 65B of Evidence Act not produced). Ex.D.17 Certified copy of E.C., for the period from 01/04/2002 to 31/03/2004.
Ex.D.18 Certified copy of E.C., for the period from 01/04/2004 to 15/08/2014.
Ex.D.19 Certified copy of the Form 'B' 76 OS.No.7034/1995 register extract for the period 2014
15.
Exs.D.20 Telephone bills.
to D.40 Exs.D.41 Electricity bills.
to 48 Exs.D.49 Colour photographs.
to 58 (C.D./negatives not produced). Ex.D.59 Certificate under Section 65B of Evidence Act by way of affidavit in support of Exs.D.13 to 16.
Ex.D.65 Original Sale Agreement dated 17/08/1996 executed by Defendant No.1 Ex.D.66 Original General Power of Attorney dated 17/08/1996 executed by Defendant No.1 Ex.D.67 Original Deed of Declaration dated 17/08/1996 executed by Defendant No.1 Ex.D.68 The copy of conversion order dated 20/06/1996 sent to Defendant No.1 Ex.D.69 Original Sale Agreement dated 17/08/1996 executed by Sowraj.
Ex.D.70 Original General Power of Attorney 77 OS.No.7034/1995 dated 17/08/1996 executed by Sowraj.
Ex.D.71 Original Declaration dated 17/08/1996 executed by Sowraj.
Ex.D.72 Copy of conversion order dated 22/07/1996 sent to Sowraj.
Ex.D.73 Original Sale Agreement dated 20/08/1996 executed by Defendant No.4 Ex.D.74 Original General Power of Attorney dated 20/08/1996 executed by Defendant No.4 Ex.D.75 Original Deed of Declaration dated 19/08/1996 executed by Defendant No.4 Ex.D.76 The copy of conversion order dated 20/06/1996 sent to Defendant No.4 Ex.D.77 The copy of conversion order dated 05/05/1997 sent to Defendant No.2 Ex.D.78 The copy of conversion order dated 20/06/1996 sent to Smt. Arogyamma Ex.D.79 The copy of conversion order dated 20/06/1996 sent to Sri Inneshappa Ex.D.80 The copy of conversion order dated 78 OS.No.7034/1995 20/06/1996 sent to Sri Mariswamy Ex.D.81 The copy of conversion order dated 20/06/1996 sent to Defendant No.4 Ex.D.82 The copy of conversion order dated 03/05/1997 sent to Sri Channappa Ex.D.83 The copy of conversion order dated 02/05/1997 sent to Sri Rayappa Ex.D.84 Certified copy of confirmation deed dated 21/08/2014 Exs.D.85 Encumbrance Certificates to 87 Exs.D.88 RTCs of Sy.No.70 to 93 Exs.D.94 RTCs of Sy.No.73 to 116 Exs.D.11 RTCs of Sy.No.71/3 8 to 121 Exs.D.12 Color photos 2 to 130 Ex.D.131 CD Ex.D.132 The Certified Copy of the Sale Deed dated 24/06/1999 Executed in favour of Smt. Suvarna Pavate and Smt. Gowri Pavate Ex.D.133 The Certified Copy of the Sale Deed dated 24/06/1999 Executed in favour of Sri Dr.Murthyunjaya H.Kori and 79 OS.No.7034/1995 Miss. Malavika Kori Ex.D.134 The Certified Copy of the Sale Deed dated 04/03/1999 Executed in favour of Sri Ramanujam Ex.D.135 The Certified Copy of the Sale Deed dated 34/03/1999 Executed in favour of Smt. Bhamaramanujam Ex.D.136 The Certified Copy of the Sale Deed dated 27/11/2001 Executed in favour of Sri Saji K David Ex.D.137 The Certified Copy of the Sale Deed dated 22/07/2002 Executed in favour of Sri Squadron Leader Raji K David and Smt. Jolly R David Ex.D.138 The Certified Copy of the Sale Deed dated 19/12/2002 Executed in favour of Smt. Seema Rao Ex.D.139 The Certified Copy of the Sale Deed dated 09/01/2003 Executed in favour of Miss. Hindu Kattar Ex.D.140 The Certified Copy of the Sale Deed dated 27/03/1998 Executed in favour of Smt. G.Dechamma Prabhu Ex.D.141 The Certified Copy of the Sale Deed dated 11/09/2000 Executed in favour of Dr. Nivedita Dio 80 OS.No.7034/1995 Ex.D.142 The Certified Copy of the Sale Deed dated 27/08/1997 Executed in favour of Sri Avinash Dhar Ex.D.143 The Certified Copy of the Sale Deed dated 26/07/2002 Executed in favour of Sri Rajesh Warrior and Smt. B.Anupama Ex.D.144 The Certified Copy of the Sale Deed dated 17/12/1997 Executed in favour of Sri CV Mukundan Ex.D.145 The Certified Copy of the Sale Deed dated 08/06/1998 Executed in favour of Sri PS.Ravindranathan Nayar Ex.D.146 The Certified Copy of the Sale Deed dated 07/02/1998 Executed in favour of Sri N.Janardhana Menan and Sri Arjun J Menan Ex.D.147 The Certified Copy of the Sale Deed dated 22/01/1999 Executed in favour of Miss. Radynee Vijay Pradhan Ex.D.148 The Certified Copy of the Sale Deed dated 22/01/1999 Executed in favour of Sri Mathew Vargis Ex.D.149 The Certified Copy of the Sale Deed dated 28/07/2001 Executed in favour of Sri Girish K Chetty and Smt. Poornima Chetty 81 OS.No.7034/1995 Ex.D.150 The Certified Copy of the Sale Deed dated 31/05/2001 Executed in favour of Sri Athar Adnan Ex.D.151 The Certified Copy of the Sale Deed dated 28/12/2001 Executed in favour of Sri Thyagarajadevasingamani Ex.D.152 The Certified Copy of the Sale Deed dated 12/12/2002 Executed in favour of Sri Prashantha R Koppula Ex.D.153 The Certified Copy of the Sale Deed dated 26/07/2002 Executed in favour of Sri H Nagesh and Master N Nakul Ex.D.154 The Certified Copy of the Sale Deed dated 11/03/2002 Executed in favour of Sri RPM Nayar Ex.D.155 The Certified Copy of the Sale Deed dated 11/03/2002 Executed in favour of Sri V.Santhosh Raju Ex.D.156 The Certified Copy of the Sale Deed dated 07/04/2005 Executed in favour of Sri Yap Chi Sui Ex.D.157 The Certified Copy of the Sale Deed dated 07/04/2005 Executed in favour of Sri Yap Chi Sui Ex.D.158 The Original GPA dated 02/07/2022 executed by Defendant No.12 to 16, LRs of the Defendant No.4 in my 82 OS.No.7034/1995 favour Ex.D.159 The Certified Copy of the Registered Confirmation Deed dated 21/08/2014 executed by Muttappa and Others in favour of M/s Amruth Infrotech Ex.D.160 The Certified Copy of the Sale Deed dated 04/03/1999 executed by Aralappa and Anthony Raj in favour of Bama Ramanujam Ex.D.161 The Certified Copy of the Index of Land in respect of Sy.No.70 (Two Pages) Ex.D.162 The Hand Written RTC from 196970 to 200102 of Sy.No.70 (Total 07 Pages) Ex.D.163 The RTC for the year 202223 of Sy.No.70 (Total 02 Pages) Ex.D.164 The Notarized Copy of the Ration Card and Aadhar Card of Sri.Abhishek and Sri.Aralappa (After verifying with the originals, tallies with original and originals are returned to the counsel) Ex.D.165 The Notarized Copy of the Certificate of Family Tree of the Defendant No.4 Sri.Chowrappa (original is produced, after verification, returned to the counsel) Ex.D.166 The Certified Copy of the Order Sheet 83 OS.No.7034/1995 in OS.No.1290/2012 Ex.D.167 The Certified Copy of the Plaint in OS.No.1290/2012 Ex.D.168 The Certified Copy of the RTC of Sy.No.70 (02 Pages) Ex.D.169 The Certified Copy of the RTC in Sy.No.42 (03 Pages Ex.D.170 The Certified Copy of the Sale Deed dated 04/03/1999 executed by Sri.Aralappa and his family members in favour of Sri.K.Ramanujam Ex.D.171 The Certified Copies of Seven RTCs in to 177 respect of Sy.No.70 Ex.D.178 The Certified Copy of the Mutation Ex.D.179 The Certified Copy of the Settlement Register (Two Pages) Ex.D.180 The Certified Copies of 4 EC to 183 Ex.D.184 The Certified Copy of the Sale Agreement dated 17/08/1996 Ex.D.185 The Certified Copy of the Sale Deed dated 26/07/2002 Ex.D.186 The Certified Copy of the Sale Deed dated 11/09/2000 84 OS.No.7034/1995 Ex.D.187 The Certified Copy of the Sale Deed dated 27/03/1998 Ex.D.188 The Certified Copy of the Sale Deed dated 27/08/1997 (subject to produce typed copy) Ex.D.189 The Certified Copy of the GPA dated 17/08/1996 Ex.D.190 The Certified Copy of the Mutation No.25/199697 Ex.D.191 The Original Voter ID of Sri.Chowri Raj Ex.D.192 The Original Voter ID of Smt.Jayamma Ex.D.193 The Original Voter ID of Sri.Anthony Raj Ex.D.194 The Aadhar Card of Sri.Chowri Raj Ex.D.195 The Aadhar Card of Sri.Sampath Kumar Ex.D.196 The Aadhar Card of Smt.Jayamma Ex.D.197 The Original Aadhar Card of Smt.Savitha Meri (S. NATARAJ), LXVI Addl.CC & SJ, Bengaluru.
85
OS.No.7034/1995
The Judgment pronounced
in the open Court vide
separate Judgment with
following operative portion.
ORDER
The suit filed by the
plaintiff/Sri.Muthappa is
86
OS.No.7034/1995
decreed in part with costs in
respect of Sy.No.70,
Rachenahalli Village, KR
Puram Hobli, Bengaluru
South Taluk, against
defendant Nos.1, 2 and 4 to
16.
(a) The plaintiff is
declared as a owner of 01 acre
15½ guntas (One Acre and
fifteen and half guntas) out of
2 acres 31 guntas in Sy.No.70
situated at Rachenahalli
Village, KR Puram Hobli,
Begaluru South Taluk as per
the registered sale deed dated
18.4.1972 registered
document No.462/7273 at
Ex.P1.
(b) It is declared that
Ex.D7, D60 to 72 and D132
to D143 transactions made
by defendant Nos.1 and 2
with defendant No.5 to 11 and
others are not binding on the
plaintiff in so for as his 1 acre
15½ guntas in Sy.No.70.
(c) The revenue entries
in so for as plaintiff 1 acre
15½ guntas in Sy.No.70 is not
binding on him.
(d) The defendant Nos.7
to 11 are directed to handover
vacant possession of property
as per their registered sale
deeds in favour of plaintiff.
87
OS.No.7034/1995
(e) The suit in so for as
defendant No.3 is concerned
is dismissed.
(f) The relief of
permanent injunction against
defendant Nos.1 and 2 is
dismissed.
(g) The transactions in
respect of 1 Acre 15½ guntas
out of 2 acres 31 guntas in
Sy.No.70 held by late
Shanthappa, the transactions
which were made by
defendant No.4 and his legal
heirs under Exs.D73 to 76,
Exs.D144 to 157 are
unaffected/saved.
(h) The suit in respect of
Sy.No.71/3, 72 and 73 is
dismissed.
Draw decree
accordingly.
LXVI Addl.CC & SJ,
Bengaluru