Bangalore District Court
Sri.Shivaraj.K vs The Commissioner on 18 April, 2022
1 O.S.6022/2021
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 18 th DAY OF APRIL, 2022
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.6022/2021
PLAINTIFF/S: 1. Sri.Shivaraj.K,
S/o (Late) Krishnappa,
Aged about 52 years,
# 15, Chikkallasandra,
Uttarahalli hobli,
Bangalore - 560 061.
2. Sri.K.Gopalkrishna,
S/o (Late) Krishnappa,
Aged about 45 years,
# 14, Chikkallasandra,
Uttarahalli hobli,
Bangalore - 560 061.
3. Sri.Shankarappa K,
S/o (Late) Krishnappa,
Aged about 42 years,
# 134/1, 204, Sindu Residency,
Chikkallasandra,
Uttarahalli hobli,
Bangalore - 560 061.
2 O.S.6022/2021
(By Sri.KVR, Advocate)
Vs.
DEFENDANT/S:1. The Commissioner
BBMP NR Square,
Bengaluru - 560 001.
2. The Registrar,
Birth and Death Department,
BBMP NR Square,
Bengalore - 560 001.
(By Sri.KNR, Advocate)
*****
Date of institution of suit : 10.11.2021
Nature of suit : Declaration
Date of commencement
of recording of evidence : 14.03.2022
Date on which the judgment
was pronounced : 18.04.2022
Duration of the suit :Year/s Month/s Day/s
00 05 08
3 O.S.6022/2021
JUDGMENT
1. This is a suit filed by the plaintiffs against the defendants praying to declare that father of plaintiffs i.e., Sri.Krishnappa died on 12.3.2013 and to direct the defendant No. 1 and 2 to issue death certificate of plaintiff's father Sri.Krishnappa.
2. The plaint averments briefly stated as follows:
The plaintiffs are the children of Sri.Krishnappa. The plaintiff's father Sri.Krishnappa who was aged about 66 years as on 12.3.2013 went missing around 4.30 p.m. The plaintiffs have made all efforts in searching their father. They enquired to all friends and family members of Krishnappa. Despite all efforts they failed to locate whereabouts of Krishnappa. They filed a missing complaint on 14.3.2013 before the Subramanyapura police. The said police have registered a missing FIR No.130/2013 on the same day. Subsequently the plaintiffs also made paper publication regarding the 4 O.S.6022/2021 missing of Sri.Krishnappa in Vijaya Karnataka Kannada daily news paper on 18.3.2013. Despite of all efforts made by the plaintiffs and their family members they were not able to find Krishnappa. The plaintiffs still had hope that their father would return home one day. However the said Krishnappa was not found even after the lapse of more than seven years. Therefore for getting the death certificate of the plaintiffs father, the plaintiff has got issued a notice dated 29.7.2021 to the defendants under section 80 of C.P.C. in accordance with the law. Sri.Krishnappa had left immovable properties and also other movable assets. In order to change the khatha in respect of the immovable properties and other assets left by said Krishnappa in favour of the plaintiffs herein the plaintiffs require the death certificate of Sri.Krishnappa. Since the concerned revenue authority has directed the plaintiffs to produced before them for change of revenue entries in their favour and also to obtain the other assets left by the said Krishnappa, the plaintiffs required the death certificate. 5 O.S.6022/2021 Hence on these grounds the plaintiffs prayed to decree this suit.
3. The defendants entered appearance by engaging their counsel and resisted the claim of the plaintiffs by filing their written statement.
4. The written statement filed by the defendants briefly stated as follows:
The averments made in para No. 2 to 4 of the plaint that the father of the plaintiffs Krishnappa was missing on 12.3.2013 and plaintiffs made all arrangements for a search and enquiry to all their friends and family members of Krishnappa and he was not traced and plaintiffs lodged complaint regarding missing of Krishnappa on 14.3.2013 in Subramanyapura police station and on the same day the police registered the FIR and thereafter the plaintiffs made paper publication regarding missing of Krishnappa in Vijaya 6 O.S.6022/2021 Karnataka Kannada daily news paper on 18.3.2013 are all not within the knowledge of these defendants and the plaintiffs be put to strict proof of the same. Issuance of notice also not within the knowledge of these defendants. The suit of the plaintiffs is not maintainable since the plaintiffs have not made state government as a party in this suit. The plaintiffs are not approached the concerned police station and enquired about the investigation. Hence it is the negligence of the plaintiffs. The plaintiffs have not issued legal notice as required under section 482(1) of KMC Act. There is no cause of action for the suit. Hence on these grounds the defendants prayed for dismissal of the suit.
5. Based on the pleadings of the parties the following issues are framed :
(1) Whether the plaintiffs proves that their father Krishnappa found missing from 12.3.2013?
(2) Whether the plaintiffs prove that despite of all efforts made by them and 7 O.S.6022/2021 inspite of lodging complaint to Subramanyapura police they would not traced out Krishnappa ?
(3) Whether the defendants prove that the suit of plaintiff is not maintainable ? (4) Whether the plaintiffs are entitled for the relief of declaration and consequential relief as prayed for ?
(5) What order or decree?
5. In order to prove the case of the plaintiffs, the plaintiff No.2 examined himself as PW-1 and the documents Ex.P.1 to Ex.P14 are marked. The defendants have not stepped into the witness box and also not produced any documents.
6. I have heard the arguments on the side of the learned counsel for the plaintiffs and the learned counsel for the defendants.
7. My findings on the above issues are as under :
Issue No. 1: In the Affirmative
Issue No. 2: In the Affirmative
8 O.S.6022/2021
Issue No. 3: In the Negative
Issue No. 4: In the Affirmative
Issue No. 5: As per final order
for the following
REASONS
8. Issue No.1 & 2 : These issues are taken up together for the discussion in order to avoid repetition of facts and evidence and for the sake of convenience.
6. The plaintiffs in order to establish their case the plaintiff No. 2 got examined as PW1 and the documents Ex.P1 to Ex.P14 are marked. In his examination-in-chief PW1 has reiterated the plaint averments. Since it is replica of the plaint averments it need not be reproduced once again except mentioning the gist. PW1 has deposed that the plaintiff No. 1 and 3 are his brothers and they have authorised him to give the evidence on their behalf also. PW1 has deposed that the plaintiffs are the children of Krishnappa. PW1 has deposed 9 O.S.6022/2021 that his father Krishnappa who was aged about 66 years as on 12.3.2013 went missing around 4.30 p.m. They made all arrangements for a search and enquiry to all friends and family members of Krishnappa. Despite of their efforts they failed to locate the whereabouts of Krishnappa. He has deposed that they have filed a missing complaint on 14.3.2013 before the Subramanyapura police station. The said police registered a missing FIR No.130/2013 on the same day. In order to substantiate this contention he has produced and got marked the documents Ex.P13 copy of complaint dated 14.3.2017 given to Subramanyapura police regarding missing of Krishnappa from 12.3.2013. Ex.P14 is the copy of FIR in Crime No. 130/2013 registered by Subramanyapura police for missing of Krishnappa.
7. PW1 has deposed that they have also made paper publication regarding the missing of Krishnappa in Vijaya Karnataka Kannada daily news paper dated 18.3.2013. He has produced and got marked the document Ex.P5 Vijaya 10 O.S.6022/2021 Karnataka daily news paper dated 18.3.2016. Ex.P5(a) is the relevant portion of the paper publication made with photographs of missing person Krishnappa.
8. PW1 has deposed that despite all their efforts to search Krishnappa they were not able to find Krishnappa even though a missing complaint was lodged before the police. They still had hope that their father would return home one day. However the said Krishnappa was not found even after lapse of more than seven years. He has deposed that for getting the death certificate of their father they got issued notice dated 29.7.2021 to the defendant No. 1 and 2 under section 80 of C.P.C. in accordance with the law. He has produced and got marked the document Ex.P1 copy of legal notice dated 29.7.2021 issued to the defendant No. 1 and 2. Ex.P2 are two postal receipts for having sent legal notice to the defendants. Ex.P3 and Ex.P4 are two postal acknowledgments for having served notice to the defendant No.1 and 2 Respectively. In order to show the relationship 11 O.S.6022/2021 between the plaintiffs and Krishnappa the plaintiffs have produced and got marked the documents Ex.P6 to Ex.P12. Ex.P6 is the notarised attested true copy of PAN card of plaintiff's father Krishnappa. Ex.P7 is the notarised attested true copy of Election ID card of Krishnappa. Ex.P8 is the notarised attested true copy of Aadhar card of plaintiff No. 3. Ex.P9 is the notarised attested true copy of Aadhar card of PW1. Ex.P10 is the notarised attested true copy of Aadhar card of plaintiff No. 1. Ex.P11 is the notarised attested true copy of ration card relevant page of the family of the plaintiff. Ex.P12 is the notarised attested true copy of relevant pages of ration card of plaintiff's father Krishnappa.
9. During the course of cross examination of PW1 by the learned counsel for the defendants, he has deposed that after lodging missing complaint to the Subramanya police he has went to the Subramanya police station on several occasions, but the police stated him that missing person could not be traced out. He has denied the suggestion that 12 O.S.6022/2021 after he lodged the complaint to the police he never visited to the police station. He has deposed that the corporation authorities orally directed him to produce the death certificate of his father in order to change the khatha of the property in his name. He has admitted the suggestion that he has not made his sisters and the state government as a party in this suit. During the course of cross examination of PW1 nothing is elicited from his mouth to suggest that his father Krishnappa is not found missing from 12.3.2013. The efforts made by PW1 and his family members to search missing person Krishnappa is not denied by the defendants in his cross examination.
10. It is the specific contention of the plaintiffs is that despite of best efforts made by them and their family members they could not trace out missing person Krishnappa. Even though the plaintiffs had lodged missing complaint to the jurisdictional police, i.e., Subramanyapura police, the police also could not traced out missing person 13 O.S.6022/2021 Krishnappa. The plaintiffs have produced the documents Ex.P13 copy of missing complaint lodged to Subramanyapura police. Ex.P14 copy of FIR in Crime No.130/2013 registered by Subramanyapura police. The plaintiffs have produced the document Ex.P1 copy of legal notice dated 29.7.2021 issued to the defendants. Ex.P2 are two postal receipts for having served notice to the defendants. Despite of service of notice the defendants have failed to comply the same. The defendants have not replied the notice issued by the plaintiffs to them. The plaintiffs have produced the document Ex.P5 paper publication made in Vijaya Karnataka news paper dated 18.3.2013 for having published about missing of Krishnappa.
11. The evidence of PW1 shows that he had made all efforts including lodging of complaint to the jurisdictional police Subramanyapura police about missing of his father Krishnappa and made enquiries with friends, relatives and known persons but despite of that his father Krishnappa 14 O.S.6022/2021 could not be traced. It is the specific case of the plaintiffs is that their father Krishnappa was missing from 12.3.2013 and till this date he is not traced out. The records produced by the plaintiffs such as the documents Ex.P1 to Ex.P5, Ex.P13 and Ex.P14 would shows that plaintiffs father Krishnappa found missing from 12.3.2013. There is absolutely no evidence on the side of the defendants to show that Krishnappa is still alive. It is well settled law is that if a person is unheard for more than seven years he is deemed to be dead in the eye of law as per section 108 of the Indian Evidence Act. The material placed on record would show that the plaintiffs have made all possible efforts to trace out their missing father Krishnappa but inspite of the same they could not be able to trace out their father. When that would be the case certainly the plaintiffs are entitled for the relief as sought in the present suit. The plaintiffs have proved that their father Krishnappa was missing from 12.3.2013. The plaintiffs have proved that despite of all efforts made by them 15 O.S.6022/2021 and insptie of lodging complaint to the Subramanyapura police they could not traced out Krishnappa. Hence I answered issue No. 1 and 2 in the Affirmative.
12. Issue No. 3: The defendants have taken contention that the suit of the plaintiffs is not maintainable. In order to substantiate this contention the defendants have not stepped into the witness box and also not produced any documents. The defendants in their written statement have raised objection that the plaintiffs have not issued statutory notice under section 482 of KMC Act. The plaintiffs have produced and got marked the document Ex.P1 to show that they have issued statutory notice to the defendants on 29.7.2021 prior to filing of the suit. The documents Ex.P3 and Ex.P4 are the postal acknowledgments for having served notice to the defendants. Even though the defendants have taken contention that the suit of the plaintiff is not maintainable, in order to substantiate this contention the defendants have not 16 O.S.6022/2021 stepped into the witness box and also nothing elicited from the mouth of PW1 in his cross-examination.
13. During the course of cross examination of PW1 he has admitted the suggestion that the plaintiffs have not made the state government as a party in this suit. PW1 has also admitted the suggestion that he has not made his sisters as parties to this suit. Merely because the plaintiffs have not made the state government as party to this suit the suit cannot be dismissed on the ground of non-joinder of necessary parties. Admittedly the defendants are the necessary parties who are maintaining the register of Birth and Death of person who died within the jurisdiction of BBMP. It is not in dispute that Krishnappa was residing in Chikkasandra, Uttarahalli hobli, Bangalore which is comes within the jurisdiction of BBMP. Under such circumstances the state government is not necessary party to this suit. There is no express or implied bar under section 9 of C.P.C. to entertain the suit for declaration to declare that the missing 17 O.S.6022/2021 person as deemed to be dead. In order to substantiate the contention that the suit of the plaintiffs is not maintainable the defendants have not stepped into the witness box and not produced any documents and nothing is elicited from the mouth of PW1 to show that the suit of the plaintiffs is not maintainable. The defendants have failed to prove this issue, hence I answered issue No. 3 in the Negative.
14. Issue No. 4: In view of my findings on issue No. 1 to 3 the plaintiffs are entitled for the relief of declaration to declare that Krishnappa who was missing from 12.3.2013 is deemed to be dead in the eye of law. The plaintiffs are entitled to direct the defendants to enter in the death register as missing person Krishnappa is deemed to be dead and to issue deemed death certificate of Krishnappa to the plaintiffs. Hence I answer issue No. 4 in the Affirmative.
14. Issue No.5: In view of my findings to the above issues No. 1 to 4, I proceed to pass the following. 18 O.S.6022/2021
ORDER The suit of the plaintiffs is hereby decreed.
It is hereby declared that father of the plaintiffs i.e., Sri.Krishnappa is deemed to be dead on 12.3.2013.
The defendants are hereby directed to enter the name of missing person Sri.Krishnappa in their register of Birth and Death as deemed dead on 12.3.2013 and issue the death certificate of Sri.Krishnappa after collecting late fee if any from the plaintiffs.
Parties shall bear their own cost.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 18th day of April 2022) (Mohan Prabhu) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
19 O.S.6022/2021ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Gopalkrishna Witness examined for the defendant/s :
Nil Documents marked for the plaintiff/s :
Ex.P1 - Copy of legal notice dated 29.7.2021 issued to the defendant No. 1 and 2. Ex.P2 - Two postal receipts for having sent legal notice to the defendants.
Ex.P3,4 - Two postal acknowledgments for having served notice to the defendant No.1 and 2 Ex.P6 - Notarised attested true copy of PAN card of plaintiff's father Krishnappa. Ex.P7 - Notarised attested true copy of Election ID card of Krishnappa.
Ex.P8 - Notarised attested true copy of Aadhar card of plaintiff No. 3.
Ex.P9 - Notarised attested true copy of Aadhar card of PW1 Ex.P10 - Notarised attested true copy of Aadhar card of plaintiff No. 1.20 O.S.6022/2021
Ex.P11 - Notarised attested true copy of ration card relevant pages of the family of the plaintiffs. Ex.P12 - Notarised attested true copy of relevant pages of ration card of plaintiff's father Krishnappa.
Ex.P13 - Copy of complaint dated 14.3.2017 given to Subramanyapura police regarding missing of Krishnappa from 12.3.2013. Ex.P14 - Copy of FIR in Crime No. 130/2013 registered by Subramanyapura police for missing of Krishnappa Documents marked for the defendant/s :
Nil (Mohan Prabhu) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.21 O.S.6022/2021
Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiffs is hereby decreed.
It is hereby declared that father of the plaintiffs i.e., Sri.Krishnappa is deemed to be dead on 12.3.2013.
The defendants are hereby directed to enter the name of missing person Sri.Krishnappa in their register of Birth and Death as deemed dead on 12.3.2013 and issue the death certificate of Sri.Krishnappa after collecting late fee if any from the plaintiffs.
Parties shall bear their own cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
22 O.S.6022/2021