Bangalore District Court
vs on 3 March, 2021
/1/ O.S.No.3195/2013
THE COURT OF XXXIX ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, (CCH40), BANGALORE CITY.
Dated on this the 3rd day of March, 2021.
: Present :
Sri.Khadarsab, B.A, LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 3195/2013
Plaintiffs :
1. Smt. Rathnamma D/o.Late Papaiah, 58
Years.
2. Seenappa S/o.Late Papaiah, 53 Years.
3. Narasimha S/o.Late Papaiah, 40 Years.
Plaintiffs No.1 to 3 are residing at : 4 th 'L'
Cross, Maruthi Nagar, Maruthi School
Road, Kamakshi Palya, Magadi Main
Road, Bengaluru - 79.
[By Sri.Manjeshwar, Advocate]
/ VERSUS /
Defendants :
1. Nallappa S/o.Late Papaiah, 48 Years.
2. Smt. Gowramma D/o.Late Papaiah, 48
Years.
/2/ O.S.No.3195/2013
3. Smt.Chandramma D/o.Late Papaiah, 43
Years.
Defendants No.1 to 3 are R/o.No.4th 'L'
Cross, Maruthi Nagar, Maruthi School
Road, Kamakshi Palya, Magadi Main
Road, Bengaluru - 79.
4. Sampangiramaiah S/o.Late Krishnappa,
60 Years, R/o.Haraluru Village, Varthur
Hobli, Bangalore East Taluk, Bangalore.
5. Venkatesh S/o. Late Nagappa, 44 Years.
6. Nagaraj S/o. Late Ramaiah, 48 Years.
7. Chandrappa S/o. Late Ramaiah, 38
Years.
8. Naresh S/o. Late Narayanappa, 41
Years.
Defendants No.5 to 8 R/o.Haraluru
Village, Varthur Hobli, Bangalore
East Taluk, Bangalore.
9. H.N.Ramachandra Reddy S/o.V.R.
Narasa Reddy, 38 Years, R/o.No.174,
Agara Post, Sarjapura Road,
Bengaluru - 34.
10. C.Anand S/o.K.T.Chinnappa Reddy,
44 Years, R/o.No.33, 5th Block,
Koramangala Layout, Bangalore95.
/3/ O.S.No.3195/2013
11. Smt.Gowramma D/o.Late Krishnappa,
52 Years.
12. Smt. Nagarathnamma D/o. Late
Krishnappa, 50 Years.
13. Smt.Renukamma D/o.Late Krishnappa,
48 Years.
Defendants No.11, 12 & 13 are residing
at Haraluru Village, Varthur Hobli,
Bangalore East Taluk.
[By Sri.J.K., Advocate for D.2 & 3
Sri.P.M.L., Advocate for D.10
Sri.V.N.R., Advocate for D.11 to 13
Sri.P.Y. Advocate for D.4
Defendants No.1, 4 to 9 Exparte]
ˉˉˉˉˉ
Date of Institution of the suit : 24.04.2013
Suit for partition, separate
Nature of suit : possession & declaration
Date of commencement of
evidence 06.02.2019
:
Date on which the judgment is
pronounced : 03.03.2021
Years Months Days
Duration taken for disposal :
07 10 10
***
JUDGMENT
The plaintiffs have filed the suit against the defendants for the relief of partition and separate possession of their 1/6 th share /4/ O.S.No.3195/2013 in the suit schedule property and for the relief of declaration that Sale Deed dated 30.6.1995 executed by defendants No.1 and 4 to 8 and father of defendants No.4 and 5 in favour of defendant No.9 in respect of suit schedule property is null and void and sale deed dated 20.11.1995 executed by defendant No.9 in favour of defendant No.10 in respect of suit schedule property are not binding upon the plaintiffs' share.
2. The case of the plaintiffs in brief is as under :
One Nallappa resident of Haraluru Village had 5 sons, viz., Krishnappa, Papaiah, Nagaiah, Ramaiah, and Narayana. All the sons of Nallappa have also died. Krishnappa died leaving behind his wife Akkayamma and his son Sampangiramaiah - defendant No.4 and 3 daughters i.e., Gowramma, Nagarathna and Renuka. Papaiah died leaving behind his sons and daughters i.e., Rathnamma - plaintiff No.1, Seenappa - plaintiff No.2, Narasimha - plaintiff No.3, /5/ O.S.No.3195/2013 Gowaramma - defendant No.2 and Nallappa - defendant No.1.
Nagappa also died leaving behind his wife Jayamma, she also died and his daughter Gowramma is also dead, Saraswathamma and son Venkatesh - defendant No.5.
Ramaiah died leaving behind his sons and daughers -
defendant No.6 - Nagaraju, defendant No.7 - Chandrappa.
Narayanappa died leaving behind his wife Shantha and son Nagesh-defendant No.8 and daughters Nalini, Nirmala, Dhanalaxmi. The plaintiffs and defendants No.1 to 3 constitute a Hindu joint family.
3. The said Nallappa had owned agricultural land bearing Sy.No.49/2 measuring 1 acre 31 guntas situated at Haraluru Village, Varthuru Hobli, Bangalore South Taluk, now Bangalore East Taluk. After the death of Nallappa there was a partition between his sons on 1.7.1993 in respect of said land. As per said partition deed the father of plaintiffs was allotted /6/ O.S.No.3195/2013 share to an extent of 17 ½ guntas in the said land. As per said partition deed the name of the father of plaintiffs and his brothers has been jointly mutated in the revenue records. The mutation register in respect of land bearing Sy.No.49/2 to an extent of 17 ½ guntas has been clearly shown. Accordingly, M.R.No.3/1994 95 dated 14.9.1994 has been certified. As per said partition deed, Papaiah, Nagappa, Ramaiah and Narayanappa were allotted 17 ½ guntas each in the said land. Krishnappa has been allotted other properties. Hence, no share has been allotted in Sy.No.49/2 to said Krishnappa. After the partition, father of plaintiffs, plaintiffs and defendants No.1 to 3 are in joint possession and enjoyment and till today they are jointly cultivating the said land. The plaintiffs and defendants No.1 to 3 are the coparceners of said Papaiah. After the death of Papaiah, plaintiffs and defendants No.1 to 3 are in joint possession of suit schedule property till today. There was no partition between plaintiffs and defendants No.1 to 3 in respect of joint family /7/ O.S.No.3195/2013 property. The suit schedule property is the joint family ancestral property of plaintiffs and defendants No.1 to 3. They have got equal share in the suit schedule property.
4. On 17.1.2013 the defendant No.10 came near the suit schedule property and tried to interfere with the suit schedule property and proclaimed that he has purchased the suit schedule property from defendant No.9 on 20.11.1995. Thereafter the plaintiffs have approached the jurisdictional Sub Registrar Office and obtained the certified copy of the said sale deed. On going through the said document, they came to know that defendant No.9 sold the property bearing Sy.No.49/2 to an extent of 1 acre 31 guntas of Haraluru Village to defendant No.10. They further came to know that the defendants No.1, 4 to 8 and father of defendants No.4 and 5 had sold the above said property in favour of defendant No.9 on 30.6.1995. The defendants No.1 and 4 to 8 and father of defendants No.4 and 5 /8/ O.S.No.3195/2013 have sold the said property including the suit schedule property in favour of defendant No.9, but they have no independent right and title to alienate the said property. The plaintiffs have not given any consent to execute the sale deed in favour of defendant No.9 and even they have not received the sale consideration amount either from the defendants No.1, 4 to 8 and father of defendants No.4 and 5 or from defendant No.9. The plaintiffs are not the signatories to the said sale deed, hence, the sale deeds are not binding upon the plaintiffs' share. The defendants have colluded with each other and have created the mutation entries and khatha in respect of suit schedule property. The plaintiffs have demanded their share in the suit schedule property on 17.1.2012, but the defendants have denied the rights of the plaintiffs over the suit schedule property, hence, they have filed the present suit for partition and separate possession. Hence, they prayed for decreeing the suit.
/9/ O.S.No.3195/2013
5. After service of suit summons, defendants No.2, 3 and 10 appeared through their counsels. Defendant No.10 filed his written statement. The defendants No.2 and 3 have failed to file their written statement. Hence, the written statement of defendants No.2 and 3 was taken as not filed on 18.9.2014. Though the suit summons duly served upon the defendants No.1, 4 to 9, they remained absent. Hence, defendants No.1 and 4 to 9 placed exparte.
6. Initially plaintiffs have filed the suit against the defendants No.1 to 10. During the pendency of suit, defendants No.11 to 13 have filed I.A.No.2 for impleading on the ground that they have purchased the suit schedule property from defendant No.10. The said application came to be allowed and defendants No.11 to 13 have been impleaded. Though the defendants No.11 to 13 have been impleaded, but they failed to file their written statement. Hence, the written statement of defendants No.11 to 13 was taken as not filed on 28.2.2017.
/ 10 / O.S.No.3195/2013
7. Defendant No.10 denied the claim of the plaintiffs over the suit schedule property and specifically contended that children of Nallappa who are the original owners have sold the agricultural land bearing Sy.No. 49/2 of Haraluru Village, measuring 2 acre 1 gunta on 30.6.1995 for valid consideration to defendant No.9. As per sale deed, name of the defendant No.9 has been mutated in the revenue records. Subsequently defendant No.9 alienated the said land to defendant No.10 on 20.11.1995. Since 20.11.1995 the defendant No.10 is in possession and enjoyment. As per sale deed his name has been mutated in revenue records. Subsequently defendant No.10 applied for conversion of said land. The Special Deputy Commissioner, Bangalore has granted the permission vide Order ALN(EVH)SR625/200708 dated 30.12.2008. Accordingly defendant No.10 formed the layout under the name and style Hightech Usage and same has been sold to various persons. Neither plaintiffs nor defendants No.1 to 8 are in / 11 / O.S.No.3195/2013 possession of the suit schedule property. They are no way concerned with the suit schedule property, even then they have filed the suit only with an intention to extract money. Hence, prayed for dismissal of suit.
8. On the basis of the pleadings and documents produced by both the parties, following issues have been framed on 10.9.2018 :
(1) Whether the plaintiffs prove that the suit schedule property is the joint family ancestral property of plaintiffs and defendants No.1 to 3 ?
(2) Whether the plaintiffs prove that they are in possession of the suit schedule property ?
(3) Whether the plaintiffs prove that the sale deed executed by the defendants No.1, 4 to 8 and father of defendants No.4 and 5 on 30.6.1995 in favour of the 9 th defendant in respect of suit property is not binding upon the share of the plaintiffs?
/ 12 / O.S.No.3195/2013 (4) Whether the plaintiffs prove that the sale deed executed by the defendant No.9 in favour of defendant No.10 on 20.11.1995 is not binding upon the share of the plaintiffs ?
(5) Whether the plaintiffs are entitled to 1/6 th share in the suit schedule property ?
(6) Whether the court fee paid is proper ?
(7) Whether the suit of the plaintiffs is
maintainable in the present form ?
(8) What Order or Decree?
9. Plaintiff No.2 examined himself as P.W.1 and got marked the documents Exs.P.1 to P.6. The defendants have failed to crossexamine P.W.1 and even they have failed to adduce evidence on their behalf.
10. Heard the arguments on behalf of plaintiffs. Though sufficient opportunities have been provided to the defendants for arguing the matter, even then they have failed to argue the matter. Hence, the arguments on behalf of defendants is taken as 'Nil'.
/ 13 / O.S.No.3195/2013
11. My findings to the above issues are as follows:
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the negative.
Issue No.5 : In the negative.
Issue No.6 : In the negative.
Issue No.7 : In the negative.
Issue No.8 : As per final order, for the
following:
REASONS
12. Issues No.1 to 4 : These issues are interlinked
with each other. In order to avoid repetition of facts and
evidence, these issues are taken up together for discussion.
13. The plaintiffs claim that suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3. The defendants No.4 to 8 are no way concerned with the said property. The defendants No.1, 4 to 8 and father of defendants No.4 and 5 have colluded with each other and have alienated / 14 / O.S.No.3195/2013 the property to defendant No.9. Defendant No.9 in turn alienated the said property to defendant No.10. The said sale deeds are not binding upon them.
14. Per contra, defendant No.10 contended that during the lifetime of Papaiah i.e., father of plaintiffs and defendants No.1 to 3 and his brothers have executed registered sale deed on 30.6.1995 in favour of defendant No.9 in respect of land bearing Sy.No.49/2 measuring 2 acres 1 guntas of Haraluru Village. Defendant No.9 in turn alienated the said property in favour of defendant No.10 on 20.11.1995. The plaintiffs are not at all in possession of suit schedule property. In order to harass defendant No.10, they have filed the present suit.
15. The defendants have denied the claim of the plaintiffs and also denied the existence of suit schedule property. It is the burden of the plaintiffs to prove the existence of joint family and joint family property and their rights over the suit schedule property.
/ 15 / O.S.No.3195/2013
16. In order to establish their case, plaintiff No.2 has been examined as P.W.1 and produced the documents Exs.P.1 to P.6. The examinationinchief of P.W.1 is nothing but replica of plaint averments. P.W.1 deposed that one Nallappa was the original propositus. He owned property bearing Sy.No.49/2 measuring 1 acre 31 guntas situated at Haraluru Village. The said Nallappa had 4 sons viz., Krishnappa, Papaiah, Nagappa, Ramaiah and Narayanappa. The said Nallappa and his wife Gowramma died long back. After the death of Nallappa and Gowramma their children partitioned the said land as per partition deed 1.7.1993. Accordingly, as per Ex.P.4 M.R.No.5/9495 has been certified. As per said partition deed, Papaiah, Nagappa, Ramaiah and Narayanappa were allotted 17½ guntas each in said Sy.No.49/2. Krishnappa was allotted other properties, hence, no share has been allotted in Sy.No.49/2. Krishnappa died leaving behind his wife / 16 / O.S.No.3195/2013 Akkayamma and his son Sampangiramaiah - defendant No.4 and 3 daughters i.e., Gowramma, Nagarathna and Renuka. Papaiah died leaving behind his sons and daughters i.e., Rathnamma - plaintiff No.1, Seenappa - plaintiff No.2, Narasimha - plaintiff No.3, Gowaramma - defendant No.2 and Nallappa - defendant No.1. Nagappa also died leaving behind his wife Jayamma, she also died. His daughter Gowramma who is also dead. Saraswathamma and son Venkatesh - defendant No.5. Ramaiah died leaving behind his sons and daughers - defendant No.6 - Nagaraju, defendant No.7 - Chandrappa. Narayanappa died leaving behind his wife Shantha and son Nagesh - defendant No.8 and daughters Nalini, Nirmala, Dhanalaxmi. The plaintiffs and defendants No.1 to 3 constitute a Hindu joint family. Till today the plaintiffs and defendants No.1 to 3 are in joint possession and enjoyment over the suit schedule property. On 17.1.2013 the defendant No.10 came near the suit schedule property and tried to interfere with their possession and / 17 / O.S.No.3195/2013 proclaimed that he has purchased the suit schedule property from defendant No.9 on 20.11.1995. Subsequently herself and remaining plaintiffs have made an enquiry and came to know that the defendants No.1 and 4 to 8 and father of defendants No.4 and 5 have sold the land bearing Sy.No.49/2 to defendant No.9 on 30.6.1995 as per Ex.P.5. Defendant No.9 in turn sold the said property in favour of defendant No.10 on 20.11.1995 as per Ex.P.6. The defendants No.1 and 4 to 8 and father of defendants No.4 and 5 have no authority to sell the said property to the defendant No.9. Hence, the said sale deeds are not binding upon the plaintiffs. Subsequently the plaintiffs approached the defendants No.1 to 8 and requested for effecting the partition in respect of the suit schedule property. Defendants denied the claim of the plaintiffs. Hence, they have filed the suit.
17. Though this Court has granted sufficient opportunities to the defendants for crossexamination of P.W.1, / 18 / O.S.No.3195/2013 even then they have failed, hence, crossexamination of P.W.1 was taken as nil.
18. The plaintiffs claim that land bearing Sy.No.49/2 measuring 1 acre 31 guntas of Haraluru Village was originally belonged to Nallappa, after his death his children viz., Krishnappa, Papaiah, Nagappa, Ramaiah and Narayanappa have partitioned the said land on 1.7.1993. Accordingly, mutation entry has been effected as per Ex.P.4. Though plaintiff claimed that partition was effected on 1.7.1993, but has failed to produce the said partition deed. Even the plaintiffs have failed to produce khatha extract and khatha certificate standing in the name of their father Papaiah as per said partition deed. Without documentary evidence Court cannot believe the version of the plaintiffs. Plaintiffs further claim that they are in joint possession of suit schedule property. But, in order to prove the same the plaintiffs have utterly failed to produce documents. Except the / 19 / O.S.No.3195/2013 oral testimony of P.W.1 there is no evidence on record to show that the plaintiffs are in joint possession of suit schedule property.
19. Plaintiffs claim that after the death of Papaiah defendants No.1, 4 to 8 and father of defendants No.4 and 5 have alienated the suit schedule property as per Ex.P.5. On perusal of Ex.P.5 - sale deed dated 30.6.1995, it reveals that Krishnappa, Sampangi Ramaiah, H.N.Papaiah, P.Nallappa, Jayamma, H.N.Venkatesh, Chandrappa, Ramaiah, H.V.Nagaraj, Chandrappa, H.N.Narayanappa and H.N.Nagesh have executed registered sale deed on 30.6.1995 in respect of land bearing Sy.No.49/2 measuring 2 acres 1 guntas situated at Haraluru Village in favour of defendant No.9 - Ramachandra Reddy. Ex.P.5 clearly speaks that during the lifetime of father of plaintiffs, Papaiah and his brothers including the defendants No.1 and 4 to 8 have alienated the said land to defendant No.9. The plaintiffs claim that land bearing Sy.No.49/2 was measuring / 20 / O.S.No.3195/2013 1 acre 31 guntas. But on perusal of Ex.P.5 - sale deed it reveals that the said land was measuring 2 acres 31 guntas. The claim of the plaintiffs is contrary to their own document. In Ex.P.5 it is clearly mentioned that as on the date of sale deed i.e., 30.6.1995 itself the possession of the property has been delivered to defendant No.9. It is well settled law that documentary evidence prevails over the oral evidence.
20. Under Hindu Law Kartha has got power to alienate the property for family legal necessity. The plaintiffs cannot question the alienation made by their father. As per Section 91 and 92 of the Evidence Act, the documentary evidence will prevail over oral evidence. It is well settled law that, registered documents have got presumptive value. The registered documents have presumption as genuine one.
21. On perusal of Ex.P.6 - sale deed dated 20.11.1995 it reveals that defendant No.9 by exercising his proprietory rights over land bearing Sy.No.49/2 has alienated 1 acre 31 guntas to / 21 / O.S.No.3195/2013 defendant No.10. As per sale deed the name of the defendant No.10 has been mutated in the revenue records as per Ex.P.3 - M.R.No.17/200809. Accordingly, RTC in respect of said land is standing in the name of defendant No.10 as per Ex.P.2. On perusal of Ex.P.2 - R.T.C. and Ex.P.3 - certified copy of the M.R.No.17/200809 it reveals that the land bearing Sy.No.49/2 has been converted from agricultural to nonagricultural as per Order passed by the Special Deputy Commissioner, Bengaluru vide Order No.ALN(EVH)SR6250708 dated 30.12.2008. These documents clearly goes to show that much prior to the institution of the suit, the said land has been converted from agricultural to nonagricultural. Once the land has been converted from agricultural to nonagricultural, it looses its agricultural character. As per Section 133 of Karnataka Land Revenue Act, 1961 any entry made in revenue records have got presumptive value unless contrary is proved. Section 133 of the Karnataka Land Revenue Act reads as under : / 22 / O.S.No.3195/2013 "An entry in the Record of Rights and a certified entry in the Register of Mutations or in the Patta Book shall be presumed to be true until the contrary is proved or new entry is lawfully substituted therefor."
22. Exs.P.2 and P.3 clearly reveal that land bearing Sy.No.49/2 of Haraluru Village is not an agricultural land. Both these documents clearly reveals that P.W.1 is deposing false as regards to the nature of the property.
23. On perusal of Ex.P.6 - sale deed dated 20.11.1995, it reveals that defendant No.9 sold the land bearing Sy.No.49/2 of Haraluru Village to defendant No.10 in which it is clearly mentioned that on the date of sale deed itself the possession of the property was delivered to defendant No.10. Exs.P.2, 3 and 6 clearly reveal that defendant No.10 has purchased the land and is in possession. After purchase of the said land the defendant No.10 has applied for conversion from agricultural to non / 23 / O.S.No.3195/2013 agricultural, accordingly the Special Deputy Commissioner, Bangalore has granted permission vide its Order No.ALN(EVH) SR625200708 dated 30.11.2008.
24. The counsel for plaintiffs argued that the plaintiffs are in joint possession and enjoyment of the suit schedule property. The evidence of P.W.1 is in tact. The defendants have not cross examined P.W.1 and even they have not adduced any evidence and hence, the plaintiffs are entitled for the relief.
25. That, Section 101 of Indian Evidence Act has clearly laid down that, "Burden of proving of fact always lies upon person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the presumption upon whom the burden lies has been able to discharge his burden. Until he arises at such conclusion he cannot proceed on the basis of weakness of other party". In this case also, the / 24 / O.S.No.3195/2013 plaintiffs have to prove their case on their own, they cannot take the advantages of the weakness of the defendants. In a decision reported in (2011) 12 Supreme Court Cases 220 (Rangammal Vs. Kuppaswamy), it is clearly held that :
"Evidence Act 1872 - S.101 - Burden lies on plaintiff to prove his case on basis of material available - He cannot rely on weakness or absence of defence of defendant to discharge the onus. If plaintiff claims title to property, he must prove his title."
26. In this case the plaintiffs have utterly failed to prove that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3. Hence, they cannot rely upon the weakness of the defendants to claim share in the suit schedule property.
27. In a decision reported in ILR 2005 KAR 60 [J.M.Narayana and Others Vs, Corporation of the City Of Bangalore, By its Commissioner Office, Bangalore and Others], / 25 / O.S.No.3195/2013 wherein the Hon'ble High Court of Karnataka held that, "Once the property comes within the jurisdiction of corporation limit, it looses its agricultural character".
28. Though the plaintiffs have contended that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3, but they have utterly failed to produce any iota of evidence to show that suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3.
29. In a decision reported in ILR 2014 KAR 4491 [Thimma and others Vs. Smt. Doddamma and another] in which the Hon'ble High Court of Karnataka held that :
"Head Note A - In the absence of specific averments in the plaint and proof with regard to the description of joint family properties, mode and manner of acquisition, sufficient nucleus to acquire the properties, the plaintiff is not entitled for the decree of partition and separate possession."
The said decision is aptly applicable to the case in hand.
/ 26 / O.S.No.3195/2013
30. On perusal of the entire materials on record, it is admitted fact that the father of plaintiffs and his brothers have jointly executed registered sale deed in favour of defendant No.9 in the year 1995 itself. However, the plaintiffs in the plaint have alleged that, the defendants No.1, 4 to 8 and father of defendants No.4 and 5 have created a concocted document and it is their contention that, the same is fraud document. If such is the pleading, then as per Order6 Rule4 of CPC where a party pleading relies on any misrepresentation, fraud, breach of trust willful default or undue influence and in all other cases in which particulars may be necessary beyond such as exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
31. Here even though the plaintiffs have stated that, the defendants No.1, 4 to 8 and their father have created the document, if plaintiffs have not explained the circumstances how the document came into existence as contemplated U/o.6 Rule4 / 27 / O.S.No.3195/2013 of C.P.C. If there is any fraud misrepresentation or undue influence the sale has to be challenged within the period of limitation. But as on today, the plaintiffs have not taken any steps to challenge the validity of Exs.P.5 and P.6 thereby the version of plaintiffs is untenable.
32. It is well settled law that, the registered document has got presumptive value and registered document prevails over the oral evidence. That, in a decision reported in 2019 SAR (Civil) 166 [Jamila Begum (Dead) through L.Rs Vs. Shameem Mohammad (Dead) through L.Rs and another], in which the Hon'ble Apex Court held that, "A registered document carried with it a presumption that it is validly executed." In this case also the father of plaintiffs and his brothers and others have executed registered Sale Deed in favour of defendant No.9. Subsequently the defendant No.9 executed registered sale deed in favour of defendant No.10. Hence, they have got presumptive value.
/ 28 / O.S.No.3195/2013
33. The plaintiffs claim that, the defendants No.1, 4 to 8, father of defendants No.4 and 5 played fraud and got executed sale deed as per Ex.P.5. The plaintiffs have failed to prove that defendants No.1, 4 to 8 and father of defendants No.4 and 5 have played fraud. As discussed supra, as per Order VI Rule 4 of C.P.C. in case of fraud, undue influence, etc., the pleadings must be specific regarding the same. But, the plaintiffs have not specifically pleaded regarding the fraud or undue influence, etc., in their plaint. That, admittedly, father of plaintiffs and others have executed a registered Sale Deed as per Ex.P.5 in favour of defendant No.9 i.e., much prior to filing of the present suit. There is no pleadings and evidence as regards to the fact that the father of plaintiffs and others have executed sale deed in favour of defendant No.9 with an intention to defeat the claim of the plaintiffs over the suit schedule property. It is well settled law that, without specific pleadings, evidence and documents, Court cannot grant the relief. That, in a decision reported in 2002 (3) KLJ 512 [Patel / 29 / O.S.No.3195/2013 Thippeswamy Vs. Smt.Gangamma and others] in which the Hon'ble High Court of Karnataka clearly held that, "A party pleading fraud and misrepresentation in respect of a transaction must give material particulars of allegations and in absence of such particulars, his plea is to be rejected. The defendants contended that the gift deed was got executed by misrepresentation and playing fraud on the third defendant. Defendants did not furnish the particulars of alleged misrepresentation and fraud. In the absence of particulars it cannot be held that the gift deed was obtained by misrepresentation." In another decision reported in (2011) 12 Supreme Court Cases 18 [Saradamani Kandappan Vs. S.Rajalaxmi and others] in which the Hon'ble Apex Court held that, "Head Note L : Code of Civil Procedure, 1908 - O.VI Rule 4 - Fraud - Burden of proof - Pleadings - Whenever a party wants to put forth contention of fraud, held : Specific pleadings as to fraud are to be made and proved." The said decisions are squarely applicable to the case in hand. In this case also the / 30 / O.S.No.3195/2013 plaintiffs made stray allegation without any proper pleadings and proof as regards to the alleged fraud. Hence, without specific pleadings and proof, the Court cannot grant the relief.
34. The father of plaintiffs and their brothers being the absolute and exclusive owners of suit schedule property have voluntarily executed registered Sale Deed in favour of defendant No.9 as per Ex.P.5 and on the same day the possession of the property has been delivered to the defendant No.9. Since 30.6.1995 till 20.11.2013 the defendant No.9 is in possession of suit schedule property. Subsequently he executed registered sale deed in favour of defendant No.10 as per Ex.P.6.
35. The evidence of P.W.1, Exs.P.2, P.3, P.5 and P.6 clearly goes to show that the father of plaintiffs and others being the absolute owners have executed registered Sale Deed in favour of defendant No.9. The plaintiffs have no right over the suit schedule property.
/ 31 / O.S.No.3195/2013
36. Plaintiffs have utterly failed to prove that suit schedule property is the ancestral property and they are in possession of the suit schedule property. Hence, the plaintiffs failed to prove the above Issues No.1 to 4 and accordingly same are answered in negative.
37. Issue No.6 :- The plaintiffs pleaded that they are in joint possession of suit schedule property, hence they paid court fee under Section 35(2) Karnataka Court Fee's and Suit Valuation Act, but in the plaint itself plaintiffs pleaded that defendants No.1, 4 to 8 and father of defendants No.4 and 5 have alienated the suit schedule property to defendant No.9. In Ex.P.5 it is clearly mentioned that on the date of sale deed i.e., 30.6.1995 itself the possession of the entire land bearing Sy.No.49/2 measuring 2 acres 1 guntas was delivered to defendant No.9, which clearly goes to shows that the plaintiffs are not in possession of suit schedule property. Therefore, as per Section 58 of Indian Evidence Act, admitted facts need not / 32 / O.S.No.3195/2013 be proved. Hence they ought to have paid court fee on actual market value under Section 35 (1) Karnataka Court Fee's and Suit Valuation Act for the relief of partition and separate possession. The plaintiffs claim the relief of declaration declaring that the Sale Deed executed by defendants No.1, 4 to 8 and father of defendants No.4 and 5 in favour of defendant No.9 is null and void and another sale deed executed by defendant No.9 in favour of defendant No.10 is not binding upon their share. On perusal of Ex.P.5 - sale deed it reveals that the land bearing Sy.No. 49/2 of Haraluru Village has been alienated for Rs.1,96,000/ and on perusal of Ex.P.6 - sale deed it reveals that the said land has been alienated for Rs.1,99,000/. The plaintiffs are not in possession of the suit schedule property and they are challenging the validity of the sale deeds, hence, they ought to have paid the court fee under Section 24 of Karnataka Court Fees & Suits Valuation Act i.e., on Rs.1,96,000/ and on Rs.1,99,000/. In all, 3,95,000/. Hence plaintiffs ought to have / 33 / O.S.No.3195/2013 paid the court fee on Rs.3,95,000/. Therefore, the court fee paid by the plaintiffs on plaint is in sufficient. Hence, I answer Issue No.6 in negative.
38. Issue No.5 : Since the plaintiffs have utterly failed to establish the fact that the suit schedule property is the joint family property of plaintiffs and defendants, hence, they are not entitled for any relief. Accordingly, I answer Issue No.5 in the negative.
39. Issue No.7 : The plaintiffs claim that the suit schedule property is the joint family property of plaintiffs and defendants No.1 to 3 and they are in possession of the suit schedule property. But, as discussed supra, the plaintiffs are not in possession of the suit schedule property. Admittedly, the plaintiffs are challenging the sale deeds dated 30.6.1995 and 20.11.1995.
40. While answering Issues No.1 to 4, I have already given finding that, suit schedule property is not joint family / 34 / O.S.No.3195/2013 property. It is vehemently argued by the learned counsel for the plaintiffs that during January 2012 defendants have denied to give share to plaintiffs and they has filed this suit within three years from 2012 challenging the said sale deeds as such suit is within period of limitation. In view of above, I have carefully perused the Article 109 of Limitation Act, which deals with period of limitation with respect to suit filed by a Hindu governed by Mithakshara Law to setaside the alienation of ancestral property by his/her father. The period of limitation is 12 years when the alienee takes possession of the property.
41. As per Article 109 of Limitation Act, the period of limitation to challenge the sale deed executed by his or her father with respect to ancestral and joint family property is 12 years and the limitation starts from the date when the alienee takes possession of the property. As per Ex.P.5 Sale Deed, defendant No.9 has taken possession of suit / 35 / O.S.No.3195/2013 schedule property as on date of execution of said sale deed as such limitation to file this suit starts from the date of execution of Ex. P5/Sale Deed i.e, on 30.6.1995 and this suit is filed by plaintiffs on 24.4.2013 i.e, after lapse of 12 years as such suit of plaintiffs is barred by limitation. Further, the Article 58 of Limitation Act deals with suit for declaration simpliciter. Whereas, Article 109 of Limitation Act, specifically deals with limitation for suits to set aside the alienation of ancestral and joint family property by father. In the case in hand, plaintiff is challenging the alienation of ancestral and joint family property by her father as such limitation to file this suit is governed by Article 109 not by Article 58 as claimed by learned counsel for plaintiffs. My view is supported by decision of Hon'ble High Court of Karnataka reported in ILR 2014 KAR 1293 (H.M. Rudraradhya V/s Uma and Others), wherein para No.7, it is held as under:
/ 36 / O.S.No.3195/2013 "7. The validity of sale transaction in respect of the joint family property by "Kartha" or "adult member" of a joint Hindu family depends upon the existence of the legal necessity. At the time of its alienation, though a minor in the joint family has an undivided interest in the property alienated, if a suit is instituted challenging such alienation of a joint family property by a "Kartha" or an "adult member" of the joint Hindu family and if it is proved that, the same was not for legal necessity, the plaintiff who is not a party to the sale transaction could ignore the alienation and claim her share even in the property alienated. In such circumstances, it is the provisions of Article 109 of the Limitation Act, which are attracted and the plaintiff can institute the suit within 12 years from the date of alienee takes possession of the property."
42. The sacred ratio laid down in the aforementioned decision is squarely applicable to the case in hand. The Hon'ble High Court of Karnataka in another / 37 / O.S.No.3195/2013 decision reported in AIR 1985 KARNATAKA 143 (Ganapati Santaram Bhosale and another V/s Ramachandra Subbarao Kulkarni and Others). Wherein it is held as under:
Head Note (A) Limitation Act (36 of 1963), Arts. 60, 109 - Suit for setting aside alienation made by guardian of property of minor Alienation by Karta or guardian is of joint family property and not property of minor - Hence, suit for setting aside such alienation is governed by Art. 109 and not Art. 60.
It is further held that, A guardian has power to make an alienation for the benefit of the minor or minor's estate but when guardian so alienates he is not alienating his property but the property which has vested in the minor. Therefore, when the alienation of property in which the ward who is a minor has only an interest. There is, therefore, a difference in the alienation of joint family property by karta and alienation of minor's property by guardian.
/ 38 / O.S.No.3195/2013 Consequently, in the former case if the alienation is challenged by way of suit the point of limitation shall be decided in accordance with Article 109 and not Article 60 of the Limitation Act.
43. The aforementioned decisions are aptly applicable to the case in hand. In view of discussion made above, it is clear that, the plaintiffs must have brought this suit within period of 12 years from the date, when the defendant No.9 took possession of Suit Schedule Property and as per Ex.P.5/Sale deed, defendant No.9 has obtained possession of suit property as on date of execution of said Ex.P.5 itself. Thus, the plaintiffs must have filed this suit within 12 years from the date of execution of Ex.P5, as the suit is filed beyond 12 years, the suit of plaintiffs is barred by limitation. As discussed supra, the plaintiffs have utterly failed to prove the existence of joint family and joint family property.
44. The clever drafting creating illusion of cause of action are not permitted in law and a clear right to sue should be shown / 39 / O.S.No.3195/2013 in plaint. The ritual of repeating a word or creation of an illusion in plaint can certainly be unrebeled and exposed by the Court. Therefore, there is no cause of action even from the plaint allegations as against the defendants. Hence, suit of the plaintiffs is not maintainable in the present form. Accordingly, I answer Issue No.7 in the negative.
45. Issue No.8 : In view of my aforesaid discussion and findings, I proceed to pass the following Order: ORDER The suit of the plaintiffs is hereby dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open Court on this the 3rd day of March, 2021.) (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
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/ 40 / O.S.No.3195/2013
ANNEXURE
1. List of witnesses examined for plaintiffs :
P.W.1 : Seenappa
2. List of documents exhibited for plaintiffs :
Ex.P.1 : Family Tree Affidavit dated 23.2.2013.
Ex.P.2 : C/c of RTC extract in respect of
Sy.No.49/2 of Haraluru Village.
Ex.P.3 : C/c of MR NO.17/200809 dated
30./12.2008
Ex.P.4 : C/c of MR No.3/199495
Ex.P.5 : C/c of sale deed dated 30.6.1995
Ex.P.6 : C/c of Sale Deed dated 20.11.2013
3. List of witnesses examined/documents exhibited for the defendants:
NIL (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
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/ 41 / O.S.No.3195/2013
03/03/2021
Judgment pronounced in the open Court
(Vide separate Judgment) :
ORDER
/ 42 / O.S.No.3195/2013
The suit of the plaintiffs is hereby dismissed. No order as to costs. Draw decree accordingly.
(KHADARSAB) XXXIX A.C.C.& S. Judge, Bangalore City.