Bangalore District Court
Smt.Rukmini Ammal vs Smt.T.Kuttiamma on 11 March, 2016
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH.NO.43).
PRESENT: Sri. LEKKADAPPA JAMBIGI,
B.Com., LL.B.(Spl),
42nd ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE.
Dated this the 11th day of March, 2016.
O.S.No.3015/2010
Plaintiffs:- 1. Smt.Rukmini Ammal,
W/o..Late Megaraj,
Aged about 72 years,
2. Smt.Jalajakshi,
D/o.late Megaraj,
Aged about 50 years,
R/at No.7/3/, 3rd Cross,
Jai Bharath Nagar,
Bangalore.
3. Smt.Isaivani,
D/o. Late Megaraj,
Aged about 48 years,
T.D.S.Section,
Income Tax Department,
Infantry Road,
Bangalore-560 001.
(By - Sri.Shanmukhappa, Adv.)
v.
Defendants:- 1. Smt.T.Kuttiamma, DEAD
W/o.Late M.Abbaiah,
Aged about 71 years,
2 O.S.No.3015/2010
Residing at No.124,
Kadirappa Road, 6th Cross,
Doddigunta, Cox Town,
Bangalore-560 005.
Since deceased by Def.No.2 to 8 as
LRs.
2. Shobith Kumar,
S/o.Late Abbaiah,
Aged about 38 years,
Residing at No.124,
Kadirappa Road, 6th Cross,
Doddigunta, Cox Town,
Bangalore-560 005.
3. Smt.Ramarathna,
D/o.Late Abbaiah,
Aged about 60 years,
Residing at No.133,
Lakshmipuram, Ulsoor,
Bangalore-560 008.
4. Smt.Krishnaveni,
D/o.Late Abbaiah,
Aged about 56 years,
Residing at No.147,
Munegowda Garden,
Bazaar Street,
Neelasandra,
Bangalore.
5. Smt.Kousalya,
Aged about 54 years,
6. Smt.Shamala
Aged about 50 years,
7. Smt.Umavathi,
Aged about 46 years,
3 O.S.No.3015/2010
Daughters of late M.Abbaiah,
All are Residing at No.124,
Kadirappa Road, 6th Cross,
Doddigunta, Cox Town,
Bangalore.
8. A.Govindaraj,
S/o.Late M.Abbaiah,
Aged about 58 years,
R/at No.44, C.K.Gardens,
St.Thomas Town,
Bangalore-560 084.
(D1- Dead,
D2 to 8 Sri.G.S.Venkat Subbarao, Adv.)
Date of institution of the suit : 24.04.2010
Nature of the suit : Suit for Partition
Date of commencement of : 18.10.2014
Recording of the evidence
Date on which the Judgment : 11.03.2016
was pronounced
Total Duration : Years Months Days
05 10 17
(LEKKADAPPA JAMBIGI)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
4 O.S.No.3015/2010
JUDGMENT
This is a suit filed by the plaintiffs for the relief of partition and to apportion and allot A-schedule property to them.
2. The brief facts of the plaintiffs' case are as under:-
The plaintiffs have purchased A-schedule property under a registered Sale Deed dated 22.05.1968, for a valuable consideration of Rs.11,800/- from one Abbaiah. At the time of purchase, the plaintiffs 2 and 3 were minors. A-schedule property was purchased out of the gratuity amount of husband of plaintiff No.1. Since the date of purchase, the plaintiffs are in possession and enjoyment of the same. The katha is transferred in the name of plaintiff No.1. The plaintiffs have been paying the tax to the concerned authority. Originally A- schedule property belonged to Smt.Govindamma w/o.Muniswamappa, who acquired the same under a registered Sale Deed dated 22.02.1924. Thereafter, she sold the same to B.Rudrappa under a registered Sale Deed along with her husband - Muniswamappa and her son - Abbaiah on 26.11.1969. Subsequently the same property was purchased 5 O.S.No.3015/2010 by Abbaiah on 13.09.1965 from B.Rudrappa. Hence, A-
schedule property and other schedule properties are the self- acquired properties of Abbaiah. Shobith Kumar, son of Abbaiah, filed a suit in O.S.No.172/1978, which is renumbered as O.S.No.3122/1980 for partition of 1/3rd share and division of A-schedule property along with B and C schedule properties. In the said suit, father of Shobith Kumar - M.Abbaiah is the 6th defendant and brother of Shobith Kumar
- A.Govindaraj is 7th defendant. M.Abbaiah died on 26.01.1992 and his legal representatives were brought on record. One L.Govindaraj, Advocate filed vakalath on behalf of the plaintiffs and also written statement. During 2002, 7th defendant in the said suit approached the plaintiffs and claiming that A-schedule property has fallen to his share under the preliminary decree passed in O.S.No.3122/1980. The plaintiffs have preferred an appeal in RFA.No.250/2002 before the Hon'ble High Court of Karnataka and the said RFA came to be dismissed. Thereafter, the plaintiffs have filed SLP to Appeal (Civil) No.4736/2006 before Hon'ble Supreme Court of India and the said appeal was also dismissed. On verification, no opportunity was given to the defendants in 6 O.S.No.3015/2010 O.S.No.3122/1980 to cross-examine the witness and judgement was delivered on 26.11.1994. In the said suit, Shobith Kumar and Ramarathna are entitled for 1/3rd share each in the suit schedule properties. In order to circumvent the preliminary decree passed in O.S.No.3122/1980, the defendants in this suit entered into a registered Partition Deed dated 19.01.2002 and divided the properties including A- schedule property. The defendant No.1 in this suit filed FDP No.27/2002 seeking division of the schedule property on the basis of the Partition Deed and not on the basis of the preliminary decree, after lapse of 8 years. The court was pleased to direct the office to draw the final decree accordingly. Aggrieved by the said order in FDP, the plaintiffs have preferred an appeal in R.F.A.No.1887/2007 before the Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka was pleased to set aside the order passed in FDP. After remand, plaintiff No.3 examined herself as RW-1 and got marked Ex.R1 to R15. The Trial Court was pleased to pass an order dated 06.03.2010 upholding the grievances of the plaintiffs. In view of the liberty granted in FDP.No.27/2002, the plaintiffs prefer this suit. The plaintiffs are in possession 7 O.S.No.3015/2010 and enjoyment of A-schedule property ever since the date of purchase. The defendants have not come forward to get the final decree in terms of the preliminary decree, they got registered the Partition Deed dated 19.01.2002 and in the said Partition Deed, A-schedule property has been given to defendant No.1 in this suit. The plaintiffs are entitled for the share of their vendor - Abbaiah. Hence, it is prayed to pass the decree.
3. After registering the suit, summons was issued to the defendants. The defendants have appeared through their counsel. The defendant No.1 is dead and defendants 2 to 8 have filed the written statement. The defendants 2 to 8 have denied the allegations of the plaint. It is contended that a suit for partition could be filed against a specific class of persons like the joint family members, co-owners, tenants in common and the persons having pre-emptry rights with respect to the property in question. The plaintiffs have filed the suit for partition do not belong to any of the aforesaid classification of the persons to file the suit for partition. The plaintiffs cannot seek for apportionment and allotment unless and until the rights of the plaintiffs with respect to suit property is 8 O.S.No.3015/2010 adjudicated. First of all, the plaintiffs have to establish their entitlement to the suit properties. The defendants have admitted that the plaintiffs have acquiring A-schedule property and also in possession of the same. The defendants have denied that Abbaiah purchased the properties out of his self- earning and hence, A-schedule property and other properties were self-acquired properties of Abbaiah. The suit filed in O.S.No.3122/1980 would conclusively decide the rights of the parties and in the said suit the sale in favour of the plaintiffs is held to be not binding on the joint family of the defendants. This suit is hit by the principles of res-judicata and suit is liable to be dismissed. The defendants submitted that one Muniswamappa was the Kartha of the joint family comprising of his son - Abbaiah and his wife and children of Abbaiah. All the suit schedule properties belong to Hindu Undivided joint family of Muniswamappa, which was subsequently continued by his son-Abbaiah and his wife and children. After disposal of O.S.No.3122/1980 the defendants divided the schedule properties in accordance with the judgement and decree by way of a registered Deed of Partition dated 19.01.2002. Under the said Partition Deed, A-schedule property is fallen to 9 O.S.No.3015/2010 the share of defendant No.1. The plaintiffs have to seek division of the properties and allotment of share of Abbaiah, if any, or to work out such equities in the Final Decree Proceedings that were pending. If the plaintiffs have got any right in respect of suit property, could have been filed a suit for partition in respect of A-schedule property only. The suit is liable to be dismissed for mis-joinder of schedule properties. The defendants have divided the schedule properties by way of Deed of Partition. Hence, the plaintiffs cannot maintain the present suit for unless and until the Deed of Partition is annulled or cancelled. Hence, on these grounds it is prayed to dismiss the suit with costs.
4. On the basis of pleadings above, the issues arisen for consideration are as under:-
ISSUES
1. Whether the plaintiffs prove that, the 'A' suit property was the self-acquired property of the Abbaiah?
2. Whether the plaintiffs prove that, they have purchased 'A' schedule property from Abbaiah under registered Sale Deed dated 22.05.1968?10 O.S.No.3015/2010
3. Whether the defendants prove that, the suit is barred by limitation?
4. Whether the plaintiffs prove that, the suit is barred by limitation? DELETED
5. Whether the defendants prove that, the suit is not maintainable without seeking the relief of declaration?
6. Whether the plaintiffs are entitle for reliefs as sought for?
7. What order or decree?
5. To prove the case of the plaintiffs, plaintiff No.2 is examined as PW-1 and got marked Ex.P1 to P19. On the contrary, defendant No.8 is examined as DW-1 and got marked Ex.D1 to D11.
6. I have heard the arguments.
7. My findings on the above said issues are as follows:-
Issue No.1:- In the negative.
Issue No.2:- In the affirmative.
Issue No.3:- In the negative.
Issue No.4:- Deleted as per order
dated 11.12.2014
Issue No.5:- In the negative.
Issue No.6:- Partly in the affirmative.
Issue No.7:- As per final order.
11 O.S.No.3015/2010
for the following:-
REASONS
8. Issue No.1 & 2:-
As these issues are interlinked, I answer them together. The plaintiff No.2 is examined as PW-1 and in her evidence she has reiterated the averments of the plaint. As per her contention, A-schedule property has been purchased by the plaintiffs from one Abbaiah and it is contended that Abbaiah and his family members have got the suit for partition and in the said partition suit, shares have been allotted. Hence, in the present suit, the plaintiffs have sought for allotting A- schedule property to Abbaiah and Sale Deed in favour of the plaintiffs is to be made regularize. These aspects have been stated in the evidence of PW-1 and in her cross-examination also she contends the same thing. Under equity she prays to allot A-schedule property to the plaintiffs by allotting the same to the share of Abbaiah. The said Sale Deed is produced at Ex.P4. On the basis of the same, the plaintiffs claimed share in A-schedule property.
12 O.S.No.3015/2010
9. The defendants have denied the allegations of the plaint. It is contended that the plaintiffs are not the family members of the defendants and as such, they are not entitled to claim any share in the suit properties. But it is the contention of the plaintiffs that they stepped into the shoes of Abbaiah and as such, they have got every right to claim A- schedule property under equity. These are the averments elicited in the evidence of PW-1.
10. On the contrary, defendant No.8 is examined as DW-1. He has reiterated the defence version. This witness is cross-examined at length, wherein it is elicited that preliminary decree was passed in O.S.No.3122/ 1980 and thereafter, final decree proceedings have been effected. But in the FDP No.27/2002, the partition was effected as per the convenience of the parties. It is not in accordance with the preliminary decree. On the basis of the convenience of the parties, the partition was effected and the decree was passed in terms of said Partition Deed. The plaintiffs have produced the order passed in FDP.No.27/2002 at Ex.P15. The present plaintiffs are also parties in FDP as defendants 13 to 15. The plaintiffs have preferred RFA.No.1887/2007 before the Hon'ble 13 O.S.No.3015/2010 High Court of Karnataka as per Ex.P16. In the said RFA, appeal was allowed in part and the matter was remanded to the Trial Court to decide the matter on the basis of the grievance of the parties.
11. The plaintiffs have filed the suit for partition of their share in the suit properties. There are 3 schedule properties. The plaintiffs are not related to the defendants. The plaintiffs have purchased the property from Abbaiah, who is husband of defendant No.1 and father of other defendants. Abbaiah sold A-schedule property to the plaintiffs and on the basis of the said Sale Deed the plaintiffs have got right over A-schedule property. Hence, the claim of plaintiffs is that share allotted to Abbaiah in O.S.No.3122/1980 is to be given to the share of the plaintiffs and the Sale Deed in favour of the plaintiffs is to be made regularize. Hence, in this regard, the plaintiffs have sought for partition. Even though the plaintiffs are not related to the defendants, they stepped into the shoes of Abbaiah, who is related to the defendants. Hence, on this count the plaintiffs have filed the suit.
14 O.S.No.3015/2010
12. The defendants have got earlier suit, wherein preliminary decree was passed in respect of 3 schedule properties. The plaintiffs' claims to allot 1/3rd share in respect of A-schedule property by giving absolute right to Abbaiah and they want to regularize the Sale Deed in their favour. The plaintiffs' claim their share under equity. Hence, all other questions in respect of fact whether the suit property is the joint family property or self-acquired property of Abbaiah and other aspects have been decided in the preliminary decree itself. Anyhow, on the basis of the averments and documents produced by the plaintiffs, it discloses that earlier A-schedule property belongs to the family of Abbaiah and other members, wherein they have sold the property to one Rudrappa and thereafter, Abbaiah has purchased A-schedule property from Rudrappa. Hence, on this count it is contended that A- schedule property is the absolute property of Abbaiah. The plaintiffs in the present case have not challenged the preliminary decree. Their contention is to allot A-schedule property to the share of Abbaiah and they want to regularize their Sale Deed. Hence, they have not seriously disputed in respect of fact whether the suit property is the self-acquired 15 O.S.No.3015/2010 property of Abbaiah or it is the joint family property of Abbaiah and other family members. In respect of B & C schedule properties it is not disputed, whether they are joint family properties or not.
13. On perusal of FDP.No.27/2002, it is observed and directed the present plaintiffs to file separate suit for general partition and the plaintiffs are entitled to seek their relief in respect of allotment of share under equity and they can agitate their defence in the suit. Hence, as per the said directions, the plaintiffs have filed the present suit within the time prescribed in FDP proceedings.
14. The plaintiff plaintiffs are also parties to the proceedings in FDP. They have also put forth their defence in respect of purchase of A-schedule property by them and they contend that they are the bonafide purchasers. As per the terms of the preliminary decree, the shares have been allotted to the different family members, but the parties i.e., family members of Abbaiah have partitioned the property separately excluding the terms of preliminary decree. As per Ex.D4 they have partitioned the properties, wherein present A-schedule 16 O.S.No.3015/2010 property has been allotted to the share of Kuttiamma i.e., defendant No.1. It is the property, wherein the plaintiffs claimed their share over A-schedule property. It is the contention of the plaintiffs that this A-schedule property is to be given to the share of Abbaiah, so that Sale Deed in their favour is to be regularized. The plaintiffs contend that they are in possession of A-schedule property. In the earlier suit, the possession is not claimed by the defendants. Admittedly, the plaintiffs are in possession of A-schedule property. Hence, on this count the plaintiffs claim to allot A-schedule property to the share to Abbaiah and regularize their Sale Deed.
15. The family members of Abbaiah have partitioned the properties in themselves excluding the preliminary decree. No doubt, preliminary decree was passed and on the basis of preliminary decree, final decree is not yet passed. In this interim period, the family members have partitioned the properties as per Ex.D4. If partition is effected in terms of preliminary decree, then the question would have been different. But the parties have effected partition as if there was no preliminary decree. Hence, the terms of the preliminary decree have not at all effected in the Partition 17 O.S.No.3015/2010 Deed at Ex.D4. The parties intend to get final decree in terms of partition effected by them as per Ex.D4. If the parties have think about the rights of plaintiffs, then they could not be such a decree, but inspite of that they have effected and ignored the rights of the plaintiffs. Hence, in the final decree proceedings it is observed and directed the plaintiffs to file separate suit and till then, preliminary decree cannot be executed. Accordingly, the plaintiffs have filed the present suit. Hence, on this count, the court has see whether the plaintiffs are entitled for getting decree to regularize their Sale Deed by leaving the rights of other parties.
16. The plaintiffs contend that A-schedule property is the self acquired property of Abbaiah. Hence, he has right to sell the property. On the contrary, the defendants contend that it is the joint family property of Abbaiah and his children. It is contended in the plaint that earlier A-schedule property was the joint family property of Abbaiah and his brothers and it was sold to one Rudrappa. Thereafter, Abbaiah alone has purchased the A-schedule property. Hence, it is contended that the suit property is the self-acquired property of Abbaiah. In this regard, Ex.P10 is the Sale Deed, wherein Abbaiah has 18 O.S.No.3015/2010 purchased the property from Rudrappa. The parents of Abbaiah have also witnesses to the said document. As per Ex.P10, Abbaiah alone has purchased the A-schedule property. Hence, the contention of the plaintiff that earlier Abbaiah has sold the property along with his brothers to Rudrappa and thereafter, Abbaiah alone has purchased the property from Rudrappa is established. But inspite that, the defendants contend that it is the joint family property of Abbaiah and his children. Anyhow, in this regard, in the preliminary decree the said aspect has been discussed and it is held that it is the joint family property of Abbaiah and his children and share has been allotted in the preliminary decree.
17. The plaintiffs have purchased the property from Abbaiah. It is their contention that A-schedule property is the self acquired property of Abbaiah. The Sale Deed has been relied upon by them in favour of Abbaiah at Ex.P10 and on the basis of that document the plaintiffs contend that it is the self- acquired property of Abbaiah. The son of Abbaiah has filed the suit and claimed partition and it was granted. Even that aspect has been went in appeal and the said judgement has been confirmed in the appeal also.
19 O.S.No.3015/2010
18. The plaintiffs have filed the suit claiming their share. The plaintiffs claimed their share on the basis of the Sale Deed executed by Abbaiah. Original Sale Deed is produced by the plaintiffs. The plaintiffs are not the family members of said Abbaiah. There is a preliminary decree in O.S.No.3122/1980 at Ex.P11, wherein the present defendants 2 and 3 and others filed the suit against Abbaiah and others. In that suit, present suit property is also one of the properties and present plaintiffs are the defendants 3 to 5 in that suit and said suit has been decreed, granting 1/3rd share each to the plaintiffs 1 and 2. In the said suit, declaration has been granted to the effect that the Sale Deed executed by Abbaiah in favour of present plaintiffs is not binding on the share of the plaintiffs. Contrary to that, the plaintiffs in this suit intends to get declaration to the effect that on the basis of the said Sale Deed they are having share in the suit property. Accordingly, the plaintiffs have claimed share through Abbaiah as per the order passed in FDP No.27/2002 at Ex.P17.
19. The present plaintiffs have preferred appeal against the preliminary decree in O.S.No.3122/1980 before the Hon'ble High Court of Karnataka, but the said appeal has been 20 O.S.No.3015/2010 dismissed, confirming the order passed by the Trial Court. Again the present plaintiffs have preferred appeal before the Hon'ble Supreme Court of India in Special Leave to Appeal (Civil) No(s).4736/2006 at Ex.P14. The said appeal was also dismissed. Hence, the order passed in the preliminary decree has been confirmed and it has reached the finality. In the preliminary decree, there is an issue regarding the fact, whether the suit properties are the joint family properties or self-acquired properties of Abbaiah. It is at Issue No.2. That issue is answered in the affirmative. Again on considering the said issue in the present case does not arise. Accordingly, Issue No.1 in this case whether A-schedule property is the self acquired property of Abbaiah is answered in negative.
20. It is pertinent to note that final decree proceedings have been filed against the decree passed in O.S.No.3122/1980 in Ex.P15 in FDP.No.27/2002, wherein same was allowed. Against the same, the present plaintiffs have preferred appeal before the Hon'ble High Court of Karnataka, wherein appeal is allowed in part and matter is remanded to the Trial Court by quashing the order of the Trial Court. Accordingly, again matter is heard and in the said FDP 21 O.S.No.3015/2010 order was passed at Ex.P17. As per the said order, the plaintiffs are given liberty to seek for general partition to claim their share under equity. Hence, on the basis of the same, the present plaintiffs have filed this suit and sought for their relief. Hence, the contention of the defendants that present plaintiffs are not the family members of Abbaiah and as such, they are not entitled to seek the relief of partition in respect of share of Abbaiah does not hold good. They are the purchaser of the property from Abbaiah. They stepped into the shoes of Abbaiah and as such, they can file the suit for partition. More over, against the said order in FDP appeal was preferred before the Hon'ble Supreme Court of India and the same was dismissed at Ex.P18. Hence, these aspects disclose that the present plaintiffs have sought for partition in the properties of Abbaiah claiming their share under equity.
21. The learned counsel for the plaintiffs in this regard has relied upon the decision reported in AIR 1952, Madras 419, in the case between K.Peramayakam Pillai v. S.T.Sivaramana and another, wherein the lordships have observed as under:-
22 O.S.No.3015/2010
Where an alienation is made by a father or manager of a joint Hindu family and if either the alienation is fully supported by necessity or supported by necessity except to a small extent, the alienation has to be upheld.
If, however, the alienation made by the father or manager of a joint family is supported only by partial necessity, the alienee would be entitled in a suit for partition instituted either by him or by other coparceners impugning the alienation to have the alienor's share allotted to him and also to have the binding portion of the consideration distributed equally having regard to the interest of the alienor and the value of the property alienated.
22. Further the learned counsel for the plaintiffs has also relied upon the decision reported in AIR 1954 Mysore 115, in the case between Narasimhaiah v. Chikkathimmaiah, wherein the lordship has observed as under:-
(c) Hindu Law - Joint family property - Alienation by the one coparcener - Suit by purchaser for partition - Equitable allotment.
Where a suit for partition is brought by a purchaser of an undivided members' share in a joint family property, at such a partition the purchaser can only obtain the rights of his 23 O.S.No.3015/2010 transferor, and has got no right to strictly claim a share in a particular item, still as a matter of equity the Court should, unless there are insuperable objections to do so, adjust the different shares so as to give him what has been actually conveyed to him as being the share of the particular coparcener. The death of vender- coparcener does not make any difference in the application of this equitable principle or stands in the way of allotting the suit land to the purchaser in lieu of the share attributable to the said coparcener at the time of sale.
23. In the preliminary decree in O.S.No.3122/1980 the plaintiffs 1 and 2 have been granted 1/3rd share each and one share is given to Abbaiah. In the present case, the plaintiffs who are purchasers of A-schedule property contended that the said share of Abbaiah is to be allotted to them and Sale Deed in favour of the plaintiffs is to be made as absolute. Anyhow, in the preliminary decree, Sale Deed is not declared as null and void. Hence, considering this aspect, in view of the direction given in the final decree proceedings, the plaintiffs filed the present suit for general partition. 24 O.S.No.3015/2010
24. It is contended that against the order passed in final decree proceedings RFA has been filed. But in this regard no documents are produced. Hence, this suit can be decided on the basis of available evidence.
25. The plaintiffs are the purchasers of A-schedule property from Abbaiah. In the preliminary decree 1/3rd share has been granted to the plaintiffs in O.S.No.3122/1980 and 1/3rd share is granted to Abbaiah. Abbaiah died during the pendency of the suit. In this regard, preliminary decree was passed.
26. Further, the plaintiffs and the family members of the Abbaiah have made arrangement by making partition of the entire properties leaving aside the preliminary decree and in the final decree proceedings they contend that the partition which has been effected by them is to be accepted. But the same is not accepted as the present plaintiffs who are purchasers of A-schedule property from Abbaiah have not consented for the same. The said Partition Deed is at Ex.D4. The suit property is also included in the said Partition Deed and it was allotted. But this Partition Deed was effected 25 O.S.No.3015/2010 without the consent of the present plaintiffs. Even the terms of the preliminary decree in O.S.No.3122/1980 are not considered. According to the contentions of the parties, Ex.D4
- Partition Deed was effected and present defendants intends to regularize the said Partition Deed and to pass the final decree on the basis of the said Partition Deed. But present plaintiffs have not consented for the same and as such, final decree was not passed. Anyhow, in the final decree proceedings at Ex.P17, the present plaintiffs have sought for partition of the properties under equity. Hence, considering the rival contentions, in FDP direction was given by the court to file separate suit to the plaintiffs by giving the date on or before 30.06.2010, wherein the plaintiffs have to file the suit. Accordingly, the present plaintiffs have filed the suit to effect general partition on the basis of equity. Accordingly, evidence was given by both the parties and it is contended that A- schedule property is totally measuring 2160 square feet. There are other 2 schedule properties, wherein B-schedule property is measuring 8250 square feet and C-schedule property has been acquired by the Government and in this regard, there is an acquisition proceeding. In respect of 26 O.S.No.3015/2010 allotment of shares under equity the plaintiffs pray to grant A- schedule property to the share of Abbaiah, so that Sale Deed in favour of the plaintiffs can be regularized. Hence, claim made by the plaintiff is under equity. The plaintiffs further contended that they are in possession of A-schedule property since from the date of purchase. Hence, on the basis of the general partition, the plaintiffs being the purchasers of the property from Abbaiah are entitled to claim general partition. Accordingly, in view of the direction given in FDP.No.27/2002, the present suit is filed and claim of the plaintiffs appears to be bonafide one. In this regard, PW-1 has given evidence, wherein she has stated to effect the partition and to award A- schedule property to the share of Abbaiah, so that Sale Deed in their favour is to be confirmed. Hence, claim made out by the plaintiffs appears to be bonafide one. The defendants have not considered those aspects at the time of making partition at Ex.D4.
27. The plaintiffs have sought for apportionment of A- schedule property to their share. In respect of allotment of share under equity, the same can be considered during the course of passing final decree proceedings. In the present 27 O.S.No.3015/2010 case, the plaintiffs are entitled to seek for apportionment of A- schedule property to their share. No harm would be caused to the defendant if apportionment is made under equity. Anyhow, in respect of variation in allotting the share the plaintiffs are entitled to get their share by considering all the schedule properties under equity. This aspect can be considered at the time of passing final decree proceedings. In the present case, the plaintiffs have sought for apportionment of A-schedule property to the share of Abbaiah and allotted the same to the plaintiffs subject to apportionment of shares under equity, the plaintiffs are entitled to get decree. Accordingly, I answer Issue No.1 in the negative and Issue No.2 in the affirmative.
28. Issue No.3:-
The defendants contend that the suit of the plaintiffs is barred by limitation. The direction has been given in the FDP.No.27/2002 on giving time to file the suit on or before 30.06.2010. The plaintiffs have filed the present suit within that time only. Hence, contention of the defendants that the suit is barred by limitation does not hold good. Accordingly, I answer Issue No.3 in the negative.28 O.S.No.3015/2010
29. ISSUE NO.5:-
The plaintiffs have filed the suit for partition of their share on the basis of the Sale Deed executed by Abbaiah. Abbaiah has got 1/3rd share as per the terms of the preliminary decree and the plaintiffs seek for apportionment of share of Abbaiah to their share. Hence, question of declaring rights of the plaintiffs does not arise. Anyhow, Sale Deed is produced by the plaintiffs, which discloses their title. Hence, question of declaring their title does not arise. Hence, contention of the defendants that suit is not maintainable as declaration is not sought for does not hold good. Accordingly, Issue No.5 is answered in the negative.
30. ISSUE NO.6: -
The plaintiffs are entitled to get share in the suit properties, wherein A-schedule property is to be apportioned to the share of the plaintiffs, wherein Abbaiah has got 1/3rd share. The plaintiffs are entitled to apportion their share under equity. Anyhow, apportionment of share is to be made in the final decree proceedings. Accordingly, Issue No.6 is answered partly in the affirmative. 29 O.S.No.3015/2010
31. Issue No.7:- In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiffs is partly decreed. A-schedule property is apportioned to the share of the plaintiffs.
The partition is to be effected in the final decree proceedings in respect of apportionment of the share under equity.
Under the facts and circumstances, parties to bear their own costs.
Draw preliminary decree accordingly. (Dictated to the Judgment Writer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 11th day of March 2016).
(LEKKADAPPA JAMBIGI) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.30 O.S.No.3015/2010
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiffs' side:
PW.1 - Smt.Jalajakshi
(b) Defendants' side:
DW.1 - Sri.A.Govindaraju II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 Endorsement issued by BMP
Ex.P2 Katha Certificate
Ex.P3 4 Tax Paid Receipts
Ex.P4 Sale Deed dated 22.05.1968
Ex.P5 Endorsement issued by Corporation of
Bangalore
Ex.P6 Katha Certificate
Ex.P7 5 Tax Paid Receipts
Ex.P8 Sanctioned Plan
Ex.P9 Sale Deed dated 26.11.1960
Ex.P10 Indenture of Sale dated 13.09.1965
Ex.P11 & 12 Judgement and decree in
O.S.No.3122/1980
Ex.P13 Orders passed in RFA.No.250/2002
Ex.P14 Order passed in Special Leave to
Appeal (Civil) No(s).4736/2006
Ex.P15 Order passed in FDP.No.27/2002
Ex.P16 Judgement passed in
RFA.No.1887/2007
Ex.P17 Order passed in FDP.27/2002
Ex.P18 Order passed in Special Leave to
Appeal (Civil) No(s).4736/2006
Ex.P19 Order Sheet in O.S.No.3122/1980
31 O.S.No.3015/2010
(b) Defendants' side:
Ex.D1 Certified copy of plaint in
O.S.No.3122/1980
Ex.D2 Certified copy of written statement in
O.S.No.172/1978
Ex.D3 Certified copy of Orders on I.A. passed
in FDP No.27/2002
Ex.D4 Partition Deed dated 19.01.2002
Ex.D5 Orders passed in RFA No.250/2002
Ex.D6 Certified copy of judgement in
O.S.No.3122/1980
Ex.D7 Certified copy of Sale Deed dated
02.02.1924
Ex.D8 Certified copy of Sale Deed dated
09.01.1911
Ex.D9 & 10 Tax Paid Receipts
Ex.D11 Certified copy of Indebnture of dated
16.09.1963
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE.
32 O.S.No.3015/2010
(Judgement pronounced in the open
Court and order portion of the same is
extracted as under)
ORDER
Suit of the plaintiffs is partly
decreed.
A-schedule property is
apportioned to the share of the
plaintiffs.
33 O.S.No.3015/2010
The partition is to be effected in
the final decree proceedings in respect
of apportionment of the share under
equity.
Under the facts and
circumstances, parties to bear their
own costs.
Draw preliminary decree
accordingly.
(LEKKADAPPA JAMBIGI)
42nd Addl.CC& SJ, Bangalore.