Bangalore District Court
Venkateshappa vs Narayanappa on 1 February, 2025
KABC010213442013
Form
No.9
(Civil)
Title
Sheet for PRESENT: Sri. Chinnannavar Rajesh Sadashiv,
Judgment XVIII Additional City Civil Judge.
in Suits
R.P. 91
Dated this the day of 1st day of February, 2025
PLAINTIFFS: 1. Venkateshappa
S/o Munishamappa @ Gangappa,
Aged about 72 years,
R/at Tirumenahalli Village,
Bidarahalli Hobli, Mandur Post,
Bengaluru East Taluk.
2. Smt.Shantamma
W/o R.N.Ashwatappa,
Aged about 65 year,
R/at Ramanatapur Village, Koira
Post, Kundana Hobli, Devanahalli
Taluk.
[By Sri. JMN., Advocate]
/v e r s u s/
DEFENDANTS: 1. Narayanappa
S/o Munishamappa @ Gangappa,
Aged about 60 years.
2. Rajanna
S/o Munishamappa @ Gangappa,
Aged about 50 years,
R/at 15th Cross, Hegdenagar,
K.R Puram Hobli, Bengaluru-
560077.
2 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
3. Smt. Pillamma
W/o Narasimhaiah,
R/at Nagareshwara Nagahalli,
K.R Puram Hobli,
Bengaluru East Taluk.
4. Smt.Jayamma
W/o Late Muniyappa,
Aged about 55 years.
5. Smt.Shashikala
W/o Lokesh,
D/o Late Muniyappa,
Aged about 34 years.
6. Umesh S/o Late Muniyappa,
Aged about 32 years.
D1, 4 to 6 are
Residing at Tanishandra Village,
K.R.Puram Hobli,
Bengaluru East Taluk.
7. Smt.Sunitha
W/o Byregowda
D/o Late Muniyappa
Aged about 30 years,
R/at Ralkunte Village,
Sulibele Hobli, Hoskote Taluk,
Bengaluru Rural District.
8. Lakshman
S/o Chikkanna
Aged about 50 years,
R/at No.548, 4th Main,
Mahalakshmipuram,
Bengaluru-560 086.
9. M.R.Seetharam
Aged about 54 years,
R/at Gokula House, Gokula
Extention, Mattikere, Bengaluru-
560 054.
10. Smt.Shanthamma
W/o Nagaraju,
D/o Nanjamma
3 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
Aged about 36 years,
R/at Yakshipura, Aralumalige Post,
Doddaballapura Taluk, Bengaluru
Rural District.
11. Smt.Shobha
D/o Nanjamma,
Aged about 33 years.
12. Smt.Asha
D/o Nanjamma
Aged about 30 years.
D11 and D12 are
R/at Avalagurki Village,
Chikkaballapura Taluk
and District-562 101.
13. Smt.Kavitha
D/o Nanjamma, W/o Nagesh,
Aged about 28 years,
R/at Juttanahalli Village,
Jaalige Hobli and Post, Devanahalli
Taluk, Bengaluru District-562 110.
[D1 & 6-By Sri.A.V.R., Advocate]
[D2-By Sri.A.R.K., Advocate]
[D3 to 5, 7, 10 to 13-Exparte]
[D8-By Sri.V.D.R., Advocate]
[D9-By Sri.G.K.B., Advocate]
** **
Date of institution of the suit : 25/02/2013
Nature of the suit : For Partition & Separate
Possession
Date of commencement of : 08/06/2018
recording of the evidence
Date on which the Judgment : 01/02/2025
was pronounced.
: Year/s Month/s Day/s
Total duration
11 11 07
4 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
This suit is filed by the plaintiffs against the
defendants for the relief of partition and separate
possession and mesne profits with respect Suit property
bearing Sy.No.48/5, 102/4A and 101/2 of Tanisandra
Village, K.R.Puram Hobli, Bengaluru East Taluk, which
are more specifically described in the plaint.
2. The case of the plaintiffs in brief is as under:-
The plaintiffs have given Genealogy Tree of the
Family, which is as under;
Munishamappa @ Gangappa(Died)
Kempamma(Died)
Muniyappa Venkateshappa Narayanappa Pillamma Shanthamma Nanjamma Rajappa
(Died)
Jayamma Anusuyamma Lakshmamma
Shashikala Umesha Suneetha Rani Ananda Nandini
Subbamma Chandramma
Anjanamma Rajanna Lakshmamma Manjula Nalina Somesha Deepu Tejavathi Pushpa
5 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
The father of the plaintiffs by name Munishamappa
@ Gangappa was the propositus of the family and he
died leaving behind him four sons by name
1)Muniyappa(branch of D4 to 7), 2)Venkateshappa
(plaintiff No.1), 3)Narayanappa (Defendant No.1) and
4)Rajappa (Defendant No.2) and three daughters by
name 1)Pillamma (Defendant No.3), 2)Shanthamma (2nd
plaintiff) and 3) Nanjamma (branch of defendant No.10
to 13). The father of the plaintiff Sri.Munishamappa died
intestate and he left the suit properties. Suit properties
are his self-acquired properties. Defendant No.8 and 9
are purchasers of suit item No.1.
It is further case of the plaintiff that after death of
their father, defendant No.1 was managing the joint
family as a kartha and his name was entered in revenue
records under Pauthi Katha M.R.No.1/85-86. But
plaintiffs and all the sons of Munishamappa are in joint
possession and enjoyment over the suit properties. It is
also pleaded that till today there is no partition of the
properties either orally or in written. Plaintiffs are
6 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
demanding their share but defendant No.1 and 2
avoiding it on one or another pretexts but they colluding
with revenue authorities have got entered their names
on the basis of partition dated 29/10/1996 under
M.R.No.20/2000-01 but infact there was no partition
took place in the family.
It is further pleaded that recently, they came to
know that defendant No.1/Narayanappa and deceased
Muniyappa and his family members have executed the
registered sale deed dated 07/02/2003 in favour of
defendant No.8 with respect to suit property at item
No.1 bearing Sy.No.48/5 to the extent of 0-20 guntas
but they had no right to execute this sale deed and
hence, this sale deed is void abinitio and not binding
upon the plaintiffs.
It is also pleaded that defendants are trying to
alienate the suit properties and hence, cause of action
arose to the plaintiff to file this suit. So, they prayed to
declare that they have got 1/6th share each in suit
7 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
properties and also sought mesne profits along with
costs of the suit.
3. Initially suit was filed against defendant No.1
to 8 and later defendant No.9 is impleaded as a
purchaser of the suit property and defendant No.10 to
13 are impleaded as legal heirs of Nanjamma but
plaintiffs have not added plaint paras to that effect
except adding the parties.
4. After issuance of suit summons, defendants
No.1 and 6 appeared through their counsel and filed
written statement. Defendant No.6 represented the
branch of deceased Muniyappa.
5. Defendant No.2 though appeared but he has
not chosen to file written statement. Defendants No.3 to
5, 7, 10 to 13 are remained absent inspite of service of
summons, hence they have been placed as exparte.
6. Defendant No.8 purchaser of suit item No.1 to
the extent of 20 guntas though appeared through his
counsel but has not filed written statement and
contested the case.
8 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
7. Defendant No.9 is the subsequent purchaser
of the item No.1 of the suit property from defendant
No.8 and 04 guntas from defendant No.2. He has
appeared through his counsel and filed written
statement.
8. Written statement filed by defendant No.1 is as
under:-
Defendant No.1 in his written statement has
admitted the relationship between the parties but
denied the rest of the contents of the plaint in para-wise
including cause of action. He denied that there is the
joint family status between the plaintiffs and defendants
and suit properties are joint family properties of
plaintiffs and also denied the share of the plaintiffs over
the suit properties.
He has contended that O.S.No.980/2003 was filed
by plaintiff No.1 for partition and separate possession
and the same was dismissed for default on 21/10/2005
and O.S.No.6219/2002 was filed by defendant No.2
seeking same relief and same was also dismissed for the
9 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
default but plaintiffs have suppressed these facts and
hence, they have not approached this Court with clean
hands.
He also contended that the suit is barred by law of
limitation and plaintiffs are not in possession of the suit
properties and hence, they have to value the suit
u/sec.35(1) and not section 35(2) of Court Fee and Suit
Valuation Act., and hence the Court fee paid by them is
not proper and correct. In para No.10 of the written
statement, he denied the contents of the para No.2 to 10
of the plaint.
In para No.12 of the written statement, he has
specifically contended that his father Munishamappa
died in the year 1978, after about 5 to 6 years of his
death, there was the oral partition with respect to suit
properties as well as other joint family properties and
after division the plaintiff and defendants have sold
three items of the properties in favour some 3rd persons.
Excess property was given to the 4th defendant.
Thereafter, there was a Panchayathh Parikath on
10 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
29/10/1996 and in said Panchayath Parikath the
earlier partition was reduced into writing.
Under said Panchayath Parikath an area
measuring 10 guntas out of Sy.No.48/5 and 1 acre 10
guntas out of Sy.No.101/2 and 5 square house with
open space measuring 44X 40 feet out of Sy.No.102/4A
were fallen to the share of Muniyappa, an area
measuring 10 guntas out of Sy.No.48/5 and 1 acre 16
guntas out of Sy.No.101/2 and 31½ X 75 feet open
space were fallen to the share of
Narayanappa(defendant No.1) and 5 guntas of land out
of Sy.No.48/5 and vacant site measuring 44' X 20' feet
in Tanisandra was allotted to the share of
Rajappa(Defendant No.2). The plaintiff
No.1(Venkateshappa) has also put his LTM to this
document as a consenting witness and he has not
claimed the properties under this Panchayat Parikath.
It is also contended that first plaintiff was taken
into adoption by one Narayanappa of Thirumenahalli
Village and hence, he is residing with him and
11 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
succeeded to his properties. But his signature was
taken in Panchayath Parikath as a consenting witness
and hence, he cannot file the suit. The oral partition as
acted upon and hence, 1st plaintiff is not entitle for any
share in the suit properties. The 2nd plaintiff has given in
marriage by spending huge amount and hence she is
not entitle for any share in the suit properties. So, he
prayed to dismiss the suit with costs.
9. Defendant No.9, who has been impleaded as
subsequent purchaser of the suit property item No.1
has appeared through his advocate and filed written
statement. In his written statement he also denied the
contents of the plaint in para-wise.
He denied the status of the joint family and joint
family properties. He denied the share of the plaintiffs
but he has specifically contended that there was oral
partition in the family and later it was reduced into
Panchayath Parikath on 29/10/1996 and he is the
bonafide purchaser of the suit property at item No.1 for
consideration amount.
12 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
He has specifically contended that after partition in
the joint family, Muniyappa and his son Umesh,
Narayanappa and his daughter Ms.Anitha have
executed a registered General Power of Attorney in
favour of Sri.H.T.Raju with respect to Sy.No.48/5 to an
extent of 0-20 guntas and said Raju has sold the said
land in favour of defendant No.8 under registered sale
deed dated 07/02/2003 and also put him into the
possession over the said land. Thereafter, defendant
No.8 has converted the said land into NA and sold the
same in favour of this defendant/D9 under registered
sale deed 22/10/2003.
He also contended that Rajanna and his children
have executed GPA dated 29/4/2003 in favour of
defendant No.8/Lakshman with respect to remaining 5
guntas of land and based on said GPA defendant No.8
has converted said land into NA and later he being the
GPA holder of defendant No.2 and his children has
executed a registered sale deed in favour of defendant
No.9 dated 12/10/2004 with respect to 04guntas of
13 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
land. So, defendant No.9 has purchased the entire
property in Sy.No.48/5 measuring 20+4=24 guntas and
he is in possession and enjoyment of the said properties
i.e.,suit property at item No.1 as bonafide purchaser for
consideration amount and he developed the suit
property by executing development agreement with
G.Corp homes Pvt.Ltd., and they are also necessary
parties to this suit.
Defendant No.9 also contended that the sale deeds
in his favour are prior to 20/12/2004 and hence as per
section 6 of Hindu Succession Act, plaintiff No.2 cannot
challenge the said sale deeds. It is also contended that
plaintiff No.1 was a party to the panachayat Parikath
dated 29/10/1996 and now he cannot claim the share
over the suit properties. It is also contended that the
father of the plaintiffs died in the year 1978 and suit is
filed in the year 2013 and hence, suit is barred by law of
limitation. So, plaintiffs were aware about sale deeds
dated 22/10/2003 and 12/10/2004 but they filed this
suit after 17 years of the entering into Panchayath
14 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
Parikath dated 29/10/1996 and after 12 years from the
date of execution of said sale deeds and hence this suit
is barred by law of limitation.
He also contended that plaintiffs are not in
possession of this suit property and hence, valuation of
the suit and court fee paid by the plaintiffs is not proper
and correct. So, he prayed to dismiss the suit with costs
with respect to suit property at item No.1.
10. On the basis of the above pleadings, issues
were framed by My predecessor in office but on
11/11/2024 after hearing both side, I have recasted the
issues, which are as under:-
(1) Whether the plaintiffs prove that suit
properties at Sl.No.1 to 3 are their joint
family properties?
(2) Whether the plaintiffs proves that they are
entitle for 1/6th share each in suit
properties?
(3) Whether defendant no.1 proves that there
was already orally partition in the joint
family and later it was confirmed under
deed of memorandum of partition dated
29.10.1996 and hence the present suit is not
maintainable?
(4) Whether defendant no.9 proves that he is
bonafide purchaser of the suit schedule
15 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
property at Sl.No.1 for valuable
consideration ?
(5) Whether defendants no.1 and 9 proves that
the present suit for partition is barred by law
of limitation ?
(6) Whether defendant no.1 and 9 proves that
court fee paid by the plaintiff is not proper
and correct ?
(7) Whether defendant No.1 proves that plaintiff
No.1 has gone into adoption to one
Narayanappa and hence he has given
consent to memorandum of Partition dated
29.10.1996 and hence not entitle for share in
the suit properties ?
(8) Whether plaintiffs are entitle for the reliefs
claimed ?
(9) What order or decree ?
11. In order to prove the case, the 2nd plaintiff has
got examined herself as PW.1 and got marked Ex.P1 to
Ex.P27. In order to rebut the case of plaintiffs, initially
defendant has got examined himself as DW1 and since
he has given GPA in favour of his son and hence, his
chief examination with respect to oral evidence was
discarded but with respect to documents is continued as
per the order dated 31/10/2022. His son has got
examined himself as DW1 and he has adopted the
documents marked by his father as Ex.D1 to 58 and he
16 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
got marked one document as Ex.D59. On behalf of
defendant No.9, his GPA holder got examined himself as
DW2 and he got marked Ex.D.60 and 74. Defendant
No.1 also got examined one witness as DW3.
12. Heard the learned counsel for plaintiffs,
learned counsel for defendants No.1 and 6 and learned
counsel for defendant No.9. All of them have filed their
written arguments along with citations as per list. The
counsel for plaintiffs has relied upon following
Citations:-
i. W.P.No.11126/2021(GM-CPC), Sri.Nagendra
Kamath Vs. Smt.Deviki and Ors.,
ii. RFA No.1300/2022 (PAR), Smt.Gangamma
and Ors., Vs. Smt.Tholasamma and Ors.,
iii. Civil Appeal No.4177/2024, Golam Lalchand
Vs. Nandu Lal Shaw @ Nand Lal Keshri @
Nandu Lal Bayes and Ors.,
iv. RSA No.200005/2014(PAR) Shanthamma
Vs. Ramawwa and Ors.,
v. RFA No.100182/2014 (PAR) C/W RFA
No.100181/2014, Sri. Basappa and Anro.,
Vs. Bangarevva and Ors.,.
17 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
13. The counsel for defendant No.1 and 6 has
relied upon following Citations:-
i. AIR (2020) 9 SCC 1, Vineeta Sharma Vs.
Rakesh Sharma and others;
ii. Bheesmaraja Vs. Radhabai and others;
iii. (2016) 6 SCC 725;
iv. K.C.Leelavathi Vs. Ramanjinamma and
others, RFA No.418/2017.
14. The counsel for defendant No.9 has relied
upon following Citations:-
i. S.Shivaraj Reddy(Died) their Lrs and
another Vs. S.Raghuraj Reddy and Ors.,
(2024 SCC Online SC 963);
ii. Chennappa Vs. Parwatewwa (2022 SCC
Online Kar 1794);
iii. Vineeta Sharma Vs. Rakesh Sharma and
Ors., (AIR 2020 SC 3717);
iv. M/s. Metropoli Overseas Limited Vs.
H.S.Deekshit and Ors., (CRP No.307/2020);
v. Bheemaraja Vs. Radhabi and Ors.,
(Manu/KA/2231/2023);
vi. Smt.T.R.Satyavathi Vs. T.H.Ramesh and
Ors., (RFA No.312/201);
vii. Rathnamma and Others Vs.
K.V.Hanumatha reddy (2008 SCC Online
Kar 870);
viii. Akella Lalitha Vs. Konda Hanumatha
Rao, (2022 SCC Online SC 928);
ix. Shanthappa and Ors., Vs.
Channabasavaiah and Ors.,;
18 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
x. Renuka Vs. Muniraju and Ors.,
MANU/KA/1383/2020;
xi. Ramisetty Venkatanna and others Vs.
Nasyam Jamal Saheb and others, 2023
SCC Online SC 521;
xii. G.Nagaraju Vs. Ramesh and Ors.,
MANU/KA/1183/2023.
15. Perused the pleadings, evidence oral and
documentary, written arguments and citations relied by
both side. My answers to the above issues are as under:
ISSUE No.1 :- Partly affirmative,
ISSUE No.2 :- Partly affirmative ,
ISSUE No.3 :- Partly affirmative,
ISSUE No.4 :- Affirmative,
ISSUE No.5 :- Partly Affirmative,
ISSUE No.6 :- Partly affirmative,
ISSUE No.7 :- Partly affirmative,
ISSUE No.8 :- Partly Affirmative,
ISSUE No.9 :- As per final order for
the following:
16. ISSUES NO.1 : Before deciding the disputed
facts, the Court has to keep in mind the following
admitted facts.
19 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
i. Plaintiff No.1 is the brother and Plaintiff No.2
is the Sister of defendant No.1 to 3 and
deceased Muniyappa and deceased
Nanjamma. So, the relationship is not in
dispute.
ii. The father of the plaintiffs Munishamappa
died intestate in the year 1978, later mother
of the plaintiffs-Kempamma also died
intestate.
iii. The entire suit property at item No.1 i.e.,
Sy.No.48/5 is purchased by defendant
No.9.
iv. Plaintiffs are claiming share under Section 8
of Hindu Succession Act and not u/sec 6 of
Hindu Succession Act.
So, keeping in mind the above said admitted facts,
now I have to appreciate the evidence on record.
Plaintiffs have pleaded that suit properties are their joint
family properties and suit property at item No.1 is 48/5
measuring 0.24 guntas, item No.2 is portion of
Sy.No.102/4A and item No.3 is Sy.No.101/2. Plaintiffs
have specifically pleaded that properties described at
item No.3 bearing Sy.No.101/2 is granted to their father
under Land Reformers Act.
20 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
17. They have also pleaded that suit properties at
item No.1 and 2 are acquired by their father. Ex.P2 is
RTC of suit property at item No.1 bearing Sy.No.48/5,
which was standing in the name of father of
plaintiffs/Munishamappa and after deleting his name
his son's name i.e., Narayanappa/defendant No.1 was
entered. Ex.P4 is RTC of suit property at item No.2 and
again it was also standing in the name of
Munishamappa and after his death, the name of his son
Narayanappa/defendant No.1 was entered. Ex.P7 is RTC
of suit property at item No.3, which was also standing in
the name of father of plaintiffs and after his death, the
name of defendant No.1/Narayanappa was entered.
18. Ex.P10 is MR No.8/82-83 which discloses that
name of Munishamappa was entered in RTC 101/2 as
per Land Tribunal Order. Ex.P11 is certified copy of of
MR No.1/85-86, which discloses that after the death of
Munishamappa his three sons have consented to enter
the name of defendant No.1/Narayanappa. So, on the
21 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
basis of this Mutation, the name of defendant No.1 was
entered in RTC of suit properties. So, considering these
Records of Rights and Mutation, I hold that plaintiffs
have proved that suit item No.3 is their joint family
property. But their contention that other two suit
properties are acquired by their father cannot be
accepted.
19. PW1 during her cross examination by learned
counsel for defendant No.1, specifically admitted that
item No.3 is granted from Land Tribunal and other suit
properties are her ancestral properties. The relevant
admission is as under:-
"witness voluntaries that Item No.3 is the
granted land. Other survey numbers are the
ancestral properties".
20. Ex.D-1 is certified copy of plaint in
O.S.No.6219/2002, which discloses that said suit was
filed by present defendant No.2/Rajanna for partition
and separate possession against his mother and three
brothers. In said plaint para No.3, he has specifically
pleaded that Sy.No.101/2 was granted to his father. He
22 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
also specifically pleaded that suit property at item No.2
and 3 are his ancestral properties. In said plaint at para
No.6, suit properties are described item No.1 as
Sy.No.101/2, item No.2 as Sy.No.48/5 and item No.3 as
house bearing No.48 along with open space.
21. In said suit defendant No.4/Narayanappa i.e.,
present defendant No.1 has filed written statement in
said suit as per Ex.D-2. In said written statement, he
has specifically admitted that suit property item No.1
was granted land and item No.2 and 3 are ancestral
properties. In para No.6 of said written statement he has
specifically pleaded as under:-
"This defendant submits that item No.1 in the
plaint schedule is a tenanted land. The land tribunal
granted occupancy rights. Against the order of the
land tribunal, writ petition came to be filed before the
Hon'ble High Court of Karnataka by Miniswamappa
@ Gangappa. The matter is pending. Item No.s 2
and 3 are the ancestral properties".
22. Ex.D-6 is the certified copy of written
statement filed in O.S.No.900/2003 by present
defendant No.1/Narayanappa as defendant No.3. The
23 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
said suit was filed by present plaintiff No.1/Venkatesh
against his mother and brothers but either of the parties
have not produced the copy of the plaint of said suit but
as per written statement/Ex.D-6, the present defendant
No.1 has admitted that Sy.No.101/2 was granted under
Land Reformers Act and item No.2 and 3 are ancestral
properties. The relevant admission is in para No.19,
which is as under:-
"This defendant submits that item No.1 in the
plaint schedule is a tenanted land. The land tribunal
granted occupancy rights in favour of this defendant.
The said order was challenged before the Hon'ble
High Court of Karnataka and the same is pending.
Item No.2 and 3 are ancestral properties".
So, considering the suggestions put forth to PW1
as well as above said documents, I hold that suit
properties at item No.1 and 2 are ancestral properties of
plaintiffs and defendants No.1 to 3 and suit property at
item No.3 is their joint family property i.e., tenanted
property cultivated by deceased Munishamappa on
behalf of joint family.
24 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
23. Plaintiffs as well as defendants have not
produced the any documents to show that the suit item
No.1 and 2 were standing in the name of father of
Munishamappa @ Gangappa. But, defendant
No.1/Narayanappa in his written statement filed in
earlier suits has specifically admitted that these
properties are his ancestral properties.
24. So, with respect to properties at item No.1 and
2 Section 6 and with respect to suit item No.3 granted
land section 8 of Hindu Succession Act, is applicable.
The contention of the plaintiffs that all the suit
properties are self acquired properties of their father or
joint family properties cannot be accepted. Hence, I
answer issue No.1 in partly affirmative.
25. ISSUE NO.3 AND 7:- Both issues are
interlinked with each other and in order to avoid
repetition, they are taken up together for common
discussion.
25 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
Plaintiff No.1 is the brother of plaintiff No.2. It is
the case of defendant No.1 that after death of his father,
suit properties were already orally partitioned and later
Memorandum of Partition was reduced into writing on
29/10/1996 and hence, plaintiffs are not entitle for any
share in the suit properties. It is also his case that
plaintiff No.1 has gone into adoption to one
Narayanappa and hence, he has given his consent for
Memorandum of Partition dated 29/10/1996, he signed
the said document and not taken any share under said
document and hence, he is not entitle for any share in
this suit properties. It is also his case that plaintiff No.2
was given in marriage long back and hence, she is not
entitle for any share in the suit properties.
26. Defendant No.1 has produced Ex.D3/
Memorandum of Partition Deed, which discloses that
the mother of the plaintiffs i.e., Kempamma and her four
sons have entered Panchayath Parikath, which also
discloses that after 5-6 years of death of Gangappa @
Munishamappa, there was a oral partition between all
26 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
brothers and later said oral partition is reduced into
writing as per this document.
27. As per this document Schedule 'A' property
was Sy.No.48/5 measuring 0.10 guntas, Sy.No.101/2
measuring 1 acre 10 guntas and house property along
with open space situated at Tanisandra i.e., present
item No.2. As per this Deed schedule 'A' property was
fallen to the share of Muniyappa. Schedule 'B' property
was 0.10 guntas out of Sy.No.48/5, 1 acre 16 guntas
out of Sy.No.101/2 and open space out of Sy.No.102/4A
were fallen to the share of Narayanappa/present
defendant No.1. Suit schedule 'C' property is 5 guntas
of land in Sy.No.48/5 and vacant site measuring 44' X
20' feet in Tanisandra were fallen to the share of
Rajanna/present defendant No.2.
28. Present plaintiff No.1/Venkateshappa put his
LTM at Sl.No.2 and in page No.2 of the document, it is
specifically mentioned that said Venkateshappa has
married the girl of Thirumenahalli Village and said girl
was residing with her uncle Narayanappa and said
27 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
Narayanappa had not children and hence, he adopted
the Venkateshappa as adopted son and hence, no
properties are allotted to him under this Deed but his
signature was taken on this Deed as a consenting
witness. So, Venkateshappa/plaintiff No.1 put his LTM
to this document and he has given his consent of
allotment of properties among his three brothers.
29. On the basis of this Partition Deed, application
was given before Tahasildar to enter their names in RTC
and as per M.R.No.20/2000-01/Ex.P.12, Tahasildar has
effected the entries. Since then Sy.No.48/5 measuring
10 guntas each is standing in the name of Muniyappa
and Narayanappa/D1. Out of R.S.No.101/2 measuring
1 acre 10 guntas is standing in the name of Muniyappa
and land measuring 1 acre 16 guntas is standing in the
name of Narayanappa. Sy.No.48/5 measuring 5 guntas
was standing in the name of Rajappa/D2. So, the
Partition Deed as per Ex.D3 is acted upon and entries
have been changed long back.
28 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
30. The present plaintiff No.1 though put his LTM
as a consenting witness, never challenged said Deed of
Partition. Instead of challenging the said Partition Deed,
he had filed O.S.No.980/2003 for fresh partition and
separate possession and he simply sought the partition
and permanent injunction not to alienate the suit
properties that can be seen from Ex.D-7/Order sheet.
The said suit was filed by him on 05/02/2003, as on the
date of that suit suit properties were mutated in the
name of his three brothers as per Partition Deed dated
29/10/1996 but he has not challenged said Partition
Deed. The said suit was dismissed for default on
21/10/2005. In this suit also the plaintiff No.1 has not
challenged the said Partition Deed. So, without
challenging said partition deed, the suit filed by him for
fresh partition is not at all maintainable.
31. Once there is a severance of joint status is
proved the properties can only continue to be joint if
there is an agreement between the parties to hold them
as joint tenants. In this case, the earlier partition
29 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
between all the four brothers are proved and hence, the
fresh suit for partition by one of the brother i.e., plaintiff
No.1 without challenging earlier partition is not at all
maintainable.
32. On this point I rely upon the judgment of
Hon'ble Apex Court reported in (1953) 1 SCC 414
between Banaraj Alakhdhari Pathak Vs. Ambika
Prasad Pathak, wherein it is held as under:-
"Once partial partition was admitted or proved,
presumption would arise that all properties, movable
and immovable, belonging to joint family were
divided"
Since plaintiff No.1 was party to the partition
deed/Ex.D3, I hold that said partition deed is binding
upon him. The said partition deed is acted upon as
revenue entries are changed. But plaintiff
No.2/Shanthamma was not a party to this Deed of
Partition. She has not signed this Deed as consenting
witness and even thereafter also she has not
relinquished her share over the suit properties in favour
of her brothers. She was not made as a party in earlier
30 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
suits either filed by Venkateshappa/plaintiff No.1 or
filed by Rajanna/defendant No.2.
33. As per Ex.P11, after death of father of
plaintiffs, only male persons i.e., his sons alone given
application before Revenue authorities to enter the name
of Narayanappa. So, said mutation was passed as if
Munishamappa had male issues only. While passing
said mutation also no notice was given to plaintiff No.2.
So, said revenue entries are behind her back and
Partition Deed was only between her brothers and she
was not party to the same and hence Revenue Entries
and Partition Deed are not binding upon her. But said
Mutation and said Partition Deed are very well binding
upon plaintiff No.1.
34. The judgment relied by defendant No.9 passed
in RSA No.1837/2019, Nagaraju Vs. Ramesh is
applicable to claim of plaintiff No.1, wherein the Hon'ble
High Court of Karnataka by considering Apex Court
Judgment (2015) 15 SCC 1 held that 'the doctrine of
acquiescence is applicable'. It is held that 'a right not
31 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
exercised for a long time is not in existent. In such cases,
Courts have to invoke the doctrine of latches and delay'.
35. The contention of defendants No.1 and 9 that
Venkateshappa/plaintiff No.1 has gone into adoption
and enjoying the properties of Narayanappa of
Thirumenahalli and hence, he is not entitle for share in
suit properties cannot be accepted. The said adoption is
not at all proved by them. They have produced RTCs of
Tirumenahalli standing in the name of present plaintiff
No.1 as per Ex.D.13 to 59. Sy.No.15 and 24 of
Jyothipura Village, Bidarahalli Hobli, Hoskote Taluk
were standing in the name of Narayanappa S/o
Sonnappa and later name of plaintiff No.1/
Venkateshappa S/o Gangappa is entered.
36. But merely because he is enjoying the said
lands it cannot be said that he has been taken into
adoption by said Narayanappa of Tirumenahalli Village.
Even in Record of Rights the name of plaintiff No.1 is
entered as Venkateshappa S/o Gangappa and not
Venkateshappa S/o Narayanappa. So, case of the
32 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
defendants No.1 and 9 that plaintiff No.1 went into
adoption is not proved by them and cannot be accepted.
37. The citation relied by defendants No.1 and 9 in
RSA No.7198/2010, Bheeshmaraja Vs. Radhabhai
and others, dated 14th July 2023 is not at all
applicable. So, eventhough, adoption is not proved but
plaintiff No.1 being a party to Memorandum of Partition
or Panchayath Parikat, wherein he has given up his
share over the suit properties is not entitle for any share
in this suit. He has not challenged the Partition Deed
either in earlier suit or in this suit. Even he has not
entered witness box in this case. So, considering all
these materials on record, I hold that he is estopped
from claiming share in the suit properties. But plaintiff
No.2, who is not a party to Partition Deed can maintain
this suit for partition.
38. Suit Schedule properties at item No.1 and 2
are ancestral properties, as per Ex.P3, Muniyappa and
his son Umesh, Narayanappa and his daughter Anitha
through their GPA holder H.T.Raju have sold 20 guntas
33 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
of land in favour of defendant No.8/Lakshman under
sale deed dated 07/02/2003, later defendant No.8 has
sold said land in favour of defendant No.9 under sale
deed dated 22/10/2003 under Ex.P19. The branch of
Muniyappa and Narayanappa have sold 0.20 guntas of
land out of suit item No.1. Defendant No.2/Rajanna to
whom 05 guntas of land (1 gunta Karab land) was
allotted in partition deed has also sold said land in
favour of defendant No.9 through his GPA holder under
registered sale deed/Ex.P.20 dated 12/10/2004.
39. So, the entire suit property at item No.1 was
initially purchased by defendant No.8 and later
purchased by defendant No.9 prior to cut off date fixed
under explanation to section 6 of Hindu Succession Act
i.e., before 20th December 2004. As per Amended
Provision under Section 6 of Hindu Succession Act, the
daughter is treated as coparcener and granted her equal
right with the sons. But if there was Partition or
alienation prior to 20th December 2004, she cannot
claim said properties.
34 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
40. The judgment relied by defendant No.1 as well
as defendant No.9 reported in AIR (2020) 9 SCC 1,
Vineeta Sharma Vs. Rakesh Sharma and others is
helpful to them. In this case after partition under Ex.D3,
the revenue entries were changed under MR
No.20/2000-01 as per Ex.P.12. Hon'ble Apex Court in
said judgment has specifically held that 'plea of oral
partition cannot be accepted but if plea of oral partition is
supported by public documents and partition is finally
evinced in the same manner as if it had been affected by
a decree of a court, it may be accepted'. The said
judgment is on Section 6 of Hindu Succession Act. The
Hon'ble Apex Court in said judgment at para No.137.5
held as under:-
"137.5. In view of the rigour of provisions of the
Explanation to Section 6(5) of the 1956 Act, a plea of
oral partition cannot be accepted as the statutory
recognized mode of partition effected by a deed of
partition duly registered under the provisions of the
Registration Act, 1908 or effected by a decree of a
court. However, in exceptional cases where plea of
oral partition is supported by public documents and
partition is finally evinced in the same manner as if it
had been affected (sic effected) by a decree of a court,
35 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
it may be accepted. A plea of partition based on oral
evidence alone cannot be accepted and to be rejected
out-rightly".
41. In said judgment at para No.137.2 with
respect to savings clause Hon'ble Apex Court held as
under:-
"137.2. The rights can be claimed by the
daughter born earlier with effect from 9-9-2005 with
savings as provided in Section 6(1) as to the
disposition or alienation, partition or testamentary
disposition which had taken place before the 20th
day of December, 2004".
42. The judgment relied by defendant No.9
reported in 2008 SCC Online KAR 870, Rathnamma
and others Vs. K.V.Hanumatha Reddy, the Hon'ble
High Court of Karnataka by considering Karnataka
Amended Act, 23/1994 as held that 'there is no specific
savings clause with respect to prior alienation in Section
6A(D) of Karnataka Amendment Act, 1990'. The said
judgment is helpful the defendant No.9.
43. So, in this case, ancestral property bearing
Sy.No.48/5 i.e., suit item No.1 property is sold out by
branch of Muniyappa and Narayanappa/D1 and
36 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
Rajanna/D2 prior to 20th December 2004. Hence, in
this property plaintiff No.2, who being the daughter of
deceased Munishamappa is not entitle for any share.
44. Further, she has not challenged the sale deed
in favour of defendant No.9 but in view of alienation of
the property prior to 20th December 2004, I hold that
she is not entitle for any share in suit item No.1
property. The plaintiff No.1 being a party to the partition
deed/Ex.D3 and since he has not challenged the said
Partition Deed, I hold that his fresh suit for partition
with respect to suit properties is not at all maintainable
and hence he is not entitle for any share in suit
properties. At the cost of repetition, I hold that since
plaintiff No.2 was not a party to the partition deed dated
29/10/1996, I hold that said partition deed is not
binding upon her.
45. Ex.D9 is the Release Deed dated 7th September
2011 executed by Smt.Pillamma(Defendant No.3) and
daughters of Smt.Nanjamma (Defendant No.10 to 13) in
favour of deceased Muniyappa and Narayanappa in
37 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
respect to present suit properties bearing Sy.No.101/2
and 102/4A i.e., present suit item No.3 and 2
properties. In this deed, it is specifically mentioned that
Smt.Pillamma and Smt.Nanjamma have got 1/7th share
each in properties of the deed. So, deceased Muniyappa
and Narayanappa/D1 have admitted the claim of their
sisters i.e., Smt.Pillamma and Smt.Nanjamma in these
properties.
46. But present plaintiff No.2/Shanthamma, who
being their another sister is not a party to this Release
Deed and defendants have not at all given any
explanation as to why present plaintiff No.2 was not a
party to this document. So, plaintiff No.2 has not at all
released her right over the suit properties in favour of
her brothers. When defendants i.e., Narayanappa and
his brothers have admitted the claim of other sisters
then they have to admit the claim of their another sister
Smt.Shanthamma/plaintiff No.2 but in this suit they
denied her claim. But, she being the daughter of
Sri.Munishamappa has got equal share in the property
38 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
left out by her father as per section 8 of Hindu
Succession Act, as her father Sri.Munishamappa died
intestate.
47. The suit item No.1 property bearing
Sy.No.48/5 is already sold out by branch of deceased
Muniyappa and Narayanappa/D1 and Rajanna/D2. The
plaintiff No.1/Venkatesh has given his consent under
Ex.D-3 stating that he will not claim any share in the
suit properties. The plaintiff No.2 was not a party to the
Partition Deed likewise other sisters of plaintiff No.2
were also not parties and in view of Savings Clause i.e.,
alienation prior to 20th December 2004, plaintiff No.2
cannot claim share in suit item No.1 property. But she
got equal share with her brothers in suit item No.2 and
3 properties. Hence, I answer Issues No.3 and 7 in
Partly Affirmative.
48. ISSUE NO.4:- Defendant No.9 being purchaser
has taken specific contention that he is bonafide
purchaser of suit item No.1 property for sale
consideration. As stated above, under MR No.20/2000-
39 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
01 on the basis of Partition Deed/Ex.D3, the name of
deceased Muniyappa, Narayanappa/D1 and
Rajanna/D2 was entered in RTC of Sy.No.48/5 to the
extent of 0.10 guntas, 0.10 guntas and 0.5 guntas
respectively.
49. The branch of deceased Muniyappa and
Naryanappa/D1 have sold their share to the extent to
20 guntas through their GPA holder in favour of
defendant No.8 under sale deed dated 07/02/2003.
Defendant No.2 has also sold his share of 0.4guntas in
favour of defendant No.9 under sale deed 12/10/2004
through same GPA holder Sri.H.T.Raju. So, when
defendant No.9 has purchased the suit item No.1
property to the extent of 20 guntas, it was standing in
the name of his vendor/Lakshman i.e., defendant No.8
and defendant No.8 has directly sold the said land in
favour of defendant No.9 under sale deed dated
22/10/2003(Ex.P.19).
50. Defendant No.2 and his children have also
sold their share of 0.4guntas of land except 01 guntas of
40 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
Karab land in favour of defendant No.9 through his GPA
holder(defendant No.8) under Ex.P.20/Sale Deed. As on
that date the said property was standing in his name
and his name has entered as per MR No.20/2000-01 on
the basis of Partition Deed. So, defendant No.9
purchased the said property based on the Mutation and
Revenue Records, which were standing in the name of
their vendors.
51. The daughters of Munishamappa were not
parties to the Partition Deed but none of them claimed
their share except plaintiff No.2 and as stated above,
plaintiff No.2 is not entitle for share in this ancestral
property sold prior to 20/12/2004. Plaintiff
No.1/Venkateshappa, who being the party to the
Partition Deed has never challenged the said Partition
Deed and hence, I hold that defendant No.9 is bonafide
purchaser of suit property at item No.1 for valuable
consideration amount.
52. Further, the evidence on record discloses that
he developed this land along with his other properties by
41 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
investing huge amount and he also executed
Ex.D67/Development Agreement in favour of G:CORP
HOMES PVT. LTD., and Ex.D71/Supplemental
Agreement to the Development Agreement. As per
Ex.D69, Certificate issued by BBMP with respect to
development of his other properties in various Survey
number of Tanisandra along with this suit item No.1
property. As per Ex.P24 to 26/Photographs and
Ex.P27/CD, it is crystal clear that Multi-stored building
is constructed over Sy.No.48/5 and other survey
numbers. So, it appears that the defendant No.9 has
developed the suit item No.1 property bearing
Sy.No.48/5 after purchasing it by paying valuable
consideration amount. So, he is the bonafide purchaser
of consideration amount. Hence, I answer issue No.4
in Affirmative.
53. ISSUE NO.5:- The defendant No.1 and 9 have
raised the point of Limitation and they have contended
that suit for partition is barred by law of Limitation.
They have also contended that the sale deeds in favour
42 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
of defendant No.9 are dated 22/10/2003 and
12/10/2004 but suit is filed in the year 2013 and
hence, suit is barred by law of limitation.
54. But so far as the question of limitation to file
the suit for partition is concerned, there is no any
limitation prescribed to file such suit. Defendant No.1
has to prove that he has ousted the plaintiff No.2 from
joint family properties but as stated above plaintiff No.2
was not a party to the Partition Deed and her name was
never mutated after the death of her father. So, behind
her back her brothers have got entered their names in
revenue records with respect to suit properties. So, they
have not proved defence ouster and hence suit for
partition is well within the limitation.
55. The citation relied by defendant No.1 on
ouster reported in (2016) 6 SCC 725 is not applicable to
the facts of this case. Article 110 of Limitation Act is
applicable if ouster is proved. The period of limitation is
12 years and it begins to run when the exclusion
becomes known to the plaintiff. Defendant No.1 has not
43 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
proved that he has excluded plaintiff No.2 from joint
family properties.
56. But this Article and citation is applicable to
the claim of plaintiff No.1. Plaintiff No.1 was excluded
from joint family under Ex.D3 dated 29/10/1996. So,
from that date the suit should have been filed within 12
years. But this suit is filed after 17 years of said
Partition. In his earlier suit he has not challenged the
partition and the said suit was dismissed for default and
he has not chosen to continue the said suit based on
same cause of action. Hence, claim of plaintiff No.1 is
barred by law of limitation.
57. The contention of defendant No.9 that sale
deeds are of 2003 and 2004 and suit is not filed within
the 3 years from the date of knowledge cannot be
accepted because plaintiff No.2 has not challenged the
said sale deeds. But she simply filed a suit for partition
claiming her share and since she is not entitle for her
share in suit item No.1 property, I hold that her suit for
partition is within the period of limitation.
44 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
58. The judgment relied by plaintiffs passed in
RSA No.200005/2014 (PAR), Shanthamma Versus.
Ramawwa and Ors., is helpful to the plaintiffs to
contend that plaintiffs need not challenge the sale deeds
but can file a suit for partition. In said judgment Hon'ble
High Court of Karnataka by considering it's earlier
judgment in Ganapathi Santaram Bhosale's case
passed in RFA No.87 and 90/1975 held that the
coparcener can seek the share in joint family properties
and need not to challenge the sale deeds if coparcener is
not a party to the sale deed.
59. The Hon'ble High Court of Karnataka in
W.P.No.11126/2021 dated 11th July 2022 (relied by
plaintiffs) by considering above said Bhosle's case held
that the suit for partition and separate possession is
maintainable without challenge to sale deed. In this case,
plaintiff No.2 was not a party to the sale deeds and
hence, her suit is very well maintainable but she cannot
challenge the said sale deeds in view of explanation
Section 6 of Hindu Succession Act.
45 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
60. The judgments relied by defendant No.9 on the
point of limitations at Sl.No.1 to 4 are not at all
applicable to the facts of this case.
61. The judgment relied by plaintiffs passed in
RFA No.100182/2014 C/W RFA No.100181/2014
dated 23rd September, 2023, is also helpful to the
plaintiff No.2 to claim share in suit properties at item
No.2 and 3 under section 8 of Hindu Succession Act,
wherein it is held as under:-
"Next question is whether the bar contained
under Section 6 of the Hindu Succession Act, 1956 to
claim share in the properties in the event of alienation
or partition before 20th December 2004, applies to the
properties inherited under Section 8 of the Hindu
Succession Act, 1956?
31. The learned Counsel for the appellant
submits that the plaintiff cannot claim a share in the
suit properties in view of the bar under proviso to
Section 6 (1) of the Hindu Succession Act, 1956 as
there was already a partition in 1991 and alienation
in 1995 before 20th December 2004 the cut off date
under the above said proviso.
32. The contention is to be rejected for the simple
reason that the plaintiff has acquired rights under
Sections 8 and 15 of the Hindu Succession Act, 1956
in respect of the properties of her father and mother
respectively. The bar contained under Section 6 of the
46 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
Hindu Succession Act, 1956 to claim equal share in
the properties sold or partitioned before 20th
December 2004, is not applicable to the properties
inherited under Section 8 and 15 of the Hindu
Succession Act 1956. It applies only to coparcenary
property".
So, in this case plaintiff No.2 is entitle for partition
in suit item No.2 and 3 properties under Section 8 of
Hindu Succession Act. But her claim with respect suit
item No.1 property is not at all maintainable as it was
her ancestral property but sale deeds were executed in
respect of the same prior to 20th December 2004. The
claim of plaintiff No.1 is barred by law of limitation but
claim of plaintiff No.2 is not at all barred by law of
limitation. Hence, I answer issue No.5 in Partly
Affirmative.
62. ISSUE NO.6:- Defendants have raised the
issue on Court Fee. Plaintiff No.2 is member of joint
family and there is a presumption with respect to joint
family but there is no presumption with respect to joint
family properties. The suit item No.1 and 2 are her
ancestral property and item No.3 is her joint family
47 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
property and plaintiffs have valued the suit as per
Section 35(2) of The Karnataka Court-Fee and Suits
Valuation Act, 1958.
63. In the citation relied by defendant No.9 passed
in RFA No.312/2016 between Smt.T.R.Sathyavathi
Vs. T.H.Ramesh and others., the Hon'ble High Court of
Karnataka in para No.22 held that if ouster is proved
then Court Fee has to be paid under Section 35(1) of
Court Fee Act. In this case, plaintiff No.2 is not in
possession of suit item No.1 but she is in implied
possession of suit item No.2 and 3. The evidence on
record discloses that plaintiffs are not in possession of
suit item No.1 and hence, they have to value the suit
u/sec.35(1) and not u/sec.35(2) of Court Fee Act. Their
suit with respect to suit item No.3 i.e., granted land is
properly valued. Hence, I answer issue No.6 in Partly
Affirmative.
64. ISSUE NO.2 AND 8:- The plaintiffs have
claimed mesne profits in the suit properties but in view
48 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
of my findings on above issues plaintiff No.1 is not
entitle for any share in the suit properties. Since
plaintiff No.2 was considered as member of the joint
family and since possession of the joint family property
by her brothers as members of the joint family cannot
be said as illegal possession or unlawful possession.
65. As per section 2(12) of CPC., 'mesne profits of
property means those profits which the person in
wrongful possession of such property actually received or
might with ordinary diligence have received therefrom,
together with interest on such profits, but shall not
include profits due to improvements made by the person
in wrongful possession. In simple words mesne profits
means that the damages and compensation that are
recoverable from a person who has been in the wrongful
possession means that profit which the plaintiff has lost
by reason of defendant's wrongful act'.
66. So, considering the relationship of the
plaintiffs with defendants No.1 to 3 and considering the
49 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
nature of the suit property, I hold that possession of the
Defendants No.1, 2 and branch of deceased Muniyappa
cannot be said as wrongful possession and hence,
plaintiff No.2 is not entitle for mesne profits as claimed.
Plaintiff No.1 is not entitle any share in the suit
properties. Plaintiff No.2 is entitle for 1/6th share in suit
properties at item No.2 and 3 by meets and bounds.
67. Defendant No.3 i.e., Smt.Pillamma and
defendants No.10 to 13, who are the daughters of
deceased Smt.Nanjamma have relinquished their share
in the suit properties. So, they are not entitle for any
share in suit properties. The branch of Muniyappa,
Narayanappa and Rajappa are liable to be given 1/6th
share to the plaintiff No.2 in suit item No.2 and 3.
Hence, I proceed to pass the following:
The suit of the plaintiffs is hereby
decreed in part with costs.
It is declared that plaintiff No.2 has got
1/6th share in suit item No.2 and 3
50 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
properties and she entitle for partition
and separate possession of the same by
meets and bounds from defendant No.1,
2 and 4 to 7 .
The claim of plaintiff No.1 in all the suit
properties is rejected.
The claim of plaintiff No.2 with respect to
mesne profits is rejected.
Draw a preliminary decree accordingly.
In view of the judgment of the Hon'ble
Apex Court in 2022 LiveLaw (SC) 549,
Kattukandi Edathil Krishnan v.
Kattukandi Edathil Valsan, the
plaintiff need not file separate FDP
proceedings but plaintiff No.2 can take
steps for final decree proceedings in this
suit itself.
***
[Dictated to the Stenographer, after transcription, the Script is corrected directly on computer, signed and then pronounced by me, in the Open Court on this 1st day of February, 2025.] [Chinnannavar Rajesh Sadashiv] XVIII Additional City Civil Judge.
BENGALURU.
51 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc
1. List of witnesses examined on behalf of :
(a) Plaintiff's side:
P.W.1 Shantamma
(b) Defendant's side:-
D.W.1 Narayanappa
(Discarded as per order dtd.31/10/2022) D.W.1 D.N.Manjunatha D.W.2 Shamar Bose.
2. List of documents marked on behalf of :
(a) Plaintiff's side:
Ex.P.1 Original Genealogical Tree; Ex.P.2 to 9 Certified copies of RTC(8 in Nos.); Ex.P.10 to 12 Certified copies of MR.s(3 in Nos); Ex.P.13 Certified copy of sale deed; Ex.P.14 Certified copy of M.R.23/2008-09; Ex.P.15 to 18 Certified copies of RTCs (4 in Nos); Ex.P.19 Certified copy of sale deed dtd.22/10/2003;
Ex.P.20 Certified copy of sale deed dtd.12/10/2004;
Ex.P.21 to 23 Certified copies of EC (3 in Nos); Ex.P.24 to 26 Photographs of property (3 in Nos);
Ex.P.27 It's CD;
(b) Defendant's side:-
Ex.D.1 Certified copy of plaint in
O.S.No.6219/2002;
Ex.D.2 Certified copy of W.S filed by defendant
52 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc No.4 in O.S.No.6219/2002;
Ex.D.3 Certified copy of order sheet in O.S.No.6219/2002;
Ex.D.4 Certified copy of Vakalath filed by plaintiff in O.S.No.980/2003; Ex.D.5 Certified copy of WS of defendant No.3 in O.S.No.980/2003;
Ex.D.6 Certified copy of Vakalath filed by defendants in O.S.No.980/200; Ex.D.7 Certified copy of order sheet in O.S.No.980/2003;
Ex.D.8 Deed of Release dtd., 07.09.2011;
Ex.D.9 RTC; Ex.D.10 Mutation Register ;
Ex.D.11 to 57 RTC (47 in No.s); Ex.D.58 General Power of Attorney dtd.
17.10.2022;
Ex.D.59 Partition Deed dt.22.10.1996; Ex.D.60 Evidence affidavit of defendant No.1; Ex.D.60(a) Signature of defendant No.1; Ex.D.61 Written statement of defendant No.1; Ex.D.61(a) Signature of defendant No.1; Ex.D.62 Certified copy of RTC of Sy.No.48/5 for the year 1969-74;
Ex.D.63 Certified copy of registered GPA dt.05/09/2002;
Ex.D.64 Certified copy of conversion order dt.08/10/2003;
Ex.D.65 Certified copy of GPA dt.29/04/2003; Ex.D.66 Certified copy of conversion order dt.02/06/2004;
53 / 53 O.S_1555-2013_JT(Cont)_ Partition.doc Ex.D.67 Certified copy of Joint Development Agreement dt.02/09/2010;
Ex.D.68 Certified copy of of Sanction Plan dt.23/04/2012;
Ex.D.69 Certified copy of Amalgamated Khata Certificate dt.31/08/2012; Ex.D.70 Certified copy of Amalgamated BBMP Khata Extract dt.31/08/2012; Ex.D.71 Online certified copy of Supplementary agreement dt.06/08/2013;
Ex.D.72 Online certified copy of Supplementary agreement dt.09/05/2014;
Ex.D.73 Certified copy of occupancy certificate dt.08.08.2016;
Ex.D.74 Certified copy of occupancy certificate dt.14.12.2017.
XVIII Additional City Civil Judge.
BENGALURU.