Bangalore District Court
Smt.Narasamma vs Doddachennappa @ on 5 August, 2020
1 O.S.6488/2006
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 5 th DAY OF August, 2020.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.6488/2006
PLAINTIFF/S: 1. Smt.Narasamma,
W/o Late Narayanappa,
Aged about 50 years,
R/o C/o Nagappa,
Hegalugurki post,
Chikkaballapur taluk,
Kolar district,
Working at BEL
Jalahalli,
Bangalore.
(By Sri.R.Krisnappa, Advocate)
Vs.
DEFENDANT/S: 1. Doddachennappa @
Chennappa,
Aged about 65 years,
S/o Late Channarayapa,
2 O.S.6488/2006
R/at Lakshmipura,
Vidyaranyapura post,
Yeshwanthapura hobli,
Bangalore - 560 097.
2. Raja Ahmed,
Aged about 60 years,
S/o Late Abdul Kareem,
R/at Mohammed Sab,
Chikkabettahalli village,
Yelahanka hobli,
Bangalore north taluk.
3. M.C.Ramakrishnareddy,
Aged about 45 years,
S/o Chikkabyanne,
R/at Lakshmipura,
Vidyaranyapura post,
Yeshwanthapura hobli,
Bangalore - 560 097.
4. Chikkachennappa,
S/o Late Chennarayappa,
Since deceased by legal
representatives
(a) Smt.Thimmakka,
Aged about 65 years,
W/o Chikkachannappa,
Resident of Lakshmipura
village, Vidyaranyapura post,
Yeshwanthapura hobli,
Bangalore - 560 097.
3 O.S.6488/2006
(b) Smt.Narayanamma,
W/o Nagaraj,
D/o Late Chikkachannappa,
Aged about 35 years,
(c) Smt.Mangala,
W/o Nagaraj,
D/o Late Chikkachannappa,
Aged about 35 years,
Both are residents of
Suradenapura village,
Yeshwanthpura hobli,
Bangalore.
(d) Sri.Muniraju,
S/o Late Chikkachannappa,
Aged about 33 years,
(e) Sri.Narayanaswamy,
D/o Late Chikkachannappa,
Aged about 31 years,
Both are resident of
Lakshmipura village,
Vidyaranyapura post,
Yeshwanthapura hobli,
Bangalore - 560 097.
5. Smt.P.R.Shailaja,
W/o M.C.Ramakrishna Reddy,
Aged about 40 years,
R/at No.203, Lakshmipura,
Vidyaranyapura post,
4 O.S.6488/2006
Bangalore north taluk.
6. Sri.V.Narayan (deleted)
(D1 & 2 By Smt.Vijaya N. Aradhya,
D3, D5 By Sri.Srinivas, D4(a) to (e)
By Sri.Ashwathnarayana, Advocates)
* * * * *
Date of institution of suit : 19.07.2006
Nature of suit : Partition
Date of commencement
of recording of evidence : 30.08.2012
Date on which the judgment
was pronounced : 05.08.2020
Duration of the suit :Year/s Month/s Day/s
14 00 17
JUDGMENT
1. This is a suit filed by the plaintiff against the defendants praying to declare that the plaintiff has 1/3rd share in all the items of suit schedule properties and prays for judgment and decree for 5 O.S.6488/2006 division of suit properties and to allot the plaintiff's 1/3 share and also for declaration that the alleged sale deeds between the defendant no. 1 to 3 are not binding on the plaintiff.
2. Initially this suit filed against defendant no. 1 to 4. During the pendency of this suit defendant no. 4 is dead. Hence his legal representatives 4(a) to 4(e) are brought on record. During the pendency of this suit defendant no.5 and 6 were brought on record. Initially item no.1 to 7 were mentioned as suit schedule properties. But the plaintiff deleted item No.2, Sy.No.13/3 measuring 1 acre 10 guntas by carrying out the amendment. The name of the defendant no.6 also deleted by carrying out the amendment on 9.12.2019 as per order dated 27.11.2019.
6 O.S.6488/20063. The immovable properties bearing Sy.No. 2 (old) 2/1b (new) measuring 1 acre 3 guntas, immovable property bearing Sy.No.15/1 measuring 1 acre 1 guntas, Sy.No.40/2 measuring 24 guntas, Sy.No.51/2 measuring 33 guntas, Sy.No. 53/1 measuring 27 guntas which are all situated at Lakshmipura village is mentioned as item no. 1, 2 to 6 respectively in the plaint schedule and Sy.No. 56 measuring 14 guntas situated at Abbigere village mentioned as item no. 7 are the suit schedule properties.
4. The plaint averments briefly stated as follows:
The suit schedule properties originally belongs to the propositus Kare Chennappa who died long back leaving behind three sons Chennarayappa, Muniswamappa and Yellappa. Chennarayappa is the 7 O.S.6488/2006 father of plaintiff's husband died leaving behind the 1 st defendant, plaintiff's husband, 4 th defendant and other two brothers. The three sons and grand sons of deceased Kare Chennappa partitioned the suit schedule properties through Panchayat Palupatti in the year 1961. At that time Chennarayappa and Yellappa were died. Y.Krishnappa S/o Yellappa, Muniswamappa S/o Kare Chennappa and 1 st defendant partitioned the schedule items through Panchayat Palupatti dated 24.8.1961. The original Panchayat Palupatti is in the custody of 1 st defendant. The two sons of the deceased Chennarayappa died long ago without marriage and without issues leaving behind the plaintiff husband, 1 st defendant and 4 th defendant as legal representatives. The plaintiff's husband was working in BEL factory and he died on 29.10.1971.
After his death the plaintiff got a job on 8 O.S.6488/2006 compassionate ground and she was working in BEL as canteen supplier. After the death of her husband the plaintiff was driven out by the 1 st and 4 th defendant. Hence she took shelter in Y.Krishnappa's house for some years. During that period there was another Panchayat Palupatti between 1 st defendant, plaintiff and 4 th defendant in the year 1971-1973. In the said Panchayat Palupatti the suit items were partitioned between the plaintiff, 1 st defendant and 4 th defendant. In the said partition an extent of 20 guntas and 4 ½ guntas in item no.1 and 7 had fallen to the share of the plaintiff and an extent of 23 guntas in item no. 1 of the suit property fallen to the share of the 1 st defendant. During the year 1990 after the retirement of Y.Krishnappa as High School master the plaintiff was driven out from his house. Hence she forced to live in her parental house in Hagalukurki. When she 9 O.S.6488/2006 was residing in the house of Y.Krishnappa she used to pay her entire salary to them. She used to visit the suit properties often and often. The plaintiff was in exclusive possession, occupation and enjoyment of the suit item no. 1 and 7. In the month of August 2003 the 3 rd defendant refused her possession. On enquiry the 3 rd defendant revealed that 1 st defendant sold the suit item no. 1 in favour of the 2 nd defendant, in turn 2 nd defendant sold the same to the 3 rd defendant. Thereafter the plaintiff has obtained the certified copies of revenue documents and learnt that the 1 st defendant had sold the plaintiff's share of 20 guntas along with his share 20 guntas by retaining 0.03 guntas out of 1 acre 3 guntas in favour of 2 nd defendant , in turn the 2 nd defendant sold the same to the 3 rd defendant. The said sale deed is sham, illegal and are not binding on the 10 O.S.6488/2006 plaintiff as the plaintiff is neither executant nor the witness to the said sale deed. The defendant no.1 has played fraud on the plaintiff by taking undue advantage of her illiteracy and innocence. The 1 st defendant sold the share of the plaintiff measuring 20 guntas on 29/7/1971 in favour of 2 nd defendant before effecting the Panchayat Palupatti dated 9/3/1971/73. The 1 st defendant played fraud, mischief by sending her out from matrimonial house immediately after the death of her husband. The parties to the suit are in joint possession of the suit schedule properties and nobody has been ousted out from the suit schedule properties. The cause of action for the suit arose on 13.3.2006 the date on which the revenue documents were obtained showing actualities and subsequently on 17.3.2006 on which certified copy of sale deed were procured and when 11 O.S.6488/2006 the defendants denied the right of the plaintiffs over the suit schedule properties. Hence on these grounds the plaintiff prays for decree the suit.
5. The defendant no.1 who engaged counsel has filed the written statement which is briefly stated as follows:
The defendant no. 1 has admitted that Y.Krishnappa, Muniswamappa and 1 st defendant partitioned the schedule items through Panchayat Palupatti. But he has contended that the original
Panchayat Palupatti is in custody of Y.Krishnappa. The plaintiff out of her own volition lived with her husband's cousin brother Y.Krishnappa. He admitted that another Panchayat Palupatti took place between him, 4 th defendant and plaintiff in the year 1973. He contends that the original Panchayat Palupatti is 12 O.S.6488/2006 with Y.Krishnappa. He has taken contention that he has never played fraud on plaintiff. The 1 st defendant had repaid the sale consideration to the 2 nd defendant and the original sale deed was returned by the 2 nd defendant to the 1 st defendant. The 3 rd defendant played fraud on the 1 st defendant and took away the sale deed dated 29.7.1971.
6. He has taken contention that the two sons of Kare Chennappa and the grand son of Kare Chennappa i.e., Y.Krishnappa entered into partition of the properties held by late Kare Chennappa in the year 1961. The property shown in the plaint schedule went to the share of the plaintiff's husband, 1 st defendant and 4 th defendant through their father Chennarayappa. The original Panchayat Palupatti was with Y.Krishnappa. In the year 1973 another 13 O.S.6488/2006 Panchayat Palupatti was effected, the same was not acted upon. Y.Krishnappa is in possession of the said Panchayat Palupatti. He has contended that in the year 1971 he was in need of money for digging well in item no.2 of the suit schedule property. Hence he approached the 2 nd defendant and asked him to lend Rs.600/-. The 2 nd defendant agreed to give him the loan on the condition of selling the item no.1 to him as a security on the condition that he would handover the sale deed if he repays the hand loan. Thus the sale deed came to be executed. The possession of the suit schedule item no.1 never handed over to the defendant no.2. The possession of the item no.1 was with the defendant no.1. Thereafter the 1 st defendant repaid the entire loan amount and 30 seru of ragi to the 2 nd defendant after one year. A shara was made on the original sale 14 O.S.6488/2006 deed executed on 29.7.1971 by Y.Krishnappa and was returned to the 1 st defendant. In the year 1989 1 st defendant was in need of money as he had to perform the marriage of his daughter and son. Hence he asked the 2 nd defendant to look out for a prospective buyer to sell 1 st item of suit schedule property. In the year 1989, the 1 st defendant's son Jayaram and his best friend M.L.Raja brought the 3 rd defendant and introduced him to the 1 st defendant as prospective purchaser. The 3 rd defendant after seeing item no.1 of suit property agreed to purchase it for Rs.67,000/- and an agreement was entered into between 1 st defendant and 3 rd defendant at Gokul as the 3 rd defendant was residing at Gokul. According to the terms an advance amount of Rs.17,000/- was to be given to the 1 st defendant by the 3 rd defendant within six months of the agreement and the 15 O.S.6488/2006 remaining balance will have to be paid within six months thereafter. The original agreement remained with the 3 rd defendant. After 3-4 months later 3 rd defendant paid Rs.17,000/- as advance to the 1 st defendant. The 1 st defendant's son Jayaram told the 3 rd defendant and M.L.Raja that the property was first sold to the 2 nd defendant and thereafter the 1 st defendant return the sale consideration to the 2 nd defendant and that the 2 nd defendant had returned back the original sale deed to the 1 st defendant and a shara to that effect was written on it by Y.Krishnappa. The 2 nd defendant agreed to come and sign as a witness. The 3 rd defendant in the guise of taking xerox taken the original sale deed from the 1 st defendant. Even though the 1 st defendant after handing over the sale deed waited for him to return but the 3 rd defendant has not returned the sale deed. 16 O.S.6488/2006 Thus by playing fraud on the 1 st defendant the 3 rd defendant is in possession of the original sale deed dated 29.7.1971. The 3 rd defendant by stating that he had handed over the money to Jayaram has created rift between the defendant no.1 and his son. The 1 st defendant not only lost his land i.e., item no. 1 of suit schedule property, but also money and his relationship with his son due to unscrupulous act of the 3 rd defendant. The 3 rd defendant and M.L.Raja have both defrauded the 1 st defendant. After the plaintiff filed this suit the 3 rd defendant and M.L.Raja came near the house of the defendant no.1 and made galata and criminally intimated by giving life threat to him and scolded him and his family members in filthy language. Hence on these grounds the 1 st defendant prayed to set aside the sale deed dated 12.12.1990 and allot him 1/3rd share in item no.1 of 17 O.S.6488/2006 the suit schedule property and also in all other items of suit schedule properties.
7. The 2 nd defendant who engaged his counsel has filed the written statement supporting the contention taken by the 1 st defendant. The written statement filed by the 2 nd defendant briefly stated as follows:
He submits that he is not aware of the averments made in para no. 2 to 12 of the plaint by the plaintiff. As the 1 st defendant was in need of money in the year 1971 hence this defendant agreed to purchase item no. 1 of the suit schedule property as a security through a registered sale deed on a condition that if the 1 st defendant returns the consideration amount of Rs.600/- to the 2 nd defendant he would return back the sale deed . As per the 18 O.S.6488/2006 said condition the sale deed was registered on 29.7.1971. The possession of the property was remained with the 1 st defendant . After a period of one year the 1 st defendant returned back the full consideration of Rs.600/- along with 30 seru of Ragi as interest. Then the 2 nd defendant returned back the sale deed executed in his name to the 1 st defendant in the presence of one Y.Krishnappa S/o Yellappa, cousin brother of the 1 st defendant. On the sale deed a shara was written by Y.Krishnappa stating that as the consideration amount of Rs.600/-
was repaid back to the 2 nd defendant by the 1 st defendant the 2 nd defendant is returning back the original sale deed to him as the first defendant is the absolute owner of the property. Thus the original sale deed dated 29.7.1971 came into the possession of the 1 st defendant. Thereafter in the year 1990 the 19 O.S.6488/2006 1 st defendant along with the 3 rd defendant came near the working place of 2 nd defendant and introduced the 3 rd defendant to him. The 1 st defendant stated that he was going to sell item no. 1 of suit schedule property to the 3 rd defendant and he wanted 2 nd defendant to be a witness to it before Sub-Registrar. The 2 nd defendant agreed for the same. After a lapse of 4-5 months, only the 3 rd defendant approached and asked the 2 nd defendant to accompany him to the Sub-Registrar to sign as a witness. When the 2 nd defendant asked the 3 rd defendant why 1 st defendant did not come to take him then he replied that he was waiting near the Sub-Registrar office. Thereafter the 2 nd defendant went to the Sub-Registrar office and found that the 1 st defendant was not present. On enquiry the 3 rd defendant gave evasive answer and took the signature of 2 nd defendant on some 20 O.S.6488/2006 papers as a witness. For having signed the papers the 2 nd defendant was given Rs.100/- for his expenses. Before signing the 3 rd defendant was not told the contents of the papers. The 2 nd defendant is an illiterate except for signing his name in Urdu he does not know to read or write. Hence the 3 rd defendant has played fraud on the 2 nd defendant. Hence the 2 nd defendant prays to declare the sale deed dated 12.12.1990 as void.
8. The defendant no. 3 who engaged his counsel resisted the claim of the plaintiff by filing the written statement which is briefly stated as follows:
The defendant no.3 has admitted that the suit schedule property originally belongs to Kare Chennappa. He admits that Chennarayappa, Muniswamappa, Yellappa are the sons of Kare 21 O.S.6488/2006 Chennappa. He has denied the alleged Panchayat Palupatti of the year 1961. He contends that the alleged partition deed dated 24.8.1961 is created, concocted and got up document created by the plaintiff in collusion with the 1 st defendant in order to deceive the 3 rd defendant. The contention of the plaintiff that she was staying in the house of Y.Krishnappa and during that period there was another Panchayat Palupatti between the 1 st defendant, plaintiff and 4 th defendant in the year 1971-73 is denied as false. The plaintiff and defendant no. 1 and 4 have colluded each other and filed this suit in order to defraud the 3 rd defendant. The alleged partition deed are created and concocted documents created in collusion with plaintiff, 1 st and 4 th defendants. The contention of the plaintiff that an extent of 20 guntas and 4 ½ guntas in item no. 1 22 O.S.6488/2006 and 7 had fallen to her share and an extent of 23 guntas in item no. 1 fallen to the share of 1 st defendant is denied as false. The contention of the plaintiff that in the month of August 2003 plaintiff enquired with the 3 rd defendant at that time he revealed that 1 st defendant sold suit item no. 1 in favour of 2 nd defendant and in turn 2 nd defendant sold the same to the 3 rd defendant is nothing but concocted story. The contention of the plaintiff is that the 1 st defendant has played fraud on the plaintiff is denied as false. In fact the plaintiff in collusion with the defendant no. 1 and 2 tried to defraud and deceive this defendant.
9. This suit is hopelessly barred by limitation. The 1 st defendant executed sale deed in respect of plaint schedule item no. 1 in favour of 2 nd defendant 23 O.S.6488/2006 on 29.7.1971. On 12.12.1990 the 3 rd defendant purchased the schedule property from the 2 nd defendant. As such from the date of the 1 st sale deed, i.e., 29.7.1971 after lapse of 33 years the suit has been filed which is hopelessly barred by limitation. Except the plaint schedule item No.2 the plaintiff, defendant no. 1 and 4 have alienated all the plaint schedule properties in favour of various persons. The property bearing Sy.No. 15/1 at present standing in the name of Abbu Veeraswamy Reddy and V.Narayana S/o Veeraswamy Reddy. Similarly the property bearing Sy.No. 40/2 measuring 24 guntas standing jointly in the name of Yellappa, Muniyellappa, Muniyappa, Gangaiah, Govindappa, Y.Krishnappa, Doddachennappa, Chikkachennappa, Y.Krishnappa, S/o Yellappa. The property bearing Sy.No. 51/2 to an extent of 33 guntas standing in the 24 O.S.6488/2006 name of M.Govindappa S/o Motappa. The property bearing Sy.No. 53/1 to an extent of 27 guntas at present standing in the name of Govindappa and M.Govindappa S/o Motappa. The property bearing Sy.No. 56/3 to an extent of 35 ½ guntas at present standing in the name of Keshava Murthy, S/o Munivenkatashamaiah. The said property was sold by the plaintiff, Y.Krishnappa S/o Yellappa, Yellappa, Muniyellappa, Gangamma, Govindappa, all are sons of late Muniswamappa under the registered sale deed dated 12.6.1965. In pursuant of the said sale deed it is very clear that above vendors are also joint family members of the plaintiff and the defendant no.1 and 4. The above said vendors have not been made as parties in the suit. The plaintiff and Y.Krishnappa S/o Yellappa, Muniyellappa, Yellappa, Ganganna, Govindappa, all are sons of late 25 O.S.6488/2006 Muniswamappa have alienated the plaint item no. 7 in favour of Keshava Murthy S/o Munivenkataswamaiah in the year 1965. The plaintiff has not at all challenged the legality of the sale deed dated 12.6.1965 and also not made the purchasers as a party in this suit. The suit of the plaintiff is bad for non-joinder of necessary parties. The defendant no. 1 and 4 have already sold all the joint family properties except plaint schedule item no. 2 in favour of various persons. The said purchasers have not been made as parties to this suit. The 3 rd defendant is the bonafide purchaser of the plaint schedule item no. 1. From the date of sale deed dated 29.7.1971 the 2 nd defendant was in possession of the property. The 3 rd defendant has purchased suit schedule item no. 1 from the 2 nd defendant and in peaceful possession and enjoyment 26 O.S.6488/2006 of the property. The 3 rd defendant has borrowed loan on the security of the said property. The plaintiff was well aware that she has no any manner of right, title or interest over the property. Due to escalation of the market value of the property around the Bangalore city with dishonest intention the plaintiff in collusion with the 1 st and 4 th defendant has filed this suit. In the sale deed dated 29.7.1971 the 1 st defendant has clearly stated that the property in question was acquired by him under the partition effected between him and plaintiff and 4 th defendant. Hence on these grounds the defendant no. 3 prayed for dismissal of the suit.
10. The defendant no. 3 has also filed additional written statement on 19.11.2008 by contending that according to the plaintiff the deleted item no. 2 27 O.S.6488/2006 property is also joint family property. In the absence of any one of the joint family property the suit for partition under Hindu Law is not sustainable. Hence the suit of the plaintiff is not maintainable.
11. The defendant no.5 who engaged her counsel has resisted the claim of the plaintiff by filing her written statement. The contents of para no.1 to 17 of the written statement filed by the defendant no.5 is similar to the written statement filed by the defendant no. 3. In para no.18 to 20 of the written statement of defendant no. 5 she has taken contention that the 3 rd defendant after purchase of the property has formed the layout and some more sites have been sold in favour of the various purchasers. In the remaining extent in the plaint schedule item no.1 the 3 rd defendant has constructed 28 O.S.6488/2006 both residential and industrial buildings. In one among the said residential premises 3 rd defendant and 5 th defendant being husband and wife are residing in respect of the said residential property along with their family members. The 3 rd defendant has executed the gift deed in favour of the 5 th defendant in respect of a portion of the plaint schedule item no. 1. it is contended that the various purchasers of the sites formed in the schedule property are also necessary and proper parties to this suit. It is contended that the plaintiff who admitted the partition was effected in between her husband and his brothers. Under the said circumstances the suit for partition and possession of the share of the deceased husband again is not sustainable. The plaintiff ought to have filed suit for declaration. After the partition in an among the husband of the 29 O.S.6488/2006 plaintiff and his brothers, the husband of the plaintiff was passed away. Thereafter the plaintiff has sold the property bearing Sy.No. 53/1 to an extent of 27 guntas situated at Lakshmipura village in favour of one Sri.Govindappa. In the said sale deed it is clearly recited that the aforesaid property was acquired by the plaintiff under the partition. As such after the plaintiff herself admitting the partition once again she cannot file the suit for partition in respect of the schedule properties. Hence on these grounds the defendant no.5 prayed for dismissal of the suit.
12. The defendant no.6 has filed the written statement which is briefly stated as follows:
Doddachennappa, Chikkachennappa and the widow of Narayanappa, i.e., defendant no.1, 30 O.S.6488/2006 defendant no.4 and plaintiff had lawfully sold the suit item no.2 in favour of the father of defendant no.6 namely Abbu Veeraswamy Reddy under the registered sale deed dated 21.2.1972 for valuable consideration. The father of defendant no.6 was in actual possession and enjoyment of the item no.2 of the suit property as absolute owner from 21.2.1972 till he died in the year 1996. Upon his death his widow, four sons including the defendant no.6 and four daughters had inheritted the suit item no. 2 among other properties. The legal representatives of Abbu Veeraswamy Reddy were in joint possession and enjoyment of suit item no.2 among other properties till they partitioned their joint estate under registered partition deed dated 9.7.2001. The suit item no.2 fallen to the share of defendant no.6 under the said registered partition deed. The plaintiff and 31 O.S.6488/2006 defendant no.1 and 4 have no semblance of legal right or possession over the suit item no.2. the plaintiff has not included all the properties. Hence the suit of the plaintiff is not maintainable. The plaint is liable to be rejected for abusing the legal process and for want of cause action under Order 7 Rule 11 of C.P.C. This court has no territorial jurisdiction. Hence defendant no.6 prayed for dismissal of the suit.
13. In this suit the plaintiff moved application and deleted the defendant no.6 and accordingly amendment carried out on 9.12.2019. The plaintiff has also deleted item No.2 from plaint schedule.
14. In this suit defendant No. 4 remained exparte. After the death of defendant No. 4, his 32 O.S.6488/2006 legal heirs D4(a) to D4(e) are brought on record. D1(a) to D1(e) have not filed any written statement.
15. On the basis of the above rival pleadings of the parties my learned Predecessor-in-office has framed the following issues and additional issues:
(1) Whether the plaintiff proves her joint possession of suit properties with defendants ?
(2) Whether plaintiff proves that sale deeds in between defendant No.1 to 3 are sham, illegal, not binding on her and are an outcome of fraud and mischief ?
(3) Whether plaintiff proves that she has 1/3rd share in suit properties as Panchayat Palupatti of 1973 was not acted upon ?33 O.S.6488/2006
(4) Whether defendant No.1 and 2
prove that defendant No.3 has played fraud on them to get sale deed in his favour ?
(5) Whether suit is bad for non-
joinder of necessary parties ?
(6) Whether suit is barred by limitation ?
(7) Whether suit is not maintainable as stated in Additional written statement of defendant No.3?
(8) Whether plaintiff is entitled to the reliefs as sought for ?
(9) What order or decree ?
Adidtional Issues:
(1) Whether the defendant No.6 proves that the plaintiff and defendant No. 1 and 4 have no semblance of legal right or 34 O.S.6488/2006 possession over item No. 2 of the suit schedule property as contended by him in para No. 2 of his written statement ?
(2) whether the defendant No. 6 proves that the plaintiff has filed the present suit for partition by excluding other three items of properties, as such the suit of the plaintiff is not maintainable ?
(3) Whether the defendant No. 6 proves that the plaint is liable to be rejected under Order 7 Rule 11 C.P.C. ?
(4) Whether the defendant No. 6 proves that this court has no territorial jurisdiction to entertain the present suit ?
16. The plaintiff in order to prove her case the plaintiff herself got examined as PW1 and the 35 O.S.6488/2006 documents Ex.P1 to Ex.P16 are marked on the side of the plaintiff. The defendant No.3 examined himself got examined as DW1 and documents from Ex.D1 to Ex.D17 are marked through DW1. Defendant no.6 examined himself as DW2 and documents Ex.D18 to Ex.D20 are marked through him. Since I.A.No.22 filed by the plaintiff is allowed on 27.11.2019 the defendant no.6 is deleted.
17. I have heard on side of learned counsel for plaintiff and learned counsel for D3, D5. The learned counsel for the plaintiff and defendant no. 3 and 5 have also filed their written arguments.
18. The learned counsel for the plaintiff relied on the following decisions:
36 O.S.6488/2006
(1) 2015(2) KCCR 1437 (DB) in Smt.Nanjamma Vs. Smt.Akkaiamma since dead by legal representatives and others (2) AIR 2001 Kerala 38 in Puthiyadath Jayamathy Avva and others Vs. K.J.Nagakumar and others
19. The learned counsel for the defendant no.3 and 5 relied upon the following decisions:
(1) 2011(4) KCCR 2461 (DB) G.M.Mahendra Vs. G.M.Mohan and another (2) 2012(5) KCCR 4082 Smt.T.Rathna Vs. Smt.T.M.Rathnamma and others (3) 2013(2) KCCR 1277 Smt.Puttakkaiah Vs. Smt.Basamma since dead by legal representatives and others.
20. My findings to the above issues are as under:
Issue No.1 : In the Negative
37 O.S.6488/2006
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Affirmative
Issue No.6 : In the Affirmative
Issue No.7 : In the Affirmative
Issue No.8 : In the Negative
Addl. Issue No.1 :Does not survive for
consideration as the
plaintiff deleted
defendant No. 6 from plaint.
Addl. Issue No.2 : Does not survive for consideration as the plaintiff deleted defendant No. 6 from plaint.
Addl. Issue No.3 : Does not survive for consideration as the plaintiff deleted defendant No. 6 from plaint.
Addl. Issue No.4 : Does not survive for consideration as the plaintiff deleted defendant No. 6 from plaint.
38 O.S.6488/2006
Issue No.9 : As per the final order
for the following:
REASONS
21. Issue No. 1 to 3: Since all these issues are
inter-connected, they are taken up together for the sake of convenience and in order to avoid repetition of facts and evidence.
22. The plaintiff has filed this suit against the defendants seeking partition and separate possession claiming 1/3rd share in suit schedule item No. 1 to 7 properties and also prayed for declaration that the alleged sale deeds between defendant No. 1 to 3 are not binding on the plaintiff. In this suit initially the suit has been filed against defendant No. 1 to 4. During the pendency of the suit defendant No. 5 impleaded as party. Defendant No. 6 also impleaded 39 O.S.6488/2006 as party. Defendant No. 5 is the wife of defendant No. 3. Defendant No. 6 is the son of Abbu Veeraswamy Reddy who is the purchaser of the land in Sy.No. 15/1. For the obvious reasons best known to the plaintiff she has deleted the item No. 2 of the suit schedule property and also not pressed the suit against defendant No. 6 by contending that she has already sold suit schedule item No. 2. It is the specific contention of the plaintiff is that there was a partition between 1 st defendant, Muniswamappa and Y.Krishnappa under palu patti dated 24/8/1961 which was acted upon and the parties of the said palu patti dated 24/8/1961 enjoyed their properties separately. The plaintiff has not made known to this court under the alleged palu patti dated 24/8/1961 which properties were fallen to the share of Y.Krishnappa S/o Yellappa which properties were fallen to the 40 O.S.6488/2006 share of Muniswamappa S/o Kare Chennappa and which properties were fallen to the share of the 1 st defendant. It is further contention of the plaintiff is that after the death of her husband she was living in the house of Y.Krishnappa. The plaintiff has contended that in the year 1971-73 there was another panchayat palu patti between 1 st defendant, plaintiff and 4 th defendant and in that panchayat palu patti the suit items were partitioned between the plaintiff, 1 st defendant and 4 th defendant. It is the specific contention of the plaintiff is that the panchayat palu patti of the year 1971-1973 which is unregistered document and not acted upon. The plaintiff has taken contention that in the panchayat palu patti an extent of 20 guntas and 4 ½ guntas in suit schedule item No. 1 and 7 had fallen to the share of the plaintiff and an extent of 23 guntas in 41 O.S.6488/2006 item No. 1 was fallen to the share of the 1 st defendant. It is the specific contention of the plaintiff is that during the year 1990 Sri.Y.Krishnappa driven her out from the house hence she forced to live in her parental house at Hagalukurki. The plaintiff has taken specific contention that she was in exclusive possession and enjoyment of suit schedule item No. 1 and 7. She has taken contention that in the month of August 2003 the 3 rd defendant refused her possession over the suit item No. 1 and then on enquiry she came to know that the 1 st defendant sold suit item No. 1 in favour of 2 nd defendant in turn 2 nd defendant sold the same to the 3 rd defendant. It is the specific contention of the plaintiff is that the said sale deeds executed by the 1 st defendant in favour of 2 nd defendant and the sale deed executed by the 2 nd 42 O.S.6488/2006 defendant in favour of the 3 rd defendant are sham, illegal and not binding on the plaintiff. The plaintiff has taken contention that the 1 st defendant sold the plaintiff's share of 20 guntas in item No. 1 in favour of the 2 nd defendant on 29/7/1971 before effecting the panchayat palu patti dated 9.3.1971/73. The plaintiff has taken contention that the parties to the suit are in joint possession of the suit schedule properties.
23. The learned counsel for the plaintiff argued that in this suit in order to prove the case of the plaintiff, the plaintiff herself examined as PW1 and documents Ex.P1 to Ex.P16 are marked on the side of the plaintiff. He submitted that during the course of cross-examination of PW1 nothing is elicited from the mouth of PW1 to discard her version. He argued 43 O.S.6488/2006 that the defendants have not disputed the genealogical tree which is marked at Ex.P16. He argued that the documents Ex.P1 to Ex.P12 clearly go to show that the plaintiff and defendant No. 1 and 4 are the Hindu undivided joint family members and are in joint possession, cultivation and enjoyment of the suit schedule properties. He argued that there was no partition effected in between plaintiff, 1 st defendant and 4 th defendant. He argued that the defendant No. 1 illegally executed the sale deed in favour of 2 nd defendant as per Ex.P14 without the knowledge and consent of the plaintiffs husband even though the defendant No. 1 has no independent right to alienate the suit schedule item No. 1 in favour of 2 nd defendant. He argued that the plaintiff after the death of her husband became the class I legal heir of her deceased husband and she is having equal right 44 O.S.6488/2006 in the suit schedule properties along with the defendant No. 1 and 4. He argued that the defendant No. 2 has sold the suit schedule item No. 1 in favour of defendant No. 3 on 12.12.1990 without the knowledge and consent of the plaintiff. He argued that the panchayat palu patti of the year 1973 was not acted upon. The learned counsel for the plaintiff relied upon the decision reported in2015(2) KCCR 1437 (DB) in Smt. Nanjamma Vs. Akkaiamma, since dead by legal representatives and others to contend that possession of one co-sharer is possession of all co-sharers. He relied upon the decision reported in AIR 2001 Kerala 38 in Buthiyadath Jayamathy Avva and others Vs. K.J.Naga Kumar and others to contend that property of male Hindu dying intestate consequently would be 45 O.S.6488/2006 devolved firstly upon his heirs as specified in class I of schedule.
24. On the other hand the learned counsel for the defendant No. 3 and 5 argued that the plaintiff in her plaint has taken contention that there was a partition taken place in the joint family. Hence the suit for partition is not maintainable. He argued that the plaintiff has not produced and got marked palu patti mentioned in the plaint. He argued that in the sale deed executed by the 1 st defendant in favour of 2 nd defendant he has clearly mentioned that the suit schedule item No. 1 sold by him was his exclusive property which was fallen to his share. He argued that except the suit schedule item No. 2 all other properties were already alienated and not available for partition. He submitted that since the 46 O.S.6488/2006 plaintiff has already deleted the suit schedule item No. 2 no other properties are available for partition. He argued that the plaintiff was not in joint possession of the suit schedule properties with the defendants. He submitted that the plaintiff and defendant No. 1 and 4 have created alleged panchayat palu patti of the year 1973 and filed this false suit. He argued that the plaintiff along with the defendant No. 1 and defendant No. 4 has sold the land in Sy.No. 15/1 in favour of Abbu Veeraswamy, father of defendant No. 6 in the year 1972 itself. He submitted that the plaintiff and the members of another branch have sold the land in Sy.No. 56/3 suit schedule item No. 7 measuring 35 ½ guntas as per Ex.D2 sale deed dated 12.6.1995. He argued that the very mentioning of the boundaries of suit schedule item No. 5 and 6 that the northern side 47 O.S.6488/2006 of item No. 5 and southern side of item No. 6 is property share allotted to Dodda Chennappa, i.e., defendant No. 1 pre-supposes that there is already partition in the joint family property. He further argued that the defendant No. 3 has produced the certified copy of plaint, written statement and orders on I.A.No.1 in O.S.No.6682/2013 to show that the son of defendant No. 1 has filed suit against the purchasers of the suit schedule properties.
25. In the present suit the plaintiff who has taken contention that in view of the palu patti dated 24.8.1961 the ancestral properties were divided among Y.Krishnappa, Muniswamappa and 1 st defendant Doddachennappa @ Chennappa has not produced and got marked the alleged palu patti dated 24.8.1961. Even though in the plaint the 48 O.S.6488/2006 plaintiff has stated that the original palu patti is in the care and custody of 1 st defendant and in the custody of Y.Krishnappa the plaintiff has not made any efforts to summon the original palu patti dated 24/8/1961. The plaintiff who has mentioned regarding the document (C) in plaint i.e., palu patti of the year 1971/73 has also not produced the original documents and got marked the said document in the present suit. The plaintiff at the one stretch has taken contention that there was panchayat palu patti between 1 st defendant, plaintiff and 4 th defendant in the year 1971/1973 and in that partition 20 guntas in suit item No. 1 and 4 ½ guntas in suit item No. 7 fallen to the share of plaintiff but on another stretch plaintiff has taken contention that the 1 st defendant has sold the plaintiff share of 20 guntas in item No. 1 on 49 O.S.6488/2006 29.7.1971 by playing fraud upon her. It is now settled principle of law is that whenever the parties pleads regarding undue influence, fraud and mis- representation there must be specific pleading in the plaint with date when the fraud was committed. The provision under Order 6 Rule 4 of C.P.C. is very clear that undue influence, fraud and mis- representation should be pleaded specifically. General allegation without particulars are not sufficient. The plaintiff who has contended that the 1 st defendant has played fraud on her by selling her share of 20 guntas in item No. 1 has not specifically pleaded under which document 20 guntas in suit schedule item No. 1 are allotted to her. The plaintiff has mentioned the year of alleged panchayat palu patti as 1971/1973. PW1 has not stated on which date the alleged palu patti was taken place. 50 O.S.6488/2006
26. The examination-in-chief affidavit of PW1 is nothing but the reproduction of the plaint averments. In the plaint itself the plaintiff has not stated under the palu patti dated 24.8.1961 which properties were fallen to the share of M.Muniswamappa and Y.Krishnappa which properties were fallen to the share of defendant No. 1. The learned counsel for the defendant No. 3 and 5 while addressing the arguments submitted that while mentioning the boundaries of the suit schedule item No. 5 and 6 northern boundary of item No. 5 and southern boundary of item No. 6 of suit schedule properties is shown as share allotted to the Doddachennappa. Doddachennappa is the 1 st defendant in this suit. He submitted that if at all there was no partition taken place in the family of defendant No. 1 there is no chance to allot the share to the 1 st defendant. The 51 O.S.6488/2006 learned counsel for the defendant No. 3 and 5 submitted that very mentioning of the boundaries to the item No. 5 and 6 would go to show that the defendant No. 1 was allotted with the share in the joint family property. There is some force in the argument of the learned counsel for the defendant No. 3 and 5 because if at all there was no partition taken place in the joint family properties of Chennarayappa, father of defendant No. 1, there is no chance of showing the share allotted to the defendant No. 1.
27. Prior to proceed further it is pertinent to note some of the undisputed facts in this suit. It is undisputed fact that original propositus Kare Chennappa died leaving behind his three sons Chennarayappa, Muniswamappa and Yellappa. The 52 O.S.6488/2006 1 st son Chennarayappa had five sons (1) Doddachennappa @ Chennappa, defendant no. 1 (2) plaintiff's husband Narayanappa (3) defendant no.4 Chikkachennappa and other two brothers. The 3 rd son of Kare Chennappa is Yellappa. Yellappa had only son by name Y.Krishnappa. It is not in dispute that the suit schedule properties originally belongs to propositus Mr.Kare Chennappa. The plaintiff is the husband of deceased Narayanappa. According to the plaintiff the three sons and their grand sons of the deceased Kare Chennappa partitioned the suit properties through Panchayat Palupatti in the year 1961. In this suit the plaintiff has not produced the genealogical tree of the original propositus Mr.Kare Chennappa. The plaintiff has produced the document Ex.P13 genealogical tree of her father-in-law Channanayappa. It is the contention of the plaintiff 53 O.S.6488/2006 that in the year 1961, i.e., on 24.8.1961 the Panchayat Palupatti was taken place. In that partition Y.Krishnappa and his father 2 nd elder brother Muniswamappa and 1 st defendant partitioned the schedule items. It is the contention of the plaintiff that in the year 1971/1973 there was a Panchayat Palupatti taken place between her 1 st defendant and 4 th defendant and in that partition the extent of 20 guntas and 4 ½ guntas in item no.1 and 7 had fallen to her share and an extent of 23 guntas of land in item no.1 fallen to the share of the 1 st defendant. It is the specific contention of the plaintiff that the defendant no.1 by playing fraud on her sold her share of 20 guntas in item no.1 on 29.7.1971 in favour of the 2 nd defendant and in turn the 2 nd defendant sold the same to the 3 rd defendant. 54 O.S.6488/2006
28. The defendant no.3 has taken contention that in the sale deed dated 29.7.1971where in the 1 st defendant clearly and categorically stated that the property in question was acquired by him under the partition. It is the contention of defendant no. 3 is that he is the bonafide purchaser of the plaint schedule item no.1 of the suit schedule property which was purchased by him from defendant no.2. This property was purchased by the defendant no.2 under registered sale deed dated 29.7.1971 from the 1 st defendant and the 2 nd defendant was in possession and enjoyment of the property. It is the contention of the defendant no.3 is that since 1971 till the date of he purchased item no.1 the defendant no.2 was in possession and thereafter he came in possession and enjoyment of the suit schedule item no.1. It is the specific contention of defendant no.3 is that the suit 55 O.S.6488/2006 property bearing Sy.No. 15/1 at present standing in the name of Abbu Veeraswamy Reddy and V.Narayana S/o Veeraswamy Reddy. The property in Sy.No.40/2 measuring 24 guntas jointly standing in the name of Yellappa, Muniyellappa, Muniyappa, Gangaiah, Govindappa, Y.Krishnappa, Doddachennappa, Chikkachennappa, Y.Krishnappa S/o Yellappa. The property bearing Sy.No. 51/2 measuring 33 guntas standing in the name of M.Govindappa S/o late Motappa. The property bearing Sy.No. 53/1 to an extent of 27 guntas standing in the name of Govindappa and M.Govindappa S/o Motappa. The property bearing Sy.No. 56/3 to an extent of 35 ½ guntas standing in the name of Keshava Murthy S/o Munivenkatashamaiah. It is the specific contention of the defendant no.3 is that the property in Sy.No. 56 O.S.6488/2006 56/3 was sold by plaintiff Y.Krishnappa S/o Yellappa, Yellappa, Muniyellappa, Gangamma, Govindappa, all are sons of late Muniswamappa, under the registered sale deed dated 12.6.1965. It is the specific contention of the defendant no.3 is that the plaintiff was never in possession of the suit property after defendant no.2 purchased the suit item no.1 on 29.7.1971 from the defendant no.1.
29. PW1 in her examination-in-chief affidavit has reiterated the plaint averments. The documents Ex.P1 to Ex.P16 are marked through her. Ex.P1 to Ex.P5 and Ex.P7 to 12 are the RTCs. Ex.P6 is the mutation extract. Ex.P13 is the genealogical tree. Ex.P14 is the certified copy of the sale deed dated 29.7.1971 executed by the 1 st defendant in favour of 2 nd defendant. Ex.P15 is the certified copy of the sale 57 O.S.6488/2006 deed dated 12.12.1990 executed by the 2 nd defendant in favour of the 3 rd defendant. Ex.P16 is the genealogical tree of Chennarayappa. During the course of the cross-examination of PW1 she has admitted the suggestion that Yellappa, Muniyellappa, Gangappa, Govindappa are the sons of Muniswamappa, the 2 nd son of Kare Chennappa. Krishnappa is the only son of Yellappa, S/o Kare Chennappa. She states that her marriage took place about 30-35 years back. Two or three years after her marriage her husband died. She has admitted the suggestion that at the time of partition in the year 1964 all the three sons of Kare Chennappa had died. This partition of 1964 was between sons of Chennarayappa, Muniswamappa and Yellappa. She has denied the suggestion that she and four children of Muniswamappa and son of Yellappa have all 58 O.S.6488/2006 together sold 35 ½ guntas in Sy.No. 56/3. She has admitted the suggestion that one Chandrashekar son of defendant No. 1 is in possession of 4 ½ guntas. Defendant No. 1 is in possession of 4 guntas and defendant No. 4 is in possession of 4 ½ guntas in Sy.No. 56/3 as per the partition of the year 1964. She has admitted the suggestion that prior to the death of her husband suit schedule item No. 1 bearing Sy.No. 2 was sold by defendant No. 1 to the defendant No. 2. She has deposed that she do not know the Sy.No. and measurement of the lands belongs to Krishnappa S/o Yellappa. She do not know how much area of land fallen to the share of Yellappa, Muniyellappa, Gangappa and Govindappa, sons of Munishamappa. She do not know how much area of the land fallen to the shares of sons of Chennarayappa namely Doddachennappa, 59 O.S.6488/2006 Munishamappa, Muniyappa, Chikkachennappa and Narayanappa. She has deposed that she cannot say how much area of Sy.No. 13/3 is in possession of defendant No. 1, Krishnappa, Muniyappa and Venkateshappa. She has admitted the suggestion that there was a partition during the life time of her husband. She states that the partition deed of the year 1973 is executed by her advocate. When question asked her why she has got deleted Sy.No. 13/3 measuring 1 acre 10 guntas from her plaint she answered she do not know why she got deleted. She has deposed that in the year 1961 her marriage was not performed. She pleaded her unawareness whether her husband and his uncle were partitioned the joint family properties in the year 1961. She pleaded her unawareness whether she along with 1 st defendant and 4 th defendant have sold 1 acre 1 60 O.S.6488/2006 guntas in Sy.No. 15/1, i.e., item No. 3 to one Abbu Veeraswamy Reddy. She also pleaded her unawareness about sale deed dated 17.2.1971 executed by Y.Krishnappa in respect of 1 acre 1 gunta in favour of V.Abbu Veeraswamy Reddy.
30. Defendant No. 3 who has examined as DW1 in his examination-in-chief affidavit has reiterated the written statement contentions by contending that the 1 st defendant sold suit schedule item No.1 in favour of the 2 nd defendant under sale deed dated 29.3.1971. Subsequently on 12.12.1990 he has purchased the suit schedule item No. 1 from the 2 nd defendant. He has deposed that the property bearing Sy.No. 15/1 (suit schedule item No. 3) at present standing in the name of Abbu Veeraswamy Reddy and V.Narayana S/o Veeraswamy Reddy. He has 61 O.S.6488/2006 deposed that the property bearing Sy.No. 40/2 suit (item No. 4) measuring 24 guntas standing jointly in the name of Yellappa, Muniyellappa, Muniyappa, Gangaiah, Govindappa, Y.Krishnappa, Doddachennappa, Chikkachennappa, Y.Krishnappa, S/o Yellappa. The property bearing Sy.No. 51/2 (suit schedule item No. 5) measuring 33 guntas standing in the name of M.Govindappa S/o Motappa. The property bearing Sy.No. 53/1 (item No. 6) to an extent of 27 guntas at present standing in the name of Govindappa and M.Govindappa S/o Motappa and the property bearing Sy.No. 56/3 (suit schedule item No. 7) to the extent of 35½ guntas standing in the name of Keshava Murthy S/o Munivenkatashamaiah. The said property in Sy.No.56/3 was sold by the plaintiff, Y.Krishnappa S/o Yellappa, Yellappa, Muniyellappa, Gangamma, Govindappa under 62 O.S.6488/2006 registered sale deed dated 12.6.1965. DW1 has further deposed that in this case the defendant No.1 and 4 have already sold all the joint family properties except plaint schedule item No. 2 in favour of various persons . The said purchasers have not been made as parties in this suit. The defendant No. 3 has produced and got marked the documents at Ex.D1 to D17. Ex.D1 is the certified copy of the sale deed dated 29.7.1971, Ex.D2 is the certified copy of the sale deed dated 12.6.1995 , Ex.D3 to 10 are the RTCs, Ex.D11 is the gift deed executed by defendant No. 3 in favour of defendant No. 5. Ex.D12, 13 are the certified copy of the plaint and written statement in O.S.No.6682/2013, Ex.D14 is the certified copy of the orders passed on inter-locutary application in O.S.No. 6689/2013, Ex.D15 is the certified copy of the orders passed on I.A. in 63 O.S.6488/2006 O.S.No.3140/2016, Ex.D16 is the copy of M.R.extract, Ex.D17 RTCs three in number. During the course of cross-examination of DW1 except asking questions regarding the property i.e., item No. 1 no other questions were asked regarding remaining properties i.e., item No. 2 to 7. In other words the chief- examination version of DW1 who has deposed regarding the sale of property in Sy.No. 56/3, 15/1 are remained unchallenged. Similarly the deposition of DW1 who deposed regarding Sy.No. 40/2, 51/2, 53/1 properties standing in the name of different persons also remained unchallenged. DW1 in his cross-examination has admitted the suggestion that 1 st defendant has sold 1 acre of land in item No. 1 of suit schedule property to the 2 nd defendant . He has denied the suggestion that the 1 st defendant has sold the item No. 1 in favour of defendant No. 2 64 O.S.6488/2006 including the share of the husband of plaintiff. DW1 has denied all the suggestions made regarding the documents, Ex.D 12 to Ex.D17.
31. In this suit prior to deleting of defendant No. 6 from the plaint he tendered himself and examined as DW2 by filing his affidavit for examination-in- chief. The documents Ex.D18 to 20 are marked through DW2. When the case posted for cross- examination of DW2 the plaintiff moved application praying to delete defendant No. 6 / DW2. This court was pleased to allow I.A.No.22 on 27.11.2019 as defendant No. 6 submitted he has no objection to delete him. The plaintiff deleted item No. 2 and defendant No. 6 on the ground that she has already sold item No. 2 in favour of the Abbu Veeraswamy, father of defendant No. 6 under sale deed dated 65 O.S.6488/2006 21.2.1972. Since the plaintiff has already deleted suit schedule item No. 2 only six items are remained in the plaint schedule. It is pertinent to note that the defendant No. 3 has taken specific contention that except item No. 2, all other items mentioned in the suit schedule properties already sold by the defendant No. 1 defendant No. 4 and plaintiff . The defendant No. 3 has taken specific contention that the property bearing Sy.No. 15/1 at present standing in the name of Abbu Veeraswamy Reddy and V.Narayana S/o Veeraswamy Reddy. DW2 in his affidavit filed for examination-in-chief has deposed that the defendant No. 1, defendant No. 4 and plaintiff together have sold suit item No. 2 bearing Sy.No. 15/1 in favour of Abbu Veeraswamy Reddy under registered sale deed dated 21.2.1972. It is not in dispute that the plaintiff has already sold the land 66 O.S.6488/2006 in Sy.No. 15/1 in favour of Abbu Veeraswamy Reddy. It is important to note that the land in Sy.No. 15/1 measuring 1 acre 1 gunta is mentioned as suit schedule item No. 3. The plaintiff has deleted the item No. 2 i.e., the property bearing Sy.No. 13/3 measuring 1 acre 10 guntas from the plaint. The suit schedule item No. 2 is not the Sy.No. 15/1. Since the plaintiff has already deleted the item No. 2, i.e., property bearing Sy.No. 13/3 measuring 1 acre 10 guntas from the plaint, no finding can be given by this court in respect of this property. But the fact remains that the land bearing Sy.No. 15/1 measuring 1 acre 1 guntas which is shown as suit schedule item No. 3 was already sold by the plaintiff and others in favour of Abbu Veeraswamy Reddy under registered sale deed dated 21.2.1972. Since the plaintiff has already sold the land in Sy.No. 67 O.S.6488/2006 15/1, i.e., suit schedule item No. 3 is not remained as joint family property of the plaintiff and defendant No. 1 and 4.
32. The document Ex.P1 to Ex.P5 are the RTCs of suit schedule item No. 1. Sy.No. 2/1B. On perusal of the documents Ex.P1 and Ex.P2 RTCs in respect of land in Sy.No. 2/1B measuring 2 acres 35 guntas wherein column No. 12(2) shows the name of Krishnappa, Yellappa and Chennappa till the year 1990-91 and thereafter name of Raja Ahmed Saheb was mentioned for 1 acre of land and from the year 1991-92 the name of M.C.Ramakrishna Reddy is mentioned in respect of 1 acre of land. In the present suit the plaintiff is claiming her 1/3rd share in Sy.No. 2/1B measuring 1 acre 3 guntas. There is no such entries in RTC to show that 1 acre 3 guntas 68 O.S.6488/2006 was mutated in the name of defendant No. 1, 4 and plaintiff's husband. After 1991-92 column No.12(2) of RTC continued in the name of Mallappa and M.C.Ramakrishna Reddy. The document Ex.P4 is the RTC of the land in Sy.No. 2/1B of the year 2003-04 wherein in column No.9 name of M.C.Ramakrishna Reddy (defendant No. 3) mentioned in respect of 1 acre of land and name of Y.Krishnappa S/o Yellappa mentioned in respect of 36 guntas of land. There is no mention regarding the remaining land in Sy.No. 2/1B. Ex.P6 is the mutation register extract which would go to show that as per M.R.No.5/91-92 1 acre of land in Sy.No. 2/1BP mutated in the name of M.C.Ramakrishna Reddy as he purchased the property from Raja Ahmed, Ex.P7 is the RTC for the year 2005-06 in respect of land in Sy.No.13/3 measuring 3 acres 22 guntas standing in the name of Yellappa, 69 O.S.6488/2006 Muniyellappa, Ganganna, Govindappa, Doddachennappa, Chikkachennappa, Krishnappa, Muniyappa, Krishnappa Y. The plaintiff who was mentioned in her plaint mentioned only 1 acre 10 guntas as schedule item No. 2, later on she deleted the item No. 2. Ex.P9 is the RTC of land in Sy.No. 40/2 measuring 1 acre 27 guntas for the year 2005- 06 out of which 1 acre 12 guntas is shown in the name of Y.Krishnappa and remaining properties jointly shown in the name of Yellappa, Muniyellappa, Muniyappa, Gangaiah, Govindappa, Y.Krishnappa, Doddachennappa, Chikkachennappa. Ex.P10 is the RTC of land in Sy.No. 2/1A for the year 2005-06 standing in the name of Abbu Veeraswamy and V.Narayana. Ex.P11 is the RTC of the year 2005-06 of the land in Sy.No. 51/2 measuring 1 acre 33 guntas standing in the name of Yellappa, 70 O.S.6488/2006 Muniyellappa, Muniyappa, Ganganna, Govindappa, M.Govindappa. Ex.P12 is the RTC of land in Sy.No. 53/1 measuring 2 acres 27 guntas standing in the name of Govindappa, M.Govindappa, Y.Krishnappa. On perusal of all these documents Ex.P1 to Ex.P12 there is no such entries to show that suit schedule properties were fallen to the branch of Chennarayappa S/o Kare Chennappa. No doubt there is no much dispute that there was a partition in the family of propositus Kare Chennappa, but it is a burden on the plaintiff to show that the suit properties were fallen to the branch of Chennarayappa. As already stated there is no pleading on the side of the plaintiff to show that which properties and how much portion of property were fallen to the share of each branches after the death of Kare Chennappa. The plaintiff herself 71 O.S.6488/2006 admitted the fact that defendant No. 1 has sold suit schedule item No. 1 in favour of defendant No. 2 as per the sale deed dated 29.7.1971. Thereafter the 2 nd defendant has sold the suit schedule item No. 1 in favour of defendant No. 3. The plaintiff has produced the document Ex.P14 certified copy of the sale deed dated 29.7.1971. The plaintiff has also produced the document Ex.P15 certified copy of the sale deed dated 12.12.1990.
33. In this suit the defendant No. 3 has mainly relied upon the document Ex.D2 certified copy of the sale deed dated 12.6.1995 to show that the plaintiff along with Y.Krishnappa S/o Yellappa, Yellappa S/o Muniswamappa, Muniyellappa S/o Muniswamappa, Ganganna S/o Muniswamappa, Govindappa S/o Muniswamappa sold the property bearing Sy.No. 56/3 72 O.S.6488/2006 measuring 35 ½ guntas of land. The plaintiff has mentioned item No. 7 as Sy.No. 56 measuring 14 guntas. On perusal of the document Ex.D2 it would go to show that the plaintiff along with Y.Krishnappa S/o Yellappa and sons of Muniswamappa have sold 35 ½ guntas of land in Sy.No. 56/3. If at all the plaintiff was not separated from the defendant No. 1 and defendant No. 4 there was no such chance to join the plaintiff along with the members of another branch to sell the property in Sy.No. 56/3 measuring 35 ½ guntas. The plaintiff herself by admitting that she has sold the suit schedule item No. 2 deleted the item No. 2 from the plaint and also deleted the defendant No. 6. The defendant No. 6 who has filed his affidavit for examination-in-chief and examined as DW2 prior to deleting him from the plaint has specifically deposed that the land bearing Sy.No. 73 O.S.6488/2006 15/1 are sold by the plaintiff, defendant No. 1 and defendant No. 4 in favour of his father Abbu Veeraswamy Reddy under registered sale deed dated 21.2.1972. He has also produced the certified copy of the sale deed dated 21.2.1972 which is marked at Ex.D18. The documents Ex.D19 is the certified copy of the sale deed dated 17.2.1971 and the document Ex.D20 is the certified copy of the sale deed dated 25.7.1974. These alienations of the year 1972 and 1995 would go to show that plaintiff knows very well that which are the properties fallen to her share. The defendant No. 1 even though has filed his written statement and taken some contentions in his written statement, in order to substantiate the same he has not stepped into the witness box and also not produced any documents. The defendant No. 1 has taken contention that the defendant No. 2 and 3 74 O.S.6488/2006 have played fraud on him. But no such evidence is adduced before the court to substantiate the contentions taken by the defendant No. 1. The oral evidence of PW1 and the documents which are marked at Ex.D2 and Ex.D18 would go to show that the plaintiff knowing very well which of the properties fallen to her share, alienated the properties fallen to her share. PW1 in her cross- examination admitted that prior to the death of her husband the defendant No. 1 has sold the suit schedule item No. 1 in favour of defendant No. 2. If at all the husband of the plaintiff was having any share in the suit schedule item No. 1 he would have raised objection during his life time. The plaintiff who has claimed the share in the suit schedule properties has already sold the land in Sy.No. 15/1 and land in Sy.No. 56, i.e., item No. 3 and 7 of the 75 O.S.6488/2006 properties mentioned in the plaint schedule. The plaintiff has already deleted item No. 2 from the schedule of the plaint. On perusal of the boundaries of item No. 5 and 6 it would go to show that these properties were already partitioned. The northern boundary of item No. 5 and southern boundary of item No. 6 is the share allotted to Doddachennappa.
34. The defendant No. 3 has produced the document Ex.D12 copy of plaint in O.S.No.6682/2013 filed by the sons of the defendant No. 1 Doddachennappa in respect of 3 items. On perusal of this plaint schedule it would go to show that schedule A is mentioned as Sy.No. 2/1B, schedule B is mentioned as Sy.No. 15/1, schedule C is mentioned as Sy.No. 53/1. These properties are mentioned in the present suit as item No. 1, 3 and 6 respectively. 76 O.S.6488/2006 In O.S.No.6682/2013 the plaintiffs have made defendant No. 7 to 10 as parties who are all purchasers of these three items of properties. The defendant No. 7 is Raja Ahmed, defendant No. 8 is Ramakrishna Reddy, defendant No. 9 M.Govindappa, defendant No. 10 V.Narayana Reddy who are all purchasers are made as party in that suit. In the present suit except Ramakrishna Reddy defendant No. 3 no other purchasers are made as parties. The plaintiff / PW1 in her cross-examination admitted the suggestion that on the date of her deposition on 15.3.2013 she came along with Jayaram S/o defendant No. 1. The said Jayaram is the plaintiff No. 2 in O.S.No.6682/2013. The document Ex.D13 is the certified copy of the written statement filed by the 8 th defendant in O.S.No.6682/2013. The said 8 th defendant is 3 rd defendant in the present suit. The 77 O.S.6488/2006 defendant No. 3 has also produced the document Ex.D14 certified copy of orders passed on I.A.No.1 and 3 in O.S.No.6682/2013 wherein Hon'ble 12 ACC and SJ Bangalore dismissed I.A.No.1 and allowed I.A.No.3 and granted temporary injunction restraining from interferring with the peaceful possession and enjoyment of the defendant No. 8 over A schedule property, i.e., Sy.No. 2/1B. In that order at page No. 19 it is observed that looking from any angle neither the plaintiffs nor any of the defendants is having any locus standi to assert / claim their right over the suit A to C properties, now under the exclusive ownership and possession of defendant No. 8, 10 and 9 respectively. No doubt the plaintiff of the present suit is not the party in O.S.No.6682/2013, but fact remains that all these properties, i.e., item No. 1 bearing Sy.No. 2/1B, item 78 O.S.6488/2006 No. 3 bearing Sy.No. 15/1, item No. 6 bearing Sy.No. 53/1 have already alienated. The plaintiff in the present suit except making defendant No. 3 as a party has not made the purchasers of the remaining items. As already stated that there is document at Ex.D2 to show that the plaintiff has already sold suit schedule item No.7 also. Under such circumstances there is no cogent evidence on the side of the plaintiff to show that the suit schedule properties are joint family properties of the plaintiff and defendant No. 1 and 4. There is no cogent evidence to show that the plaintiff was in joint possession of the suit properties with the defendants as on the date of the suit. The very alienation of the property in Sy.No. 56 by the plaintiff joining with the members of another branch itself pre-supposes that the plaintiff separated from the defendant No. 1 and 4. The 79 O.S.6488/2006 defendant No. 1 has sold the suit schedule item No. 1 in favour of defendant No. 2 during the life time of the husband of the plaintiff. The plaintiff who has taken contention that the palu patti dated 24.8.1961 was acted upon and panchayat palu patti of the year 1971-1973 was not acted upon. To substantiate the same has not produced and marked these two alleged documents. The plaintiff in her plaint para No. 6 has taken contention that the original palu patti dated 24.8.1961 is in the custody of 1 st defendant and in the custody of Y.Krishnappa. In para No. 8 of her plaint the plaintiff has taken contention that the original palu patti of the year 1971/73 is in the custody of the 1 st defendant and Sri.Y.Krishnappa. In this suit the plaintiff has not made any efforts to lead secondary evidence to prove the existence or non-existence of the alleged palu 80 O.S.6488/2006 patti dated 24.8.1961 and palu patti of the year 1971/73. A perusal of section 65 of Evidence Act makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced or of any person out of reach of, or not subject to, the process of the court or of any person legally bound to produce it, and when, after notice mentioned in section 66 such person does not produce it. In the present suit the plaintiff has neither laid any foundation to lead secondary evidence by issuing notice to any person as contemplated under section 66 of Indian Evidence Act and nor made any efforts to produce the alleged palu patti dated 24.8.1961 and palu patti of the year 1971-73. The plaintiff has also not stated which 81 O.S.6488/2006 properties were fallen to the share of Y.Krishnappa s/o Yellappa and which property was fallen to the share of Muniswamappa S/o Kare Chennappa. Without there being any primary or secondary evidence to show the existence or non-existence of palu patti dated 24.8.1961 and palu patti of the year 1971/73 and without there being any cogent evidence regarding the contents of the alleged documents it cannot be hold that the suit schedule item No. 1 to 7 properties were fallen to the branch of Chennarayappa. The documents Ex.P1 to Ex.P12 produced by the plaintiff does not discloses the plaintiffs joint possession over the suit schedule property with the defendants. In the absence of any documentary evidence to show that panchayat palu patti of the year 1971-1973 and palu patti of the year 1961 it cannot be said that the panchayat palu 82 O.S.6488/2006 patti of the year 1971-73 was not acted upon. In my humble view decision cited by the learned counsel for the plaintiff reported in 2015(2) KCCR 1437(DB) and decision reported in 2001 Kerala 38 can be distinguished on facts. There is no specific pleading on the side of plaintiff regarding the allegation of fraud, mis-representation by the defendant No. 1. Admittedly defendant No. 1 had pre-existing right over the property in Sy.No. 2/1B. In the absence of any documentary evidence to show that the suit schedule item No. 1 bearing Sy.No. 2/1B was jointly fallen to the share of defendant No. 1, defendant No. 4 and husband of plaintiff it cannot be said that the defendant No. 1 was not having absolute right to sell the suit schedule item No. 1 in favour of defendant No. 2. The plaintiff has failed to prove her joint possession over the suit schedule properties along 83 O.S.6488/2006 with the defendants. The plaintiff has also failed to prove that sale deeds in between defendant No. 1 to 3 are sham, illegal, and not binding on her. The plaintiff has also failed to prove she has 1/3rd share in suit properties as panchayat palu patti of 1973 was not acted upon. The plaintiff has failed to prove issue No. 1 to 3. Hence I answered issue No. 1 to 3 in the Negative.
35. Issue No. 4: The defendant No. 1 and 2 have taken contention that the defendant No. 3 had played fraud on them to get the sale deed in his favour. The plaintiff in her pleadings has not taken any such contention that defendant No. 3 has played fraud on defendant No. 1 and 2. It is the contention of the plaintiff is that the 1 st defendant sold 1 acre of land in favour of 2 nd defendant and in turn 2 nd defendant 84 O.S.6488/2006 has sold the same to the 3 rd defendant without her knowledge including her share measuring 20 guntas in item No. 1. The plaintiff has not taken any contention that the defendant No. 3 has played fraud on defendant No. 1 and 2 and get sale deed in his favour. The defendant No. 1 and 2 who have taken specific contention that the defendant No. 3 has played fraud on them and got executed registered sale deed dated 12.12.1990, in order to substantiate their contention have not stepped into the witness box and also not cross examined PW1 and DW1. There is absolutely no evidence on the side of defendant No. 1 and 2 to show that defendant No. 3 has played fraud on them and got executed the registered sale deed dated 12.12.1990. Hence I answered issue No. 4 in the Negative.
85 O.S.6488/2006
36. Issue No. 5: The defendant No. 3 and 5 have taken specific contention that the suit of the plaintiff is bad for non-joinder of necessary parties as the plaintiff has failed to include head of all the branches and purchasers of the suit schedule properties. The learned counsel for the defendant No. 3 and 5 argued that the suit schedule properties, i.e., land in Sy.No. 2/1B, Sy.No. 13/3, Sy.No. 15/1, Sy.No. 40/2, Sy.No. 51/2, Sy.No. 53/1 and Sy.No. 56 are standing in the name of different persons. The plaintiff has not made all these persons whose names is mentioned in RTCs. He argued that defendant No. 3 had purchased suit schedule item No. 1 measuring 1 acre from defendant No. 2 under registered sale deed dated 12.12.1990. The father of defendant No. 6 (deleted defendant No. 6) has purchased the suit schedule item No. 3 in Sy.No. 15/1 in the year 1972. 86 O.S.6488/2006 He submitted that the land in Sy.No. 53/1 was purchased by one M.Govindappa. The land in Sy.No. 56/3, i.e., item No. 7 is standing in the name of Keshava Murthy as he was purchased the same in the year 1972. He argued that the purchasers namely M.Govindappa, Keshava Murthy, V.Narayana Reddy who are all necessary parties are not made as parties in this suit. He submitted that as per section 333 of Mulla Hindu Law (i) the heads of all branches (ii) females who are entitled to the share of partition
(iii) the purchasers of the portion of the properties
(iv) if the plaintiff himself is a purchaser from a coparcener his aliener are all necessary parties to the suit for partition. He submitted that in the RTCs of the suit schedule properties the names of all the branches have been shown but the plaintiff has not made them as parties in this suit. He submitted that 87 O.S.6488/2006 the defendant No. 3 has produced documents Ex.D3 to Ex.D10 RTCs to show the names of various persons in whose name the suit schedule properties are standing. He argued that except the suit schedule item No. 2 all other suit schedule items were already sold by the plaintiff and defendant No. 1, defendant No. 4 and members of another branch.
37. On the other hand the learned counsel for the plaintiff argued that the plaintiff has made the heads of the branch of Chennarayappa. He submitted that defendant No. 1, defendant No. 4 and the husband of plaintiff are the sons of Chennarayappa and they are all made as parties in this suit. He submitted that since the plaintiff has made heads of branches of Chennarayappa the suit of the plaintiff is not bad for non-joinder of necessary parties.
88 O.S.6488/2006
38. I have appreciated the rival contentions. The plaintiff has filed this suit against defendant No. 1, defendant No. 4 who are the branches of Chennarayappa, defendant No. 2 and defendant No. 3 who are the purchaser of suit schedule item No. 1 and defendant No. 5 who is the wife of defendant No. 3. Except these persons the plaintiff has not made any other parties including the members of the branch of Muniswamappa and Yellappa. The plaintiff has also not made M.Govindappa, Keshava Murthy as parties to this suit. Even though defendant No. 3 son of Abbu Veeraswamy Reddy impleaded as party in this suit but for the obvious reasons best known to the plaintiff she has deleted defendant No. 6 from this suit. The father of defendant No. 6 was purchased the property bearing No. 15/1 which is shown as suit schedule item No. 3 in the plaint. But 89 O.S.6488/2006 the plaintiff has deleted plaint schedule item No. 2 bearing Sy.No. 13/3 in the plaint. The suit schedule item No. 3 is remained in the plaint schedule. The plaintiff has not made the purchaser of suit schedule item No. 3, i.e., Sy.No. 15/1 as party in this suit. The defendant No. 3 has produced the document Ex.D12 certified copy of the plaint in O.S.No.6682/2013 filed by the sons of defendant No. 1 in respect of three items properties, i.e., land in Sy.No. 2/1B, Sy.No. 15/1, and Sy.No. 53/1. In the present suit Sy.No. 2/1B is mentioned as suit schedule item No. 1, Sy.No. 15/1 is mentioned as suit schedule item No. 3 and Sy.No. 53/1 is mentioned as suit schedule item No. 6. On perusal of the document Ex.D14 certified copy of the orders passed on I.A.No.1 in O.S.No.6682/2013, it is observed that neither the plaintiffs nor any of the 90 O.S.6488/2006 defendants is having any locus standi to assert / claim their right over the suit schedule A to C properties now under the exclusive ownership and possession of the defendant No. 8, 10 and 9 respectively. It is pertinent to note that defendant No. 8 is Sri.Ramakrishna Reddy, defendant No. 10 is V.Narayana Reddy and defendant No. 9 is M.Govindappa in O.S.No.6682/2013 who are all purchasers. The plaintiff in the present suit except making defendant No. 3 M.C.Ramakrishna Reddy as a party has not made the remaining purchasers, i.e., M.Govindappa and Sri.V.Narayana Reddy as parties in this suit. On perusal of the documents Ex.D3 RTCs of the land bearing Sy.No. 53/1 the name of M.Govindappa the purchaser of Sy.No. 53/1 finds a place in column No. 9 as well as column No. 12(2). On perusal of the documents Ex.D4 RTC of land in 91 O.S.6488/2006 Sy.No. 56/3 the name of purchaser Keshava Murthy finds place in column No. 9 as well as column No. 12(2) of RTC. On perusal of the documents Ex.D6 RTC of land in Sy.No. 15/1A the names of purchasers of Abbu Veeraswamy Reddy, V.Narayana Reddy finds a place. The plaintiff has not made all these purchasers M.Govindappa, Keshava Murthy and Abbu Veeraswamy Reddy, V.Narayana as parties in this suit. DW1 in his examination-in-chief has deposed that the property bearing Sy.No.40/2, i.e., suit item No. 4 is jointly standing in the name of Yellappa, Muni Yellappa, Muniyappa, Gangaiah, Govindappa, Y.Krishnappa, Dodda Chennappa, Chikka Chennappa, Y.Krishnappa, S/o Yellappa. He has deposed that the land bearing Sy.No. 51/2, i.e., suit schedule item No. 5 is standing in the name of M.Govindappa S/o Motappa. He states that the property bearing Sy.No. 92 O.S.6488/2006 53/1, i.e., item No. 6 at present standing in the name of Govindappa and M.Govindappa S/o Motappa. DW1 further deposed that the property bearing Sy.No. 56/3, i.e., suit schedule item No. 7 measuring 35 ½ guntas standing in the name of Keshava Murthy. The defendant No. 3 has produced the documents Ex.D2 certified copy of the sale deed to show that the plaintiff, Y.Krishnappa S/o Yellappa, Yellappa, Muni Yellappa, Gangamma, Govindappa were all jointly sold the property bearing Sy.No. 56/3 measuring 35 ½ guntas in favour of Keshava Murthy S/o Muni Venkata Shamaiah. The oral evidence of DW2 who deposed regarding Sy.No. 40/2, 51/2, 53/1 standing in the name of different persons such as Yellappa, Muni Yellappa, Muniyappa, Gangaiah, Govindappa, Y.Krishnappa, M.Govindappa S/o Motappa is not challenged by the plaintiff. More 93 O.S.6488/2006 than that in the RTCs marked at Ex.P1 to Ex.P5 and Ex.P7 to Ex.P12 produced by the plaintiff the names of different persons are mentioned. Except defendant No. 2 and 3 who are the purchasers of suit schedule item No. 1 the plaintiff has not made any other purchasers in the present suit. The plaintiff has also not made Yellappa, Muni Yellappa, Muniyappa, Gangaiah, Govindappa, Y.Krishnappa, Y.Krishnappa S/o Yellappa, M.Govindappa S/o Motappa as parties in the suit. The purchasers of the suit schedule properties, i.e., Keshava Murthy, M.Govindappa, V.Narayana Reddy, Ramakrishna Reddy are all necessary parties to this suit. In the decision reported in 1988(2) Karnataka Law Journal 37 it is held that heads of all branches, females who are entitled to a share of partition, purchasers of the portion of properties are all necessary parties to the 94 O.S.6488/2006 partition suit. The plaintiff without making the purchasers as parties in this suit has filed this suit which is bad for non-joinder of necessary parties. The plaintiff even though has taken contention that there was a partition under panchayat palu patti dated 24.8.1961 has not produced the original panchayat palu patti and also not marked the same in this suit. The plaintiff neither in her plaint nor in her oral evidence has stated under panchayat palu patti dated 24.8.1961 which properties were fallen to the share of Y.Krishnappa S/o Yellappa who represented the branch of Yellappa and which properties were fallen to the share of Muniswamappa S/o Kare Chennappa and which properties were fallen to the share of the branch of Chennarayappa father of defendant No. 1. On perusal of the RTCs marked at Ex.P1 to 5, Ex.P7 to 12 produced by the plaintiff 95 O.S.6488/2006 names of different persons such as Yellappa, Muniyellappa, Muniappa, Gangaiah, Govindappa, Y.Krishnappa, M.Govindappa S/o Motappa are finds a place in respect of the lands bearing Sy.No. 40/2, 51/2, 53/1. The land bearing Sy.No. 56/3 is standing in the name of Keshava Murthy. The land bearing Sy.No.51/2 is standing in the name of M.Govindappa S/o Motappa. The RTC of the land in Sy.No. 15/1 standing in the name of Abbu Veeraswamy Reddy and Narayana Reddy. The purchasers namely Keshava Murthy, M.Govindappa, V.Narayana Reddy are all necessary parties to this suit. The plaintiff without making the purchasers of the suit schedule properties as a parties in this suit and without making the persons whose names are entered in RTCs has filed this suit which is bad for non-joinder of necessary parties. The defendant No.3 96 O.S.6488/2006 who is examined as DW1 in his examination-in-chief has clearly deposed regarding RTC of which properties standing in the name of which persons. The oral evidence of DW1 who deposed about the names found in RTCs is remained unchallenged. If at all there was partition among three branches i.e., partition taken place among three branches in the year 1961 as contended by the plaintiff what made her to join with Y.Krishnappa S/o Yellappa and children of Muniswamappa, in order to sell the property bearing No. 56/3 measuring 35 ½ guntas in favour of Keshava Murthy in the year 1995 is not explained. If at all the plaintiff was remained a joint family member of the family of defendant No. 1 and 4 there was no chance to join the plaintiff to the member of another branch to sell the property bearing No. 56/3 by excluding the defendant No. 1 97 O.S.6488/2006 and 4. The plaintiff who has filed this suit without making the purchasers as parties and without making the parties whose name found in RTC of suit schedule property is for necessary parties. Hence I answered issue No. 5 in the Affirmative.
39. Issue No.6: The defendant No. 3 and 5 have taken contention that the suit of the plaintiff is barred by period of limitation. They have taken contention that the suit schedule item No. 1 which was allotted to the share of defendant No. 1 was sold by the defendant No.1 in favour of defendant No. 2 under the sale deed dated 29.7.1971. It is also contended that the defendant No. 2 who was in possession of suit schedule item No. 1 sold the suit schedule item No. 1 measuring 1 acre of land in favour of defendant No. 3 under registered sale deed 98 O.S.6488/2006 dated 12.12.1990. Since the date of purchase on 12.12.1990 the defendant No. 3 has been in possession and enjoyment of the suit schedule item No. 1. The learned counsel for the defendant No. 3 and 5 argued that except suit schedule item No. 2 all other properties were already alienated by the plaintiff, defendant No. 1, defendant No. 4 and other members of the family. He submitted that the plaintiff's husband was excluded from coparcenery property i.e., item No. 1 of suit schedule property long back in the year 1971 itself. He submitted that the property bearing Sy.No. 15/1 measuring 1 acre 1 gunta was sold by the plaintiff, defendant No. 1 and defendant No. 4 in favour of Abbu Veeraswamy Reddy in the year 1972. He submitted that as per the document Ex.D2 certified copy of the sale deed dated 12.6.1995 the suit schedule item No. 7 bearing 99 O.S.6488/2006 Sy.No. 56 was sold by the plaintiff and Y.Krishnappa S/o Yellappa, Yellappa, Muniyellappa, Gangamma, Govindappa. The plaintiff who was not in possession of suit schedule item No. 1 from the year 1971 and suit schedule item No. 3 from the year 1972 and suit schedule item No. 7 from the year 1995 has filed this suit in the year 2006 which is barred by period of limitation. The learned counsel for the defendant No. 3 also submitted that the suit schedule item No. 6 land in Sy.No. 53/1 measuring 27 guntas which is mentioned in O.S.No.6282/2003 as schedule C property is already sold in favour of one M.Govindappa and the name of Govindappa is finds a place in RTC. The plaintiff has excluded from the coparcenery property long back and the suit of plaintiff is barred by period of limitation. The learned counsel for the defendant No. 3 submitted 100 O.S.6488/2006 that under section 333 of Mulla's Hindu Law 18 th Edition a suit by a coparcener excluded from coparcenery property to enforce his right to share there in must be brought within 12 years from the date when the exclusive becomes known to him. He submitted that the plaintiff in her plaint itself admitted that 1 st defendant alienated the plaint schedule item No. 1 under sale deed dated 29.7.1971 in favour of the 2 nd defendant. In turn the 2 nd defendant has sold the said property in favour of the 3 rd defendant.
40. The learned counsel for the plaintiff submitted that the plaintiff is in joint possession of the suit schedule properties with the defendants. He submitted that the plaintiff came to know about the alienation of suit schedule item No. 1 through 101 O.S.6488/2006 defendant No. 3 in the month of August 2003. He has relied upon decision reported in 2015(2) KCCR 1437(DB) to contend that Limitation Act prescribes no time limit for filing a suit for partition by a co- sharer or co-owner - however under Article 110, 12 years is the period prescribed for filing a suit by person who is excluded from a joint family property to enforce a right to a share and the starting point for limitation is when the exclusion becomes known to the plaintiff. He submitted that the suit filed by the plaintiff for partition and separate possession is in time.
41. I have appreciated the rival contentions. This is a suit filed by the plaintiff against the defendant No. 1 to 4 on 19.7.2006. During the pendency of the suit defendant No. 5 and defendant No. 6 were 102 O.S.6488/2006 added. But subsequently defendant No. 6 was deleted by the plaintiff on the ground that she has already sold suit schedule item No. 2 in favour of father of defendant No. 6 and deleted defendant No.
6. It is pertinent to note that according to the plaintiff she along with defendant No. 1, defendant No. 4 sold the property bearing Sy.No. 15/1 in favour of Abbu Veeraswamy Reddy under registered sale deed dated 21.2.1972. The defendant No. 6 who was filed his examination-in-chief affidavit and got examined as DW2 has produced the document Ex.D18 certified copy of the sale deed dated 21.2.1972 to show that the plaintiff, defendant No. 1 and defendant No. 4 have sold the property bearing Sy.No. 15/1 in favour of Abbu Veeraswamy Reddy on 21.2.1972. This court while discussing issue No. 1 to 3 already observed that the property bearing 103 O.S.6488/2006 Sy.No. 15/1 measuring 1 acre 1 guntas is mentioned as plaint schedule item No. 3. The plaintiff retained the plaint schedule item No. 3 in the plaint but deleted the plaint schedule item No. 2 bearing Sy.No. 13/3 measuring 1 acre 10 guntas. It is the specific contention of the defendant No. 3 and 5 is that except the suit schedule item No. 2 all other properties i.e., item No. 1, 2 to 7 were already alienated. The defendant No. 3 has produced the document Ex.D2 certified copy of sale deed dated 12.6.1995 to show that the land bearing Sy.No. 56 i.e., item No. 7 of the plaint schedule was already sold by the plaintiff and Y.Krishnappa, S/o Yellappa, Yellappa, Muniyellappa, Gangamma, Govindappa in favour of Keshava Murthy. Hence the suit schedule item No. 7 is not available for partition. According to the plaintiff herself she was already sold the land 104 O.S.6488/2006 bearing Sy.No. 15/1 in favour of Abbu Veeraswamy, father of defendant No. 6. The document Ex.D18 is the certified copy of the said sale deed dated 16.2.1972. Since the plaintiff herself admitted about the alienation of the land in Sy.No. 15/1 in favour of Abbu Veeraswamy, the plaintiff was excluded from the possession of the land in Sy.No. 15/1 in the year 1972 itself. The Article 110 of the Limitation Act is very clear that suit by a person excluded from a joint family property to enforce a right to share there in shall be filed within 12 years when the exclusion becomes known to the plaintiff. The plaintiff herself deleted the defendant No. 6 on the ground that she has already sold the land in Sy.No. 15/1 in favour of the father of defendant No. 6. Since the plaintiff herself admitted that she has already sold the land bearing Sy.No. 15/1, i.e., suit 105 O.S.6488/2006 schedule item No. 3 in favour of father of defendant No. 6 (deleted defendant No. 6), her suit for schedule item No. 3 is barred by period of limitation. The defendant No. 3 has taken specific contention that the suit schedule item No. 1 was sold by the defendant No. 1 in favour of defendant No. 3 on 29.7.1971. In turn the defendant No. 2 has sold the suit schedule item No. 1 in favour of defendant No. 3 on 12.12.1990. The document Ex.P14 is the certified copy of the sale deed dated 29.7.1971 executed by the 1 st defendant in favour of 2 nd defendant. In Ex.P14 the defendant No. 1 has clearly mentioned that he has acquired the land in a partition effected between him and his brothers and he was in exclusive possession of this property . The plaintiff who has taken contention that in the year 1971/73 as per the palu patti the land measuring 20 106 O.S.6488/2006 guntas in Sy.No. 2/1B fallen to her share, in order to substantiate this contention she has not produced any documents. Admittedly during the life time of the plaintiff's husband Narayanappa the defendant No. 1 has sold the suit schedule item No. 1 measuring 1 acre in favour of defendant No. 2. Even though defendant No. 1 and 2 in their written statement have taken several contentions by contending that defendant No. 3 has played fraud on them to get sale deed in his favour, in order to substantiate such contention taken by the defendant No. 1 and 2 they have not stepped into the witness box and also not examined any witnesses. Defendant No. 1 and 2 have also not cross-examined PW1. The plaintiff who has examined as PW1 in her cross-examination has admitted the suggestion that defendant No. 1 had sold the suit schedule item No. 1 in favour of 107 O.S.6488/2006 defendant No. 2 prior to death of her husband. PW1 has deposed that her husband died on 29.10.1971. The defendant No. 1 has sold the suit schedule item No. 1 in favour of defendant No. 2 under registered sale deed dated 29.7.1971. As on the date of the death of plaintiff's husband Narayanappa he was not in possession of the suit schedule item No. 1. The contention taken by the plaintiff is that in the year 1971/1973 the palu patti was effected between her and 1 st defendant and 4 th defendant in that partition by way of palu patti 20 guntas of land in suit schedule item No. 1 fallen to her share is not substantiated by any documentary evidence and cogent evidence. During the year 1972 i.e., on 21.2.1972 the plaintiff herself along with defendant No. 1 and 4 sold land in the Sy.No. 15/1 in favour of Abbu Veeraswamy Reddy. Under such 108 O.S.6488/2006 circumstances it cannot be held that the plaintiff came to know about the sale of item No. 1 through 3 rd defendant for the first time in the month of August 2003. There is absolutely no documents on the side of the plaintiff to show that from the year 1971 she was in joint possession of suit schedule item No. 1 with the defendants. PW1 in her examination-in-chief has deposed that after the death of her husband she was driven out by the 1 st and 4 th defendant from their house. Hence she was taken shelter in the house of Y.Krishnappa. PW1 has deposed that Y.Krishnappa driven out her from his house in the year 1990. Hence she started to live in her parental house at Hagalakurki. According to the plaintiff she was not living with 1 st and 4 th defendant since from the year 1971. The document Ex.D2 certified copy of the sale deed in respect of the land 109 O.S.6488/2006 in Sy.No. 56/3 would go to show that the plaintiff along with Y.Krishnappa, S/o Yellappa, Yellappa, Muniyellappa, Gangamma, Govindappa sold 35 ½ guntas in favour of Keshava Murthy on 12.6.1995. If at all the plaintiff was not excluded from coparcenery property i.e., suit schedule item No. 1 there was no chance her to join along with Y.Krishnappa and sons of Muniswamappa who are all members of another branch in order to sell the property bearing Sy.No. 56/3. As on the date of death of the husband of the plaintiff the suit schedule item No. 1 measuring 1 acre was not in joint family as the same was already sold by the defendant No. 1 in favour of defendant No. 2. Since as on the date of death of the husband of the plaintiff the suit schedule item No. 1 was not remained as the joint family property and the 110 O.S.6488/2006 plaintiff was excluded from the suit schedule property to enforce her right to share therein must have been brought within 12 years from the date of the alienation. The defendant No. 3 has purchased 1 acre of land in suit schedule item No. 1 in the year 1990 and his name entered in RTC from the year 1991-92. The plaintiff has filed this suit in the year 2006 which is barred by period of limitation. As already observed that the suit schedule item No. 3 bearing Sy.No. 15/1 measuring 1 acre was sold by the plaintiff in the year 1972 itself the plaintiff herself admitted that she was sold the property bearing Sy.No. 15/1. This suit filed in the year 2006 after lapse of 34 years is barred by period of limitation. Hence I answered issue No. 6 in the Affirmative.
111 O.S.6488/2006
42. Issue No. 7: The defendant No. 3 in the additional written statement has taken contention that according to the plaintiff suit schedule item No. 2 is also joint family property. He has taken contention that since the plaintiff has deleted the suit schedule item No. 2 from the plaint the suit of plaintiff for partial partition is not maintainable. The learned counsel for the defendant No. 3 has argued that except suit schedule item No. 2 all other suit schedule items were already sold under different sale deeds. He submitted that since the plaintiff has deleted the suit schedule item No. 2 bearing Sy.No. 13/3 measuring 1 acre 10 guntas the suit of the plaintiff is not maintainable. The learned counsel for the plaintiff relied upon the decision reported in 2011(4) KCCR 2461(DB) in G.M.Mahendra Vs. G.M.Mohan and another to contend that the suit for 112 O.S.6488/2006 partial partition without including all the joint family properties was bad in law. He has relied upon the decision reported in 2012(5) KCCR 4082 Smt.T.Rathna Vs. Smt.T.N.Rathnamma and others to contend that suit for partition of only portion alienated - not maintainable. The learned counsel for the defendant No. 3 has also relied upon the decision reported in 2013 (2) KCCR 1277 in Smt.Puttakkaiah Vs. Smt.Basamma since dead by legal representatives and others to contend that partition suit should include all the joint family properties.
43. Admittedly the plaintiff has deleted suit schedule item No.2 , i.e., Sy.No. 13/3 measuring 1 acre 10 guntas situated at Lakshmipura village. The plaintiff has not produced any document to show that she has already sold the land bearing Sy.No. 13/3 113 O.S.6488/2006 measuring 1 acre 10 guntas. The plaintiff has deleted the suit schedule item No. 2 on the ground that she has sold the suit schedule item No. 2 in favour of father of defendant No. 6. The plaintiff has also deleted the defendant No. 6 from the plaint. Prior to deleting defendant No. 6 the defendant No. 6 has filed his affidavit for examination-in-chief and examined as DW2 and documents Ex.D18 to Ex.D20 are marked through him. In his examination-in-chief DW2 has deposed that the plaintiff, defendant No. 1 and 4 have sold the land bearing Sy.No. 15/1 in favour of his father Abbu Veeraswamy Reddy. In this suit the land bearing Sy.No. 15/1 measuring 1 acre 1 gunta is shown as suit schedule item No. 3. The defendant No. 3 has taken specific contention that except suit schedule item No. 2 all other plaint schedule properties were already alienated. 114 O.S.6488/2006 According to the plaintiff the suit schedule item No. 2 was also joint family property. Order 2 Rule 2 of C.P.C. is very clear that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his plaint in order to bring the suit within the jurisdiction of any court. In the present suit the plaintiff without disclosing anything about alienation or non-alienation of the land bearing Sy.No. 13/3 measuring 1 acre 10 guntas deleted the said land from her plaint. In the body of the plaint the plaintiff has not made any amendment to know whether the suit schedule item No. 2 was alienated or not. The defendant No. 3 has produced the document Ex.D17 three RTCs which would go to show that the land bearing Sy.No.13/3 measuring 3 acres 17 guntas standing in 115 O.S.6488/2006 the name of various persons such as Y.Krishnappa, S/o Yellappa, Mariamma W/o Muniyappa, Dodda Chennappa S/o Channarayappa, M.Rathnamma W/o C.Venkateshappa. Out of 3 acres 17 guntas 1.08 acres for the year 2018-2019 standing in the name of Dodda Chennarayappa. Dodda Chennarayappa is the defendant No. 1 in the present suit. The plaintiff without any valid reasons deleted the suit schedule item No. 2 which was according to her the joint family property. Without including all the joint family properties the plaintiff has filed this suit which is not maintainable in view of Order 2 Rule 2 of C.P.C. The principles of decisions cited by the learned counsel for the defendant No. 3 which are reported in 2011(4) KCCR 2461 (DB), 2012(5) KCCR 4082 and 2013(2) KCCR 1277 are aptly applicable to the present case. Since the plaintiff has not included 116 O.S.6488/2006 all the joint family properties which were inherited from the original propositus Mr.Kare Chennappa in this suit the suit of the plaintiff is not maintainable. The defendant No. 3 has proved the issue No. 7. Hence I answered issue No. 7 in the Affirmative.
44. Additional Issue No. 1 to 4: In this suit defendant No. 6 by engaging counsel was impleaded himself as party in this suit. The defendant No. 6 had filed his written statement. Hence after filing the written statement by the defendant No. 6 based on the pleadings of the parties this court has framed additional issue No. 1 to 4 casting burden upon the defendant No. 6. The defendant No. 6 had filed his affidavit for examination-in-chief and examined as DW2 and documents Ex.D18 to Ex.D20 were marked. When the case posted for cross-examination of DW2 117 O.S.6488/2006 the plaintiff moved I.A.No.22 on 27.11.2019 praying to delete defendant No. 6. Since defendant No. 6 has submitted no objection to allow I.A.No.22 same was allowed by this court as per order dated 27.11.2019. The learned counsel for the plaintiff carried out the amendment in the plaint and deleted defendant No. 6 thereby the defendant No. 6 is not the party in the present suit. In view of deletion of defendant No. 6 from the plaint proving of additional issue No. 1 to 4 does not arise. Hence these additional issue No. 1 to 4 does not survive for consideration as the plaintiff herself deleted defendant No. 6 from the plaint. Accordingly additional issue No. 1 to 4 does not survive for consideration and these issues becomes redundant. Hence I answered accordingly.
118 O.S.6488/2006
45. Issue No. 8: While discussing issue No. 1 I held that the plaintiff fails to prove her joint possession for the suit schedule properties with the defendants. While discussing issue No. 3 I held that the plaintiff has failed to prove that she has 1/3rd share in the suit schedule properties. The plaintiff has also failed to prove issue No. 2. While discussing issue No. 5 I held that the suit of the plaintiff is bad for non-joinder of necessary parties. While discussing issue No. 6 I held that the suit of the plaintiff is barred by period of limitation. While discussing issue No. 7 I held that as the plaintiff is already deleted the suit schedule item No. 2 the suit of the plaintiff is not maintainable for non-inclusion of all the joint family properties. In this suit the plaintiff has prayed for declare that she has 1/3rd share in all the items of suit schedule properties and 119 O.S.6488/2006 also prayed for partition and separate possession of her 1/3rd share and prayed to declare that alleged sale deeds between the defendant No. 1 to 3 are not binding on the plaintiff and she also sought to order for mesne profit. Since the plaintiff has failed to prove her joint possession and enjoyment over suit properties with the defendants and also failed to prove that she has 1/3rd share in the suit properties the plaintiff is not entitled for the relief of partition and separate possession as sought for. In view of my findings on issue No. 1 to 7 the plaintiff is not entitled for any relief prayed in the plaint. Hence I answered issue No. 8 in the Negative.
46. Issue No.9: In view of my findings to issues No. 1 to 8, I proceed to pass the following: 120 O.S.6488/2006
ORDER The suit of the plaintiff is dismissed.
Parties shall bear their own cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 5th day of August 2020.) (Mohan Prabhu) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Narasamma Witness examined for the defendant/s :
DW1 - M.C.Ramakrishna Reddy
DW2 - V.Narayan
121 O.S.6488/2006
Documents marked for the plaintiff/s :
Ex.P1-5 - Five RTC extracts Ex.P6 - Mutation extract Ex.P7-12 - Six RTC extracts Ex.P13 - Genealogical tree Ex.P14 - Certified copy of sale deed Ex.P15 - Certified copy of sale deed Ex.P16 - Genealogical tree Documents marked for the defendant/s :
Ex.D1 - Certified copy of sale deed dated
29.7.1971
Ex.D2 - certified copy of sale deed dated
12.6.1995
Ex.D3-10 - 8 RTCs
Ex.D11 - Registered gift deed
Ex.D12 - Certified copy of plaint in
O.S.No.6682/2013
Ex.D13 - Certified copy of written statement in
O.S.No.6682/2013
Ex.D14 - Certified copy of order in
O.S.No.6682/2013
122 O.S.6488/2006
Ex.D15 - Certified copy of order in
O.S.No.6682/2013
Ex.D16 - MR extract
Ex.D17 - Three pahanis
Ex.D18 - Certified copy of sale deed dated 21.2.1972 Ex.D19 - Certified copy of sale deed dated 17/2/1971 Ex.D20 - Certified copy of sale deed dated 25.7.1974 (Mohan Prabhu) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.123 O.S.6488/2006
Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is dismissed.
Parties shall bear their own cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.