Bangalore District Court
Smt.G.Jayashree vs Sri.Gopal on 6 June, 2019
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 6th day of June, 2019.
O.S.No.4931/2012
Plaintiffs:- 1. Smt.G.Jayashree,
D/o.Gopal,
Aged about 40 years,
2. Smt.Prema,
D/o.Gopal,
Aged about 35 years,
R/at No.116/1,
Vijaya Bank Layout,
Bilekahalli,
Bannerghatta Road,
Bangalore -76.
3. Kum.Saraswathi,
D/o.Gopal,
Aged about 30 years,
Plaintiffs 1 and 3 are
R/at Bilekahalli, Begur Hobli,
Bannerghatta Road,
Bangalore -76.
(By Adv.M.R.Muniraju)
v.
Defendants:- 1. Sri.Gopal,
S/o.late Chikkappanna,
Aged about 60 years,
Judgement
2 O.S.No.4931/2012
2. Sri.Ramesh,
S/o.Gopal,
Aged about 45 years,
Both are R/at Bilekahalli,
Begur Hobli,
Bannerghatta Road,
Bangalore -76.
3. Sri.B.P.Nagaraju,
S/o.Periyanna,
Aged about 68 years,
4. Sri.Papanna,
S/o.late Chikkapapanna,
Aged about 50 years,
5. Sri.Chinnappa,
S/o.late Chikkapapanna,
Aged about 49 years,
6. Sri.Muniyallappa,
S/o.late Chikkapapanna,
Aged about 46 years,
7. Smt.Jayamma,
D/o.late Chikkapapanna,
Aged about 40 years,
All are R/at Bilekahalli,
Begur Hobli,
Bannerghatta Road,
Bangalore South Taluk.
8. Sri.M.Somashekar,
S/o.M.P.Shivanna,
Aged about 61 years,
R/at No.13 & 14, 1st Cross,
Venkatadri Layout,
Panduranganagar,
IIMB Post, Bannerghatta Road,
Bangalore -76.
9. Smt.M.Anasuya,
Aged about 45 years,
W/o.T.Srinivasareddy,
Judgement
3 O.S.No.4931/2012
10. Sri.T.Srinivasareddy,
S/o.late Thimmarayappa,
Since deceased by his LRs
10(a) Sri.Venkatesh Murthy,
S/o.Sri.T.Srinivasa Reddy,
Aged 30 years,
10(b) Sri.Trilok
S/o.Sri.T.Srinivasareddy,
Aged 32 years,
10(c) Malashri,
D/o. Sri.T.Srinivasareddy,
Aged 27 years,
D9 and D10(a) to (c) R/at No.28/C,
1st Main, N.S.Palya,
Bannerghatta Road,
BTM II Stage,
Bangalore -76.
11. Sri.T.Sudhakar,
S/o.P.Bhaskar Chowdary,
Aged about 46 years,
12. Sri.Mohammed Yousuff,
S/o.Shaik Ahamed,
Aged about 54 years,
Defendants 11 and 12 are
Office at Site No.102,
Vandana Ventures,
Bilekahalli Village,
Begur Hobli,
Bangalore South Taluk.
13. Mr.Shaik Mubarak Ahmed,
S/o.Sri.Khazi Shaik Hassan,
Aged about 54 years,
R/at No.6, Venkatappa Road,
Tasker Town, Bangalore-51.
14. Mrs.Geeth Rathi.J.,
W/o.Sri.Vijay Maran.M,
Aged about 26 years,
Judgement
4 O.S.No.4931/2012
15. Sri.Vijay Maran.M,
S/o.Sri.Murugesan.M,
Aged about 30 years,
Defendants 14 and 15 are
R/at No.64, 1st Floor,
3rd Main, 2nd Cross,
Brindhavanagar,
Tavarekere Main Road,
Bangalore - 560 029.
(D1, D3 to D8 - Exparte
D2 - In person,
D11 & D12 - Adv. Mallappa.K
D13 to D15 - Absent
D9 & LRs of D10- Adv. H.S.Ramamurty)
Date of institution of the suit : 11.07.2012
Nature of the suit : Partition & Declaration
Date of commencement of : 14.07.2016
Recording of the evidence
Date on which the Judgment : 06.06.2019
was pronounced
Total Duration : Years Months Days
06 10 25
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGEMENT
The plaintiffs have filed the above suit for partition, declaration and costs.
Judgement 5 O.S.No.4931/2012
2. The plaintiffs' case in brief as under:-
One Erasappa was the propositus and he had two wives namely, Nanjamma and Muniyamma. Chinnappa, Periyanna and Chikkapapanna are the children of Erasappa through his first wife and Muniyappa and Chikkamuninanjappa are the children of Erasappa through second wife. Said Chikkapapanna had two wives namely, Chinnamma and Peechamma and through first wife he had one son namely, Gopal i.e., defendant No.1 and through second wife he had five children namely, defendants 4 to 7 and one Shankarappa. Said Shankarappa died as a bachelor.
The plaintiffs and defendant No.2 are the children of defendant No.1 and grand children of Chikkapapanna. The defendant No.3 is the brother of defendant No.1.
Said Erasappa owned properties in and around Bilekahalli Village and after his death, his children succeeded to the said properties and partitioned the properties. As per the said partition, land bearing Sy.No.85/3 measuring 6 guntas, Sy.No.117 measuring 14 guntas, Sy.No.187 measuring 1 acre 15 guntas and residential house had fallen to the share of Chikkapapanna and similarly same extent had fallen to the share of Periyanna.
The plaintiffs and defendants 1 to 7 constitute Hindu undivided joint family. The plaintiffs have received their share in Judgement 6 O.S.No.4931/2012 respect of land bearing Sy.No.117 measuring 14 guntas and Sy.No.187 measuring 1 acre 15 guntas and have filed the above suit in respect of land bearing Sy.No.85/3 measuring 6 guntas i.e., suit schedule property. The revenue records of the suit schedule property still stand in the name of plaintiff's grandfather. The plaintiffs and defendants 1 to 7 are in joint possession and enjoyment of the suit schedule property. The suit schedule property is not partitioned among the plaintiffs and defendants 1, 2 and 5 to 7. The defendant No.1 was looking after the suit schedule property and started acting detrimental to the interest of the plaintiffs hence, the plaintiffs demanded for partition of the suit schedule property and to render account of mesne profits derived from the suit schedule property. The defendant No.1 kept postponing the partition of the suit schedule property on flimsy grounds and later informed the plaintiffs that defendants 3 to 7 have executed General Power of Attorney in favour of defendant No.8 and on the basis of the said General Power of Attorney, defendant No.8 has alienated the suit schedule property in favour of defendants 9 and 10 vide., registered Sale Deed dated 11.12.2003. The plaintiffs are not signatories to the said GPA and Sale Deed and they have not consented for alienation of suit schedule property. There is no necessity to execute GPA by the male members of the joint Judgement 7 O.S.No.4931/2012 family. Said GPA and Sale Deed are not binding on the plaintiffs. The plaintiffs and defendant No.2 jointly had filed suit for partition in O.S.No.6619/2004 in respect of joint family properties and after the service of summons to the defendants, the said suit was dismissed for non-prosecution. Subsequently, the plaintiffs came to know about the dismissal of the suit for non-prosecution hence, the plaintiffs alone have filed the above suit. Defendants 13 to 15 are subsequent purchasers hence, Sale Deeds executed in favour of defendants 13 to 15 are not binding on the plaintiffs. Hence, the plaintiffs have filed the above suit.
3. Inspite of service of suit summons, defendants 1, 3 to 8 failed to appear before this court hence, they were placed exparte. Inspite of service of notice, defendants 13 to 15 remained absent. In response to the suit summons, defendant No.2 appeared in person, defendants 9 to 12 have appeared before the court through their respective counsels.
4. The defendants 9 and 10 have filed common written statement and have contended that the plaintiffs and defendant No.2 earlier had filed suit in O.S.No.6619/2004 against defendant No.4 and others in respect of joint family properties and said suit was dismissed hence, present suit is barred by principles of res- judicata. Further, have contended that plaintiffs and defendant Judgement 8 O.S.No.4931/2012 No.2 have executed Confirmation Deed hence, suit is liable to be dismissed under Order VII Rule 11(d) of CPC. The defendants 9 and 10 have denied the relationship between the parties and existence of joint family. The defendants 9 and 10 have also denied that Sy.No.85/3 measuring 6 guntas, Sy.No.117 measuring 14 guntas, Sy.No.187 measuring 1 acre 15 guntas and residential house had fallen to the share of Chikkapapanna under a oral partition. The defendants 9 and 10 admit that 6 guntas of land had fallen to the share of Periyanna. The defendants 9 and 10 have contended that plaintiffs have not produced any document to show that they have received their share in respect of land in Sy.No.117 and Sy.No.187. The defendants 9 and 10 have denied that plaintiffs and defendants 1 to 7 are in joint possession and enjoyment of the suit schedule property. The defendants 9 and 10 have contended that Chikkapapanna has alienated the properties fallen to his share prior to 1970. The defendants 9 and 10 have purchased the suit schedule property vide., registered Sale Deed 11.12.2003 and they are in possession and enjoyment of the suit schedule property and revenue records stand in the name of defendants 9 and 10. The property bearing Sy.No.85/3, totally measures 25 guntas, including 5 guntas of kharab. On 14.03.1947, partition was effected among Chinnaiah, Periyanna and Chikkapapanna and Judgement 9 O.S.No.4931/2012 their family members in respect of joint family properties. In the said partition, 6 guntas of land in Sy.No.85/3 had fallen to the share of Periyanna and 6 guntas of land in Sy.No.85/3 had fallen to the share of Chikkapapanna and remaining extent had fallen to the share of Chinnaiah. The property fallen to the share of Chikkapapanna was sold to one Smt.Thimmakka vide., registered Sale Deed dated 04.10.1971 and said Smt.Thimmakka sold the said property to one Muniswamappa vide., registered Sale Deed 20.12.1995. As on the date of alienation of said property by Chikkapapanna, the plaintiffs were unborn. In respect of property sold by defendant No.1 vide., registered Sale Deed dated 04.10.1971, the plaintiffs and defendants 1 to 7 and others have confirmed and executed a Confirmation Deed in respect of Sathyanarayana and M.S.Sridhar. As per Confirmation Deed, 9 guntas of land in Sy.No.85/3 is sold in favour of said Sathyanarayana and M.S.Sridhar. The plaintiffs have suppressed the above said facts. The plaintiffs and defendant No.2 jointly had filed suit for partition in O.S.No.6619/2004 against defendant No.4 and others in respect of joint family properties including the suit schedule property herein and the said suit was dismissed and by suppressing the said fact the plaintiffs have filed the above suit hence, this suit is barred by principles of res-judicata. The defendants 9 and 10 have purchased the suit schedule property Judgement 10 O.S.No.4931/2012 vide., registered Sale Deed dated 11.12.2003 from Periyanna and others through Power of Attorney Holder i.e., defendant No.8 for valuable consideration. The defendants 9 and 10 have also purchased adjacent portion of the property bearing site No.30, 36/40 CMC Assessment No.85/3, measuring East to West:94+84/2 and North to South: 32½ +48 /2 vide., registered Sale Deed 15.12.2003. The defendants 9 and 10 got khatha of the said properties transferred in their names and have entered into a Joint Development Agreement on 01.06.2012 in favour of M/s.Vandana Ventures for construction of multistoried building. The said developer after obtaining necessary license and plan has completed construction of ground plus 3 floors construction. The developer has invested more than 2 crores and at this stage, the plaintiffs in collusion with defendants 1 to 7 have filed the present suit with unclean hands. Further, the defendants 9 and 10 have contended that defendant No.2 tried to interfere with defendants' possession hence, they had filed suit is O.S.No.1794/2005 for permanent injunction and it was decreed in their favour. Without prejudice to the rights of the defendants, the defendants 9 and 10 have contended that as per amended Hindu Succession Act, daughters have no right to claim over the properties disposed off prior to 20.12.2004 hence, suit is liable to be dismissed. There is Judgement 11 O.S.No.4931/2012 no cause of action to file the above. Hence, prayed that suit may be dismissed with costs.
5. The defendants 11 and 12 have filed common written statement, denying the existence of joint family and joint family properties. The defendants 3 to 7 being the absolute owners of the suit property have executed registered GPA dated 30.12.1995 in favour of defendant No.8 and had given up their rights in the suit schedule property. Said registered GPA is coupled with interest and defendant No.8 as owner-cum-GPA Holder has sold suit schedule property in favour of the defendants 9 and 10 vide., a registered Sale Deed dated 11.12.2003. The defendants 9 and 10 have entered into Joint Development Agreement with defendants 11 and 12 prior to filing of the suit and the defendants 11 and 12 by investing more than Rupees 3 crores have constructed residential apartment over the suit schedule property. The plaintiffs have suppressed the above said facts and have filed the above suit with ulterior motive with an intention to extract money from the defendants. Further, the defendants 11 and 12 have contended that suit schedule property is sold vide., registered Sale Deed dated 11.12.2003 in favour of defendants 9 and 10 prior to commencement of Section 6 of Hindu Succession (Amendment) Act, 2005 hence, the plaintiffs are not entitle for any share in the suit schedule property. The defendants 9 and 10 Judgement 12 O.S.No.4931/2012 have purchased the suit schedule property for valuable consideration of Rs.10,00,000/- and also have purchased adjacent portion bearing site No.30, 36/40 CMC Assessment No.85/3 vide., registered Sale Deed dated 15.12.2003. The suit is also bad for non-joinder and mis-joinder of necessary parties and liable to be dismissed. Neither plaintiffs' father nor plaintiffs have challenged the registered GPA dated 30.12.1995 and Sale Deed dated 11.12.2003 hence, defendants 9 and 10 are the absolute owners of the suit schedule property. The plaintiffs are not in possession of the suit schedule property and have not valued the suit property properly hence, suit is liable to be dismissed. There is no cause of action to file the above. Hence, prayed the suit may be dismissed with costs.
6. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiffs prove that, the suit schedule property is the joint family property?
2. Whether the defendants No.9 and 10 prove that, the suit is hit by res-judicata?
3. Whether the suit of the plaintiff is maintainable as the sale took place prior to 20-12-2004?
4. Whether the defendants 9 and 10 prove that, the suit is bad for non-joinder of necessary parties?
Judgement 13 O.S.No.4931/2012
5. Whether the plaintiffs are entitle for relief as sought for?
6. What order or decree?
7. To prove the case of the plaintiffs, plaintiff No.3 examined as PW-1 and got marked Ex.P1 to P22. Defendant No.10(a) examined as DW-1 and got marked Ex.D1 to D20.
8. Heard arguments.
9. My findings on the above said issues are as follows:-
Issue No.1:- In the Affirmative.
Issue No.2:- In the Negative.
Issue No.3:- In the Negative.
Issue No.4:- In the Affirmative.
Issue No.5:- In the Negative.
Issue No.6:- As per final order.
for the following:-
REASONS
10. Issue Nos.1 to 4:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
Genealogical Tree as per plaintiffs' is as follows:-
Erasappa
---------------------------------------- Nanjamma (1st wife) Muniyamma (2nd Wife)
--------------------------------- ---------------
Judgement
14 O.S.No.4931/2012
Chikkapapanna Chikkamuninanjappa
(son)
Sharadamma (wife)
2.Lakshminarayana
Nagarathna (wife)
Manjamma(wife)
Chinnaiah (son)
Chinnamma Pichchamma Sanjeevamma (wife)
1.B.P.Nagaraju
(1st wife) (2nd wife) Children:
Muniyappa
Periyanna
Yellamma
Sons:-
Children: Nagaraju
Gopal (son) Papanna
Erasappa
Kamalamma (wife) Chinnappa
Children: Shankarappa
Muniyappa
G.Ramesh Muniyellappa Chikkaerasappa
G.Jayashree Chinnamma
G.Prema Jayalakshmi
G.Saraswathi
DW-1 in his cross-examination admits that plaintiffs are the children of Gopal. The defendants have not produced any evidence before this court to disprove the relationship between the parties. Hence, contention of the plaintiffs that they are the grand children of Chikkapapanna and children of Gopal has to be accepted.
11. PW-1 in her examination-in-chief has stated that Erasappa owned properties in and around Bilekahalli Village and after his death, his children partitioned the properties and as per the said partition, Sy.No.85/3 measuring 6 guntas, Sy.No.117 measuring 14 guntas, Sy.No.187 measuring 1 acre 15 guntas and residential house had fallen to the share of Chikkapapanna and similarly same extent had fallen to the share of Periyanna. In support of the said contention, the plaintiffs have produced certified copy of registered Partition Deed dated 14.03.1947 at Ex.P2. Ex.P2 is marked without any objection. Ex.P2 bears the seal and signature of competent authority hence, Ex.P2 is admissible in evidence. DW-1 in his cross-examination admits Judgement 15 O.S.No.4931/2012 Ex.P2. Hence, this court can rely upon Ex.P2. From the recitals of Ex.P2 i.e., Partition Deed, it reveals that land measuring 6 guntas in Sy.No.85/3, land measuring 14 guntas in Sy.No.117, land measuring 1 acre 15 guntas in Sy.No.187 and residential house has fallen to the share of Chikkapapanna. Further, from Ex.P2 it reveals that land measuring 6 guntas in Sy.No.85/3, land measuring 1 acre 15 guntas in Sy.No.187 and land measuring 14 guntas in Sy.No.117 had fallen to the share of Periyanna. Further, from Ex.P.2 it reveals that, land measuring 9 guntas in Sy.No.85/3 and other lands had fallen to the share of Erasappa. DW-1 in his cross-examination admits that Sy.No.85/3 was partitioned among Chikkapapanna, Periyanna and Erasappa respectively under the said partition. Further, DW-1 in his cross examination also admits extent of land allotted to the share of Chikkapapanna. Hence, contention of the plaintiffs that as per Partition Deed dated 14.03.1947 Chikkapapanna succeeded to Sy.No.85/3 measuring 6 guntas, Sy.No.117 measuring 14 guntas, Sy.No.187 measuring 1 acre 15 guntas and residential house has to be accepted. Since Chikkapapanna succeeded to the above said properties by way of inheritance said properties are joint family properties. Therefore, suit schedule property is the joint family property.
Judgement 16 O.S.No.4931/2012
12. PW-1 in her examination-in-chief has stated that defendant No.1 was acting detrimental to the interest of the plaintiffs hence, plaintiffs demanded for partition and later came to know that, defendants 3 to 7 have executed GPA in favour of defendant No.8 and defendant No.8 has alienated the suit schedule property in favour of defendants 9 and 10 vide., registered Sale Deed dated 11.12.2003. The defendants 3 to 7 have no absolute right to execute GPA or Sale Deed hence, said GPA and Sale Deed are not binding on the plaintiffs. Further, PW-1 has stated that the defendants 9 and 10 have entered into Joint Development Agreement with defendants 11 and 12 and subsequently alienated the suit schedule property in favour of defendants 13 to 15 and said sale deeds are not binding on the plaintiffs herein. Per Contra, DW-1 in his examination-in-chief has stated that 6 guntas of land in Sy.No.85/3, which had fallen to the share of Chikkapapanna was alienated by defendant No.1 to one Smt.Thimmakka vide., registered Sale Deed dated 04.10.1971 and said Smt.Thimmakka sold the said property in favour of Muniswamappa vide., registered Sale Deed dated 20.12.1995 and the plaintiffs have executed Confirmation Deed in favour of Sathyanarayana and M.S.Sridhar, confirming the earlier Sale Deed dated 04.10.1971 hence, the plaintiffs have no right over the suit schedule property. Advocate for plaintiffs argued Judgement 17 O.S.No.4931/2012 that suit schedule property was not alienated under the said sale deed dated 04.10.1971 but, 9 guntas belonging to Erasappa was alienated under sale deed dated 04.10.1971 and Confirmation Deed executed by plaintiffs pertain to land belonging to Erasappa. As per Ex.P2 i.e., Partition Deed dated 14.03.1947, nine guntas of land is allotted to the share of Erasappa and said allotment of land to Erasappa is admitted by DW-1 in his cross-examination. The defendants have produced certified copy of the Sale Deed dated 04.10.1971 at Ex.D4. From the recitals of Ex.D4, it discloses that defendant No.1 has alienated nine guntas of land in Sy.No.85/3 bounded on East by: Chinnappa Garden, West by:
Nanjappa Garden, North by: Drainage and South by: Road. It is pertinent to note that, the extent of land and schedule mentioned in Sale Deed dated 04.10.1971 and extent of land and schedule allotted to the share of Erasappa under Ex.P2 are one and the same. Moreover, DW-1 in his cross-examination categorically admits that Sale Deed dated 20.12.1995 i.e., Ex.D5 and Confirmation Deed i.e., Ex.P2 doesn't pertain to suit schedule property and it pertains to land allotted to the share of Erasappa. Therefore, land that was alienated under Ex.D4 and Ex.D5 is the land belonging to Erasappa and not the suit schedule property. Hence, contention of the defendants that suit schedule property was alienated by defendant No.1 vide., registered Sale Deed Judgement 18 O.S.No.4931/2012 dated 04.10.1971 and it was confirmed by the plaintiffs cannot be accepted.
13. The plaintiffs have contended that GPA and Sale Deed executed by defendants 3 to 7 in favour of defendants 9 and 10 is not binding on them. The defendants have produced certifiec copies of registered GPA dated 30.12.1995 and Sale Deed dated 11.12.2003 at Ex.D9 and Ex.D10. Ex.D9 and D10 are certified copies, marked without any objections. Ex.D9 and D10 bears the seal and signature of competent authority hence, Ex.D9 and D10 are admissible in evidence. GPA is executed by Periyanna, B.P.Nagaraju, B.P.Lakshminarayana, Papanna, Chinnappa, Jayamma and Muniyellappa in favour of M.Somashekar.
Admittedly, execution of GPA is not denied by the executants and said GPA is not set aside by any competent court hence, said GPA is valid, subsisting and binding on the executants. As per the recitals of said GPA, the GPA Holder is authorized to alienate the suit schedule property and execute Sale Deed in favour of the purchasers. Based on the said GPA, said Somashekar i.e., Power of Attorney Holder has alienated the suit schedule property in favour of defendants 9 and 10 and executed the Sale Deed as per Ex.D10. PW-1 in her cross-examination admits that after the death of Chikkapapanna, Periyanna, B.P.Nagaraju, B.P.Lakshminarayan, Papanna, Chinnappa, Jayamma and Judgement 19 O.S.No.4931/2012 Muniyellappa alienated the suit schedule property in favour of defendants 9 and 10. Therefore, defendants 9 and 10 have acquired title over the suit schedule property. The question for consideration is, whether said alienation is saved under law? Section 6 of Hindu Succession (Amendment) Act, 2005 reads as follows:-
6. Devolution of interest in coparcenary property - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall -
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakahsara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary dispostion of property which had taken place before lthe 20th day of December,2004.
(2) .......
Judgement 20 O.S.No.4931/2012 In R.F.A. No.1183/2017, in the case of Smt.Ammajamma v. Nagaraju and others, wherein the lordships have held as under:
"7. It is admitted fact that the suit schedule properties are joint family properties. It is also an admitted fact that the father of the plaintiff - defendant No.1 along with his sons defendants 2 & 3 sold the suit schedule properties in favour of appellant / defendant No.4 on 22.09.2004. Section 6 of the Act which confers the status of coparcener and coparcenary rights in favour of a daughter of a coparcener and which came into force by virtue of Act 39 of 2005 with effect from 09.09.2005 enacts as under:
" 6. Devolution of interest in coparcenary property:- .......
8. As rightly contended by the learned counsel for appellant proviso to Section 6(1) clearly states that nothing contained in sub-section (1) shall affect or invalidate any disposition or alienation of the property that had taken place before 20th day of December, 2004. In the instant case, the sale had taken palce on 22.09.204 well prior to the cut off date provided in the proviso. Therefore, based on the pleadings and the evidence of the plaintiff herself, the property which had been sold prior to 20.12.2004 could not have been the subject matter of any claim by the plaintiff by way of partition. The properties were not available to the family as on the cut off date because it had been disposed of by way Judgement 21 O.S.No.4931/2012 of sale by that time. Therefore, question of maintaining the suit seeking partition did not arise. Alienation made prior to 20.12.2004 is saved. Hence, in our view, the Trial Court has rightly taken into consideration the provisions contained under Section 6(1) of the Act, particularly the proviso enacted therein."
From the above provision of law and judgment, it is clear that property alienated prior to 20.12.2004 is saved. In the present case the plaintiffs contend that plaintiff and defendants 1 to 7 constitute Hindu undivided joint family and suit schedule property is the joint family property and suit schedule property is alienated on 11.12.2003 i.e., prior to 20.12.2004. Admittedly, suit schedule property is alienated prior to 20.12.2004 hence, said alienation is saved. Therefore, plaintiffs are not entitle to claim share in the suit schedule property. Therefore, contention of the plaintiffs that Sale Deed and GPA are not binding on them is not sustainable under law.
14. PW-1 in her examination-in-chief has stated that plaintiffs have received their shares in properties bearing Sy.No.117 measuring 14 guntas and Sy.No.187 measuring 1 acre 15 guntas and they have filed the present suit in respect of Sy.No.85/3, measuring 6 guntas only. The defendants have denied plaintiffs' contention that the plaintiffs have received their Judgement 22 O.S.No.4931/2012 shares in properties bearing Sy.Nos.117 and 187. Further, the defendants have contended that suit is bad for partial partition. In ILR 1998 KAR 681, in the case of Sri.Tukarm v. Sri.Sambhaji and others, wherein the lordships has held as follows:-
"(A) HINDU LAW - PARTITION -
Maintainability of suit for Partition of Alienated item only, even though the joint family owned number of Properties - Trial Court held suit not maintainable as the inclusion of all Joint Family property was must. Lower Appellate Court took the view that suit for partial partition is maintainable - In Second Appeal the High Court holding that the suit for partial partition is not maintainable restored the Decree of the Trial Court".
From the above judgment, it is clear that suit for partition of alienated item only is not maintainable. It is pertinent to note that, the plaintiffs have not specifically pleaded the date on which partition took place and extent of property allotted to their shares in Sy.Nos.117 and 187. For the reasons best known to the plaintiffs, the plaintiffs have not produced any documentary evidence before this court to show that they have received their shares in property bearing Sy.Nos.117 and 187. PW-1 in her cross-examination admits that suit in O.S.No.6619/2004 was filed earlier by them for partition. The defendants have produced Judgement 23 O.S.No.4931/2012 certified copy of plaint, written statement of defendant No.15 and order sheet, in O.S.No.6619/2004 at Ex.D1, D7 and D8. From the above said documents, it discloses that in the year 2004 the plaintiffs herein and defendant No.2 had filed suit for partition in respect of all the joint family properties i.e., Item Nos.1 to 6 (including the suit schedule property herein). As per averment in Ex.D1 i.e., plaint, the suit schedule properties were undivided as on the date of filing of earlier suit. From Ex.D8, it discloses that said suit was dismissed for default on 30.10.2008. It is not the case of the plaintiffs that after dismissal of O.S.No.6619/2004 partition took place in the family and they were allotted share in Sy.No.117 and Sy.No.187. More over, PW-1 in her cross- examination admits that after dismissal of suit in O.S.No.6619/2004 no partition took place in the family. From the above evidence of PW-1, it clearly goes to show that all the joint family properties are not partitioned. Admittedly, plaintiffs have not included all the joint family properties in the present case. Therefore, suit is bad for partial partition.
15. It is pertinent to note that, PW-1 in her cross- examination admits that she came to know about the alienation made by Periyanna and others in favour of Srinivasa Reddy after lapse of 8-10 months from the date of sale. From the above evidence of PW-1, it can be inferred that plaintiffs were aware of Judgement 24 O.S.No.4931/2012 the alienation during August/October, 2004. As per Article 58 of the Limitation Act, the plaintiffs ought to have challenged the said alienation within 3 years from the date of knowledge. The plaintiffs have filed the above suit in the year 2012 i.e., after lapse of 8 years hence, the present suit is also barred by limitation.
16. The defendants contend that plaintiffs have not impleaded all the necessary parties hence, suit is bad for non- joinder of necessary parties. PW-1 admits that Chikkapapanna had two wives and defendant No.1 is the son of Chikkapapanna through first wife and Papanna, Chinnappa, Shankarappa, Muniyellappa, Chinnamma and Jayalakshmi are the children of Chikkapapanna through second wife and no partition is effected between all the children of Chikkapapanna. It is pertinent to note that, in O.S.No.6619/2004 plaintiffs herein had impleaded all the children of second wife of Chikkapapanna. Per contra, in the present suit the plaintiffs herein have failed to implead the legal heirs of deceased Shankarappa and Chinnamma in the above case. The legal heirs of deceased Shankarappa and Chinnamma are necessary parties to the above suit. From the Sale Deeds produced at Ex.P12 and P13 it discloses that flats are alienated in favour of the purchasers and purchasers are in possession of their respective flats. Advocate for the plaintiffs argued that Judgement 25 O.S.No.4931/2012 during the pendency of the above suit the defendants have alienated the flats hence, the purchasers are not necessary parties to the above suit. It is pertinent to note that, the purchasers have acquired title over the suit schedule property through their respective Sale Deeds. If any decree is passed in the above suit it will definitely affect their interest. Hence, said purchasers of the flats are also necessary parties. In the absence of above said necessary parties the suit cannot be adjudicated effectively. Inspite of framing of specific issue regarding non- joinder of necessary parties, the plaintiffs have failed to implead all the necessary parties to the suit. Hence, suit is bad for non- joinder of necessary parties and liable to be dismissed.
17. The defendants have contended that the plaintiffs are not in possession of the suit schedule property and the valuation of the suit property is incorrect and court fee paid by the plaintiffs is insufficient. The plaintiffs have produced Joint Development Agreement executed by defendants 9 and 10 in favour of defendants 11 and 12 at Ex.P14. Further, the defendants have produced photographs of the suit schedule property at Ex.D16 to D19. From Ex.P14, it discloses that suit schedule property is handed over to the developers for construction and from the photographs, it discloses that apartment is constructed over the suit schedule property. From Ex.P12 & P13, it discloses that the Judgement 26 O.S.No.4931/2012 purchasers of the flats are in possession of their respective flats. Further, the defendants have produced judgement and decree passed in O.S.No.1794/2005 at Ex.D12. As per decree passed in O.S.No.1794/2005, defendants 9 and 10 are in possession of the suit schedule property. The said decree is not set aside by any appellate court. From the above said documents it discloses that plaintiffs are not in possession of the suit schedule property. Therefore, contention of the plaintiffs that they are in joint possession of the suit schedule property cannot be accepted. The plaintiffs have failed to prove their joint possession over the suit schedule property hence, the plaintiffs are liable to pay court fee as per Section 35(1) of the Karnataka Court Fees and Suits Valuation Act.
18. The defendants have contended that the plaintiffs earlier had filed a suit for partition in O.S.No.6619/2004 and the said suit was dismissed for default hence, present suit is not maintainable and barred by res-judicata.
In ILR 2012 KAR 4129, in the case of S.K.Lakshminarasppa, since deceased by his Lrs., v Sri.B.Rudraiah and others, wherein the lordships have held as under:
"(A) Civil Procedure Code; 1908 - Order 9 Rule 8 -
Effect of an order made under - HELD, An order made under Order 9 Rule 8 of the Civil Procedure Code would not amount to res-judicata, as such a Judgement 27 O.S.No.4931/2012 suit cannot be said to have been heard and finally decide by the order of dismissal made for the non- appearance of the plaintiffs under Order 9 Rule 8 of the Code. The only effect of an order made under Order 9 Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9 Rule 9 fo the Code. - FURHTER HELD, A suit for partition dismissed for default under Order 9 Rule 8 of CPC, does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right, which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues. Cause of action is continuous in partition cases which subsists so long as the property is held jointly. In other words, the joint owner can file a suit for partition, until partition is actually effected, irrespective of the fact whether earlier suits for such partition were dismissed for default or withdrawn or an earlier decree for partition was not acted upon".
From the above judgment, it is clear that suit dismissed for default doesn't amount to res-judicata. In the present case, O.S.No.6619/2004 is dismissed for non-prosecution as per Ex.D8. Admittedly, earlier suit is not finally decided on merits. Hence, contention of defendants that suit is barred by res-judicata is not sustainable under law. In the light of the above discussion, the plaintiffs are not entitle for any reliefs. Hence, I answer Issue Judgement 28 O.S.No.4931/2012 Nos.1 and 4 in the Affirmative, Issue Nos.2, 3 and 5 in the Negative.
19. Issue No.6:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiffs is dismissed with costs. Draw Decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 6th day of June, 2019) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Saraswathi
(b) Defendants' side:
DW.1 - Venkatesh Murthy II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Genealogical Tree
Judgement
29 O.S.No.4931/2012
Ex.P2 : Certified copy of Palu Patti
dated 14.03.1947
Ex.P3 to 7 : 5 RTCs
Ex.P8 to 11 : 4 Photos
Ex.P8(a) to 11(a) : 4 Negatives
Ex.P12 : Certified copy of Sale Deed
dated 16.06.2014
Ex.P13 : Certified copy of Sale Deed
dated 03.09.2014
Ex.P14 : Certified copy of Joint
Development Agreement
dated 01.06.2012
Ex.P15 to 19 : 5 Photos
Ex.P15(a) to 19(a) : 5 Negatives
Ex.P20 : Endorsement
Ex.P21 : Certified copy of Sale Deed
dated 11.12.2003
Ex.P22 : Encumbrance certificate
(b) Defendants' side:
Ex.D1 : Certified copy of Plaint in
O.S.No.6619/2004
Ex.D2 : Certified copy of
Confirmation Deed dated
26.03.2005
Ex.D3 : Certified copy of Partition
Deed dated 14.03.1947
Ex.D3(a) : Typed copy of Ex.D3
Ex.D4 : Certified copy of Sale Deed
dated 04.10.1971
Ex.D4(a) : Typed copy of Ex.D4
Ex.D5 : Certified copy of Sale Deed
dated 20.12.1995
Ex.D6 : EC
Ex.D7 : Certified copy of Written
Statement Defendant No.15
in O.S.No.6619/2004
Ex.D8 : Certified copy of order sheet
in O.S.No.6619/2004
Ex.D9 : Certified copy of GPA
Ex.D10 : Certified copy of Sale Deed
dated 11.12.2003
Ex.D11 : Certified copy of Sale Deed
dated 15.12.2003
Judgement
30 O.S.No.4931/2012
Ex.D12 : Certified copy of Judgment in
O.S.No.1794/2005
Ex.D13 : Certified copy of Decree in
O.S.No.1794/2005
Ex.D14 : Certified copy of Joint
Development Agreement
dated 01.06.2012
Ex.D15 : Certified copy of GPA dated
01.06.2012
Ex.D16 to 19 : 4 Photos
Ex.D20 : CD
XLII ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
Digitally signed by
SRINIVASA
DN:
cn=SRINIVASA,ou=HIG
H COURT OF
SRINIVASA KARNATAKA,o=GOVER
NMENT OF
KARNATAKA,st=Karnata
ka,c=IN
Date: 2019.06.10
11:12:20 IST
Judgement