Bangalore District Court
A.M.Sridhar vs A.B.Surya on 20 March, 2020
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT:
SRI. KASANAPPA NAIK. M.A., LL.M.
XLI Addl. City Civil & Sessions Judge
Dated this the 20th day of March 2020
O.S.No.3516/2002
PLAINTIFF : A.M.Sridhar
S/o A.B.Muniavalappa
Aged about 36 years
R/at No.9, II Main
Adugodi
Bangalore560 030
(By Sri.P.A., Advocate)
V/s.
DEFENDANTS : 1. A.B.Surya
S/o Late A.M.Balappa
Aged about 64 years
R/at N.209, Byrasandra
1 Block, Jayanagar East
Bangalore560 011
2. A.B.Muniavalappa
S/o Late A.M.Balappa
Aged about 74 years
R/at No.9 II Main
Adugodi
Bangalore560 030
3. C.Sathyanarayana
S/o A.B.Chikkamuniavalappa
Aged about 40 years
R/at No.6, II Main
Adugodi Bangalore560 030
4. M/s Salar Puria Properties Pvt. Ltd.
Builders and developers,
No.100, K.H.Road
Bangalore
Rep. by its Managing Director
Balaji Agarwal
5. K.Changamma Raju
S/o Late Kupparaju
Aged about 70 years R/o No.44/4,
District Fund Road
9th Block, Jayanagar
Bangalore560 069
6. Smt.A.S.Prema
W/o K.N.Venkatsh
Aged about 34 years
R/at No.51, 6th Cross
KEB Layout, RMV 2nd Stage
Bangalore
7. Smt.A.S.Jyothi
W/o Lakshman
Aged about 30 years
R/at No.82, 6th Cross
Agara, Sajapura Road
Bangalore
8. Smt.A.S.Umadevi
W/o Prabhakar
Aged about 47 years
R/at Corporation No.29
Flat No.006, Golden Nest Apartments
Gramadevatha Street,
Adugodi
Bangalore560 030
9. Smt.A.S.Usharani
W/o Ravikumar R.N.
Aged about 45 years
R/at No.33, SSRS Illam
Mount Pleasant, Coonoor
Ooty643 002
10. Smt.A.S.Nalini
W/o Venkat Reddy
Aged about 43 years
R/at NO.188, 10th Cross
Wilson Garden
Bangalore560 027
11. Smt.A.S.Anuradha
W/o Narasimha Murthy
Aged about 41 years
R/of Mamathalaya
No.108, 5th Cross, 1st Stage
Teachers Colony
Bangalore560 078
12. Smt.A.S.Sandhya
W/o Srinath
Aged about 35 years
R/at No.786
17th B Main Road
5th Block, Rajajinagar
Bangalore560 010
(D1 By Sri.M.R.H.,
D2 Exparte
D3 By Sri.M.J.N.,
D4 By Sri.K.R.,
D5 By Sri.K.N.R.,
D6 & 7 by Sri.K.M.G.,
D8 to 12 By Sri.K.N.V., Advocates)
Date of Institution of the Suit: 31.05.2002
Nature of the suit
(Suit on Pronote, suit for Partition & separate
declaration & possession, suit possession
for injunction)
Date of commencement of 30.10.2009
recording of evidence:
Date on which the Judgment 20.03.2020
was pronounced:
Total Duration: Year/s Month/s Day/s
17 09 20
JUDGMENT
The suit is filed for the relief of partition and separate possession of plaintiff's 1/3rd share in the properties mentioned in item No.1 to 3 (herein after 'suit property' for short), for past and future mesne profits, to award costs of the suit and to pass such other reliefs.
2. The plaint averments in brief is as under:
One A.M.Balappa, the grand father of plaintiff, had three brothers, namely, A.M.Chikkapapaiah, A.M.Lakshmaiah and A.M.Ramaiah. There was partition between A.M.Balappa and three brothers in the year 1949.
The said A.M.Balappa had 4 sons namely, A.B.Gopalappa, A.B.Muniavalappa, A.B.Chikkamuniavalappa and A.B.Surya. The plaintiff is the son of said A.B.Muniavalappa/defendant no.2. Whereas, A.B.Surya is the 1st defendant in this case. The defendant No.3 is the son of said A.B.Chikkamuniavalappa. Defendants No.4 and 5 are the alleged builders and developers. Defendants No.6 to 12 are the daughters of defendant No.1.
It is the case of the plaintiff that himself and defendants No.1 to 3 are the descendents of the common ancestors and coparceners, being the successors of said Late A.M.Balappa. The first son of A.M.Balappa i.e. A.B.Gopalappa died about 3 years back, who had released himself from joint family by taking his share and by executing a release deed dated deed dated 30.6.1949. It is further contended that there took a partition between A.M.Balappa and his sons under partition deed dated 10.2.1951. Subsequently, there was another partition among the deceased A.M.Balappa and defendant No.2 and so also father of defendant No.3 along with defendant No.1 on 16.02.1951. In the said partition, the said A.M.Balappa had made four shares in the co parcenary property and retained a share for himself and made separate shares for defendants No.1 and 2 and father of defendant No.3. Since defendant No.1 was minor at that time, the share of 1st defendant and also a share fallen to A.M.Balappa were taken together and thus, the said property remained joint family property of deceased A.M.Balappa and 1st defendant.
The properties mentioned in ScheduleA of the partition deed dated 16.02.1951 had been retained by A.M.Balappa and 1 st defendant jointly. A.M.Balappa died on 10.04.1978 at Patel House, Adugodi, after prolonged illhealth. Taking undue advantage of the poor health and also his mental instability in view of his advanced age, the 1 st defendant managed to get a document styled as partition deed dated 07.10.1974. In the said partition deed, at the outset, the 1 st defendant has taken more than 85% of the properties fallen to the share of A.M.Balappa and apart from that, the properties mentioned in the A Schedule to the partition deed dated 16.02.1951 are not mentioned in the partition deed dated 07.10.1974. Further, the 1st defendant played a fraud in obtaining a partition deed from A.M.Balappa for the value of Rs.60,000/ in total, out of which, the 1 st defendant has taken Rs.45,000/ share of the properties. The 1 st defendant thereby suppressed registration of the said documents, but in the last month, the 1st defendant filed caveat petition against plaintiff and at that time, the plaintiff came to know about the details of the partition deed. The plaintiff obtained the certified copy of the same and came to know the fraud played by the 1st defendant and further, the 1st defendant has obtained partition deed from the said A.M.Balappa only with a malafide intention and also to deprive the legitimate right of other family members. Thus, the said partition deed dated 07.10.1974 is not in accordance with law, which was obtained by 1st defendant, by force, fraud, as there was equal partition between 1 st defendant and A.M.Balappa and same is not binding on the plaintiff as well as other family members.
It is further contended that A Schedule property as mentioned in schedule of the suit are the properties of A.M.Balappa as well as 1 st defendant jointly and both were having equal share. Since A.M.Balappa died leaving behind the plaintiff and other defendants, the plaintiff and other defendants are also entitled to the share out of the share fallen to the share of A.M.Balappa particularly, the plaintiff claimed that the defendant No.1 is entitled to only ½ share and the ½ share i.e. 50% of the properties shall have to be fallen to the share of A.M.Balappa. Out of this 50% share, the plaintiff is entitled to ½ share out of all the properties fallen to the share of A.M.Balappa. The plaintiff repeatedly demanded and requested the defendants to partition the same, but the defendants by colluding with each other are prolonging the matter in one way or the other, without effecting partition in accordance with law. The said A.M.Balappa died on 10.04.1978 leaving behind him, his wife Smt.Obalamma and also the plaintiff as well as defendants No.1 to 3. The father of the 3rd defendant also died recently and the said Obalamma W/o A.M.Balappa also died on 03.10.2001. The plaintiff as well as defendants No.1, 2 and 3 are only successors of the said A.M.Balappa. Thus, the plaintiff is entitled for ½ share, out of the share of A.M.Balappa.
The property bearing Corporation No.3, Old No.226, Patel House situated at Hosur Road, Adugodi, Bengaluru is measuring 30,000 sq.ft. (item No.1), which was fallen to the share of A.M.Balappa and 1 st defendant. The plaintiff is claiming his right and share out of the property fallen to the share of A.M.Balappa. Thus, the share of A.M.Balappa is partitioned in three shares i.e. 1/3 rd share to A.B.Surya/1st defendant, 1/3rd share to the father of the plaintiff and another 1/3rd share to his third son namely, Chikkamuniavalappa. Thus, the plaintiff claimed totally 1/6th share in the suit properties. Since the father of the plaintiff died, the plaintiff alone is entitled to claim the share of his father and he is claiming a share of 5000 sq.ft. out of item No.1 of the suit property. As on the date of suit, there was no construction of building, but subsequently, the defendants have forcibly constructed the building in item No.1 of the suit property.
The property mentioned in item No.2 are the agricultural properties as on the date of suit and earlier, the said properties were not converted and no conveyance made in respect of item No.2 of the property. There is an existence of agreement of sale between defendant No.1 and 5. The entire properties mentioned in item No.2 of the schedule are totally measuring 16 acres and out of which, 8 acres of land has to be allotted to the share of 1 st defendant and remaining 8 acres has to be allotted to the share of A.M.Balappa. Out of said 8 acres, it is required to be divided into three shares. Since the father of the plaintiff is no more, the plaintiff is entitled to claim 2 acres 28 guntas of land out of item No.2. In item No.3, there was no development or construction as on the date of filing of the suit and subsequent to filing of the suit, the 1 st defendant without caring about the pendency of the suit, has put up constructions. Out of 28,000 sq.ft. area, as per the partition deed, only 7,000 sq.ft. is fallen to the share of A.M.Balappa as well as the 1st defendant and out of 7,000 sq.ft. Area, 3,500 sq.ft. area has to be allotted to the share of 1 st defendant and remaining 3,500 sq.ft. area has to be allotted to the share of A.M.Balappa. Thus, the said property is to be partitioned into three portions and out of said three shares, the plaintiff would get an area measuring 1,175 sq.ft. Thus, the plaintiff is entitled for 1/6 th share in item Nos.1 to 3 of the suit property. The plaintiff claimed that he is entitled to an area measuring 2,400 sq.ft. in item No.1, 2 acres 26 guntas in item No.2 and 1,175 sq.ft. in item No.3 of the suit property. Since out of item No.1, they have already given 2,400 sq.ft. in favour of father of the plaintiff.
It is alleged that after the death of A.M.Balappa, the 1 st defendant taking undue advantage of his access to the schedule property as the Manager of the family, indulged in total mismanagement for his personal gain and failed to submit any accounts or to effect any partition inspite of repeated demands and requests made by the plaintiff. The sale effected by the 1st defendant, if any, are not for any legal necessity or for the benefit of joint family and that joint family funds are misused by the 1 st defendant. It is contended that during her life time, his grand mother Obalamma was in possession of gold jewels and also other ornaments, valuable stones, cash and other movable properties in her possession and after the death of Obalamma, all her belongings were taken by 1st defendant and they are in his custody. The defendant No.1 has not disclosed the details of said movable properties including cash.
The plaintiff came to know that the 1 st defendant has entered into agreement of sale with defendants No.4 and 5 in respect of properties situated at Hosur Main Road and properties mentioned in item No.1 and
2. At that juncture, the defendant No.3 has filed OS.6908/2000 on the file of City Civil Judge, Bangalore and during the pendency of the suit, without serving notice on the plaintiff, the 1 st defendant played fraud on the plaintiff and obtained the signatures on vakalathnama and blank blue sheets stating that they are required for the purpose of filing cases against the BDA in respect of Arakere lands. The plaintiff by believing the 1st defendant, has put his signatures on the vakalath, but defendants after taking signatures, have misused the same in OS.6908/2000 and thereafter, filed written statement as if this plaintiff has also filed in that suit. The defendants No.1 and 2 have not informed the plaintiff about the pendency of the suit. The defendants No.1 and 3 colluding with each other, filed compromise petition under Order XXIII Rule 3 of CPC before this court in OS.6908/2000 by deleting the name of plaintiff. This shows the malafide intention of the defendants No.1 and 3 and they have played fraud before the court by deleting the name of plaintiff by filing memo. Subsequent to the compromise between the defendants No.1 and 3, the 4th defendant has started construction in the suit schedule item No.1 and when this plaintiff obstructed the same and issued legal notice on 12.11.2001 to the 4 th defendant, he replied to the notice on 30.11.2001. The plaintiff further issued notice to the 1 st defendant and to the Advocate of 4 th defendant and at that juncture, verified the proceedings in OS.6908/2000 and came to know that the defendants No.1 and 3 by colluding each other have filed compromise petition by deleting the name of plaintiff and thereafter, on searching documents in the month of December 2001, the 1 st defendant has filed caveat against plaintiff and then only the plaintiff came to know that the 1st defendant has played fraud on the plaintiff only with malafide intention in order to deprive the legitimate right of the plaintiff. Thus, the cause of action arose and suit is filed for the relief as mentioned above.
3. The defendant No.1, 3 and 5 have filed their separate written statement. The defendants No.6 and 7 and so also defendants No.8 to 12 have also filed their separate written statement. The defendant No.2 though received summons, remained absent and hence he was placed exparte. The defendant No.4 though appeared through Advocate, but not filed his written statement.
4. The defendant No.1 in his written statement has denied entire plaint claim and allegations except admitting the relationship as put forth by the plaintiff. The defendant No.1 has taken up a defence that the said A.M.Balappa had 3 brothers namely, A.M.Chikkapapaiah, A.M.Lakshmaiah and A.M.Ramaiah. As per him, the elder son of A.M.Balappa namely, A.B.Gopalappa had a son by name, A.G.Sheshappa. He also contend that on 15.02.1951 there was a partition between A.M.Balappa and his sons as first party and A.M.Chikkapapanna and his sons as second party, A.M.Lakshmaiah and his sons as third party and A.M.Ramaiah and his sons as fourth party. In the said partition, Schedule A property was allotted in two equal shares to A.M.Balappa and A.M.Chikkapapanna. Further, there was partition between A.M.Balappa and his sons including his grand son A.G.Sheshappa on 16.02.1951. Under the said partition deed, A.M.Balappa and his sons A.B.Muniavalappa, A.B.Chikkamuniavalappa and A.M.Balappa's grand son A.G.Sheshappa got separated from the joint family. A.M.Balappa and defendant No.1 continued to be in the joint family since defendant No.1 was minor at that time. Again as per partition deed dated 05.10.1974 A.M.Balappa and 1st defendant, who were entitled to half share in item Nos.1 to 3 and A.M.Chikkapapanna being entitled to the other half share in the properties, effected partition by metes and bounds and taken possession. On 07.10.1974 said A.M.Balappa and his son 1 st defendant, divided the said properties into two portions under the partition deed. A.M.Balappa executed a deed of settlement on 07.10.1974, under which, A.M.Balappa has partitioned the properties fallen to his share into two portions and allotted one share each to his sons Gopalappa, Muniavalappa/ father of the plaintiff and Chikkamuniavalappa in one portion and another portion was settled in favour of his third wife Smt.Obalamma granting her life interest and thereafter, in favour of 1st defendant. Defendant No.1 had 7 daughters and all are married after 1994. All the daughters of defendant No.1 had co parcenary right in the suit property. The defendant No.1 was representing his 7 daughters as manager of his HUF. It is stated that the plaintiff has no right to file any such suit and even all the daughters of defendant No.1 have got right and interest over the A Schedule property since the same is a ancestral property.
The plaintiff has no right or interest of any kind over the suit schedule properties. The plaintiff is entitled to enjoy the properties acquired by his father - 2nd defendant by virtue of partition in the joint family, which took place in the year 1951 and by virtue of settlement deed executed by A.M.Balappa in the year 1974. The plaintiff has filed this suit with an intention to harass the defendants.
5. The defendant No.3 has filed his written statement contending that the suit is hit by the principles of estoppel under Section 115 of the Evidence Act and barred by principle of resjudicata under Section 11 of CPC in view of the disposal of OS.6908/2000 dated 18.01.2001, wherein the plaintiff was also a party to the proceedings and he had filed his written statement. Further, the suit is bad for nonjoinder of necessary parties. The plaintiff and his father/2nd defendant had sold some of the properties which had fallen to their share and the said properties were not included in the suit and their respective purchasers have not been made as parties. Hence, the suit is liable to be dismissed for misjoinder of parties and nonjoinder of necessary parties and the properties.
The defendant No.3 has denied the claim of the plaintiff that he is entitled for 1/2nd share out of the share of A.M.Balappa. The plaintiff cannot deviate from the defense taken by him in the earlier suit on the same subject matter between the same parties litigating on the same title. The plaintiff cannot take altogether a new plea contradicting his earlier defense. It is stated that the defendant No.2 and other defendants are also entitled for their respective share in the suit property. He has stated that he had filed OS.6908/2000 on the file of this court, wherein the plaintiff had appeared through his Advocate and filed his written statement. The said suit was ended in compromise and now, the plaintiff is making attempt to take away the affect of his written statement and compromise decree. He has denied about allegation of collusion between this defendant and defendant No.1. The plaintiff is guilty of contempt of this court and he is to be proceeded for the offence under Section 340 of Cr.P.C. The suit is an abuse of process of court. It is further contended that the defendant No.2 is also entitled for the same relief in the event this court grants a relief in favour of plaintiff by awarding his share. Thus, prayed to dismiss the suit and alternatively, praying to grant a share to this defendant in the suit properties and put him in separate possession by metes and bounds in case the suit is decreed.
6. The defendant No.3 has also filed his additional written statement in view of amendment to the plaint. It is stated that the defendant No.3 has also stands in the same degree of relationship with other defendants on par with the plaintiff and he is entitled for similar relief in the suit properties.
7. The 5th defendant in its written statement has denied entire plaint claim and allegations. The defendant No.5 has disputed about the payment of correct court fee by the plaintiff. He is not claiming any interest or right in respect of the property described at items Nos.1 and 3 in the schedule to the plaint. As per him, the lands described at item No.2 of the schedule to the plaint as well as the lands in Sy.No.69, 70, 71/1, 75/1, 54/2, 71/2, 72, 73, 74/2, 75/2 and 76/2 originally belonged to A.M.Balappa.
In the partition dated 16.02.1951 and 07.10.1974 the above mentioned lands came to be allotted to the shares of A.M.Balappa and his three sons viz. Doddamuniavalappa (2nd defendant), Chikkamuniavalappa (dead) and A.B.Surya @ Suryanarayana - 1st defendant. It is contended that the plaintiff and his father have conveyed all the right, title and interest in respect of the lands bearing Sy.No.69, 70, 71/1 and 75/1 totally measuring 7 acres and 17 guntas under four separate agreement of sale dated 22.10.1990 in favour of Smt.Narasamma. On the date of the sale agreements, the plaintiff and his father put the said purchaser Smt.Narasamma in actual physical possession of the lands that had been agreed to be sold in her favour, having received the entire sale consideration. The said Smt.Narasamma was enjoying the said lands and that the plaintiff and his father also executed power of attorney in favour of K.V.Kuppuraju, who is none other than the son of said Smt.Narasamma, in respect of the lands.
The 1st defendant A.B.Surya also entered into five different agreements of sale, all of which are dated 22.10.1990 in favour of Chengamaraju/defendant No.5, who is brotherinlaw of said Smt.Narasamma for the sale of the lands in Sy.No.55, 56, 67, 58, 71/1 and 76/1, which came to be allotted to his share in the deed of partition dated 16.02.1951. The defendant No.1 by receiving entire agreed sale consideration, put the purchaser Chengamaraju the 5th defendant in actual physical possession and enjoyment of the lands, which are the subject matter of the agreement of sale dated 22.10.1990. The defendant No.1 has also executed power of attorney in favour of K.V.Kuppuraju on 22.01.1990.
Further, the 3rd defendant and his father Chikkamuniavalappa also entered into agreements of sale for the sale of the lands, which came to be allotted to their share in the partition dated 16.02.1951. Further, in respect of the land bearing Sy.No.54/2, the 3 rd defendant and his father entered into a contract of sale with the 5th defendant. They also entered into contracts of sale with Smt.Narasamma, sisterinlaw of the 5 th defendant, on 22.10.1990 in relation to the lands bearing Sy.Nos.71/2, 72, 73, 74/2, 75/2 and 76/2. The Chikkamuniavalappa and Sathyanarayana executed and registered power of attorney nominating K.V.Kuppuraju to act on their behalf and also to perform all the acts, deeds and things needed for the purpose of completion of the sale transaction. On the dates of agreements of sale, the said Chikkamuniavalappa and Sathyanarayana have put the purchasers i.e. the 5th defendant and his sisterinlaw Smt.Narasamma in actual physical possession of the lands, which are the subject matter of the agreements of sale dated 22.10.1990. They also received sale consideration.
The 5th defendant and his sisterinlaw Smt.Narasamma assigned the lands in favour of M/s Shanthi Builders, Shanthi Flat Builders and Engineering Constructions, who were engaged in the business of land development and construction activities, all the rights secured by them in respect of the lands mentioned above under several contracts of sale executed in their favour by the plaintiff and defendants No.1 to 3 as well as Late Chikkamuniavalappa, the father of 3rd defendant so as to enable them to put up structures needed after obtaining the requisite sanction permission from all concerned in the matter. The said M/s Shanthi Builders and Shanthi Flat Builders and Engineering Constructions, thereafter, took up the issue before the Government of Karnataka, Bangalore Development Authority(BDA) among other various agencies, obtained the requisite permission/sanction/licence needed and put up the structures by utilising the above mentioned lands.
It is further contended that the lands were got converted from agricultural to nonagricultural purpose and structures came to be put up under group housing scheme in terms of the Licence, Work Order and Development Plan. The fee, duty and cess payable to all the agencies came to be paid. Sanitary, water and electricity services came to be obtained. The constructions under the group housing scheme was made for the benefit of the Central Government, Vysya Bank Employees in addition to the employees of other Industrial Establishments and institutions. K.V.Kuppuraju as the power of attorney holder of the plaintiff and defendants No.1 to 3, conveyed all the right, title and interest they had in respect of the lands mentioned above, in favour of the purchasers, who purchased the flats and houses constructed by utilizing the above mentioned lands under the group housing scheme in terms of the Development Plan sanctioned by the BDA. The purchasers of the flats and individual houses, who have acquired rights for the flats and individual houses under the sale deeds executed in their favour by K.V.Kuppuraju, are in actual physical possession and enjoyment of their respective flats and houses so purchased by them.
Thus, contended that ever since the date of the agreements of sale came into existence, neither the plaintiff nor defendants No.1 to 3 or their purchasers in title are in possession and enjoyment of the lands described at item No.2 in the schedule to the plaint among other lands, which are the subject matters of the agreements of sale dated 22.10.1990. As per them, the plaintiff and defendants No.1 to 3 have no manner of right, title or interest whatsoever in respect of the said lands.
The plaintiff is required to pay Court fee payable on the market value of the property described at Item No.2 in the schedule to the plaint, which as on the date of filing of the suit, which was around a couple of crores of rupees.
8. The defendants No.6 and 7 in their written statement have also denied plaint averments. They have taken similar defense as taken up by defendant No.1. They contended that the suit is barred under principles of estoppel under Section 115 of Evidence Act, since the plaintiff has filed written statement in OS.6908/2000 admitting the earlier partition and settlement deed and opposing further partition in respect of the same schedule properties and same parties.
It is contended that the plaintiff is neither in joint possession nor enjoyment of the suit schedule properties and most of the suit schedule properties are in possession of third parties, since they have been alienated. Therefore, the court fee paid by the plaintiff is highly insufficient and the plaint is liable to be rejected.
It is stated that the suit is bad for nonjoinder of necessary parties since the item No.1 and 3 of the suit properties belongs to many other coowners, who have entered into a Joint Development Agreement with different builders and the structures have already been constructed and the different coowners are in peaceful possession and enjoyment of the said structures. The plaintiff, who is not at all in possession and enjoyment of the items No.1 and 3 of the suit schedule property, has no right, title or interest to file this suit. The plaintiff and his father Muniavalappa/defendant No.2 had sold some properties, which had fallen to their share and the said properties and their respective purchasers have not been impleaded as the necessary parties in this suit and suit is liable to be dismissed for misjoinder of unnecessary parties and nonjoinder of necessary parties.
It is further contended that the defendant No.4 had entered into a Joint Development Agreement with the defendants No.6 and 7 and the defendant No.1 jointly in respect of the item No.1 of the suit schedule property. The defendant No.4 thereafter, constructed a commercial complex called SALARPURIA CITADEL on the item No.1 of the suit schedule property, which partly belongs to defendants No.1, 6 and 7 jointly. The defendant No.1, 6 and 7 are in joint possession and enjoyment of their respective shares in the said commercial complex SALARPURIA CITADEL.
It is further contended that during the partition dated 16.02.1951 the defendant No.1 was a minor and hence the father of defendant No.1 acted as the natural guardian of defendant No.1 and represented the defendant No.1 during the family partition and hence the defendant No.1 and his father remained as joint family till the defendant No.1 attained the age of majority.
It is stated that as per the settlement deed executed by deceased A.M.Balappa on 07.10.1974, the defendant No.1 is the only successor of the deceased A.M.Balappa and his wife Obalamma after their death.
It is further stated that the plaintiff's father Late.A.B.Muniavalappa was the second son of A.M.Balappa and the own brother of defendant No.1. The plaintiff's father got separate from the joint family by virtue of a registered partition deed dated 16.02.1951. The plaintiff cannot claim right through his father over the suit schedule properties, which had fallen to the share of defendant No.1. The defendant No.1 and his father A.M.Balappa took the share of the defendant No.1 jointly during the partition between the plaintiff's father and the defendant No.1 and other family members on 16.02.1951 since the defendant No.1 was a minor at that time.
It is further stated that the defendant No.3 played fraud on the defendant No.1 by taking undue advantage of the illiteracy of the defendant No.1 and the defendant No.3 succeeded in getting the signature on the compromise petition filed by the defendant No.1 in OS.6908/2000 in this court in CCH7. The name of the defendant No.4 i.e. the plaintiff in this case was not at all deleted and the City Civil Court in CCH7 had passed a compromise decree in respect of an extraneous matter against all the six defendants in OS.6908/2000, which is being challenged by the defendant No.1 in CCH7 of this Court. Thereafter, the defendant No.1 came to know about the fraud played on him by the defendant No.3 and he has filed an application for setting aside the compromise decree drawn in OS.6908/2000. The plaintiff has also put his appearance in OS.6908/2000 as the defendant No.4 and he has filed his vakalath. The plaintiff is taking false contentions only to suit his convenience and to knock off a portion of the suit schedule properties belonging to the innocent and aged defendant No.1 by misleading this court.
It is stated that the father of the plaintiff and other sons of A.M.Balappa, who took undue advantage of the minority of the defendant No.1 and the old age of the father of defendant No.1 A.M.Balappa and they succeeded in obtaining the lion's share in the joint family properties of A.M.Balappa and his sons. The father of the plaintiff has been allotted 16 items, which are the prima properties in and around Bangalore and the father of the plaintiff has also received the sum of Rs.2,387 and 3 Annas and the sum of Rs.5,679 and 3 annas, totally amounting to Rs.8,066 and 6 annas from his father A.M.Balappa towards the complete satisfaction of the partition of the joint family properties and towards the final settlement. Apart from the receipt of the said 16 items of landed properties and the cash of Rs.8,066 and 6 annas, plaintiff's father A.B.Muniavalappa was also allotted a site bearing No.3/1B at Hosur Road, Adugodi, Bangalore by his father A.M.Balappa out of the properties, which had fallen to the share of A.M.Balappa, after the partition between the defendant No.1 and his father A.M.Balappa. The said site bearing No.3/1B was allotted to the plaintiff's father by A.M.Balappa by virtue of a registered settlement deed, which was registered as document No.2728/7475 and registered in the office of the SubRegistrar, Jayanagar, Bangalore City. The plaintiff and his father have jointly let out the said site to a Marble dealer on a monthly rent basis and hence the plaintiff has acted upon the registered settlement deed executed by his grand father A.M.Balappa. The plaintiff has suppressed the said registered settlement deed, which is a vital document executed by his grand father A.M.Balappa in favour of plaintiff's father and the plaintiff has thereby played fraud on this Court by approaching this court with unclean hands to make unlawful gains.
The plaintiff's father A.B.Muniavalappa has received Rs.8,066/ and 6 Annas from his father A.M.Balappa during the family partition in the year 1951 on the condition that the plaintiff's father shall not have any right, title and interest of any kind over the properties fallen to the share of his father A.M.Balappa and defendant No.1, jointly. Being aware of the said condition mentioned in the registered partition deed dated 16.02.1951 and also being aware that the properties fallen to the share of A.M.Balappa and defendant No.1 jointly, were the properties fallen to the share of defendant No.1, the plaintiff's father never made any claim over the properties fallen to the share of defendant No.1 and his father jointly for about 35 years, till his death recently. Now, the plaintiff has colluded with defendant No.3 and they have been making false claims over the properties fallen to the share of defendant No.1. Hence, prayed to dismiss the suit.
9. The defendants No.8 to 12 in their written statement have almost taken similar contentions as taken up by defendants No.6 and 7 and so also defendant No.1 in their respective written statements. It is alleged that the plaintiff is taking false contentions only to suit his convenience and knockoff portion of suit schedule properties belonging to innocent and old aged defendant No.1 by misleading this court. Thy also contended that the plaintiff has filed this suit with malafide intention to harass the aged defendant No.1 and to knockoff the portion of the property belonging to defendant No.1 by putting forth false and vexatious claim. Thus, these among other grounds, these defendants No.8 to 12 and all other defendants mentioned above, have prayed to dismiss the suit.
10. On the basis of the pleadings of both the parties, the following issues have been framed:
ISSUES
1) ªÁ¢AiÀÄÄ zÁªÁ D¹Û C¸ÀªÀÄ¥ÀðPÀªÁV «¨sÁUÀªÁVzÉ, DzÀPÁgÀt £ÀªÀÄUÉ J.JA.¨Á¼À¥Àà JA§ÄªÀªÀgÀ ¨sÁUÀPÉÌ ¢£ÁAPÀB 16-2-1951 gÀ°è «¨sÁUÀ ¥ÀvÀæzÀ ªÀÄÆ®PÀ §AzÀ D¹ÛUÀ¼À°è 1 B 3 ¨sÁUÁA±À PÉÆr¸À¨ÉÃPÁV gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
2) 1£Éà ¥ÀæwªÁ¢AiÀÄÄ ¸ÀzÀjà ¨sÁUÀzÀ ¸Áé¢üãÀ ºÉÆA¢zÀÄÝ CzÀjAzÀ DzÁAiÀÄ ¥ÀqÉAiÀÄÄwÛzÀÄÝ DzÁAiÀÄ ¯ÉPÁÌZÁgÀUÀ¼À£ÀÄß PÉÆqÀ¨ÉÃPÉA§ÄzÁV ªÁ¢AiÀÄÄ gÀÄdĪÀÁvÀÄ ªÀÀiÁqÀÄvÁÛgÉAiÉÄÃ?
3) 1£Éà ¥ÀæwªÁ¢AiÀÄÄ J.JA.¨Á¼À¥ÀàgÀªÀgÀÄ ¢£ÁAPÀB 7-10-1974£Éà E¸À«AiÀÄ°è ªÀåªÀ¸ÁÜ¥ÀvÀæ ªÀiÁr PÉÆArzÁÝgÉ ªÀÄvÀÄÛ CzÀgÀ ªÀÄÆ®PÀ D¹ÛUÀ¼À£ÀÄß ¥ÀævÉåÃPÀªÁV C£ÀĨÀs«¹PÉÆAqÀÄ §gÀÄwÛgÀĪÀÅzÁVzÉ. ªÁ ¢UÉ CzÀgÀ°è AiÀiÁªÀÅzÉà ¨sÁUÁA±À E®è JA§ÄzÁV gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
4) 1951£Éà E¸À«AiÀÄ°è MlÄÖ PÀÄlÄA§ªÀÅ «¨sÁUÀ ¥ÀvÀæzÀ ªÀÄÆ®PÀ «¨sÁUÀ £ÀAvÀgÀ 1974£Éà E¸À«AiÀÄ°è J.JA.¨Á¼À¥ÀàgÀªÀgÀÄ ªÀåªÀ¸ÀÜ ¥ÀvÀæzÀ ªÀÄÆ®PÀ D¹ÛUÀ¼À£ÀÄß ºÀAaPÉÆArzÀÄÝ DzÀPÁgÀt ªÁ¢AiÀÄ zÁªÁ ¤®èvÀPÀÌzÀÝ®è JA§ÄzÁV 1£Éà ¥ÀæwªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ£ÉAiÉÄÃ?
5) 1£Éà ¥ÀæwªÁ¢UÉ 7d£À ºÉtÄÚ ªÀÄPÀ̼ÀÄ EzÀÄÝ CªÀgÀÆ ¸ÀºÀ zÀÁAiÀiÁ¢UÀ¼ÁVzÀÄÝ (PÉÆÃ-¥Á¸Éð£Àgïì) CªÀjUÀÆ ¸ÀºÀ ¨sÁUÁA±À EzÉ CªÀgÀÄUÀ¼À£ÀÄß ¥ÀPÀëUÁgÀgÀ£ÁßV ªÀiÁqÀzÉà ¸À°è¹gÀĪÀ zÁªÉ ¤®èvÀPÀÌzÀÝ®è JA§ÄzÁV 1£Éà ¥ÀæwªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ£ÉAiÉÄÃ?
6) 3£Éà ¥ÀæwªÁ¢AiÀÄÄ vÀªÀÄä £ÀqÀÄªÉ C¸À®Ä zÁªÁ ¸ÀASÉåB6908B00 zÀ zÁªÉ ¢£ÁAPÀB 18-1-2001 gÀAzÀÄ wêÀiÁð£ÀªÁVzÉ. »ÃUÁV ¥Àæ¸ÀÄÛvÀ zÁªÉ ¥ÀǪÀð ¤tðAiÀÄzÀ (gɸï dÄrPÉÃmÁ) ¨sÁzÀPÀ¢AzÀ GAmÁVzÉ ªÀÄvÀÄÛ PÀ®A 115 ¸ÁPÀë å C¢ü¤AiÀĪÀÄzÀ ¥ÀæPÁgÀ ¸ÀºÀ zÁªÉAiÀÄÄ ¤®èvÀPÀÌzÀÝ JA§ÄzÁV gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
7) ¸ÀPÁðgÀ¢AzÀ C£ÀĪÀÄw ¥ÀqÉzÀÄ vÁªÀÅ LlA 1 ªÀÄvÀÄÛ 2£Éà D¹ÛAiÀÄ°è PÀlÖqÀªÀ£ÀÄß PÀnÖgÀĪÀÅzÁVzÉ.
ªÁ¢ ªÀÄvÀÄÛ 1 jAzÀ 3£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ PÀæAiÀÄ¥ÀvÀæ ªÀÄvÀÄÛ C¢üPÁgÀ ¥ÀvÀæ §gÉzÀÄ PÉÆnÖzÀÝÁgÉ »ÃUÁV ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ½UÉ zÁªÉ D¹ÛAiÀÄ°è AiÀiÁªÀÅzÉà ¨sÁUÁA±À E®è JA§ÄªÀÅzÁV, zÁªÁPÉÌ ªÁådå PÁgÀt E®è JA§ÄªÀÅzÁV DzÀPÁgÀt zÁªÁ ªÀeÁ ªÀiÁqÀ¨ÉÃPÉA§ÄzÁV 5£Éà ¥ÀæwªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛ£ÉAiÉÄÃ?
8) ¥ÀPÀëPÁgÀgÀÄ AiÀiÁ ¥ÀjUÁgÀUÀ¼À£ÀÄß ºÉÆAzÀ®Ä CºÀðgÀÄ?
Addl. Issues framed on 24.5.2010
1) Whether defendants No.6 & 7 prove that the suit is hit by doctrine of estoppel?
2) Whether defendants No.6 & 7 prove that the court fee paid is not proper?
3) Whether defendants No.6 & 7 prove that the suit is bad for nonjoinder of necessary parties?
4) Whether defendants No.6 & 7 prove that the plaintiff's father had received Rs.8,066/ and 8 Annas from Late.A.M.Balappa during family partition in 1951 on condition that plaintiff's father shall not have any right, title or interest over the properties fallen to the share of A.M.Balappas defendant No.1 jointly?
Addl. Issues framed on 21.10.2010
1) Whether defendants 8 to 12 prove that the suit is nil principles of estoppel?
2) Whether defendants prove that the court fee paid is not proper?
Addl. Issue framed on 29.11.2018
1) Whether defendant No.1 proves that the suit for partition and separate possession filed by the plaintiff is barred under Order 2 Rule 2 of CPC?
11. The plaintiff in order to prove his case, examined himself as PW1 and got marked documents at Ex.P.1 to P.17 in evidence. The General Power of Attorney holder of defendant No.1, who is also his daughter/defendant No.6 examined herself as DW1 and got marked documents at Ex.D.1 to D.28 in evidence. The defendants No.4 and 5 have not led any oral evidence nor produced any documents.
12. I have heard the arguments of learned counsel for the plaintiff and defendants No.1, 6 to 12 and perused the materials on record including written arguments filed by both the parties. The counsel for defendants No.2 to 5 have not addressed arguments.
13. My findings to the above issues are as under:
Issue No.1,2,6,7 : In the negative
Addl. Issue
No.1 dated
21.10.2010,Addl.
Issue No.1 & 2
dated 24.05.2010
Issue No.3, 4, 5, : In the affirmative
Addl. Issue No.3
& 4 dated
24.05.2010
Addl. Issue No.1 : Does not survive in
dated 29.11.2018 view of order passed
by this court on
06.03.2019
Addl. Issue No.2 : Does not survive in
dated 21.10.2010 view of order passed
by this court on
18.12.2013
Issue No.8 : As per the final order,
for the following;
REASONS
14. ISSUE Nos.1 TO 7, ADDL. ADDL. ISSUE NOs.1 TO 4 FRAMED ON 24.05.2010, ADDL. ISSUE NOs.1 AND 2 FRAMED ON 21.10.2010, ADDL. ISSUE NO.1 FRAMED ON 29.11.2018: Since all these Issues are interconnected with each other and in view of nature of evidence available on record, they are taken together for common discussion, in order to avoid repetition of facts.
15. The learned counsel for the plaintiff contended that the partition took place between the four sons of A.M.Balappa in view of partition dated 10.02.1951 and thereafter, there was another partition dated 16.02.1951 and while allotting properties between all the sons of A.M.Balappa, a share was allotted in favour of A.M.Balappa and after the death of A.M.Balappa in the year 1978, his property is again required to be divided between plaintiff and other defendants and in that way, the plaintiff is entitled for a definite share in the suit properties and thus, this suit filed by the plaintiff for partition is very much maintainable. It is further argued that defendant No.1 has created a false partition deed in the year 1974 by misleading A.M.Balappa and got major portion of properties to his share, which is illegal and does not bind the plaintiff. It is further argued that the suit properties are vacant as on the date of suit and the 1 st defendant during the pendency of the suit, has effected constructed on item Nos.1 and 3 of the suit properties and therefore, the same does not bind the plaintiff. It is argued that the 1st defendant had no legal right to execute the development agreement in favour of defendants No.4 and 5, as he had no exclusive right in the suit property and defendants No.4 and 5 are not authorized to effect construction on item No.2 of the suit properties. So far as Court fee is concerned, the learned counsel contended that the suit properties are vacant properties as on the date of filing of the suit and all the constructions effected after filing of the suit and plaintiff is not responsible for the same and he is not liable to pay any court fee, other than what is paid by him. Thus, these among other grounds prayed to decree the suit. In support of his arguments, the learned counsel for the plaintiff has relied upon the following decisions reported in:
1) AIR 1998 KAR 325 (Vadde Sanna Hulugappa S/o
Hanumanthappa and others v. Vadde Sanna
Hulugappa S/o Siddappa and others)
2) AIR 2019 SC 3098 (Arshnoor Singh v. Harpal Kaur
and others)
3) AIR 1976 SC 1 (Ratnam Chettiar and others v.
S.M.Kuppuswami Chettiar and others)
4) ILR 2010 KAR 1484 (Pushpalatha N.V. vs. V.Padma
and others)
16. On the other hand, the learned counsel for defendants No.1, 6 to 12 has argued that suit itself is filed based on false facts and same is not maintainable. It is argued that there is already partition between A.M.Balappa and his four sons as per partition deed dated 10.02.1951 and 16.02.1951 and there itself, there is severance of status between all the co parceners and each branch of coparceners separated and thereafter, the co parcenary of A.M.Balappa has no more survived. It is further argued that thereafter, each sons of A.M.Balappa have formed separate branch and they were enjoying the properties fallen to their respective shares. It is further argued that during the said partition, the 1 st defendant was minor and therefore, the share was allotted to him through his natural guardian, his father A.M.Balappa. The defendant No.1 has not got any extra properties nor his father got any properties for him. Such being the case, the plaintiff, who is son of 2nd defendant and particularly during the life time of his father, has no right to claim share in the suit properties. It is further argued that the plaintiff has suppressed number of material documents and put forth false plea and thus, he is guilty of suppression of facts. It is also argued that the suit properties are no more vacant lands as alleged by the plaintiff and that number of apartments have come up in the suit property and the plaintiff has suppressed these facts in order to avoid payment of court fee. It is further argued that by constructing apartments, the same was sold to number of persons, who are in possession of property and the plaintiff has not made any such persons as parties to the suit and thus, the suit is bad for nonjoinder of necessary parties. Hence, prayed to dismiss the suit. The learned counsel for the defendants No.1 and 6 to 12 in support of his arguments, has relied upon the following decisions reported in:
1) KCCR 2012(4) 2873 (Rudrappa v. H.R.Shivakumar)
2) AIR 1991 Patna 95 (Radhamoni Bhuiyanin and others v. Dibakar Bhuiya and others)
3) AIR 1963 Mysore 5 (Veerabhadrappa and others v. Lingappa and others)
4) KCCR 2015 3 2702 (Puttamma and others v.
Thippelingappa and others)
5) LAWS (KAR) 2014 3 112 (Hanamanth Shingadeppa Gadded v. Rudrappa Krishnappa Gadded)
6) AIR 1998 Allahabad 328 (Hemant Kishore and others v. Brij Raj Kishore and others)
7) AIR 1987 Rajasthan 177 (Manohar Singh v.
Mst.Sardar Bai and others)
8) W.P.No.8087/2018 (GMCPC) (Venkatesh R.Desai v. Smt.Pushpa Hosmani and others)
9) AIR 1997 KAR 249 (Sadashivappa v. Shivayogappa and others)
10) AIR 2008 SC 2489 (Hardeo Rai v. Shakuntala Devi and others)
11) AIR 1983 Patna 129 Most.Marjadi Devi and others v. Jagarnath Singh and others)
12) AIR 2008 Delhi 40 (Master Gaurav Sikri and another v. Smt.Kaushalya Sikri and others)
13) 2007(2) KCCR 1349 (Mrs.Mallika and others v.
Mr.Chandrappa and others)
14) AIR 2003 Madras 101 (D.Narasimhan v.
D.Thirumangai and others)
15) AIR 2014 SC 1830 (Kesharbai alias Pushpabai Eknathrao Nalawade (D) by LRs and another v.
Tarabai Prabhakarrao Nalawade and others)
16) AIR 2014 SC 2665 (Municipal Corporation Gwalior v. Puran Singh alias Puran Chand and others)
17) AIR 1977 SC 2421 (T.Arivandandam v. T.V.Satyapal and another)
18) (1976) 3 SCC 215 (Prakash Chand Sharma and others v. Narendra Nath Sharma)
19) AIR 1965 Madras 409 (Minor Balasubramania Reddi by next friend Ramachandra Reddiar v. Narayana Reddiar and others)
20) ILR 2004 KAR 1074 (Naganna v. Shivanna)
21) AIR 1977 Patna 59 (Ram Bahadur Nath Tiwary v. Kedar Nath Tiwari and others)
22) (2012) 5 SCC 370 (Maria Margarida Sequeira Fernandes and others v. Erasmo Jack Defendant Sequeira (Dead) through LRs)
23) (2010) 2 SCC 114 (Dalip Singh v. State of utar Pradesh and others)
24) (2011) 8 SCC 249 (Ramrameshwari Devi and others v. Nirmala Devi and others)
25) (2006) 7 SCC 416 (Hamza Haji v. State of Kerala and another)
26) ILR 2007 KAR 4266 (Jagadish Patil v. The State of Karnataka and others)
27) (2011) 1 ICC 639 (Ramjas Foundation and another v. Union of India and others)
28) (2007) 4 SCC 221 (A.V.Papayya Sastry and others v. Govt. of A.P. and others)
29) AIR 1994 SC 853 (S.P.Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs and others)
30) (1977) 4 SCC 467 (T.Arivandandam v. T.V.Satyapal and another)
31) (2001) AIR KAR H.C.R. 473 (Appanna Guruswamy Wodeyar v. State of Karnataka and others)
32) 2008 AIR SCW 6816 (Ganpatbhai Mahijibhai Solanki v. State of Gujarat and others)
33) AIR 1987 Orissa 1 (Smt.Pushpalata Rout v. damodar Rout)
34) (2013) 5 KCCR SN 598 (SC) (Vikas Pratap Singh and others v. State of Chhattisgarh and others)
35) (2007) 4 KCCR 2607 (Abbaiah v. Byrappa and others)
36) AIR 2000 SC 1165 (United India Insurance Co. Ltd.
v. Rajendra Singh and others)
37) KCCR 2018(3) 96 (Divisional Manager, Sriram General Insurance Co. Ltd. v. Maimunna Bi)
38) ILR 2005 KAR 60 (J.M.Narayana and others v. Corporation of the City of Bangalore, By its Commissioner Office, Bangalore and others
17. Keeping in mind, the rival submissions, I have carefully perused the materials on record. It is seen that in this case, there is no dispute about the relationship between the parties as put forth by the plaintiff. Even there is no dispute that the partition took place on 10.02.1951 between A.M.Balappa and his four sons with respect to suit properties and further, there is no dispute about one more partition dated 16.02.1951 . The plaintiff has pleaded ignorance with respect to one more partition took place in the year 1974. Even the plaintiff admits in his crossexamination that elder son of A.M.Balappa namely, A.B.Gopalappa has separated himself from joint family in 1949 by obtaining some properties and ceased to be the member of joint family. But, in this case, the dispute is mainly about the right of the plaintiff to claim share of his grand father A.M.Balappa, when his father A.B.Muniavalappa is alive.
18. To substantiate his case, as I already narrated, plaintiff has filed his evidence affidavit as PW1 narrating all the material facts of the plaint. The plaintiff has produced documentary evidence in support of his case.
19. Ex.P.1 is certified copy of partition deed dated 16.02.1951 executed by A.M.Balappa and his four sons, wherein, the 1 st defendant is shown to be minor aged about 13 years and representing through his guardian/father A.M.Balappa, as one party and his son Doddamuniavalappa as second party, third son Chikkamuniavalappa as third party and the son of Gopalappa, aged about 6 years namely, A.G.Sheshappa representing through his mother Marakka as fourth party, have entered into partition. The properties fallen to the respective parties was mentioned as A to D Schedule.
This document clearly indicate that joint status of A.M.Balappa and his sons was already severed and the coparcenary is no more in existence. As rightly argued by the learned counsel for the defendant No.1, this plaintiff not yet born at the time of registration of said document as he born in 1966 as admitted in the crossexamination dated 09.03.2011. Ex.P.2 to 8 are RTC Extracts of land mentioned in item no.2 of suit properties and one RTC standing in the name of 1st defendant and other RTCs are shown as converted lands. This itself indicate that as on the date of filing of the suit, the suit properties were no more vacant lands. Ex.P.9 is office copy of notice dated 12.11.2001 issued by plaintiff's counsel to defendant No.4 warning them not to purchase property from defendant No.1, as he has right in the suit property. Ex.P.9(a) and (b) are postal receipts and postal acknowledgments. Ex.P.10 is office copy of notice dated 10.12.2001 issued by counsel for plaintiff to defendant No.1 putting forth his claim and demanding 1/3 rd share in the suit properties. Ex.P.10(a) and (b) are postal receipts and postal acknowledgment. Ex.P.11 is office copy of noticed dated 28.01.2002 issued by plaintiff's counsel to defendant No.5 putting forth his claim in the suit property and so also warning him not to purchase the suit property from defendant No.1. Ex.P.11(a) and (b) are postal receipt and postal acknowledgment. Ex.P.12 is reply notice issued by defendant No.4 against the counsel for the plaintiff refuting the claim made in Ex.P.9. Ex.P.13 is certified copy of partition deed dated 05.10.1974 executed between A.M.Balappa and his son 1st defendant as first party and the son of Munichennappa namely, A.M.Chikka Papanna, wherein it is mentioned that two items of properties were left undivided as per partition deed dated 15.02.1951 and the said two items of properties was partitioned between the 1 st defendant and said A.M.Chikkapapanna. Ex.P.14 is certified copy of partition deed dated 07.10.1974 executed by A.M.Balappa and his son 1 st defendant, wherein it is mentioned that his son A.B.Gopalappa has released himself on 13.06.1949 and there is mention about the partition dated 16.02.1951 and it is mentioned that said A.B.Gopalappa has lost money given by A.M.Balappa and he was given some more properties on 20.02.1951 by way of settlement deed creating his life interest and that himself and 1st defendant as one party and said A.M.Chikkapapanna have divided one house and one site since remained joint, out of that 1/4th share was given to himself and 1st defendant and 3/4th share was given to A.M.Chikkapapanna and thereafter, further partition was taken place under that document. Ex.P.15 is certified copy of agreement of sale dated 22.10.1990 executed by defendant No.1 in favour of defendant No.5 regarding construction of building in Sy.No.55 measuring 2 acres 10 guntas. Ex.P.16 is certified copy of plaint in OS.3384/2012 filed by defendants No.6 to 12 herein, against their father, 1 st defendant and others including BDA for various reliefs. Ex.P.17 is certified copy of written statement filed by defendants No.4 to 6 herein in OS.3384/2012.
20. On the other hand, in support of their case, the defendant No.1, 6 to 12 examined defendant No.6 on her behalf and so also holding General Power of Attorney for defendant No.1 examined herself as DW1 and she has filed her evidence affidavit, wherein she has narrated the material facts of written statement. She deposed categorically that there was a partition between her grand father A.M.Balappa, her father - 1 st defendant and sons of A.M.Balappa in the year 1951 and further one more partition in the year 1974 and deposed further that the plaintiff's father has taken his legitimate share in the properties of A.M.Balappa and joint status between her father and his brothers is severed and the respective branches have gone separately and there is no coparcenary remained as pleaded. It is further deposed that the plaintiff has filed this suit by suppressing material facts and by projecting false facts and thus, prayed to dismiss the suit with exemplary costs.
21. In support of their case, the defendants also produced documentary evidence. Ex.D.1 is certified copy of registered partition deed dated 16.02.1951, which is similar to Ex.P.1 as discussed above. Ex.D.2 is certified copy of registered partition deed dated 05.10.1974 bearing document No.2725/7475 between A.M.Balappa, 1st defendant and A.M.Chikkapapanna, which is similar to Ex.P.13 as discussed above. Ex.D.3 is certified copy of registered partition deed dated 07.10.1974 between A.M.Balappa and 1 st defendant, wherein the site was partitioned between the both. Ex.D.4 is registered settlement deed dated 07.10.1974 executed A.M.Balappa with regard to properties retained by him as shown in A Schedule in the document and stating that after his death, the said properties shall be given to his wife Obalamma and his son 1st defendant, wherein earlier partition was discussed and in the said partition a site mentioned in C Schedule of the document was given to father of plaintiff namely, Muniavalappa. Ex.D.5 is certified copy of registered Will Deed dated 18.02.1993 executed by father of plaintiff - A.B.Muniavalappa, wherein he has mentioned about the partition of the properties on 16.02.1951, one more settlement deed dated 07.10.1974, wherein he has expressed displeasure about the conduct of plaintiff and bequeathed all his properties in favour of his grand children and daughterin law. Ex.D.6 is certified copy of registered sale deed dated 28.11.1994 executed by A.B.Chikkamuniavalappa, who is father of defendant No.3 in favour of Indrani Nanjappa selling his properties, wherein it is also mentioned about acquisition of property under the partition deed dated 15.11.1974 as per 'D' Schedule and property was sold for Rs.7,10,000/. This document reveals that after acquiring the properties, the brothers of 1 st defendant have dealt with the properties fallen to their respective shares. Ex.D.7 to D.13 are certified copies of plaint, written statement, IA with affidavit, objections, compromise petition filed under Order 23 Rule 1 and 2 of CPC, compromise decree, entire order sheet and vakalath of plaintiff, in OS.6908/2000, Ex.D.14 is proposal of BDA dated 07.10.1995 for acquisition of land bearing Sy.No.81/1, which is shown to be in the name of 1 st defendant, Ex.D.15 is certified copy of endorsement dated 26.02.1994 issued by Deputy Commissioner, Land Acquisition, BDA, wherein the award was approved for acquisition of land bearing Sy.No.81/1 for Rs.1,89,043/. Ex.D.16 is certified of letter issued by City Civil Court dated 19.11.2019 in favour of Manager, SBM, Bengaluru, wherein amount of Rs.1,89,043/ was deposited in the said Bank in LAC No.239/1996. Ex.D.17 is certified copy of paper publication dated 04.07.2001 about acquisition of land bearing Sy.No.81/1 in LAC.239/1996, pending on the file of CCH17. Ex.D.18 is certified copy of award dated 01.01.1994 with respect of item No.2 of suit property, Ex.D.19 is 9 photographs along with negatives with respect to item No.2 of suit properties. Ex.D.20 to 27 are 8 katha extracts with respect to various properties mentioned in item No.2 of suit property. Ex.D.28 is Original settlement deed dated 20.02.1951, wherein A.M.Balappa and his son 1 st defendant have executed settlement deed in favour of first son of A.M.Balappa namely, A.B.Gopalappa, wherein it is mentioned that he has executed release deed dated 30.06.1949 by taking Rs.26,250/, since he suffered loss in the business. The 1st defendant has given schedule property creating life interest and giving property for the enjoyment of his sons. It is also mentioned that in case, no children born, the A.B.Gopalappa shall take entire property. It is seen that three houses was given to said A.B.Gopalappa.
22. PW1 was subjected to crossexamination by the learned counsel for the defendant No.1, wherein for a question that in 1951 itself there was partition deed among the sons of his grand father, the witness answered that no partition deed was executed, but some shares were given. This evidence is contrary to document as the partition deeds of the year 1951 and further of the year 1974 and so also settlement deed make it clear that there is partition between the sons of A.M.Balappa by metes and bounds and it is to be noted that the plaintiff is not seeking to reopen the said partition nor praying to put all the properties of A.M.Balappa into common hotchpotch. He deposed that his grand father has retained one share for him, but the same is also not based on documents as it is seen that no such shares have been retained by his grand father. He admits that during 1949, his grand father allotted share to Gopalappa and he has lost the said property. He also admits that during 1951, since defendant No.1 was minor, his share was retained by his grand father. He has denied that in the said partition, his grand father has not retained any share for him and he retained with him only the share of defendant No.1. He has pleaded ignorance about the partition in the year 1974 between his grand father and defendant No.1, but in the plaint itself, he has pleaded the said fact. He stated that after filing of the suit, he came to know about the settlement deed of the year 1974 executed by A.M.Balappa in favour of his wife Obalamma. Though he stated that he has obtained certified copy of said document, but failed to produce the same before the court. He has denied that in the said settlement deed, his grand father gave half share in favour of his wife and half share to his three sons. For a question that in the said division made by his grand father, one portion was given to his father, witness answered that only one site was given to his father. This clarified that he has knowledge about the document. He admits that his father died around one and half year back. This statement was given by him in his crossexamination dated 11.02.2011. He admits that the site given to his father is now in his possession and he has given the same on rental basis to Raj Marbles. He also admits that his father during his life time has not filed any suit against any of his family members for partition. He explained that he was under impression that his share will be given. He has denied that he has filed this suit in respect of schedule property, which were given to share of defendant No.1, but explained that his grand father had also share in those properties. This evidence clarify that the plaintiff claiming share of defendant No.1, which was given to him during his minority through his father A.M.Balappa. He has denied that in view of 1974 partition, his grand father had no right over the suit properties. He admits that his father has not challenged the partitions took place in the year 1951 or settlement deed of the year 1974. He also admits that after the death of his grand father, he has not claimed share stating that his father was suffering from illhealth. He has denied that since his father had knowledge about 1951 partition and 1974 settlement and accepting the both, he did not challenge them. He also admits that he has not filed suit questioning the partition deeds for the years 1951 and 1974. He has denied that of 1951 partition the schedule properties was never remained as joint family properties. For a question that on 07.10.1974, there was settlement between A.M.Balappa and his wife Obalamma, the witness answered that it was executed behind the back of himself and his father. He has denied that one share was given to his father in 1974 settlement. He has denied that in the entire land of suit property, there are construction of buildings. The witness answered that one portion is vacant land, but he is unable to say the portion, which is vacant in the suit property. He is unable to say the boundaries of lands mentioned in item No.2. He also admits that he has not mentioned the boundaries of suit property. For a specific question that in the plaint the suit properties are not properly described, he deposed that they are mentioned in partition deed of the year 1951. Ultimately, he has denied that all the suit properties are exclusively belonging to defendant No.1. He has denied that himself and his father have no right in the suit properties. In the crossexamination dated 09.03.2011, he admits that his father, his senior uncle Gopalappa and uncle Chikkamuniavalappa are the sons of first wife of his grand father. He admits that defendant No.1 is the only son of second wife of his grand father. The third wife of his grand father is Obalamma. For a question that in 1951 partition, it is not mentioned that properties given to A.M.Balappa are exclusively belonging to A.M.Balappa and he deposed that they were given to A.M.Balappa and defendant No.1. He clearly admits that after 1951 partition, his father started to reside separately with properties given to him. He has denied that immediately after 1951 partition, Chikkamuniavalappa and Sheshappa were also started to reside separately. He deposed that he does not know that there was another settlement deed in the year 1951 and that he does not know under said settlement deed, four house properties were given to Gopalappa. He has denied that though he had knowledge about said document, he never disclosed before the Court. He does not know that during 197475 there was another partition deed between A.M.Balappa and Chikkapapanna in respect of item Nos.1 and 3 of Schedule A properties. He again stated that he came to know about the partition of the year 1974 between A.M.Balappa and defendant No.1 after filing of the suit. But, this evidence is not true as in the plaint itself, the plaintiff mentioned about this document. He has denied that in the year 1974, defendant No1 by way of registered partition deed with Balappa, he has taken his properties and gone separately. For a question that the properties referred in 1974 partition are the properties given to defendant No.1 in joint family property, he answered that he came to know about said partition only after filing of the suit. He also clearly admits that in the year 1951 partition, 16 properties were given to his father. He also admits that 16 properties were given to the father of defendant No.3 in 1951 partition. He has denied that his father, father of defendant No.3 and Gopalappa have taken double the properties compared to properties given to the share of defendant No.1. He admits that in suit item No.1, there is building SALARPURIA CITADEL commercial complex. He does not know that the defendant No.1 along with 8 others are owners of said building. He does not know about joint venture agreement of defendant No.1 in respect of construction of building only after filing of the suit. But it is not known, as to why he made defendants No.4 and 5 as parties in the suit. He has denied that himself and his father have jointly sold totally 11 properties situated at Arakere Village to defendant No.5. He has denied that his father is not entitled to any share in the suit properties. He admits that in item No.3, property No.29, there is building namely, Golden Nest Apartment. He does not know that there are 30 flats in Golden Nest Apartment. He does not know that about 30 families are residing in the said Apartment. He admits that Vysya Bank Layout is developed in Sy.No.55 to 58, 74/1 and 76/1 as mentioned in suit item No.2. He also admits that there are some buildings and houses in said layout. He has denied that land bearing Sy.No.81/1 in item No.2 is acquired by BDA. For a question that the suit in OS.6908/2000 is also in respect of present suit properties, he answered that there are some other properties. For a question that third parties are in possession of item No.2 of the property and he has not made them as parties to the suit, he answered that at the time of filing of the suit, they were not there. Finally, he has denied that he has filed false suit by suppressing documents.
23. In the same way, the DW1 was also subjected to cross examination by the learned counsel for the plaintiff, wherein she has denied that out of the properties acquired by her father and grand father, both had half share each. She deposed that her grand father took the entire share, since her father was minor. She admits that 1 acre 20 guntas of land in Sy.No.81/1 was given to her grand mother during her lifetime. She also admits that house measuring 1000 ft. was given to her grand mother. She has denied that her grand father was old aged and was not having much consciousness and her father got written two settlement deeds and partition deed. She has denied that her father had got signature of plaintiff on a vakalath stating that the land situated at Arakere are to be denotified. She has even denied that her father filed said Vakalath on behalf of plaintiff through an Advocate in OS.6908/2000. She has even denied that her father has filed written statement of plaintiff in OS.6908/2000 by forging signature of plaintiff. She has even denied that her father got filed a memo in said suit to dismiss the suit against defendant No.4 in said suit, who is plaintiff herein. She has even denied that after getting suit dismissed, they filed compromise petition. She has even denied that BDA has not acquired any land situated at Arakere and no land vested with BDA. She admits about filing of OS.3384/2012 before this court. She has denied that she has filed false documents and giving false evidence in order to avoid giving share to the plaintiff in the suit properties.
24. Thus, a careful reading of oral and documentary evidence produced by the parties, make it crystal clear that there is a partition between A.M.Balappa and his four sons under the document Ex.P.1/Ex.D.1, wherein all the four sons have taken share in the entire properties of A.M.Balappa. It is clear that defendant No.1 was minor during said partition and his father A.M.Balappa and defendant No.1 being first party have taken Schedule A properties mentioned in the document acting as guardian of 1 st defendant. The document Ex.P.1 clearly indicate that there is partition and severance of status between the parties. It is very much clear that even the father of the plaintiff has taken his share being second party and he was very much alive when filing of the suit. Such being the case, if at all there is unequal partition between the sons of A.M.Balappa, it is only the father of the plaintiff. who has right to question the same and during lifetime of his father, the plaintiff cannot file the suit for partition.
25. The Hon'ble High Court of Karnataka in Rudrappa's case (supra) has clearly held that, "when 3 rd defendant Ramachandrappa did not choose to question the partition deed entered into between himself and step brother, the plaintiffs who are claiming share through their father, cannot question the partition deed already effected between the parties on the ground that it is unfair and obtained by playing fraud on their father Ramachandrappa". Even in this case, when the father of the plaintiff was alive as on the date of suit, the plaintiff cannot question the partition that took place between his father and brothers of his father and also his grand father.
26. The Hon'ble High Court of Mysore in Veerabhadrappa's case (supra) has held that, "the father, who, upon partition of the family into branches, becomes the Manager of each branch, is invested with reference to the partition with such powers as of similar to powers of an ordinary manager of the family. Because the law requires and expects that every partition should be made with absolute fairness and honest dealings as between members and on that basis considers the partition to be irrevocable, minors who, by virtue of their minority, could not or did not take direct part in the partition, are permitted by law to reopen the partition on proof that the partition has been unfair and unjust so far as they are concerned".
27. Further, in Puttamma's case (supra) the Hon'ble High Court of Karnataka has clearly held that, "once the partition has taken place, the properties are divided and the parties are enjoying their respective shares and the plaintiffs have sold some of the properties fallen to their shares, the suit for partition cannot be entertained".
28. In Hanamanth Shingadeppa Gadded case (supra), the Hon'ble High Court of Karnataka has held that, "according to the defendants, the partition took place long back and therefore, the suit itself is not maintainable for partition". The Hon'ble High Court has confirmed the dismissal of suit by trial court and also dismissal of appeal by first appellate court.
29. Even in this case also, there is partition taken place long back and the plaintiff's father has not chosen to question the partition during his lifetime. The Hon'ble High Court of Karnataka in Sadashivappa's case (supra) has held as under:
"Once a coparcener separates from the joint family, then he ceased to be part of the H.U.F., particularly in a case where the partition has been given effect to such as where it is demonstrated that a physical division of the property has taken place and more importantly, that the concerned member has gone to reside separately. It is virtually the end of the matter in so far as the joint family may continue visà vis the rest of the members and rest of the parties but the members who are separated cease to be part of that H.U.F. and consequently, cease to have any right to demand any partition in respect of the remaining property. This being the position in law, if the remaining members were to approach a Court for partition of the residuary corpus, the alienated member has no right to insist on being made a party to that proceeding. Where one member of the joint family is separated from it, which is evinced by a registered partition suit, he cannot be impleaded in the subsequent partition suit between the remaining coparceners. Before the right to get impleaded can be exercised, it is for him to demonstrate his status namely that of a coparcener. The registered partition deed unequivocally destroys that status and it is therefore condition precedent for him if according to him, that document is vitiated by legal infirmities such as fraud, to overcome that bar and to only then contend that he must be made a party to the subsequent partition proceedings."
30. Further, the Hon'ble Supreme Court in Hardeo Rai's case has held as under:
(B) Hindu Law - Coparcenary property - partition - When intention is expressed to partition property, share of each of coparceners becomes clear - Once share of a coparcener is determined, it ceases to be coparcenary property - Parties in such an event would not possess property as "joint tenants"
but as "tenants in common".
31. Further, the Hon'ble High Court of Delhi in Master Gaurav Sikri's case (supra) has held as under:
"Hindu Succession Act (30 of 1956), S.8 - Succession in case of males - Properties in question are not joint family properties - Grandsons will not have any share in property left by grandfather during lifetime of son i.e. their father - Reason being, only son of predeceased son has been shown as an heir in Class 1 of Schedule".
32. A perusal of principles of law laid down in the decisions referred above, make it crystal clear that after partition between the sons of A.M.Balappa, the joint family of A.M.Balappa was severed and there raised four branches of his sons and defendant No.1 has formed a different branch and after the death of his father, under Section 8 of the Hindu Succession Act, 1956 only defendant No.1 is entitled to the share of his father and not the plaintiff, who is son of one more son of A.M.Balappa forming separate branch. The law laid down by Hon'ble High Court of Delhi in Master Gaurav Sikri's (supra) is very clear that grand sons will not have any share in the property left by grand father during life time of son i.e. their father. This goes to show that the plaintiff has no right to file this suit for partition. Further, the Hon'ble High Court of Karnataka in Mrs.Mallika's case (supra) has also held as under:
"HINDU SUCCESSION ACT, 1956 - Section 8 - Property devolved under on a Hindu - cannot be treated as undivided property in his hand visàvis his own son - When schedule to Act indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, it cannot be said that, when son inherits property in a situation as contemplated by Section 8, he takes it as Kartha of his own undivided family - This position clarified by Supreme Court modifying earlier concept under Mitakshara law - High Court not considering same - Is an error apparent - Its order reviewable - Earlier order contrary to this principle accordingly modified. Held: from the discussions made above, it is clear that though under traditional Hindu Law, from the moment a son is born, he gets a share in his father's ancestral property and becomes a coparcener, on accrual of that right by his birth in the family, that position is affected and modified by Section 8 of the Hindu Succession Act 1956. Consequently, the property of the father who had separated from his family, on his death will be inherited and held by his sons in their individual capacity and son's son/sons will have no right therein as coparceners."
33. The Hon'ble Supreme Court in Kesharbai Bai's case (supra) has held as under:
"Where any joint family partition has been made it is presumed that there is complete partition of all properties. In case suit is filed by plaintiff for partition of one property which is claimed to be joint but left out of partition in that circumstance plaintiff has to prove that such property is not selfacquired property. Placing this burden of proof on defendant is not proper."
34. Thus, even in this case, a careful reading of the documents and oral evidence make it clear that there was partition between the sons of A.M.Balappa, wherein, the defendant No.1 has got share in the properties through his guardian/father and when this is so, now the plaintiff cannot question the said partition after a long gap. Moreover, as rightly argued by the learned counsel for the defendant No.1, when the father of the plaintiff was alive as on the date of suit, this suit for partition in the properties of grand father will not survive for consideration in view of Section 8 of Hindu Succession Act. Thus, the suit itself is not maintainable and same is liable to be dismissed.
35. The defendants have contended that the Court Fee paid by the plaintiff in the suit is not sufficient. In this regard, this court framed Addl. Issue No.2 on 21.10.2010 and the said issue was tried as preliminary issue and this court by order dated 18.12.2013 has held the same in the negative. Such being the case, the question of again discussing the Addl. Issue No.2 dated 21.10.2010 does not arise. Though there is Addl. Issue No.2 dated 21.10.2010, this court again framed Addl. Issue No.2 on 24.05.2010 casting burden upon defendants No.6 and 7 to prove that the Court Fee paid is not proper. Since this court passed order on 18.12.2013 regarding payment of court fee in the negative, therefore, the said issue cannot be discussed. Moreover, the defendants have not explained this aspect in clear terms and the defendants have not mentioned as to what court fee ought to have paid in the suit. In this suit, after filing of written statement by the defendants, the plaintiff has not filed any rejoinder. There being no subsequent pleading from the plaintiff after filing written statement of defendants, the question of casting burden upon defendant No.1 to prove that A.M.Balappa has executed the settlement deed dated 07.10.1974 and that under said document, he is in possession of properties separately and that the plaintiff has no right of share in said properties, does not arise. Similarly, the defendants cannot be called upon to establish Issue Nos.4 and 5 and 7 as there is no rejoinder or further pleading to deny the said averments.
36. I have carefully perused the decision relied upon by the learned counsel for the plaintiff. In Vadde Sanna Hulagappa's case (supra) the plaintiff had filed the suit for partition and separate possession of their 2/3rd share in the suit properties and both the Courts below have though came to conclusion that the plaintiffs are entitled to 2/3rd share in the suit properties, but dismissed the suit on the ground that plaintiff had not prayed for cancellation of sale deeds executed by 1 st defendant in favour of defendant No.4. The Hon'ble High Court of Karnataka has held that since the plaintiffs are not parties to any of the alienations made by 1st defendant and others and there was no legal obligation on their part to specifically pray that the alienations were not binding on them. But, in this case it is very much clear that the father of the plaintiff has not claimed any share in the property of A.M.Balappa and therefore, the question of plaintiff claiming share in the property of A.M.Balappa does not arise and therefore, the principles of law laid down in the said decision are not applicable to the facts of the case. Even the decision in Arshnoor Singh's case (supra) are also not applicable to the facts of the present case since there is a partition between the father of the plaintiff, his uncles and grand father by metes and bounds long back. Even the principles of law laid down by Hon'ble Suprmee Court in Rathnam Chettiar's case (supra) will also not come to the aid of plaintiff, since the plaintiff in this case though taken up a contention that the 1 st defendant has played fraud upon his father and got major portion of properties, but no reliable evidence produced to establish the said facts. Further, the principles of law laid down by Hon'ble High Court in Pushpalatha's case (supra) are not applicable to the facts of the case, as the same is pertaining to Section 6(1) of Hindu Succession Act. The Hon'ble High Court of Karnataka in 2001(2) KCCR 1395 (Smt.Hanumamma v. M.T.Ramalingaiah and another), has held that when once the partition takes place in a joint Hindu Family, the status of coparcener is severed and he becomes an independent entity and has no connection whatsoever in the joint family or as any interest in the joint family property of other coparceners. Even in this case, it is clear that there is a partition between sons of A.M.Balappa and when such being the case, the plaintiff cannot once again claim share in the property of 1 st defendant, which he acquired in the partition during his minority through his natural guardian, father. Further, this court by order dated 06.03.2019 has answered Addl. Issue No.1 dated 29.11.2018 in the negative and that the suit is not barred under Order II Rule 2 of CPC. Therefore, even the said issue does not arise for consideration.
37. This court framed Issue No.6 to the effect that whether the defendant No.3 proves that the suit is barred by principles of resjudicata and also under Section 151 of Indian Succession Act, in view of decree in OS.6908/2000 dated 18.01.2001. It is seen that in this case, the defendant No.3 has not led any evidence nor produced any documents to prove the said issue. The defendant No.3 has not even crossexamined PW1. Therefore, the said issue is held in the negative.
38. This Court framed Addl. Issue No.1 on 29.11.2018 to the effect that whether defendant No.1 proves that the suit for partition and separate possession is barred under Order II Rule 2 of CPC. Thus, considering entire materials on record, I find that the plaintiff has failed to establish that there is unequal partition and he is entitled for 1/3rd share in the properties fallen to the share of A.M.Balappa as per partition deed dated 16.02.1951. The plaintiff also failed to establish that 1 st defendant is in wrongful possession of his share and he is liable for accounts of the income earned from the properties. It is further seen that the defendant No.5 has not led any evidence to establish that they have constructed building in item No.1 and 2 of the property after obtaining permission from the Government. But, however, it is seen that the defendant No.1 and 6 to 12 have demonstrated that the plaintiff has no right in the suit properties. It is further seen that the defendants No.6 and 7 have not produced satisfactory evidence to establish that the suit is hit by doctrine of estoppel. PW1 himself in the cross examination admitted that the apartments have been constructed in the suit property and number of persons are residing in such apartments. When this is so, the occupants of such apartments or flats are necessary parties in the suit and hence suit is also bad for nonjoinder of necessary parties. Page No.25 of the deposition of PW1, the witness pleaded ignorance that there are 30 apartments in Golden Nest Apartment, he also pleaded ignorance that about 30 families are residing in the said apartments. Further, he admitted Vysya Bank Layout is formed in Sy.No.55, 56, 57 and 58, 74/1 and 76/1 , which are properties involved in item No.2 of the property and when this is so, the plaintiff ought to have made occupants of said layout as parties to the suit. He also admits that there are some building and houses in the said layout. But, the plaintiff has not made any one of them as party to the suit. This indicate that the plaintiff has suppressed the material facts. Thus, the suit is liable to be dismissed. Hence, Issue Nos.1, 2, 6, 7, Addl. Issue No.1 and 2 framed on 24.05.2010 and Addl. Issue No.1 framed on 21.10.2010 are answered in the negative, Issue No.3, 4, 5 and Addl. Issue No.3 and 4 framed on 24.05.2010 are answered in the affirmative, Addl. Issue No.1 framed on 29.11.2018 is answered as does not survive in view of order passed by this Court on 06.03.2019 and Addl. Issue No.2 framed on 21.10.2010 is answered as does not survive in view of order passed by this Court on 18.12.2013.
39. ISSUE NO.8: In view of my findings on above said issues, the suit of the plaintiff is liable to be dismissed. Hence, in the result, I proceed to pass the following: ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the judgment writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 20 th day of March 2020).
( KASANAPPA NAIK)
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
ANNEXURE
I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 A.M.Sridhar
b) Defendants' side:
D.W.1 Smt.A.S.Prema
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 C/c of partition deed dated
13.02.1951
Ex.P.2 to 8 RTC Extracts
Ex.P.9 Office copy of notice issued to
defendant No.4
Ex.P.9(a) & (b) Postal receipt and acknowledgment Ex.P.10 Office copy of notice issued to defendant No.1 Ex.P.10(a) & Postal receipt and acknowledgment
(b) Ex.P.11 Office copy of notice issued to defendant No.5 Postal receipt and acknowledgment Ex.P.11(a) &
(b) Ex.P.12 Reply notice issued by defendant No.4 Ex.P.13 C/c of partition deed dated 05.10.1974 Ex.P.14 C/c of partition deed dated 07.10.1974 Ex.P.15 C/c of agreement of sale executed by defendant No.1 in favour of defendant No.5 Ex.P.16 C/c of plaint in OS.3384/2012 Ex.P.17 C/c of written statement filed by defendant No.4 to 6 in OS.3384/2012
b) Defendants' side :
Ex.D.1 C/c of Registered partition deed
dated 16.02.1951
Ex.D.2 C/c of registered partition deed
dated 05.10.1974
Ex.D.3 C/c of registered partition deed
dated 07.10.1974
Ex.D.4 C/c of registered settlement deed
dated 07.10.1974
Ex.D.5 C/c of registered Will Deed dated
18.02.1993
Ex.D.6 C/c of registered sale deed dated
28.11.1994
Ex.D.1(a) to Typed copies
6(a)
Ex.D.7 C/c of plaint in OS.6908/2000
Ex.D.8 C/c of written statement in
OS.6908/2000
Ex.D.9 C/c of IA with affidavit filed in
OS.6908/2000
Ex.D.10 C/c of objections filed by plaintiff in
OS.6908/2000
Ex.D.11 C/c of compromise decree in
OS.6908/2000
Ex.D.12 C/c of entire order sheet in
OS.6908/2000
Ex.D.13 C/c of vakalath filed by plaintiff and
others in OS.6908/2000
Ex.D.14 C/c of application filed BDA dated
07.10.1995
Ex.D.15 C/c of endorsement dated
26.02.1994
Ex.D.16 C/c of letter issued by City Civil
Court dated 19.11.2019
Ex.D.17 C/c of paper publication dated
04.07.2001
Ex.D.18 C/c of award dated 01.01.1994 with
respect of item No.2 of suit property
Ex.D.19 Photographs
Ex.D.19(a) Negatives
Ex.D.20 to 27 8 Katha Extracts
Ex.D.28 Original settlement deed dated
20.02.1951
( KASANAPPA NAIK)
XLI ADDL.CITY CIVIL JUDGE
BANGALORE