Bangalore District Court
Sarojamma vs The Chief Commissioner Bbmp on 3 July, 2024
KABC010155872022
IN THE COURT OF THE XXX ADDL. CITY CIVIL JUDGE
AT BENGALURU CITY
(CCH-31)
DATED THIS THE 3rd DAY OF JULY, 2024.
PRESENT
Sri. MADHU N.R., LL.M.,
XXX Addl. City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT NO.8100/2023
PLAINTIFF: Smt. Sarojamma
W/o Late Krishnappa
Aged about 60 years,
R/at No.25, Muneshwaranagara,
Hosakerehalli, Kerekodi Main road,
Rajarajeshwarinagara,
Bengaluru-560 085.
(By Sri.Ananda.K, Advocate)
/Vs/
DEFENDANTS: 1. The Chief Commissioner
Bruhath Bangalore Mahanagara
Palike, N.R.Square Road,
Bangalore-560 001.
2. The Registrar
Birth and Death Department,
2 O.S.No.8100/2023
BBMP, N.R.Square,
Bengaluru-560 001.
(By Sri.Prakasha, Advocate )
Date of Institution of the suit 12-12-2023
Nature of the suit Suit for Declaration
Date of Commencement of 18-06-2024
recording of evidence
Date on which judgment was 28-06-2024
Pronounced
Duration Years Months Days
00 06 06
(MADHU N.R.)
XXX Addl. City Civil & Sessions Judge,
Bengaluru.
*****
JUDGMENT
This suit is filed by the plaintiff against the defendant seeking judgment and decree to declare the civil death of Sri.Kempegowda @ Kempa S/o plaintiff and to direct the defendants to issue death certificate of Sri.Kempegowda @ Kempa declared as dead. 3 O.S.No.8100/2023
2. The brief facts of the plaintiff's case are as under :-
It is submitted that, one Sri.Krishnappa was the husband of plaintiff. The plaintiff and Krishnappa had one son namely Kempegowda @ Kempa and one daughter by name Radha. Their family were residing at Maragodanahalli village, Keregodu Hobli, Mandya District. The plaintiff's family also own a property in Sy.No.124, measuring 1 Acre 14 ½ guntas of land in Hodaghatta village, Keregodu Hobli, Mandya Taluk. Unfortunately, husband of plaintiff Sri.Krishnappa passed away on 22.01.2015 leaving behind the plaintiff and his children.
2(a). It is submitted that, after the death of husband of plaintiff, there was no proper income for their livelihood, therefore, the plaintiff shifted her residence to Bengaluru and was doing Housekeeping work by taking care of her children. Further, son of plaintiff i.e., Sri.Kempegowda @ Kempa had studied 4 O.S.No.8100/2023 upto 6th Standard and discontinued his studies. Even after attaining majority, he did not do any job and used to roam around with his friends. The said Kempegowda @ Kempa would go out for more than a week and come home later. All the efforts made by plaintiff to advise her son, went in vain.
2(b). It is submitted that, on 29.12.2015 at about 7.00 pm, said Kempegowda @ Kempa came home and on the next day i.e., on 30.12.2015 when the plaintiff came back from her work, her son had left the home and handed over the key to neighbors. Thereafter, he did not return back home even after leaving home for a week. Therefore, plaintiff made search for her son with relatives and friends, but his whereabouts were not known at all. Hence, plaintiff approached the jurisdictional police, Rajarajeshwarinagar Police Station and lodged a missing complaint on 05/01/2016 in Cr.No.3/2016. The jurisdictional police made efforts to 5 O.S.No.8100/2023 trace the whereabouts of Kempegowda @ Kempa, but could not trace him. On the basis of request made by Rajarajeshwarinagar Police, the Deputy commissioner of police, West Division, Bengaluru issued memorandum on 07/09/2018.
2(c). The plaintiff submits that, inspite of detailed search made by the police authorities and the plaintiff, after lapse of more than 7 ½ years from the date of missing of plaintiff's son, he was not traced anywhere. As such it is deemed that the said Sri.Kempegowda @ Kempa is deemed to be dead. Hence, plaintiff issued notice dt.13.09.2023 to defendants for issuance of death certificate of her son. However, inspite of service of notice, the defendants have not taken any action in this regard.
2(d). The plaintiff further submits that, she performed the marriage of her daughter Smt.Radha and now her daughter is residing with her husband. The 6 O.S.No.8100/2023 plaintiff is not able to do the job of Housekeeping due to her old age and applied for Widow pension. Accordingly, the Deputy Tahsildar of Uttarahalli Hobli, Bengaluru South has sanctioned the widow pension of Rs.500/- per month.
2(e). It is further submitted that, the plaintiff and her son had jointly owned the land in Sy.No.124/03 situated at Hodaghatta Village, Keragodi Hobli, Mandya Taluk and the revenue entries of the said land continued in the name of plaintiff and her son. However, plaintiff is not in a position to cultivate the said land. Hence, she decided to sell the said property for her livelihood and for other medical expenses, but without declaration of death of her missing son, she cannot sell the said property. The son of plaintiff is missing from 30/12/2015 and his whereabouts are not known to any of his relatives and friends. Under the 7 O.S.No.8100/2023 circumstances, the plaintiff is constrained to file the present suit.
3. The summons were duly served upon the defendants. The defendants appeared through their counsel and filed written statement. In the written statement of defendants, it is contended that suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed. The defendants denies the material averments of the plaint and called upon the plaintiff to strict proof of the same. The plaintiff has not complied the mandatory provision under Section 80(2) of CPC before instituting the suit.
3(a). It is further submitted that, The Karnataka State Government is also necessary part to the proceedings for complete adjudication of the case. Hence, the suit is to be dismissed for non-joinder of necessary party. Further, the plaintiff is permanent resident of Maragodanahalli village, Keregodu Hobli, 8 O.S.No.8100/2023 Mandya Taluk. Therefore, this Court has no territorial jurisdiction to try the suit. It is submitted that revenue records are not record of rights, the mutation entries does not confirm title over the Sy.No.124/3 situated at Hodaghatta village, Keragodu Hobli, Mandya Taluk. Further, plaintiff has decided to sell the said land due to the old age of plaintiff is not within the knowledge of defendants. There is no cause of action to file this suit. Hence, prays to dismiss the suit.
4. Perused the plaint averments and the material available on record.
5. On the basis of the above pleadings, the following Issues arise for consideration of this Court :-
1) Whether the plaintiff proves that her son Sri.Kempegowda @ Kempa is not heard of for more than 7 years by those who would have heard about his whereabouts if he is alive ?
2) Whether the defendants prove that the suit is bad for non-issuance of statutory notice under Section 80(2) of CPC ?9 O.S.No.8100/2023
3) Whether the plaintiff is entitled for the relief of declaration of Civil Death of her son Sri.Kempegowda @ Kempa ?
4) Whether the plaintiff is entitled to get death certificate of her son Sri.Kempegowda @ Kempa from the defendant's authority ?
5) What order or decree?
6. In support of the plaintiff's case, the plaintiff got examined herself as PW-1 and produced documentary evidence and the same are marked as per Ex.P.1 to P.14 on behalf of the plaintiff. In addition to her evidence, plaintiff has examined one Rajesh as PW-2. The defendants have not adduced any evidence on their behalf.
7. Heard the arguments on both the sides.
8. My findings on the above issues are as follows:
Issue No. 1: In the Affirmative Issue No. 2 : In the Negative Issue No. 3 : In the Affirmative Issue No. 4 : In the Affirmative Issue No. 5 : As per final order 10 O.S.No.8100/2023 for the following:
REASONS
9. Issue Nos.1, 3 & 4 : These issues are inter- related to each other and therefore are taken up together for joint discussion at a stretch in order to avoid repetitive discussion of facts and for the purpose of brevity.
It is the specific case of the plaintiff that, she was residing at Maragodanahalli village, Keregodu Hobli, Mandya Taluk alongwith her husband Sri.Krishnappa, her son Kempegowda @ Kempa and daugther Radha. Unfortunately, her husband expired on 22.01.2015 and the plaintiff shifted her residence to Bengaluru and was doing Housekeeping work for their livelihood. Further, her son Kempegowda @ Kempa studied upto 6th Standard and discontinued his studies. After attaining his majority also, he was not doing any job and simply 11 O.S.No.8100/2023 roaming around with his friends and sometimes stayed out of home for more than a week.
9(a). It is further submitted that, the plaintiff's son Kempegowda @ Kempa came on 29.12.205 and left the home on 30.12.2015. Thereafter, he did not return back to home even after one week. The plaintiff approached relatives and friends and made search of her son, but could not find his whereabouts. Therefore, she lodged missing complaint before Rajarajeshwarinagara Police Station on 05.01.2016 who registered the case in Cr.No.3/2016. However, the jurisdiction police also could not trace the said Kempegowda @ Kempa. Inspite of all their diligent efforts to trace out the whereabouts of her son, even after lapse of more than 7 ½ years, they could not trace his whereabouts.
9(b). It is further submitted that, the plaintiff performed the marriage of her daughter and she is 12 O.S.No.8100/2023 residing with her husband now. The plaintiff was not able to do Housekeeping job due to her old age and she availed widow pension of Rs.500/-. Further, she and her son had jointly owned a land in Sy.No.124/3 situated at Hodaghatta village, Keragodu Hobli, Mandya Taluk. Now the plaintiff is not in a position to cultivate the said land due to her old age and intends to sell the said property for her livelihood and medical expenses. However, without declaration of death of her missing son, she was not able to sell the land. Hence, plaintiff issued notice dated 13/09/2023 to defendants to issue the death certificate of Kempegowda @ Kempa. Inspite of service of notice, the defendants have not complied with the notice. The plaintiff submits that it is necessary to declare that her son Kempegowda @ Kempa is dead as he is not traced from past 7 ½ years. Hence, plaintiff has filed this suit.
13 O.S.No.8100/2023
10. In support of the plaintiff's case, plaintiff has examined himself as PW-1 and reiterated the plaint averments in chief affidavit and produced documentary evidence which are marked as Ex.P.1 to P.14. The Ex.P.1 is the original notarized family tree dated 05.09.2022, Ex.P.2 is the original death certificate of Krishnappa dated 22.01.2015, Ex.P.3 is the notarized copy of the Aadhar card of the plaintiff, Exs.P.4 and P.5 are the original police complaint dated 05.01.2015 and certified copy of FIR in Cr.No.3/2016 respectively, Ex.P.6 is the original endorsement given by the Addl.Police Commissioner, Bengaluru East Division, Ex.P.7 is the original RTC in respect of Sy.No.124/3, Ex.P.8 is the office copy of the legal notice dated 13/09/2023, Exs.P.9 and P.10 are the two original postal receipts, Exs.P.11 and P.12 are the letter issued by Post Master, CMM Court Complex, Bengaluru dated 02.11.2023 alongwith certified track consignment, Exs.P.13 and P.14 are the letter issued by Post Master, 14 O.S.No.8100/2023 CMM Court Complex, Bengaluru dated 02/11/2023 alongwith certified track consignment. Further, plaintiff also examined one Rajesh as PW-2, who is her relative, who stated in his chief affidavit that Kempegowda @ Kempa was missing from 30.12.2015 and not traced anywhere even after several efforts. Further, it is stated that the plaintiff is willing to the sell the property bearing Sy. No.124/3 situated at Hodagatta Village, Keragodu Hobli, Mandya Taluk in order to meet her livelihood and medical expenses and therefore she filed the present suit.
11. On the otherhand, the defendants have contended that the suit of the plaintiff is not maintainable. The plaintiff has not complied with the mandatory provision under Section 80(2) of CPC before instituting the suit. The suit of the plaintiff is to be dismissed for non-joinder of necessary party and the Karnataka State Government is also necessary party to 15 O.S.No.8100/2023 the proceedings for complete adjudication of the case. Further, this Court has no territorial jurisdiction to try the suit as the plaintiff is permanent resident of Maragodanahalli village, Keregodu Hobli, Mandya Taluk. It is also contended that the revenue records are not record of rights, the mutation entries does not confirm title over the Sy.No.124/3 situated at Hodaghatta village, Keragodu Hobli, Mandya Taluk. Hence, prays to dismiss the suit. The defendants have not adduced any evidence on their behalf.
12. On perusal of Exs.P.4 and P.5, it reveals that plaintiff has lodged missing complaint on 05.01.2015 before the jurisdictional police. The plaintiff in his plaint stated that they had given missing complaint on 05.01.2016 but due to typographical error it was stated as 05.01.2015. The Ex.P.5 is the FIR in respect of the said missing complaint wherein which it reveals on the basis of complaint, FIR is registered in Cr.No.3/2016 16 O.S.No.8100/2023 and it reveals that the information was received on 05.01.2016. The Ex.P.6 is the memorandum given by the Assistant Police Commissioner, Western Division, Bengaluru City dated 07.09.2018 wherein it is stated that they have treated the present missing complaint as temporarily closed case as the missing person could not be traced and accordingly sought permission of their higher authority to keep the file in the dormitory.
13. The defendant authority contends that this Court has no territorial jurisdiction as the plaintiff is the permanent resident of Maragondanahalli Village, Karegoudu Hobali, Mandya Taluk & District. On the other hand, the plaintiff asserts that her husband died on 22.01.2015 (death certificate is marked as per Ex.P.2) and subsequently she shifted to Bengaluru. The plaintiff has produced her Aadhar Card which is marked as Ex.P.3 which reveals that as of now she is residing at Bengaluru. Further, the missing complaint 17 O.S.No.8100/2023 given by the plaintiff and FIR which are marked as Exs.P.4 & 5 also reveals that the plaintiff has been residing at Bengaluru and her son also disappeared when she was in Bengaluru. This Court is of the considered view that the Court cannot readily infer exclusion of jurisdiction of the Civil Court as it is an exception to the general rule. In the case of Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa, (2009) 4 SCC 299, it was held by the Hon'ble Supreme Court that even when the jurisdiction of the Civil Court is expressly barred, it cannot be readily inferred that Civil Court has no jurisdiction. Such ouster of jurisdiction must be established.
14. That, Section 108 of the Indian Evidence Act, 1872 deals with burden of proving that a person is alive who has not been heard of for seven years. It is relevant to read 108 of the Indian Evidence Act, 1872 : 18 O.S.No.8100/2023
108. Burden of proving that a person is alive who has not been heard of for seven years [PROVIDED that when] the question is whether a man is alive or dead, and it is proved that he had not been heard of for seven years, by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is [shifted to] the person who affirms it."
If it is proved that a man had not been heard of for seven years, the burden of proving that he is alive is shifted to the person who affirms it under Section 108. Here, in the instant case, Plaintiff assert that her son Sri.Kempegowda @ Kempa has not been heard of since 30.12.2015. In this regard, police complaint was lodged on 05.01.2016 as per Ex.P.4. The Police gave endorsement on 05.01.2016 as per Ex.P.4 and they have also registered FIR under Crime No.0003/2016 as per Ex.P.5. Further, during the cross examination of PW-1 & PW-2 nothing significant is elicited against the evidence led by the plaintiff in respect of the disappearance of Kempegowda @ Kempa. There are no contra evidence to disprove the version taken by 19 O.S.No.8100/2023 Plaintiff. Nothing has been elicited in the cross examination of PW.1 & PW.2 to controvert the case of Plaintiffs. In view of complaint lodged with the police regarding the missing of Sri.Kempegowda @ Kempa and in view of endorsement issued by Police, it can be fairly said that the fact of missing of Sri.Kempegowda @ Kempa has been proved by Plaintiff. The Missing Complaint was filed on 05.01.2016. Police registered FIR under crime No. 0003/2016 on 05.01.2016. Suit has been filed on 12.12.2023. Even after 7 years of lodging the complaint, missing of Sri.Kempegowda @ Kempa has not been traced. In that circumstance, it can be conveniently said that Plaintiff has discharged the burden that Sri.Kempegowda @ Kempa has not been heard of for the last seven years. Further, the claim of the plaintiff that the declaration of civil death of Kempegowda @ Kempa is necessary to sell the land bearing Sy.No.124/3 situated at Hodaghatta Village, Keragodu Hobali, Mandya Taluk to meet their medical 20 O.S.No.8100/2023 expenses and to lead livelihood appears to be bonafide. Therefore, this Court holds that the plaintiff is entitled to the relief sough in the plaint. Accordingly, this Court answers the Issue Nos. 1, 3 & 4 in the Affirmative.
15. Issue No.4 : The defendant in his Written Statement contended that the plaintiff has not complied with the statutory provision of Section 80(2) of CPC. However, it is observed that the plaintiff has produced the copy of the legal notice under Section 80 of CPC, which is marked as Ex.P.8 along with postal receipts which are marked as Ex.9 & 10. Further, the plaintiff has also produced letters issued by the Post Master dated 02.11.2023 and postal track consignment which are marked as Exs.P.11 to P.14, which clearly reveals that the statutory notice was duly served upon the defendant. Hence, this Court holds that the plaintiff has complied with the Section 80 of CPC. Accordingly, this Court answers the Issue No.4 in Negative. 21 O.S.No.8100/2023
16. Issue No.5: In view of the above discussion and findings on the above issues, the suit of the plaintiff deserves to be decreed. Accordingly, this Court proceeds to pass the following:-
ORDER The suit of the plaintiff is hereby decreed.
The plaintiff's son i.e.,Sri.Kempegowda @ Kempa has not been heard for more than 7 years, is hereby declared to be dead.
The defendants are directed to register Civil Death of Sri.Kempegowda @ Kempa and issue his death certificate to plaintiff.
The defendant is entitled to collect applicable fee/charges from the plaintiff.
Considering the nature of the suit, no order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer Grade-II directly on computer, computerized by her, corrected and then pronounced by me in open court this the 3rd day of July, 2024.).
(MADHU N.R) XXX Addl. City Civil and Sessions Judge, Bengaluru.
22 O.S.No.8100/2023***** ANNEXURE List of witnesses examined for the plaintiff :
P.W-1 Sarojamma List of witnesses examined for the defendant :
- NIL -
List of documents marked for the plaintiff :
Ex.P.1 Original notarized Family tree dt. 05.09.2022 Ex.P.2 Original death certificate of Krishnappa dt.
22.01.2015 Ex.P.3 Notarized copy of Aadhar card of plaintiff Ex.P.4 Original police complaint dt. 05.01.2015 Ex.P.5 Certified copy of FIR in Cr.No.3/2016 Ex.P.6 Original endorsement given by Addl.Police Commissioner East Division, Bengaluru.
Ex.P.7 Original RTC in respect of Sy.No.124/3. Ex.P.8 Office copy of the Legal Notice dt. 13/09/2023 Exs.P.9 & Two original postal receipts P.10 Exs.P.11 Letter issued by the Post Master, CMM Court & P.12 Complex, Bengaluru dt. 02.11.2023 alongwith certified Track Consignment Exs.P.13 Letter issued by the Post Master, CMM Court & P.14 Complex, Bengaluru dt. 02.11.2023 alongwith certified Track Consignment List of documents marked for the defendants :
- NIL -
(MADHU N.R) XXX Addl. City Civil and Sessions Judge, Bengaluru.23 O.S.No.8100/2023
**** 24 O.S.No.8100/2023