Bangalore District Court
Ramachandra vs Jayamma on 15 November, 2024
KABC010054442015 TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF V ADDL.CITY CIVIL COURT
AT BENGALURU
(CCH-13)
Present: Sri. ONKARAPPA.R, B.Sc., L.L.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 15th day of November, 2024
O.S.No.2077/2015
BETWEEN
1. Sri. Ramachandra,
Aged about 52 years
2. Sri. Krishnamurthy,
Aged about 50 years
3. Sri. Lakshmipathi,
Aged about 48 years
Plaintiff No.1 to 3 are
sons of Late Anjinamma and Narasappa,
R/at No.275, Horamavu Agara,
Horamavu Post, Bengaluru.
4. Sri. Muniraju,
S/o Late Neelamma and
Late Narayanappa,
Aged about 35 years,
R/at No.18, Horamavu Agara,
Horamavu Post, Bengaluru. Plaintiffs
( By Sri. MC ., Adv.)
AND
1. Smt. Jayamma,
D/o Late Narasappa,
W/o Late Kempanna,
Aged about 70 years,
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R/at No.80, 5th Cross,
Jyothinagar,
Horamavu Agara Post,
K.R. Puram Hobli,
Bengaluru.
2. Smt. Saroja,
W/o Late Shivappa @ Shivanna,
Aged about 40 years
3. Sri. Ajay Kumar,
S/o Shivappa @ Shivanna,
Aged about 21 years
4. Kum. Anjali,
D/o Shivappa @ Shivanna,
Aged about 19 years
Defendants 2 to 4 are
R/at No.35,
Horamavu Agara,
Horamavu Post,
Bengaluru.
5. Sri. Ravi,
S/o Late P. Narayanaswamy,
Aged about 45 years
6. Sri. Uday,
S/o Late P. Narayanaswamy,
Aged about 43 years
7. Sri. Raju,
S/o Late P. Narayanaswamy,
Aged about 41 years
8. Sri. Lokesh,
S/o Late P. Narayanaswamy,
Aged about 39 years
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9. Sri. Venkatesh,
S/o Late P. Narayanaswamy,
Aged about 37 years
Defendants 5 to 9 are
R/at No.46,
Horamavu Agara,
Horamavu Post,
Bengaluru.
10. Sri. A. Pratap,
S/o M. Anand,
Aged about 34 years,
R/at Horamavu Agara,
Horamavu Post,
Bengaluru.
11. Smt. Monicy Lcojok,
R/at Site No.1
12. Sri. Mathew Thomas,
R/at Aashyana Apartments, Site No.2 and 4
13. Sri. Peter Eltham,
R/at Site No.3
14. Sri. V. Rajasekaran,
R/at Site No.5
15. Sri. Vimal R Dass,
S/o Sri. S. Rama Dass,
Aged about 38 years,
R/at Site No.6
16. Smt. Loretta Rozario,
R/at Site No.8
17. Smt. E.N. Jalaja,
R/at Site No.11
18. Sri. Stephen Immenuel Siemonys,
R/at Site No.13
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19. Sri.F.M. Fernandez,
R/at Flate No.A-1
20. Sylvia Fernandez,
W/o F.M.Fernandez,
R/at Flat No.A-1
21. Smt. Lonappan Sophy Joy,
R/at Flat No.B-1
22. Sri. Jose Mathew,
23. Sri. Sunny Jerome,
R/at Flat No.B-2
24. Smt. Preethi,
W/o Sunny Jerome,
R/at Flat No.B-2
25. Sri. M. Srikanth,
R/at Flat No.C-2
26. Sri. Joseph Sebastian,
27. Latha Joseph,
W/o Joseph Sebastian,
Defendants 19 to 27 are
R/at Sapphire Homes Apartments,
Constructed in site No.22 and 24
28. Sri. Vinay.C.M.
29. Sri. Pradeep Kumar
30. Smt. Padmini V. Nair
31. Sri. Vishnu Narayanan
R/at Flat No.F-3
32. Sri. Ajit Anthony Alexander
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33. Smt. Sajina,
W/o Ajit Anthony Alexander
Defendants 32 and 33 are R/at F-5
34. Sri. Jayesh Chandran,
R/at Flat No.S-3
35. Sri. Navin David Pinto,
R/at Flat No.T-1
36. Sri. Santosh Kumar Divakar,
R/at Flat No.T-3
37. Sri. Dipu.J,
R/at Flat No.T-5
38. Smt. Preethi Narendran,
R/at Flat No.P-1
Defendants 28 to 38 are
R/at Mayan Sabarmarthi Apartments,
Constructed in site No.55, 57, 59 and 61
39. M/s Mayan Builders and Developers,
40. Sri. P.J. Mathew,
41. Sri. Abraham K Simon,
42. Smt. Rekah Joseph,
W/o Abraham K Simon
43. Sri. Ashoka Samuel Thomas,
44. Smt. Maria Ale,
W/o Ashoka Samuel Thomas
45. Sri. Kishan Vasudevan,
46. Smt. Rachel Isaac,
W/o Kishan Issac
47. Sri. Moncy George,
48. Smt. Sheba Moncy,
W/o Moncy George
49. Smt. Nalina Rebecca,
Defendants 40 to 49 are
R/at Ivory Court,
Constructed at site No.45 and 47
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50. Smt. Shailaja.R
W/o A.N. Ravi Kumar
51. Smt. Malini Ahmed,
52. Sri. Rajasankarapillai,
53. Smt. Saliniraj,
W/o Rajasankarapillai
54. Sri. Dophne Chandy,
55. Sri. Derick C Elias,
56. Sri. Biju Mathew John,
57. Smt. Ranigrace Pauline Porko Direchard,
58. Smt. S. Kemilton,
Defendants 50 to 58 are
R/at Ivory Towers Apartments,
Constructed at site No.40 and 42
59. Sri. Biju Thomas,
60. Smt. Vincy Biju,
W/o Biju Thomas
61. Ivory Manor Apartment Owners' Association
Rep. By its Secretary
62. Sri. S. Joseph Antony Jegan,
63. Smt. Sahay,
W/o S. Joseph Antony Jegan
64. Sri. Rajesh Jacob,
65. Smt. Susan Jacob,
W/o Rajesh Jacob
66. Sri. Sabu.E.J,
67. Sri. Shibu P Baby,
68. Smt. Mary Jacob,
W/o Shibu P Baby
69. Smt. Mary Smitha Jacob,
W/o Bino Josep
70. Sri. Bino Joesp,
71. Sri. Jobi T Chacko,
72. Smt. Lancy L Baby,
W/o Jobi T Chacko
73. Sri. WilsonGeorge D Costa,
74. Smt. Suthanu Kokila Jocab,
W/o Wilson George D Costa
75. Sri. Edwin Viego,
76. Sri. Anthony D.A. Bernard,
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77. Sri. Anand Shekar,
78. Smt. Sharmil Y Mukundan,
79. Sri. Godwyn Crosse,
80. Smt. Michelle Cross,
W/o Godwyn Crosse
81. Mr. Siby Thomas,
S/o Thomas,
Aged about 45 years
82. Smt. Sini Siby Thomas,
W/o Siby Thomas,
Aged about 42 years
Defendants 28&29 are R/at
Site No.10, 12, 50, 52 & 54
83. Sri. J.M.P Sundar,
R/at Site No.48
84. Sri. Joseph William George,
R/at Site No.56
85. Sri. V. Sundareshan,
R/at Site No.57 and 53
86. Smt. Shilap Hemanth,
W/o Hemanth,
R/at Site No.63
87. Sri. Shashi Kumar Parthiban,
R/at Site No.58
All the Apartments and Houses
Mentioned above are situated
in Sy.No. 87/2, Horamavu Agara village,
Horamavu post, K.R. Puram Hobli,
Bengaluru.
88. Sri. M.J. Augustine,
S/o Late Jose Augstine,
Aged about 65 years,
R/at No.364, Mottappanapalya,
Indiranagar, Bengaluru.
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89. Sri. P.J. Thomas,
S/o P.V. John,
Aged about 70 years,
R/at No.759, 9th Main,
13th Cross, BSK II Stage,
Bengaluru.
90. Sri. P. Kavarnan Nair,
S/o P. Krishna Pillai,
Aged about 37 years,
R/at No.148, Kammanahalli,
St. Thomas Town,
Bengaluru.
91. Sri. Rajesh,
S/o Kannan Kutty,
Aged about 38 years
92. Smt. Jayani Verma,
W/o Rajesh,
Aged about 33 years
Defendants 91 and 92 are
R/at No.51-52,
8th Main, Jayarama Reddy Layout,
Horamavu main road,
Kalyan Nagar,
Bengaluru.
93. Sri. Kizhakkekuttu Raghavan Soman,
S/o Kizhakekuttu Velu Raghavan,
Aged about 63 years,
R/at No.403, Peter Park,
Jasper Block,
Ramamurthy Nagara Main Road,
Bengaluru.
94. Smt. Christina Benedict,
W/o Mr. Benedict Reddy,
Aged about 46 years,
R/at Shalom, No.91,
Sri. Balaji Layout,
2nd Main, 3rd Cross,
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Babusapalya,
Bengaluru.
95. Sri. Abraham Philips.K
S/o Sri. Philip Abraham,
Aged about 79 years
96. Smt. Annamma Abraham.K.,
W/o Abraham Philips.K.,
Aged about 79 years,
Defendants 95 an d96 are
R/at No.95, 3rd Cross,
Sundar Nagar,Gokula,
Bengaluru.
97. Sri. George Panackamattom Kuriakose,
S/o Late P.S. Kurikose,
Aged about 55 years
98. Smt. Doddu George,
W/o George Panackamattom Kuriakose,
Aged about 50 years
Defendants 97 and 98 are
R/at No.67/1,
Sreerama Temple Street,
Doopanahalli, HAL 2nd stage,
Bengaluru.
99. Sri. Ivan Anthony Rice,
Aged about 44 years
100. Mrs. Meghaa Anthony Rice,
W/o Ivan Anthony Rice,
Aged about 40 years
Defendants 99 and 100 are
R/at No.75,
Hennur Main Road,
Kalyan Nagar Post,
Bengaluru.
101. Smt. Palakkal Santhagopalan,
W/o P. Gopalan,
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Aged about 69 years,
R/at Flat No.210, Poorva Irish,
Jeevanahalli Road, Cox Town,
Bengaluru.
102. Sri. Arvind. L. Patel,
S/o Lakhmasi M Patel,
Aged about 30 years
103. Sri. Ashok L. patel,
S/o Lakhamasi L Patel,
Aged about 30 years,
Defendants 102 and 103 are
R/at No.861,
Umiya Nivas, 1st Main,
1st Block,1st Cross,
HAL 3rd stage,
New Thippasandra,
Bengaluru.
104. Smt. Ravina Dorothy Dickerson,
D/o Late Flt. Lt. P.S.S. Dickerson,
Aged about 45 years,
R/at Gate No.K1616/1,
Shivaramaiah Layout,
Opp. 10th Bus Depot,
Kacharakanahalli,
St. Thomas Town Post,
Bengaluru. Defendants
( D.1 to 4, 19,33, 48, 60, 61, 68,
69, 72, 80, 89, 96, 102- Ex-parte
D.5 to 9, 88- Sri. SKB advocate
D.10, 26 to 30, 34, 36 to 40, 42
44 to 46, 50, 62, 64, 75, 89,
91 to 93, 99 to 104- Dismissed for non prosecution
D.11, 15, 97, 98- Sri. KNP advocate
D.12 to 14, 16 to 18- Sri. KRB advocate
D.20 to 22, 25, 31, 32, 35, 83 to 87
90,94- Sri. GSS advocate
D.23, 24- Sri. SM advocate
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D.41, 43, 47, 49, 51 to 59,63
65, 66, 67, 70, 73, 74,
76 to 79, 81, 82, 95- Sri. CPS)
Date of institution of the Suit : 04/03/2015
Nature of the Suit : Partition
Date of commencement of
: 04/03/2021
recording of evidence
Date on which the Judgment was
: 15/11/2024
pronounced
Year Months Days
Total Duration :
09 08 11
[ ONKARAPPA.R ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
-: J U D G E M E N T :-
The plaintiffs have filed the suit against the defendants for
the relief of partition of their 2/3rd share in the suit schedule
properties by metes and bounds with respect to fertile and non
fertile soils are concerned and put the plaintiffs in separate
possession of the suit schedule properties along with
consequential relief of permanent injunction and cost of the suit.
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O.S.No.2077/2015
2. The brief facts are as under :
That, Hanumanthappa had six children viz.,
Smt. Chikkamuniyamma, Smt. Anjinamma, Sri. Anjinappa,
Smt. Jayamma, Smt. Neelamma and Sri. Shivappa @ Shivanna.
First daughter Chikkamuniyamma was died without marriage.
Anjinamma had three sons viz., Sri. Ramachandra,
Sri. Krishnamurthy and Sri. Lakshmipathi who said to plaintiff No.1
to 3. Anjinappa died long back without marriage. Defendant
No.5 to 9 are the legal heirs of late P. Narayanaswamy. Jayamma
had a son by name K.Raja. Neelamma was died by leaving her
son Muniraj i.e. plaintiff No.4. Shivappa @ Shivanna died leaving
behind his wife, son and daughter as his legal heirs. Defendant
No.5 to 9 are the legal heirs of P. Narayanaswamy. Defendant
No.11 to 104 are the purchasers and subsequent purchasers of
the sites. The plaintiffs and defendant No.1 to 4 are the joint
family members and they have constituted joint family as
governed under Mithakshara school of law. The land bearing
Sy.No. 87/2 measuring 2 acres 31 gunts and Sy.No. 6/2
measuring 0.33 guntas of Horamavu village, Agara village,
K.R. Puram Hobli, Bengaluru East Taluk are the ancestral
properties of Hanumanthappa. The same that he had inherited
from his father. The same properties described by the plaintiffs as
suit schedule properties. Late Hanumanthappa sold the land
bearing Sy.No. 87/2 2 acres 31 guntas to one Patel
Hanumanthappa under registered sale deed dated 06/05/1949.
Patel Hanumanthappa died long back. Son of Patel
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O.S.No.2077/2015
Hanumanthappa by name Papaiah was also died leaving behind
his son P. Narayanaswamy. P. Narayanaswamy sold the property
bearing Sy.No. 87/2 to grandfather of the plaintiffs and defendant
No.1 to 4 late Hanumanthappa under registered sale deed dated
10/11/1963. Hence, the land bearing Sy.No. 87/2 and 6/2 are the
joint and ancestral properties of the plaintiffs and defendant No.1
to 4. The plaintiffs and defendant No.1 to 4 are in the joint
possession and enjoyment of the suit schedule properties as they
are joint family members. Hanumanthappa after purchase of the
land bearing Sy.No. 87/2 from said P. Narayanaswamy it did not
get the revenue records mutated in his name. After death of
Hanumanthappa and by taking undue advantage the revenue
records are all stands in the name of P. Narayanaswamy despite
existence of sale deed dated 10/11/1963, said P. Narayanaswamy
has formed a layout in the land bearing Sy.No. 87/2 and he have
been sold all the sites to some of the defendants of this suit. 1 st
defendant demanded her legitimate share in the joint family
properties. L. Shivappa @ Shivanna husband of 2 nd defendant
refused to effect the partition and accordingly 1st defendant have
filed the suit for partition and separate possession on the file of
O.S.No.2022/2008 at before City Civil Court, Bengaluru. The
plaintiffs and husband of 2nd defendant Shivappa @ Shivanna
entered in to compromise with defendant No.1 and her son in the
suit O.S.No.2022/2008. The plaintiffs, husband of 1st defendant
and Narayanaswamy jointly paid Rs.8 lakhs to Jayamma and suit
have been compromised. Accordingly, Jayamma withdrawn the
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O.S.No.2077/2015
suit as not pressed by filing a memo dated 25/05/2009. Hence,
son of Jayamma by name K. Raja not been made him as party to
this suit. Husband of 2nd defendant promised the plaintiffs to
effect the partition soon after the compromise of
O.S.No.2022/2008 and he undertake to allotted their legitimate
share fall on to the plaintiffs. P. Narayanaswamy was died in the
month of January 2009 leaving behind defendant No.5 to 9 as his
legal heirs. After death of said Narayanaswamy Shivappa @
Shivanna colluded with the son of P. Narayanaswamy. Defendant
No.5 to 9 executed confirmation deed to the parties who have
purchased sites from P. Narayanaswamy. The plaintiffs requested
the husband of 2nd defendant to effect the partition at the time of
withdrawal of the suit in O.S.No.2022/2008. But Shivappa @
Shivanna husband of 2nd defendant postponed the same by
assigning one or the other reasons. Shivappa @ Shivanna died
on 02/08/2012 and he failed to effect the partition as he promised
to the plaintiffs. After the death of Shivappa @ Shivanna the
plaintiffs approached defendant No.2 to 4 to effect the partition as
under taken by Shivappa @ Shivanna at during his life time. But
defendant No.2 to 4 have also postponed the same without of
allotting the legitimate shares of the plaintiffs in the suit schedule
properties by assigning one or the other reasons. Finally the
plaintiffs have approached defendant No.2 to 4 to effect partition
on 12/08/2014, but defendant No.2 to 4 refused to effect the
partition. Hence, the cause of action to the suit have been
aroused on 12/08/2014 when defendant No.2 to 4 refused to
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O.S.No.2077/2015
effect the partition. The plaintiffs have assessed the suit for the
purpose of court fee and jurisdiction as per the valuation slip
separately annexed to the plaint. Paid court fee is sufficient.
Hence, the plaintiffs sought for decreed the suit.
3. After service of suit summons on defendant No.11, 15,
23, 24, 31, 32, 33, 35, 41, 43, 47, 49, 51 to 59, 63, 65, 66, 70, 73,
76, 77, 78, 79, 84, 85, 86, 87, 97 and 98, they chosen to appear
and filed their own written statements. Though all the defendants
have chosen to filed their respective written statements, the same
are all the defendants have taken the similar kind of defense in
against the case of plaintiffs except the change of document
number with respect to their own sites. Hence as to avoid the
repetition of the facts which urged by the above all defendants,
their written statement conjointly read and write herein for make
convenient . Wherein the all written statements which filed by the
above all defendants, all the defendants have denied the entire
averments of the plaintiffs case as false and story of concocted.
Further according to above all the defendants they are been the
bonafide purchasers of their own properties. Defendant No.13 is
the bonafide purchaser of residential house property bearing site
No.3, House List No.182, situated at Horamavu Agara village,
K.R. Pural Hobli measuring east to west 51 feet and north to
south 30 feet totally measuring 1530 square feet which is item
No.3 of the plaint schedule property. This defendant not aware of
the compromise having taken place in O.S.No.2022/2008. The
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O.S.No.2077/2015
suit schedule properties have lost the status of agricultural in
nature and several sites have been carved in the said property
and sold to different persons. The plaintiffs does not have any
manner of right, title or interest over the suit schedule properties
which has been purchased by this defendant and other
purchasers over more than 30 years back and was not
challenged by the plaintiffs until 2015 when the present suit was
filed. The suit is hopelessly barred by time. There is no cause of
action for the suit and one mentioned in para 9 of the plaint is
absolutely imaginary. The plaintiffs are not at all in the possession
of the suit schedule properties. The suit is not valued properly
and the court fee paid is insufficient. Further, this defendant is
the absolute owner of residential house built on Property bearing
Site No.3, House List No.182, Situated at Horamavu Agara
Village, K. R. Puram, Bangalore South Taluk, Bangalore,
measuring East to West 51 Feet and North to South 30 Feet,
totally measuring 1530 square feet the Item No.3 of the Plaint
Schedule Property. The said property originally belonged to one
Sri. P. Narayanaswamy S/o Sri. Papaiah who had assigned his
son Sri. N. Ravi defendant No.5 to look after and manage the Item
No.3 of the Plaint Schedule Property along with other sites
including powers to alienate. The said General Power of Attorney
was registered on 20-06-1991. Acting upon the said General
Power of Attorney defendant No.5 has sold Item No.3 of the
Plaint Schedule Property to this defendant under a deed of
absolute sale registered dated 09-09-1991 in the office of the
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O.S.No.2077/2015
Sub- Registrar, Krishnarajapuram, Bangalore. After purchase of
the Item No.3 of the Plaint Schedule Property this defendant has
constructed a residential house thereon and had got the Khatha
mutated in his name in the erstwhile Horamavu Agara Village
Panchayath and also had obtained the electricity connection from
the BESCOM Authorities. Subsequently when the revenue
jurisdiction of the Item No.3 of the Plaint Schedule Property
vested with the Bruhat Bangalore Mahanagara Palike, this
defendant has obtained the Form-13 Property Register extract
and is also remitted the property taxes and when due. This
defendant has been is peaceful and enjoyment of Item No.3 of the
Plaint Schedule Property from 1991 without any let or hindrance
from anybody in whatsoever nature. The plaintiffs never
challenged the said sale deed till the year 2015 but have belatedly
filed the above suit with malafide intention to make illegal
monetary gain. The plaintiffs do not have any manner or right, title
or possession of the Suit Schedule Properties which includes the
property of this defendant as well as other defendants who have
been in peaceful and enjoyment for more than 30 years this
defendant bonafide purchaser and having invested his hard
earned money for not only purchasing the Item No.3 of the Plaint
Schedule Property and also having invested in construction of
residential house. The suit is filed by the plaintiffs only to harass
this defendant along with other defendants who are the absolute
owners and in possession of the Sites/house properties. It is of
net case to all the defendants, it is not true to claim that
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O.S.No.2077/2015
P.Narayanaswamy had sold Sy No.87/2 measuring 2 acres 31
guntas which was purchased by his grandfather Hanumappa
under the registered sale deed dated 06/05/1949. The sale deed
mentioned at Document No.2 is a sham document and it was not
acted upon by the parties to the document. The land in Sy
No.87/2 of Horamavu Agara village, K.R.Puram Hobli remained in
the possession and cultivation of Hanumappa, the grandfather of
P.Narayanaswamy and in the same year 1971 by order of the
Deputy Commissioner, Bangalore District Bangalore vide No.DIS,
ALN SR.5432 30-05-1971 in favour of Sri Hanumappa, land
measuring 2 acres 31 guntas in Sy No.87/2 of Horamavu Agara
Village was converted for non-agricultural residential use. The
defendants that as per copy of conversion demand register
furnished to these defendants by their vendor P.Narayanaswamy,
his grandfather Hanumappa S/o Muniyappa had remitted the
conversion charges Rs.6881/- in his name on 19/08/1971 and
thereafter the Thasildar, Bangalore South Taluk had issued the
conversion certificate in the name of Sri. Hanumappa vide
No.ALN.SR3058/70-71. It was represented to these defendants
by this vendor P.Narayanswamy that after the death of his father
Papaiah S/o Hanumappa, P.Narayanaswamy inherited his
grandfather Hanumappa's said converted land in Sy No.87/2
measuring 2 acres 31 guntas in Horamavu Agara Village and
formed a layout of residential sites as per the layout plan
approved by the local village Panchyat and P.Narayanaswamy
sold by registered sale deeds the sites so formed in the said
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O.S.No.2077/2015
layout to different purchasers, including these defendants. Site
No.7 measuring 51 feet x 30 feet formed in the said layout was
sold to these defendants for valid sale consideration under sale
deed dated 19/06/1991 for raising funds for the urgent financial
needs of his joint family in his capacity as the kartha and head of
the joint family constituted by himself and his sons. After the
purchase of the said site No.7 formed in the converted Sy No.87/2
of Horamavu Agara Village, these defendants constructed their
house in the said site No.7 after obtaining building license and
sanctioned plan from the local panchayath in the year 2003 and
these defendants are residing in this house. The suit brought by
the plaintiffs for partition is not maintainable in law. The plaintiffs
are not in possession or in joint possession with other defendants
the suit property sought to be partitioned. The item No. I in the
plaint schedule is not land, it is layout of residential sites with
residential building thereon put up by the defendants and other
site purchaser. The defendants (Purchasers of site) are claiming
title to different portions of the land (sites) in Sy No.87/2 of
Horamavu Agara village under separate sale deeds registered in
their name and plaintiffs have to first seek for cancellation of those
sale Deeds and to seek for possession before seeking partition of
the land Sy No.87/2 if they are entitled to the land. Further, the
alleged compromise entered between the parties to the suit in
O.S.No.2022/2008 is not binding on the site owners including
these defendants who purchased the sites in Sy.No. 87/2 of
Horamavu village and was in actual possession and enjoyment of
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O.S.No.2077/2015
their respective sites from the year 1990-91 under registered sale
deeds. These defendants are in undisturbed possession and
enjoyment of site No.7 forming part of Sy.No. 87/2 of Horamavu,
Agara purchased by the defendants under the sale deed dated
19/06/1991 with their house constructed thereon. The plaintiffs
have no any right, title or interest over item No.1 of the plaint
schedule property in Sy.No. 87/2 of Horamavu Agara village
measuring 2 acres 31 guntas of converted land. There is no
cause of action to the present suit and alleged cause of action is
fictitious. In this context this suit brought by the plaintiffs is not
maintainable in law. This suit is also barred by law of limitation.
The court fee paid on the plaint is grossly insufficient. The
plaintiffs are not in joint possession of the suit properties. The item
No. I in the plaint schedule is a layout of sites with several
residential buildings and apartments thereon. The suit properties
are not valued properly and proper court fee is not paid by the
plaintiffs. The issue of proper court fee needs to be decided as a
preliminary issue. On these grounds prayed for dismissal of the
suit with costs.
4. Basing on above narrated pleadings my predecessor
in office has framed the following issues.
1. Whether the plaintiffs prove
that the plaintiffs and
defendant Nos.1 to 4 are all
joint family members and suit
21
O.S.No.2077/2015
schedule properties are the
joint family properties of
themselves and defendant
Nos.1 to 4 ?
2. Whether the plaintiffs prove
that they are entitled for
partition and separate
possession of their 2/3rd share
in the suit schedule properties
by metes and bounds ?
3. Whether the plaintiffs are
entitled for permanent
injunction as sought for ?
4. Whether plaintiffs are entitled
for the reliefs sought ?
5. What order or decree ?
5. In order to prove the case of plaintiffs, 2 nd plaintiff
examined himself as PW.1 and no documents were marked on his
behalf. On the other hand defendant No.84 himself examined as
D.W.1 and he got marked Ex.D.1 to D.11. Defendant No.31
himself examined as D.W.2 and he got marked Ex.D.12 to D.15.
Defendant No.32 examined himself as D.W.3 and he got marked
Ex.D.16 to 22. Defendant No.35 examined himself as D.W.4 and
he got marked Ex.D.23 to D.29. Defendant No.86 himself
examined as D.W.5 and he got marked Ex.D.30 to D.36.
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Defendant No.87 himself examined as D.W.6 and he got marked
Ex.D.37 to D.43. Defendant No.76 himself examined as D.W.7
and he got marked Ex.D.44 to D.48. Defendant No.56 himself
examined as D.W.8 and he got marked Ex.D.49 to D.54.
6. Heard arguments on both sides. Perused the
records.
7. My findings on the above issues are as under.
Issue No.1 In the negative
Issue No.2 In the negative
Issue No.3 In the negative
Issue No.4 In the negative
Issue No.5 As per final orders for
the following,
-: R E A S O N S :-
8. Issue No.1 to 4 :- The Issue No.1 to 4 are
overlapping with the each other. Hence, Issue No.1 to 4 that I
have taken for my common discussion to avoid the repetition of
facts.
9. As could be seen from the deposition of P.W. 1, the
plaintiffs and defendant No.1 to 9 are the joint family members
and they have constituted joint family as governed under
Mithakshara school of law. The land bearing Sy.No. 87/2
measuring 2 acres 31 gunts and Sy.No. 6/2 measuring 0.33
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guntas of Horamavu village, Agara village, K.R. Puram Hobli,
Bengaluru East Taluk are the ancestral properties of
Hanumanthappa. The same that he had inherited from his father.
The same properties described by the plaintiffs as suit schedule
properties. Late Hanumanthappa sold the lad bearing Sy.No. 87/2
2 acres 31 guntas to one Patel Hanumanthappa under registered
sale deed dated 06/05/1949. Patel Hanumanthappa died long
back. Son of Patel Hanumanthappa by name Papaiah was also
died leaving behind his son P. Narayanaswamy. P.
Narayanaswamy sold the property bearing Sy.No. 87/2 to
grandfather of the plaintiffs and defendant No.1 to 4 late
Hanumanthappa under registered sale deed dated 10/11/1963.
Hence, the land bearing Sy.No. 87/2 and 6/2 are the joint and
ancestral properties of the plaintiffs and defendant No.1 to 9. The
plaintiffs and defendant No.1 to 9 are in the joint possession and
enjoyment of the suit schedule properties as they are joint family
members. Hanumanthappa after purchase of the land bearing
Sy.No. 87/2 from said P. Narayanaswamy it did not get the
revenue records mutated in his name. After death of
Hanumanthappa and by taking undue advantage the revenue
records are all stands in the name of P. Narayanaswamy despite
existence of sale deed dated 10/11/1963, said P. Narayanaswamy
has formed a layout in the land bearing Sy.No. 87/2 and he have
been sold all the sites to some of the defendants of this suit. 1 st
defendant demanded her legitimate share in the joint family
properties. L. Shivappa @ Shivanna husband of 2 nd defendant
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O.S.No.2077/2015
refused to effect the partition and accordingly 1st defendant have
filed the suit for partition and separate possession on the file of
O.S.No.2022/2008 at before City Civil Court, Bengaluru. The
plaintiffs and husband of 2nd defendant Shivappa @ Shivanna
entered in to compromise with defendant No.1 and her son in the
suit O.S.No.2022/2008. The plaintiffs, husband of 1st defendant
and Narayanaswamy jointly paid Rs.8 lakhs to Jayamma and suit
have been compromised. Accordingly, Jayamma withdrawn the
suit as not pressed by filing a memo dated 25/05/2009. Hence,
son of Jayamma by name K. Raja not been made him as party to
this suit. Husband of 2nd defendant promised the plaintiffs to
effect the partition soon after the compromise of
O.S.No.2022/2008 and he undertake to allotted their legitimate
share fall on to the plaintiffs. P. Narayanaswamy was died in the
month of January 2009 leaving behind defendant No.5 to 9 as his
legal heirs. After death of said Narayanaswamy Shivappa @
Shivanna colluded with the son of P. Narayanaswamy. Defendant
No.5 to 9 executed confirmation deed to the parties who have
purchased sites from P. Narayanaswamy. The plaintiffs requested
the husband of 2nd defendant to effect the partition at the time of
withdrawal of the suit in O.S.No.2022/2008. But Shivappa @
Shivanna husband of 2nd defendant postponed the same by
assigning one or the other reasons. Shivappa @ Shivanna died
on 02/08/2012 and he failed to effect the partition as he promised
to the plaintiffs. After the death of Shivappa @ Shivanna the
plaintiffs approached defendant No.2 to 4 to effect the partition as
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O.S.No.2077/2015
under taken by Shivappa @ Shivanna at during his life time. But
defendant No.2 to 4 have also postponed the same without of
allotting the legitimate shares of the plaintiffs in the suit schedule
properties by assigning one or the other reasons. Finally the
plaintiffs have approached defendant No.2 to 4 to effect partition
on 12/08/2014, but defendant No.2 to 4 refused to effect the
partition. In support of the plaintiffs case despite an opportunity
neither P.W.1 nor any of the plaintiffs have not turned up at before
the court. Hence, further chief examination of P.W.1 taken as nil.
Accordingly, no such of the documentary evidence available in the
case record to substantiated the case of plaintiffs. Further it also
important to note despite an opportunities to P.W. 1 he do also
have not been turned up and hence he has not available for
cross-examination. Therefore, the chief examination of P.W.1 rest
as eschewed in the case record as per the order sheet dated
17/06/2023.
10. On the contrary to the case of plaintiffs, it could be
seen from the deposition of D.W.1 to D.W.8 is, it is not true to
claim that P.Narayanaswamy had sold Sy No.87/2 measuring 2
acres 31 guntas which was purchased by his grandfather
Hanumappa under the registered sale deed dated 06/05/1949.
The sale deed mentioned at Document No.2 is a sham document
and it was not acted upon by the parties to the document. The
land in Sy No.87/2 of Horamavu Agara village, K.R.Puram Hobli
remained in the possession and cultivation of Hanumappa, the
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grandfather of P.Narayanaswamy and in the same year 1971 by
order of the Deputy Commissioner, Bangalore District Bangalore
vide No.DIS, ALN SR.5432 30-05-1971 in favour of
Sri Hanumappa, land measuring 2 acres 31 guntas in Sy No.87/2
of Horamavu Agara Village was converted for non-agricultural
residential use. The defendants that as per copy of conversion
demand register furnished to these defendants by their vendor
P.Narayanaswamy, his grandfather Hanumappa S/o Muniyappa
had remitted the conversion charges Rs.6881/- in his name on
19/08/1971 and thereafter the Thasildar, Bangalore South Taluk
had issued the conversion certificate in the name of
Sri. Hanumappa vide No.ALN.SR3058/70-71. It was represented
to these defendants by this vendor P.Narayanswamy that after the
death of his father Papaiah S/o Hanumappa, P.Narayanaswamy
inherited his grandfather Hanumappa's said converted land in Sy
No.87/2 measuring 2 acres 31 guntas in Horamavu Agara Village
and formed a layout of residential sites as per the layout plan
approved by the local village Panchyat and P.Narayanaswamy
sold by registered sale deeds the sites so formed in the said
layout to different purchasers, including these defendants. Site
No.7 measuring 51 feet x 30 feet formed in the said layout was
sold to these defendants for valid sale consideration under sale
deed dated 19/06/1991 for raising funds for the urgent financial
needs of his joint family in his capacity as the kartha and head of
the joint family constituted by himself and his sons. After the
purchase of the said site No.7 formed in the converted Sy No.87/2
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of Horamavu Agara Village, these defendants constructed their
house in the said site No.7 after obtaining building license and
sanctioned plan from the local panchayath in the year 2003 and
these defendants are residing in this house. The suit brought by
the plaintiffs for partition is not maintainable in law. The plaintiffs
are not in possession or in joint possession with other defendants
the suit property sought to be partitioned. The item No. I in the
plaint schedule is not land, it is layout of residential sites with
residential building thereon put up by the defendants and other
site purchaser. The defendants (Purchasers of site) are claiming
title to different portions of the land (sites) in Sy No.87/2 of
Horamavu Agara village under separate sale deeds registered in
their name and plaintiffs have to first seek for cancellation of those
sale Deeds and to seek for possession before seeking partition of
the land Sy No.87/2 if they are entitled to the land. Further, the
alleged compromise entered between the parties to the suit in
O.S.No.2022/2008 is not binding on the site owners including
these defendants who purchased the sites in Sy.No. 87/2 of
Horamavu village and was in actual possession and enjoyment of
their respective sites from the year 1990-91 under registered sale
deeds. These defendants are in undisturbed possession and
enjoyment of site No.7 forming part of Sy.No. 87/2 of Horamavu,
Agara purchased by the defendants under the sale deed dated
19/06/1991 with their house constructed thereon. The plaintiffs
have no any right, title or interest over item No.1 of the plaint
schedule property in Sy.No. 87/2 of Horamavu Agara village
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O.S.No.2077/2015
measuring 2 acres 31 guntas of converted land. Further
defendant 1 to D.W. 8 in support of their case have been marked
the documents at Ex.D.1 to D.54 respectively.
11. On assimilating the controversy, it is of the net case of
the plaintiffs, the plaintiffs and defendant No.1 to 4 have
constituted Hindu Undivided Joint Family as they are being the
members of joint family. Land bearing Sy.No. 87/2 and 6/2 of
Agara village, Horamavu, K.R. Puram Hobli are the joint and
ancestral properties of the plaintiffs and defendant No.1 to 4.
Since the revenue records stands in the name of
P. Narayanaswamy despite he had been executed the registered
sale deed dated 10/11/1963 to the propositus of the plaintiffs by
name Hanumanthappa, P. Narayanaswamy formed a layout and
sold the each of sites to various prospective purchasers. As the
plaintiffs have the right of partition in the suit schedule properties
the plaintiffs have demanded their rights at before 1 st defendant
upon the suit schedule properties. As negate by defendant No.1
to 4 to allot the legitimate share of the plaintiffs now the plaintiffs
are at before the court for relief of partition in all the suit schedule
properties.
12. On the contrary, D.W.1/defendant No.84 have
contended, he is the absolute owner in possession and enjoyment
of site No.56, house list katha No.446, BBMP katha
No.1247/281/446, property No.87/2, BBMP PID No.025-W-1461-8
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as per Ex.D.1 sale deed. The transaction Ex.D.1 sale deed have
also reflected at Ex.D.2 and D.3 encumbrance certificate.
Defendant No.84 have been the owner in possession of house
property he got an electrical connection and water connection as
per Ex.D.4 to D.11 documents. As per D.W.2/defendant No.31 he
is the absolute owner in possession and enjoyment of Flat No.F-3,
BBMP Katha No.025-W1090-8 and property No.87/2/838/190/2/3,
on the first floor in the apartment known as Mayan Apartment as
per Ex.D.12 registered sale deed. The transaction Ex.D.12 sale
deed have also reflected at Ex.D.13 and D.14 encumbrance
certificate and property B register extract. Defendant No.86 have
been the owner in possession of aforesaid flat he paid taxes to
the concerned authorities as per Ex.D.15 property tax receipts. As
per D.W.3/defendant No.32, he is the absolute owner in
possession and enjoyment of Flat No.F-5, BBMP katha No.025-
W1038-17/1 and property No.190/3/90/2, on the first floor in the
apartment known as Mayan Apartment as per Ex.D.16 registered
sale deed. The transaction Ex.D.16 sale deed have also reflected
at Ex.D.17, Ex.D.18, Ex.D.20 and 21 encumbrance certificate and
property B register extracts. Defendant No.32 have been the
owner in possession of aforesaid flat he also paid taxes to the
concerned authorities as per Ex.D.19 property tax receipts.
Defendant No.32 have been the owner in possession of house
property he got an electrical connection as per Ex.D.22
documents. As per D.W.4/defendant No.35, he is the absolute
owner in possession and enjoyment of Flat No.T-1, BBMP katha
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O.S.No.2077/2015
No.025-W1963-4 and property No.87/2/838/190/2/3, on the third
floor in the apartment known as Mayan Apartment as per Ex.D.23
registered sale deed. The transaction Ex.D.23 sale deed have
also reflected at Ex.D.24 and D.25 encumbrance certificate and
property B register extract. Defendant No.35 have been the
owner in possession of aforesaid flat he also paid taxes to the
concerned authorities as per Ex.D.26 property tax receipts.
Defendant No.35 have been the owner in possession of house
property he got an electrical connection as per Ex.D.27
documents. As to evidence the existence of flat at in the land
bearing Sy.No.87/2 and 6/2, D.W.4 has also produced colour
photographs and one C.D at Ex.D.28 and D.29. As per
D.W.5/defendant No.86 have contended, he is the absolute owner
in possession and enjoyment of site No.63, house list katha
No.118/1, property No.87/2, BBMP katha No.118/1/87/2, PID
No.025-W-2314-3 as per Ex.D.30 sale deed. The transaction
Ex.D.30 sale deed have also reflected at Ex.D.31 to D.35
encumbrance certificate and property B register extracts.
Defendant No.86 have been the owner in possession of aforesaid
site he also paid taxes to the concerned authorities as per
Ex.D.36 property tax receipts. Defendant No.87 has executed
special power of attorney in favour of one Vijayalakshmi.N as per
Ex.D.43 to prosecute the case on his behalf. As per D.W.6,
defendant No.87 is the absolute owner in possession and
enjoyment of site No.58, house list katha No.446, BBMP Katha
No. PID No.025-W0858-8, as per Ex.D.37 registered sale deed.
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The transaction Ex.D.37 sale deed have also reflected at Ex.D.38
to D.40 encumbrance certificates and property B register extract.
Defendant No.87 have been the owner in possession of aforesaid
site he also paid taxes to the concerned authorities as per
Ex.D.41 property tax receipts. Defendant No.87 have been the
owner in possession of house property he got an electrical
connection as per Ex.D.42 documents. As per D.W.7/defendant
No.76, he is the absolute owner in possession and enjoyment of
Flat No.3, ground floor, Ivory Manor Horamavu Agara, Bengaluru
as per Ex.D.44 registered sale deed. The transaction Ex.D.44
sale deed have also reflected at Ex.D.45 and D.48 encumbrance
certificate and property B register extract. Defendant No.76 have
been the owner in possession of aforesaid flat he also paid taxes
to the concerned authorities as per Ex.D.46 property tax receipts.
Defendant No.76 have been the owner in possession of house
property he got an electrical connection as per Ex.D.47
documents. As per D.W.8/defendant No.56, he is the absolute
owner in possession and enjoyment of Flat No.F2, First floor,
Ivory Tower Horamavu Agara, as per Ex.D.49 registered sale
deed. The transaction Ex.D.49 sale deed have also reflected at
Ex.D.50, D.51 and Ex.D.53 encumbrance certificate and property
B register extracts. Defendant No.56 have been the owner in
possession of aforesaid flat he also paid taxes to the concerned
authorities as per Ex.D.52 property tax receipts. Defendant No.56
have been the owner in possession of house property he got an
electrical connection as per Ex.D.54 documents. Important to
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O.S.No.2077/2015
note despite an opportunities to the plaintiffs and their counsel to
cross-examined D.W.1 to D.W.8 neither the plaintiffs nor their
counsel have not turned up. Hence, cross-examination of D.W.1
to D.W.8 taken as nil as per order sheet dated 13/09/2024.
Accordingly the testimony of D.W.1 to D.W.8 herein remains as
unchallenged.
13. From the above all pleadings and evidence, one thing
is evident the plaintiffs have the suit for partition in the land
bearing Sy.No.87/2 and 6/2 of Horamavu village, Agara, K.R.
Puram Hobli, Bengaluru East Taluk. As the plaintiffs and
defendant No.1 to 4 have constituted the Hindu Joint Family, the
plaintiffs have the right of partition in the land bearing Sy.No.87/2
and 6/2 of Horamavu village. As to evidence the plaintiffs and
defendant No.1 to 4 have constituted the Hindu Undivided Joint
Family and land bearing Sy.No.87/2 and 6/2 lands have been still
available for make partition in the nature of agriculture no single
piece of evidence that the plaintiffs have produced at before the
court. Further as to evidence the plaintiffs and defendant No.1 to
4 have been in the joint possession of land bearing Sy.No.87/2
and 6/2 of Horamavu village no single piece of evidence that the
plaintiffs have produced at before the court. Hence the case
theory of the plaintiffs herein just remains as an theory as self
surviving without of the documents. On the contrary, on going
through the deposition of D.W.1 to D.W.8 it consistently D.W.1 to
8 have deposed land bearing Sy.No.87/2 have already been
33
O.S.No.2077/2015
converted from agricultural to non agricultural vide conversion
order bearing No.BDIS.ALN.SR 5432/1971-72 dated 30/05/1971
by the Spl. Dy. Commissioner and vide conversion certificate
bearing No.ALN-S3058/1970-71 dated 06/10/1971. After
conversion of the same land many more sites which are described
in the suit schedule properties have been carved out and the
same sites have been sold to the prospective purchasers for the
valuable consideration. Further D.W.1 to D.W.8 urged their rights
in the suit schedule properties at Ex.D.1, Ex.D.12, Ex.D.16,
Ex.D.23, Ex.D.30, Ex.D.37, Ex.D.44 and Ex.D.49 sale deeds
respectively. Each of the sale deeds which relied by the
defendants at before the court have also consistently evidence
land bearing Sy.No.87/2 have already been converted from
agricultural in to non agricultural and in it consequent several sites
have been carved out and the same sites have already been the
subject matter of sale to the various prospective purchasers. The
plaintiffs not disputed suit schedule properties i.e. various sites
have been carved out in the land bearing Sy.No.87/2 of Horamavu
village, Agara, K.R. Puram. Further the plaintiffs have also not
disputed suit schedule properties have already put in to the action
of sale for the valuable consideration. It important to note it is
neither case of the plaintiffs the sale deeds which relied by the
defendants not binds on the share of the plaintiffs. If the land
bearing Sy.No.87/2 of Horamavu village, Agara, K.R. Puram once
would have converted from agricultural in to non agricultural,
wherein it carved out the several sites and if the same sites would
34
O.S.No.2077/2015
have put in to the action for sale for a valuable consideration it
would not possible to say the plaintiffs and defendant No.1 to 4
have been in the joint possession of the land bearing Sy.No.87/2.
The land bearing Sy.No.87/2 if not available as if in the nature of
agriculture and tenancy in common in between the plaintiffs and
defendant No.1 to 4, it would not possible to declare the partition
rights of the plaintiffs in that of the land bearing Sy.No.87/2. On its
contrary, both oral and documentary evidence placed by D.W.1 to
D.W.8 have remains as unchallenged, that it would not make any
hurdle to say the plaintiffs are not entitled for any of the partition
right in the land bearing Sy.No.87/2. As to impeach the testimony
of D.W.1 to D.W.8 as well as the recitals of Ex.D.1 to D.54
documents no such of the material evidence that herein brought
by the plaintiffs same would also make the plaintiffs dis entitled
the relief of partition in the land bearing Sy.No.87/2. With this
being of observation that I am of the view the plaintiffs herein have
fail to established the theory of their case by placed an cogent,
oral and documentary evidence at before the court. The same
such deficiency of the material evidence on part of the plaintiffs
would make them to dis entitled the reliefs. Accordingly, I answer
Issue No.1 to 4 are in the negative.
14. Issue No.5 :- For the foregoing reasons, I proceed to
pass the following :
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O.S.No.2077/2015
ORDER
The suit of the plaintiffs hereby dismissed with cost.
Draw decree accordingly.
In view of disposal of the suit, pending interlocutory applications if any do not survive for consideration and they stands disposed off.
[ Dictated to the Stenographer directly on computer, corrected by me and then pronounced in the Open Court on 15th day of November, 2024].
[ ONKARAPPA.R] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ANNEXURE List of witness examined on behalf of Plaintiffs:-
PW.1 Krishnamurthy List of documents exhibited on behalf of Plaintiffs:-
NIL List of witness examined on behalf of Defendants:-
DW.1 Joseph William George DW.2 Vishnu Narayanan DW.3 Ajit Anthony Alexander DW.4 Naveen David Pinto DW.5 Shilipha Hemanth DW.6 Vijayalakshmi.N DW.7 Antony.D.A Bernard 36 O.S.No.2077/2015 DW.8 Biju Mathew John List of the documents exhibited on behalf of Defendants:-
Ex.D1 Registered sale deed dated 07/04/2003
Ex.D2 &3 Encumbrance certificate
Ex.D4 Tax paid receipt
Ex.D5 3 electricity bills
Ex.D6 Water bill
Ex.D7 Receipt issued in respect of water connection application
Ex.D8 Probate demand note
Ex.D9 Receipt issued in respect of water connection application
Ex.D10 Probate demand note
Ex.D11 Probate demand note
Ex.D12 Original registered sale deed dated 26/05/2008
Ex.D13 Encumbrance certificate Form No.16
Ex.D14 Property B register extract
Ex.D15 Three tax paid receipts
Ex.D16 Original registered sale deed dated 24/06/2008
Ex.D17 Encumbrance certificate Form No.15
Ex.D18 Property B register extract
Ex.D19 Two tax paid receipts
Ex.D20&21 Property demand register extract
Ex.D22 Electricity bill
Ex.D23 Original registered sale deed dated 21/04/2008
Ex.D24 Encumbrance certificate Form No.15
Ex.D25 Property B register extract
Ex.D26 Three tax paid receipts
Ex.D27 Electricity bill
Ex.D28 5 colour photographs
Ex.D29 One CD
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O.S.No.2077/2015
Ex.D30 Original registered sale deed dated 16/01/2014
Ex.D31&32 Encumbrance certificate Form No.15 and 16 Ex.D33 to D35 Property B register extract Ex.D36 8 tax paid receipts Ex.D37 Original registered sale deed dated 02/09/2013 Ex.D38&39 Encumbrance certificate Form No.15 and 16 Ex.D40 Property B register extract Ex.D41 Tax paid receipt Ex.D42 Three electricity bills Ex.D43 One SPA Ex.D44 Online copy of registered sale deed dated 20/06/2008 Ex.D45 Property B register extract Ex.D46 Two tax paid receipts Ex.D47 Electricity bill Ex.D48 Encumbrance certificate Form No.15 Ex.D49 Online copy of registered sale deed dated 24/01/2006 Ex.D50&51 Demand register extract Ex.D52 Three tax paid receipts Ex.D53 Encumbrance certificate Form No.15 Ex.D54 One electricity bill [ ONKARAPPA.R] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 38 O.S.No.2077/2015 Operative portion of the judgment pronounced in open court vide separate judgment:-
ORDER The suit of the plaintiffs hereby dismissed with cost.
Draw decree accordingly. In view of disposal of the suit, pending interlocutory applications if any do not survive for consideration and they stands disposed off.
[ ONKARAPPA.R ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 39 O.S.No.2077/2015