Bangalore District Court
Malliga Rajendran vs Raja Kumar G on 30 January, 2025
KABC010232112014
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 30 th DAY OF JANUARY, 2025
O.S.No.8344 of 2014
Plaintiffs: 1. Mrs. Malliga Rajendran,
W/o K.H. Rajendran,
D/o Late B.N. Ganesh
Moorthy,
Aged about 62 years,
R/at Malliraj Nest No.177,
Cheluvaiah Road,
Ramamurthy Nagar,
Dooravani Nagar Post,
Bengaluru-17.
2. Mrs. Renuga Murthy,
W/o C. Murthy,
D/o Late B.N. Ganesh
Moorthy,
Aged about 56 years,
R/at No.20, R.H.A. Bazaar
Street, Gowthampuram,
2 O.S.No.8344 of 2014
Halasuru, Bengaluru-08.
3. Mrs. Selvakumari Krishna
Moorthy,
W/o R. Krishnamoorthy,
D/o Late B.N. Ganesh
Moorthy,
Aged aobut 47 years,
R/at No.82, Silver Street,
St. Thomas Mount,
Chennai-600 016.
(By G.V., Advocate)
-VS-
Defendants: 1. G. Raja Kumar,
S/o late B.N. Ganesh
Moorthy,
Aged about 59 years,
R/at No.802, III Main,
Geethanjali Layout,
HAL III Stage,
Bengaluru-75.
2. G. Manivannan,
S/o Late B.N. Ganesh
Moorthy,
Aged about 52 years,
R/at Jayashree,
No.1045, 5 th Cross, 13 th Main,
1 st Stage, BTM Layout,
Bengaluru-29.
3 O.S.No.8344 of 2014
(D1-K.N.D., D2-MP/KRC.,
Advocates)
Date of Institution of the suit : 03.11.2014
Nature of the Suit : Partition
Date of commencement of : 23.01.2019
recording of the evidence
Date on which the Judgment : 30.01.2025
was pronounced
Total Duration : Years Months Days
10 02 27
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
The plaintiffs have filed this suit for partition & separate possession of the suit schedule property claiming 1/5 th share.
4 O.S.No.8344 of 2014
2) The averments made in the plaint in brief are as follows:
a) The plaintiffs submit that one B.N. Ganesh Moorthy S/o B.M. Nagappa Rao was the father of plaintiffs and defendant No.1 and 2. It is submitted by the plaintiffs that B.N. Ganesh Moorthy was native of Balanapalli Village, Krishnagiri Taluk and in order to make out livelihood, he settled in Bengaluru along with his family as early as in 1962 & started make out his living by carrying out building contract works. It is submitted by the plaintiffs that out of income from building contract works he brought up his children and gave education to all his children.
b) It is submitted by the plaintiffs that plaintiff No.1 was married during 1969 and 2 nd plaintiff has completed her bachelor degree & during her studies she married in the year 1978. It is the specific case of the plaintiff that defendant No.1 neither pursued his 5 O.S.No.8344 of 2014 studies nor secured any employment as he did not intended to work. As the defendant No.1 did not secure any employment to make out his living, loss was caused to the parents on the ground of starting his own business and subsequently at the advice of elders he started assisting father in contract business from 1985.
It is submitted by the plaintiffs that 1 st defendant got married during October 1987 and 2 nd defendant pursued his studies and completed his law to become an advocate. It is submitted by the plaintiffs that marriage of 3 rd plaintiff was performed during April 1993 and therefore, all the plaintiffs were residing in their matrimonial houses.
c) It is submitted by the plaintiffs that out of hard earnings and savings Ganesh Moorthy has purchased the revenue site bearing No.4, measuring east -west 30 feet and north - south 45 feet carved in Sy.No.23/2 of Ulsoor Village, Kasaba Hobli, Bengaluru 6 O.S.No.8344 of 2014 North. It is further submitted by the plaintiffs that with an intention to own a residential house for the family, Ganesh Moorthy constructed a building in the property but could not complete the construction in-spite of taking hand loans. The plaintiffs submit that 1 st plaintiff assisted the parents and gave 25 sovereigns of Gold for completing the construction of residential building. It is submitted by the plaintiffs that in the month of August 1985 a building consisting of ground floor and first floor with all amenities were completed and family started living in the said house. It is submitted by the plaintiffs that property purchased by father of the plaintiffs and defendants was revenue site and upon development of the area, corporation authorities have collected the better charges, assessed the property by assigning new number as No.3/C, Eshwara Layout, Indranagar 2 nd stage, Bengaluru. It is submitted by the plaintiffs that plaintiffs and 7 O.S.No.8344 of 2014 defendant's father Ganesh Moorthy was paying taxes to the authorities and it is self-acquired and absolute property of their father. It is submitted by the plaintiffs that 2 nd defendant and his wife constructed their own house at BTM Layout, Bengaluru and expressed their desire to live in their house and requested the parents to accompany them. It is submitted by the plaintiffs that parents of the plaintiffs and defendants accepted the same at their will have started living with the 2 nd defendant and shifted to their house during September 2010. It is submitted by the plaintiffs that parents have locked the suit schedule property and same was under their care and custody.
d) It is submitted by the plaintiffs that B.N. Ganesh Moorthy died on 16.12.2012 at BTM Layout and 2 nd defendant has performed all the rites and rituals as prevailing in the family by incurring expenses. It is submitted by the plaintiffs that their mother Smt. G. 8 O.S.No.8344 of 2014 Bhagya Lakshmi died on 13.10.2013 at BTM Layout and plaintiffs & defendants are the legal heirs of B.N. Ganesh Moorthy and Smt. G. Bhagya Lakshmi. It is submitted by the plaintiffs that after death of mother of the plaintiffs and defendants, they got divided movable, valuables, fixed deposits in accordance with wishes of the parents and as per nomination made by them in the Bank. It is submitted by the plaintiffs that whenever they questioned about the division about the suit property, 1 st defendant used to postpone the division on the ground that 1 st death anniversary of father be completed and on 06.12.2013 plaintiffs demanded their share in suit schedule property, but defendants have postponed the division of the property. Accordingly meeting was scheduled on 03.10.2014 and in the meeting fixed at the residence of Mr. Narayana uncle of the plaintiffs and defendants, the 1 st defendant expressed that he will come to sit for 9 O.S.No.8344 of 2014 negotiation only if he is permitted to inspect of the suit schedule property and accordingly, elders who permitted to inspect the suit schedule property on that day and house is locked until the division is effected between the plaintiffs and defendants. Keys of the suit schedule property was handed over to the custody of Sri. Narayana who is the uncle of the plaintiffs and defendants. It is submitted by the plaintiffs that even after negotiation the plaintiffs demanded their share in the schedule property and 1 st defendant did not concede to effect the partition and to allot the share of the plaintiffs. It is contended by the plaintiffs that since 1 st defendant has failed to divide the property, they have filed this suit for partition & separate possession of the suit schedule property claiming 1/5 th share.
10 O.S.No.8344 of 2014
3) a. In response to the summons issued, defendant No.1 and 2 have appeared by filed separate written statement. The defendant No.1 has filed statement and denied the plaint allegation that schedule property is the property owned by their father and same is purchased by his father out of his own income. The defendant No.1 has denied that plaintiffs and defendant No.2 are having right over the suit schedule property. It is contended by the 1 st defendant that one Bhupendra Kumar was the owner of the schedule property who had authorized one Ramanjulu Reddy- agreement holder for formation of sites in his land. It is submitted by the defendant No.1 that Ramanjulu Reddy was authorized to sell the suit schedule property also. It is the case of the 1 st defendant that since Ganesh Moorthy was the head and elder member of the family, he in order to respect his father purchased the suit schedule property from his 11 O.S.No.8344 of 2014 self-earned money in the name of his father Ganesh Moorthy. It is further submitted by defendant No.1 that Ramanjulu Reddy entered into an agreement of sale to sell the schedule property to 1 st defendant and at the instance of the 1 st defendant, name of his father Ganesh Moorthy was mentioned in Sale agreement dated 10.11.1980. It is submitted by the 1 st defendant that he has paid ₹.5001/- out of agreed sale consideration amount of ₹.35,100/-.
b) It is submitted by the 1 st defendant that owner of the property Bhupendra Kumar has executed an affi davit on 21.02.1985 confirming the sale agreement executed by Ramanjulu Reddy and handing over the possession. It is submitted by the defendant No.1 that all the money were paid by 1 st defendant but agreement was taken in the name of father of the 1 st defendant. It is submitted by the defendant No.1 that property is the self-acquired property of 1 st defendant 12 O.S.No.8344 of 2014 as he has purchased the same in the name of his father. It is submitted by the defendant No.1 that no amount is contributed either by plaintiffs or by defendant No.2 for purchase of the property or construction of the building in the property. It is submitted by the defendant No.1 that he acquired properties by way of Will executed by his great grandmother and out of that income he has purchased the property. It is submitted by the defendant No.1 that as per Will dated 18 th June 1970 wherein Smt. Manickammal has bequeathed the property in favour of 1 st defendant and the property was mortgaged on 16.07.1981. It is submitted by the defendant No.1 that loan amount was utilized by defendant No.1 to purchase the property and also to construct a building. It is submitted by the defendant No.1 that Ganesh Moorthy being elder member of the family joined the execution of loan document. The defendant No.1 13 O.S.No.8344 of 2014 submits that husband of 1 st plaintiff namely K.H. Rajendran is the witness to the said mortgage deed and thus, under Mortgage deed dated 16.07.1981 an amount of ₹.15,000/- was raised as a loan and the property is developed by utilizing the same. The 1 st defendant submits that he had purchased the immovable property bearing property No.2, Ramakka Block-I, Marappa Garden, K.G. Bidarahalli, Bengaluru as per Sale Deed dated 19.06.1979 and as there was a shortfall of money for construction of house, he is sold his self-acquired property as per registered Sale Deed dated 21.10.1983 to one Mrs. Nazeem Sajjad for a sale consideration amount of ₹.42,000/-. It is contended by the defendant No.1 that since he has paid entire consideration amount, he has got executed agreement of sale in favour of his father, he got constructed the house in the suit property by mortgaging his separate property and selling his separate property, the suit 14 O.S.No.8344 of 2014 property is his self-acquired property and as such, plaintiffs and defendant No.2 are not having share in the suit schedule property. Therefore, the defendant contended that suit be dismissed with cost.
4) The 2 nd defendant has filed written statement and has admitted that property was purchased by Ganesh Moorthy and Ganesh Moorthy has constructed building in this schedule property. It is also admitted by 2 nd defendant that Ganesh Moorthy and his mother Bhagya Lakshmi died leaving behind them plaintiffs and defendants as their legal heirs and parties to the suit have inherited the property after death of Ganesh Moorthy and Bhagya Lakshmi. It is contended by the 2 nd defendant that he is also having share in the schedule properties and he is also living separated after preliminary decree. Therefore, 2 nd defendant has 15 O.S.No.8344 of 2014 prayed that the suit be disposed by declaring the shares of parties to the suit.
5) By considering pleadings and documents produced by the parties, my learned predecessor in offi ce had framed the following issues :-
1. Whether the plaintiffs prove that the suit schedule property is the self-acquired property of deceased B.N. Ganesh Murthy?
2. Whether the plaintiffs prove that plaintiff and defendants are legal heirs of deceased B.N. Ganesh Murthy?
3. Whether the defendant No.1 proves that suit schedule property is self-
acquired property of defendant No.1?
4. Whether suit property is not valued properly and court fee paid is insuffi cient?
5. Whether the plaintiff is entitled for the relief of partition?
6. Whether the plaintiff is entitled share in the suit schedule property?
7. What order or decree?
16 O.S.No.8344 of 2014
6) In order to burden cast upon the plaintiff to prove the above issue, plaintiff is examined as P.W.1. 20 documents were marked. The defendant No.1 is examined as DW.1. Defendant No.2 is examined as DW-2. 17 documents were marked on behalf of defendants. Parties to the suit have not led any oral or documentary evidence.
7) The learned counsel appearing for the plaintiff has argued that relationship of the parties to the suit is admitted and since Ganesh Moorthy died intestate leaving behind no testamentary document, the property belonging to him shall devolve upon plaintiffs and defendants equally. It is argued on behalf of the plaintiffs that though there is no Sale Deed in respect of suit schedule property in the name of Ganesh Moorthy, he had 17 O.S.No.8344 of 2014 possessory title over the property, he has constructed the building in the said property, which is also admitted a fact and as such, the possessory title be divided among plaintiffs and defendants who were the legal heirs of Ganesh Moorthy. The counsel for the plaintiff has argued that defendant No.1 had no avocation when the property was purchased by the B.N. Ganesh Moorthy and as such, plaintiffs are having share and contention of the defendant No.1 that he has purchased the property in the name of his father B.N. Ganesh Moorthy and constructed the house in the purchased property does not survive for consideration and liable to be rejected.
8) Per contra, learned counsel appearing for the defendant No.1 has argued that he has paid 18 O.S.No.8344 of 2014 consideration, he had obtained mortgage loan and also hand loans from relatives for constructing building in the property and purchased the same in the name of his father to show respect to the elder person. Therefore, the counsel for the defendant No.1 has contended the plaintiffs are not having any right over the property. That apart defendant No.1 has contended that regular Sale Deed is not executed by original owner and title of the B.N. Ganesh Moorthy- defendant No.1 is defective and as such plaintiff cannot claim share in the property which is not owned by joint family. The learned counsel for the defendant No.1 also contended that suit property was never transferred to late Ganesh Moorthy under registered Sale Deed and as such, the property is still owned by Bhupendra Kumar. The learned counsel for the defendant No.1 has 19 O.S.No.8344 of 2014 contended that the property purchased under Agreement of sale is not having any evidential valued and Ganesh Moorthy has not acquired any title over the property. The 1st defendant has contended that plaintiffs have failed to prove that the alleged contribution made by plaintiffs by giving their gold. The counsel for the defendant No.1 has contended that since plaintiffs have failed to establish their case, Power of Attorney Holder testimonies is not permissible and since 2nd defendant's claim is baseless, the suit is liable to be dismissed. Therefore, it is prayed one behalf of the defendant No.1 that suit be dismissed as not maintainable.
9) Counsel for 2 nd defendant argued that though Ganesh Moorthy had no absolute title over 20 O.S.No.8344 of 2014 suit land, he has constructed house over the suit schedule property and he is got possessory title over the property in question. It is further argued that Ganesh Moorthy was in possession of the property on the basis of agreement of sale, the property can be divided in between them as possessory title is a substantive right which has been recognized by law and persons who are in settled possession of the land can divide the property. Therefore, the learned counsel appearing for the defendant No.2 has contended that the suit be decreed holding that plaintiffs and defendants are having share in the suit schedule property.
10) I have considered the oral and documentary evidence adduced by both the parties to the suit in 21 O.S.No.8344 of 2014 light of the arguments advanced before me and my findings on the above issues are:-
Issue No.1: Ganesh Moorthy has
constructed building in
the schedule property but
is not having absolute title
over the land and he had
only possessory title over
the schedule property
Issue No.2: In the Affi rmative
Issue No.3: In the Negative
Issue No.4: Suit is properly valued and
court fee paid is suffi cient
Issue No.5: Plaintiffs are entitled for
the relief of partition and
separate possession of the
schedule property
Issue No.6: Plaintiff is having 1/5 th
share in the suit schedule
property
Issue No.7: As per final order,
for the following:-
REASONS
11) Issue No.1 and 3 :- These issues are
framed regarding nature of suit property & contentions taken by the plaintiffs that suit property is the self- 22 O.S.No.8344 of 2014 acquired property of deceased B.N. Ganesh Moorthy and contention taken by the 1 st defendant that he has purchased the property in the name of his father B.N. Ganesh Moorthy and as such it is his self-acquired property. Hence in order to avoid repetition, both are considered together.
12) The plaintiff has filed this suit for partition and separate possession of the suit schedule property. The admitted facts as could be seen from the pleadings a. The plaintiffs & defendants are Children of B.N.Ganesh Moorthy.
b. B.N.Ganesh Moorthy died intestate & parties to the suit are legal heirs who will inherit the estate of deceased.
c. There exist a house in the suit property. No one is residing in the property & same is locked. 23 O.S.No.8344 of 2014 d. There is no registered sale deed in respect to suit land and there exist agreement of sale in the name of B.N. Ganesh Moorthy.
13) The plaintiffs have claimed that their father B.N. Ganesh Moorthy was the absolute owner of the property, he purchased suit land and later on he has constructed house by investing his own money and as such, plaintiffs are having right title and interest over the property and are having 1/5th share each. The defendant no.1 has not disputed the relationship of the parties to the suit but contended that he has purchased the property in the name of B.N. Ganesh Moorthy and also constructed a building and as such, suit property is his self-acquired property. I have perused oral and documentary evidence adduced by both the parties to know whether Ganesh Moorthy was the absolute owner of the suit schedule property. Though it is pleaded in the plaint that Ganesh Moorthy 24 O.S.No.8344 of 2014 is the owner of the suit schedule land, nothing has been pleaded how the suit schedule property was acquired by B.N.Ganesh Moorthy. There is no reference of Sale Deed through which Ganesh Moorthy has acquired property or there is a reference about agreement of sale. The property can be acquired either by inheritance, either by registered document or through Government. In this case the plaintiffs have not produced any document to show that property was owned by ancestors of the Ganesh Moorthy and he has inherited the property. It is not the case of the plaintiffs that suit schedule land was granted to B.N. Ganesh Moorthy by the Government. So, the only mode through which Ganesh Moorthy had acquired right, tile and interest over the suit schedule land is by way of registered document. No registered documents are forthcoming. Xerox copy of Agreement of sale dated 10 th November 1980 was confronted to DW.1 by 25 O.S.No.8344 of 2014 plaintiff and since DW.1 has admitted the Agreement of sale, my predecessor in offi ce has marked it as Ex.D.12. Affi davit executed by Bhupendra Kumar is marked at Ex.D.13. It is clear from the Ex.D.12 that one A. Ramanjulu Reddy has agreed to sell the suit schedule property in favour of B.N. Ganesh Moorthy. It is stated that site No.4 formed in Sy.No.23/3 was agreed to be sold for a consideration amount of ₹.35,100/- and ₹.5001/- was paid by purchaser as advance and further advance of ₹.10,000/- was agreed to be paid on 15.12.1980 and balance at the time of consideration. The affi davit and Agreement of sale shows that possession of property measuring east - west 30 feet and north - south 45 feet bearing site No.4 formed in Sy.No.23/3 was handed over to B.N. Ganesh Moorthy. Till to day the original owner of the property Bhupendra Kumar or A. Ramanjulu Reddy who was the GPA Holder have not questioned the 26 O.S.No.8344 of 2014 possession of the B.N. Ganesh Moorthy in court of law. The Ex-P2 to 4 shows that the house was constructed in the year 1982. Ex.P.2 is the plan of the building constructed in the schedule property and Ex.P.3 the NOC issued by Executive Engineer BDA, Bengaluru shows that BDA has no objection for taking electricity connection to the residential house in Sy.No.23. As per Ex.P.4 electricity was supplied. These documents clearly shows that Ganesh Moorthy had constructed building in the land which was in this possession as per Ex.D.12 and 13. It is clear from Ex-P7 to 11 that after property came within the BBMP limits betterment charges were paid by Ganesh Moorthy, and Khat certificate is issued in the name of B.N. Ganesh Moorthy-as holder of the property. Ex-P11 shows name of B.N. Ganesh Moorthy as holder of the suit property. Def.No.1 who is examined as DW-1 has also admitted that Khata pertaining to the suit property is standing in 27 O.S.No.8344 of 2014 the name of deceased B.N.Ganesh Moorthy. Ex-D12, 13 and Ex-P2 to 11 shows that B.N. Ganesh Moorthy was in possession of the suit property till his death. Possession by itself is a substantive right recognized by law and has legal incidents attached to it apart from ownership. A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself. Person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a suffi ciently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A 28 O.S.No.8344 of 2014 stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser . As per Ex-D12 & 13 Owner and person who was in possession of property earlier, have recognized B.N. Ganesh Moorthy as person in possession of suit property. B.N. Ganesh Moorthy has constructed building in the suit land and statutory authorities have considered B.N. Ganesh Moorthy as owner of house. Hence it is required to held that B.N.Ganesh Moorthy was in possession of the suit property & had possessory title over the suit property.
14) The case of the defendant No.1 is that he purchased the property in the name of his father 29 O.S.No.8344 of 2014 Ganesh Moorthy and also contributed for construction of house. The defendant No.1 has produced documents in support of his contention. The documents produced by defendants shows that he acquired some lands in Krishnagiri District through Will, which is not proved in accordance with law. However, Ex.D.2 Mortgage deed shows that B.N. Ganesh Moorthy and defendant No.1 have executed mortgage deed in favour of one G. Venkataswamy and Parvathamma, to secure loan of Rs.15,000/-. Mortgage loan was obtained by mortgaging the ancestral property which was in the Krishnagiri district of Andhra Pradesh. So, the documents produced by the defendants only shows that in the year 1981 some loan was obtained by mortgaging the property by Ganesh Moorthy and defendant No.1 jointly. The documents does not show that entire contribution was made by defendant No.1 herein only and as such it is his self- 30 O.S.No.8344 of 2014 acquired property. The documents produced by the plaintiff per contra shows that Ganesh Moorthy by obtaining necessary permissions from the concerned authorities has constructed the house. The house bearing katha No.3 is standing in the name of Ganesh Moorthy and as per Ex.P.10 holder katha is also issued, which shows that Ganesh Moorthy was the owner of the house constructed over the land which is acquired under Ex.D.12 and D.13. The electricity bills shows that house was in the name of Ganesh Moorthy only. So, when the property is standing in the name of Ganesh Moorthy and defendant No.1 has not shown that the entire amount utilized for the purpose of construction of house is paid by him, then it cannot be held that suit schedule property is self-acquired property of defendant No.1. Even if it is considered that the loan obtained as per Ex.D.2 is utilized for the purpose of construction of house in the schedule 31 O.S.No.8344 of 2014 property then also Ganesh Moorthy and defendant No.1 by mortgaging the ancestral properties have constructed the building. The ancestral properties were also mortgaged and as such this court is required to hold that even if amount secured under Mortgage deed is utilized for construction of house then it is joint family property, consisting of Ganesh Moorthy and his children. Therefore, in my considered opinion contention taken by 1 st defendant is not sustainable and accordingly, issue No.1 is required to be answered in favour of plaintiffs holding that Ganesh Moorthy had possessory title over the suit schedule land and he had constructed a structure in the schedule property and defendant No.1 has failed to prove that property is his self-acquisition. With these observation, issue No.1 is answered in the Affi rmative and issue No.3 in the Negative.
32 O.S.No.8344 of 2014
15. Issue No.4:- This issue is framed with respect to contention taken by the defendants that suit is not properly valued and court fee paid is insuffi cient. The suit is for partition and the members of the joint family are considered to be in joint possession of the property. The plaintiff has valued the relief of partition under Section 35(2) Karnataka Court Fees and Suit Valuation Act and valued the property at Rs.1 crore. Value of the share of plaintiff was ₹.60,00,000/- and accordingly, court fee is paid. The defendants have not produced any documents to show that valuation made by the plaintiffs is not in accordance with law and court fee paid is not proper. Therefore, there is no force in the contention taken by the defendants that the suit is not properly valued and court fee paid is insuffi cient. Accordingly this issue is answered in Negative.
33 O.S.No.8344 of 2014
16) Issue No.2, 5, & 6:- This issues are framed with respect to contention of the plaintiffs that they have succeeded to estate of deceased B.N. Ganesh Moorthy and entitle for partition & separate possession of the property. There is no dispute between parties to the suit that plaintiffs are daughters of Ganesh Moorthy and defendant No.1 and 2 are the sons of B.N. Ganesh Moorthy. B.N. Ganesh Moorthy was the owner of the house constructed on the schedule property and he had possessory title over land in question.
17) The next point considered by me is whether possessory title can be partitioned between legal heirs. Hon'ble High Court of Kerala in the case of Pathukutty v. Aisakutty, 2014 SCC OnLine Ker 28405 : has held as under :
22. Possessory title is good title against all though not against the true owner. Therefore, possessory title is heritable, divisible and 34 O.S.No.8344 of 2014 transferable. Possessory title is distinct and different from proprietary title. Hence, the finding entered by the courts below that since the plaintiff could not prove title to the property, she is not entitled to get partition of the property is bereft of any merit. The partition was sought in respect of the possessory right exercised by Aaleema Umma. That will hold good against all, though it may not hold against the true owner. So long as the defendants are concerned, their possession was found to be only a joint possession along with the plaintiff. Going by the findings entered earlier, it was clear that the property was in the joint possession of Aleema Umma and Muhammed, the defendant. The decisions cited supra were followed by another Bench of this Court in Philip v. State of Kerala, 1987 (1) KLT 213 and in Krishnankutty Nair v. Subramanian, 1988 (1) KLT 886.
18) Hon'ble High Court of Delhi in the case of Surjit Singh v. Ekta Gulati, 2012 SCC OnLine Del 4233 has also recognized rights of legal heirs to claim partition in possessory right and observed as under :-
7. Once it stands proved that the possession of the appellants of the shop is by inheritance from the father, I am of the view that possessory rights i.e. the right to control property including the right to exclude others are a facet of different kinds of rights over immoveable property and can be subject matter of partition and such possessory rights by a person who is 35 O.S.No.8344 of 2014 not necessarily the owner cannot be appropriated by few only of the legal heirs to the exclusion of others and all the legal heirs are entitled to a share in the said possessory rights with respect to the property
19) So it is clear from observation made by Hon'ble High Court of Keral and Delhi that possessory right is divisible and all the legal heirs are entitled to a share in the said possessory rights with respect to the property. Therefore, in my considered view the plaintiffs and defendants have succeeded to the estate of deceased B.N. Ganesh Moorthy who had possessory right/ title over the suit land & was owner of building constructed thereon.
20) While answering issue No.1 and 3, I have concluded that, the suit schedule property is the separate property wherein Ganesh Moorthy had possessory title over the property and the same has been inherited by parties to the suit. I have also 36 O.S.No.8344 of 2014 concluded that defendant No.1 has failed to show that it is self-acquired property and he is in exclusive possession in the same. Therefore, plaintiffs and defendants are having equal right over the house constructed upon the schedule land which is belonging to B.N. Ganesh Moorthy. But the parties to the suit are not having absolute title over the land in question which is still belonging to the original owner Bhupendra Kumar. Plaintiffs and defendants are considered as only legal heirs of agreement holder. As discussed above the possessory right and ownership right over the house property can be partitioned and hence, plaintiffs are entitled for relief of partition and separate possession.
21) Since, plaintiffs and defendants are the legal heirs of B.N. Ganesh Moorthy, all are having equal share in the house constructed in the schedule 37 O.S.No.8344 of 2014 property. Hence, the plaintiffs are having absolute right in the house in the schedule property but not in the land till they obtain Sale Deeds from original owner. With these observation, I am of the opinion that plaintiffs are having share in suit house property. Accordingly, Issue No.2 is answered in affi rmative and Issue No.5 & 6 are answered in favour of plaintiffs holding that plaintiffs are entitled for 1/5th share in suit house.
22) Issue No.7:- In view of the discussions and conclusion arrived at issue Nos.1 to 6, the suit of the plaintiffs is liable to be decreed. Hence, I proceed to pass the following:-
ORDER The suit of the plaintiffs is decreed.
It is ordered & decreed that Plaintiffs are having 1/5th share each in suit schedule house property.38 O.S.No.8344 of 2014
It is further ordered & decreed that Defendant No.1 & 2 are also having 1/5th share each in suit schedule house property.
It is made it clear that till plaintiffs and defendants get Sale Deed from original owner, they will not acquire title over suit land measuring 30 X 45 feet over which suit house is constructed.
The suit property being house property is ordered to be divided by appointing court Commissioner under provisions of Order XXVI CPC.
Parties to bear their own cost.
Draw preliminary decree
accordingly.
(Dictated to the Stenographer Grade-III, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 30th day of January, 2025.) (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru 39 O.S.No.8344 of 2014 ANNEXURE I. List of witnesses examined on behalf of plaintiff:-
P.W.1 Arun Prakash R
II. List of witnesses examined on behalf of defendants:-
D.W.1 G. Rajakumar
D.W.2 G. Manivannan
III. List of documents exhibited on behalf of plaintiff:-
Ex.P.1 General power of attorney
Ex.P.2 House building plan
Ex.P.3 NOC issued by BDA,
Ex.P.4 letter issued by KEB
Ex.P.5 deposit receipt
Ex.P.6&7 receipts
Ex.P.7
Ex.P.8 notice issued by BBMP
Ex.P.9 certificate
Ex.P.10 khatha certificate,
Ex.P.11 khatha extract
Ex.P.12 to tax paid receipts
17
Ex.P.18 6 electricity bills
Ex.P.19 two BWSSB bill
Ex.P.20 encumbrance certificate
40 O.S.No.8344 of 2014
IV List of documents exhibited on behalf of defendants:
Ex.D.1 Registered Will dated 18.06.1970 Ex.D.2 Registered Mortgage deed dtd
16.07.1981 Ex.D.3 Certified copy of the registered Sale Deed dated 21.10.1983 Ex.D.4&5 Electoral ID Cards Ex.D.6 DL Ex.D.7&8 Passports Ex.D.9 Death certificate of B.N. Ganesh Moorthy Ex.D.10 Death certificate of G. Bhagya Lakshmi Ex.D.11 Certificate of Encumbrance on property Ex.D.12 Sale agreement dated 10.11.1980 Ex.D.13 Affidavit Ex.D.14 to Photos 17 (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru 41 O.S.No.8344 of 2014