Bangalore District Court
Smt.Sharada Bai vs Sri.G.Ganghadhar on 4 August, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 4th DAY OF AUGUST, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.7521/2008
PLAINTIFF/S: 1. Smt.Sharada Bai,
W/o Late Savasere Nagaraju,
Aged about 55 years,
R/at # 15, K.R.Shetty Pete,
Papanna Lane,
Bengaluru - 560 002.
2. G.Nagaraj,
S/o Savasere Nagaraju,
Aged about 32 years,
# 15, K.R.Shetty pete,
Papanna Lane,
Bengaluru - 560 002.
(By Sri.CGS, Advocate)
--Vs.---
DEFENDANT/S: 1. Sri.G.Ganghadhar,
S/o late S.Gangappa,
Aged about 58 years,
R/at 64/1, J.C.Nagara,
9th main, 8th cross,
2 O.S.No.7521/2008
Kurubarahalli,
Bengaluru - 560 086.
2. G.Satyanarayana,
S/o S.Gangappa,
Aged about 55 years,
# 15/1, K.R.Shetty pete,
Papanna Lane,
Bengaluru - 560 002.
3. G.krishnamurthy,
S/o S.Gangappa,
Aged about 50 years,
# 15/1, K.R.Shetty pete,
Papanna Lane,
Bengaluru - 560 002.
4. G.Shankar,
S/o S.Gangappa,
Aged about 46 years,
# 15/1, K.R.Shetty pete,
Papanna Lane,
Bengaluru - 560 002.
5. G.Ramakrishna,
S/o S.Gangappa,
Aged about 43 years,
# 15/1, K.R.Shetty pete,
Papanna Lane,
Bengaluru - 560 002.
6. G.Vijayakumar,
S/o G.Gangappa,
Aged about 40 years,
# 15/1, K.R.Shetty pete,
Papanna Lane,
Bengaluru - 560 002.
3 O.S.No.7521/2008
(D1-Exparte
D2, 6 By Sri.TSR., Advocate)
Date of institution of suit : 13.11.2008
Nature of suit : Injunction & possession
Date of commencement
of recording of evidence : 06.07.2012
Date on which the judgment
was pronounced : 04.08.2016
Duration of the suit: year/s month/s day/s
07 08 22
* * * * *
JUDGMENT
This is a suit filed by the plaintiffs against the defendants seeking the relief of mandatory injunction, possession, permanent injunction and for damages.
2. In brief the case of the plaintiff is as under:
That the 1st plaintiff is the wife of late Savasere Nagaraju, the 2nd plaintiff is the only son of the 1st 4 O.S.No.7521/2008 plaintiff. The husband of the plaintiff No.1 Savasere Nagaraju was the only son of Savasere Nanjundappa.
It is further contended that the husband of plaintiff No.1 died on 10/9/1971. The defendants are the sons of Gangappa. The defendants' father Gangappa and the 1st plaintiff's father-in-law Savasere Nanjundappa are brothers. It is further contended that the property bearing No.15, Kavadi Revannapete, Papanna lane, Bengaluru, is the absolute property belonging to the plaintiffs. It is further contended that the suit schedule property originally belonged to Savasere Nanjundappa, father-in-law of the 1st plaintiff. The father-in-law of the plaintiff got the suit property as his share in the family partition between himself and his brother Gangappa, the father of the defendants by means of registered partition deed dated 17/8/1963.
3. It is further contended that the plaintiffs are the legal heirs of Savasere Nanjundappa, the 1st plaintiff being the daughter-in-law and the 2nd plaintiff 5 O.S.No.7521/2008 being the grand son. The defendants or anybody has no manner of right, title or interest in the suit schedule property. The father-in-law of the 1st plaintiff had also executed a 'Will' dated 17/3/1988, bequeathing the suit schedule properties in favour of the plaintiffs. It is further contended that the Savasere Nanjundappa died on 21/3/1988 and after his death, the plaintiffs have become the absolute owners in possession and enjoyment of the suit schedule properties. The Bengaluru City Corporation has also changed the khatha of the suit schedule properties in the name of the plaintiffs. It is further contended that the defendants have no manner of right, title or interest in the suit schedule properties. The defendants have got their share of the property towards the northern side of the plaintiff's property as is evidenced by the partition deed dated 17/8/1964. It is further contended that the defendants have absolutely no manner of right, title or interest in the suit schedule properties which has fallen to the share of the plaintiffs. However, 6 O.S.No.7521/2008 taking advantage of the helpless situation of the plaintiff No.1, who is a widow and aged woman, the defendants are interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. It is further contended that on 11/11/2008, the defendant No.6 G.Vijayakumar, in collusion with the other defendants has forcibly entered the suit schedule property and has encroached the suit schedule property to an extent of 10 x 8 feet towards the western portion of the suit schedule property and has put up temporary construction. It is further contended that the 6th defendant with the help of anti-social elements and other defendants, are putting up construction in a portion of suit schedule property, even though, he has no manner of right, title or interest in the suit schedule property. It is further contended that the plaintiffs have approached the jurisdictional police and lodged complaint, but the jurisdictional police have failed to take action and advised them to approach the civil court. 7 O.S.No.7521/2008
4. It is further contended that the entire property held and possessed by the plaintiffs is brought out as item No.1 of the suit schedule property, where the encroached portion is described in the schedule as item No.2 of the suit schedule property. It is further contended that the defendants have no manner of right, title or interest in respect of item No.2 of the suit schedule property. The defendants on 11/11/2008, unauthorisedly and illegally occupied item No.2 of the suit schedule property. It is further contended that the defendants have no right in law to retain in possession of the same. If the area which is in illegal occupation of the defendants is leased to anybody, it would fetch not less than Rs.2,000/- per month as rent. As such, the defendants are liable to pay a sum of Rs.2,000/- as damages for their illegal use and occupation of item No.2 of the suit schedule property from 11/11/2008 till they vacate and hand over vacant possession of the same. So the plaintiffs 8 O.S.No.7521/2008 have come up with the present suit and accordingly prays for to decree the suit.
5. The suit summons sent by this court was duly served upon the defendant No.1. But inspite of service of summons, he failed to appear before the court, consequently the defendant No.1 has been placed exparte. The suit summons sent by this court duly served upon defendant No.2 to 6 and they have appeared before the court through their counsel and filed their detailed written statement by denying all the plaint averments. The defendants in the written statement contended that the suit filed by the plaintiffs is not maintainable either in law or on facts and the same is liable to be dismissed in limine. It is further contended that it may be true that there was a partition between Savasere Nanjundappa and his brother Gangappa, as alleged on 17/8/1963. they further contended that they are not in possession of the copy of the said partition deed. It is further 9 O.S.No.7521/2008 contended that if the said partition deed is existed, but the parties to the partition have never acted upon the said partition deed and the family members of both late Savasere Nanjundappa and Gangappa continued to live as joint family, as such there was no partition.
6. It is further contended that ever since their birth, they continued to carry on family business of silk weaving. In fact in one of the legal proceedings in HRC No.384/2002 and HRC 385/2002 Smt Sharada Bai had sought eviction of the tenants Rangaswamy and Ramaiah in the respective cases contending that the family of Gangappa and her children live and it is in this manner Sharada Bai had pleaded in para No.9 and 10 of the proceedings in HRC No.384/2002 as under:
Para 9 of the proceedings: "It is further submitted that, except the tenements let out to the respondent and another tenant Rangaswamy, all other tenements are under the occupation of other family members, i.e., 10 O.S.No.7521/2008 Gangappa, his children and grand children, which are all to be together around 30 members and they are also finding it very difficult to live, cook, study and converse in privacy."
Para 10 of the proceedings: "It is submitted that however the building is older one and also in dilapidated condition, as such, the petitioner was with the assistance of her son and children of Gangappa has decided to demolish the existing structure and reconstruct the same according to need and requirement of family at large".
7. So it is contended that the partition deed even if in existence, it is not acted upon, since Savasere Nanjundappa had no issues and the 2nd plaintiff not being the son was only fostered child. It is further contended that late Savasere Nanjundappa desired and expressed to leave the property belonging to both himself and his brother to surviving legal heirs of the greater family. So the allegation that the 11 O.S.No.7521/2008 defendants more particularly the 6th defendant encroached upon the plaintiffs property, etc. are all false. It is further contended that the property is of the joint family and at no point of time, the same was demarcated or divided by metes and bounds. Hence it is incorrect on the part of the plaintiffs to presume that the plaint schedule property is the property carved out from the alleged partition and the plaintiff has exclusive right in the property.
8. It is further contended that the plaintiffs have no legal right to claim any right in the plaint schedule property, muchless in any of the property that belongs to the joint family. It is further contended that the 2nd plaintiff is the foster / adopted son and he is not the son born to Savasere Nanjundappa, 1st plaintiff. It is further contended that the joint family business of silk weaving was throughout done for 30 to 40 years by the defendants, even after the death of Savasere Nanjundappa, the management of the family 12 O.S.No.7521/2008 was done by Savasere Nanjundappa during his life time. The intention to keep the family joint was the prime objective of Savasere Nanjundappa. The movable and immovable properties now in the possession of plaintiffs are procured by the joint labour and contribution made by the defendants. Hence in this context, no judgment and decree for mandatory injunction can be granted, further it is incorrect that the defendants particularly 6th defendant exercised any illegal force. It is further contended that it was always in possession of 6th defendant and therefore it is false to say that there was any encroachment made by the 6th defendant. The court fee paid by the plaintiff is insufficient, etc. On these grounds and among other grounds, they sought for the dismissal of the suit.
9. Heard the arguments. The learned counsel for defendant No.2 to 6 filed his written synopsis. 13 O.S.No.7521/2008
10. On the basis of the above rival pleadings of the parties, my learned predecessor-in-office has framed the following as many as seven issues :
(1) Whether plaintiffs proves their exclusive possession and enjoyment of item No.1 of the suit property ?
(2) Whether plaintiffs prove that the defendants interfered with their possession of item No.2 of the suit property ?
(3) Whether plaintiffs prove that defendants have encroached western portion of the suit property to an extent of 12 x 8 feet namely item No.2 ?
(4) Whether plaintiffs prove that defendants have illegally put up construction on the encroached area of 12 x 8 feet over item No.1 of the suit property ?14 O.S.No.7521/2008
(5) Whether suit is properly valued and court fee paid is sufficient ?
(6) Whether plaintiffs are entitled to the reliefs sought for ?
(7) What order or relief ?
11. The plaintiffs in order to establish their case, the plaintiff No.2 himself got examined as PW1 and got marked as many as 26 documents from Ex.P1 to Ex.P26 and also got examined two witnesses as PW2 and 3 and closed his side evidence. The defendants in order to establish their case, defendant No.6 himself got examined as DW1 and got marked as many as 4 documents from Ex.D1 to Ex.D4 and closed his side evidence.
12. My answer to the above said issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
15 O.S.No.7521/2008
Issue No.4 : In the Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Affirmative
Issue No.7 : As per the final order
for the following:
REASONS
13. Issue No.1 to 4: All these four issues are interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
14. The plaintiffs in order to establish their case, the plaintiff No.2 himself got examined as PW1 and filed his detailed affidavit by way of examination- in-chief, wherein he reiterated all the averments made in the plaint and further on oath stated before the court that plaintiff No.1 is his mother and his father Savasere Nagaraju was the only son of Savasere Nanjundappa. He further stated that his father was 16 O.S.No.7521/2008 died on 10/9/1971, leaving behind him and plaintiff No.1 to succeed to his estate. He further stated that the defendants are the children of late Gangappa and his grand father and father of the defendants are full brothers. He further stated that item No.1 of the suit schedule property originally belonged to his grand father Savasere Nanjundappa and who got the same under registered partition deed, dated 17/8/1963, which was entered into between himself and his brother Gangappa. He further stated that on the basis of the partition deed, his grand father Savasere Nanjundappa had been in lawful possession and enjoyment of the item No.1 of the suit schedule property till his death. He further stated that his grand father Savasere Nanjundappa, during his life time, i.e., on 17/3/1988 executed a 'Will' under which he had bequeathed the item No.1 of the suit schedule property in his favour and also in favour of his mother, i.e., plaintiff No.1. He further stated that Savasere Nanjundappa died on 21/3/1988, unfortunately his 17 O.S.No.7521/2008 father Savasere Nagaraju was pre-deceased his grand father Savasere Nanjundappa. As such, after the death of Savasere Nanjundappa, he himself and the plaintiff No.1 have become the joint and absolute owners in possession and enjoyment of item No.1 of the suit schedule property. He further stated that the Bengaluru city Corporation on the basis of 'Will' dated 17/3/1988 and also on the basis of their possession have changed the khatha in respect of item No.1 of the suit schedule property in their name and they have been paying the taxes towards item No.1 of the suit schedule property.
15. He further stated that the defendants have no manner of right, title, interest in possession and enjoyment of any portion of item No.1 of the suit schedule properties. He further stated that infact the father of the defendants got his share towards the northern side of item No.1 of the suit schedule property, which is evident from the partition deed 18 O.S.No.7521/2008 dated 17/8/1963. He further stated that the defendants taking advantage of the helpless situation of his mother, who is a widow and aged woman, they have been trying to interfere with their peaceful possession and enjoyment of the item No.1 of the suit schedule properties. In fact, on 11/11/2008, the 6th defendant namely G.Vijayakumar in collusion with the other defendants forcibly entered item No.1 of the suit schedule property and encroached to an extent of east to west 10 feet and north to south 8 feet, i.e., towards western portion of item No.1 of the suit schedule property and put up temporary construction thereon. He further stated that though he himself and his mother approached the police, but they advised them to approach the civil court.
16. He further stated that the entire property held and possessed by them is brought out as item No.1 of the suit schedule property and the encroached portion is described at the schedule as item No.2 of the 19 O.S.No.7521/2008 suit schedule property. Absolutely the defendants have no manner of right, title or interest in respect of item No.2 of the suit schedule property, inspite of that, on 11/11/2008, unauthorisedly and illegally, the defendants occupied item No.1 of the suit schedule property, as such, they have no right under law to remain in possession of the same. He further stated that if the area which is in the illegal occupation of the defendants is leased to anybody, it would fetch not less than Rs.2,000/- per month as rent. As such, the defendants are liable to pay a sum of Rs.2,000/- as damages for their illegal use and occupation of item No.2 of the suit schedule property from 11/11/2008 till they vacate and hand over the vacant possession of the same. In support of his case, he got marked as many as 26 documents. So in view of his above oral and documentary evidence, he prays for to decree the suit.
20 O.S.No.7521/2008
17. The plaintiffs in order to establish their case, they got examined two witnesses as PW2 and PW3. Upon perusal of the evidence of PW2 and PW3, it shows that they have spoken about the facts of the case as stated by PW1. So also they have spoken about the execution of the 'Will' by Savasere Nanjundappa in favour of plaintiffs and also they are signatories to Ex.P26 'Will'. So upon perusal of their evidence, it shows that they have totally supported the case of plaintiffs.
18. The defendants in order to establish their case, defendant No.6 got examined DW1 and filed his detailed affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the written statement and further on oath stated before the court that it may be true that there was a partition between Savasere Nanjundappa and his brother Gangappa as alleged on 17/8/1963. But the document of the same is not in their possession or 21 O.S.No.7521/2008 custody. He further stated that even the said partition deed if it existed, but the same was never acted upon and the family of both late Nanjundappa and Gangappa continued to live as joint family members. He further stated that there was no partition as per the alleged partition deed dated 17/8/1963. He further stated that he himself and other defendants ever since their birth continued to carry on family business of silk weaving. In fact in one of the legal proceedings in HRC No.384/2002 and HRC No.385/2002, Sharada Bai had sought eviction of the tenants Rangaswamy and Ramaiah in the respective cases contending that the family of Gangappa and her children are living jointly and it is in this manner she had pleaded in para No.9 and 10 of the pleadings in the above referred HRC cases. So he stated that the very averments made by plaintiff No.1 in the above said HRC cases shows that there was no partition as per the alleged partition deed dated 17/8/1963.
22 O.S.No.7521/2008
19. He further stated that the partition deed even if it is in existence, it is not acted upon since Savasere Nanjundappa had no issues and the 2nd plaintiff not being the son was only fostered child. He further stated that late Savasere Nanjundappa desired and expressed to leave the property belonging to both himself and his brother to the surviving legal heirs of the greater family. So he contended that the contention of the plaintiffs that he encroached upon their property are false. He further stated that the property is of the joint family and at no point of time, it was the property demarcated or divided by metes and bounds. Hence it is incorrect on the part of the plaintiff to presume that the plaintiff's property is a property carved out from the alleged partition and the plaintiff has exclusive right in the property. He further stated that the plaintiff No.2 is the foster / adopted son and he is not the son born to Sharada Bai, the 1st plaintiff.
23 O.S.No.7521/2008
20. He further stated that the joint family business of silk weaving was throughout done for 30 to 40 years by him and his brothers, even after the death of Savasere Nanjundappa and management of the family was done by Savasere Nanjundappa, during his life time. The intention to keep the family joint was the prime objective of Savasere Nanjundappa. The movable and immovable properties now in the possession of the plaintiffs are procured by the joint labour and contribution made by himself and his brothers. He further stated that he has not exercised any illegal force as contended by the plaintiffs and the suit property was always in his possession, as such, the question of paying Rs.2,000/- per month as damages does not arise at all and the plaintiff has falsely contended that they have made encroachment in his property. In support of his case, he got marked four documents as Ex.D1 to Ex.D4. So in view of his above arguments and document, he prays for to dismiss the suit.
24 O.S.No.7521/2008
21. The learned counsel for the plaintiffs, during the course of his arguments, contended that the plaintiff has filed the present suit for mandatory injunction, possession, permanent injunction and for damages against the defendants. He further contended that the suit schedule property originally belongs to one Savasere Nanjundappa who is none other than the father-in-law of plaintiff No.1 and grand father of plaintiff No.2, who got the same under the registered partition deed dated 17/8/1963 which was entered between himself and his brother Gangappa. He further contended that on the basis of partition deed, dated 17/8/1963, the grand father of plaintiff No.2 had been in lawful possession and enjoyment of item No.1 of the suit schedule property till his death. He further contended that subsequently the grand father of plaintiff Savasere Nanjundappa during his life time executed a 'Will' dated 17/3/1988, bequeathing the suit item No.1 in favour of the plaintiffs. In order 25 O.S.No.7521/2008 to substantiate his contention, he placed his reliance upon Ex.P26 original registered 'Will'. So also he contended that the plaintiffs have satisfactorily proved the said 'Will' by examining PW2 and 3, who are none other than the signatories to Ex.P26. So he contended that the very oral and documentary evidence adduced and produced by the plaintiffs and their witnesses clearly shows that the plaintiffs are in exclusive possession and enjoyment of the suit schedule property. He further contended that there afterwards on the basis of the said registered 'Will', the plaintiffs have got transferred khatha in their name relating to the suit property. In order to substantiate his contention, he has placed his reliance upon Ex.P3 to Ex.P16. So what he contended that by virtue of Ex.P26 registered 'Will' executed by Savasere Nanjundappa in favour of plaintiffs, the khatha relating to the suit schedule property came to be transferred in their names and they themselves paying the taxes in respect of the suit schedule property, 26 O.S.No.7521/2008 which is very much evident from the documents as referred above.
22. He further contended that the defendants have absolutely no manner of right, title, interest or possession and enjoyment of any portion of item No.1 of the suit schedule properties. He further contended that the defendants got their share towards the north of item No.1 of the suit schedule property which his very evident from Ex.P26 partition deed dated 17/8/1963. So he contended that the defendants have absolutely no manner of right and interest in and over the suit schedule properties. He further contended that inspite of the above said aspect the defendants taking advantage of helpless situation of plaintiff No.1, who is a widow and aged woman, they are trying to interfere with their peaceful possession and enjoyment of item No.1 of the suit schedule property. He further contended that, in fact, on 11/11/2008, the defendant No.6 in collusion with 27 O.S.No.7521/2008 other defendants forcefully entered item No.1 of the suit schedule property and encroached the portion to an extent of east to west 10 feet and north to south 8 feet. He further stated that the entire property held and possessed by the plaintiffs is shown as item No.1 of the suit schedule property and the encroached portion by the defendants is shown as item No.2 of the suit schedule property. So he contended that the defendants are in unauthorized and illegal occupation of item No.2 of the suit schedule property and if that portion is leased out to any others for rent, it would fetch a rent of Rs.2,000/- per month. So he contended that the defendants are liable to pay damages for their illegal use and occupation of item No.2 of the suit schedule property from 11/11/2008 till they vacate and hand over the vacant possession of the same. So what he contended that the oral and documentary evidence adduced and produced on behalf of the plaintiffs clearly shows that the defendants interfered with the peaceful possession and enjoyment of item 28 O.S.No.7521/2008 No.2 of the suit schedule property and they have made encroachment towards the western portion of the suit schedule property to an extent of 10 x 8 feet and have illegally put up construction in the said encroached area.
23. He further contended that even though the defendants have given evidence before the court, but the evidence given by them does not disclose that they have not made any encroachment in the suit schedule property, as contended by the plaintiffs. He further contended that on the contrary the oral and documentary evidence adduced and produced by the plaintiffs clearly goes to show that they have established their case by placing acceptable evidence before the court. So in view of his above arguments, he urged to answer issue No.1 to 4 in the Affirmative.
24. The learned counsel for the defendant No.2 to 6, during the course of his arguments contended 29 O.S.No.7521/2008 that the suit schedule property belongs to Savasere Nanjundappa and the same has been obtained under family partition deed dated 17/8/1963 between himself and his brother Gangappa, who is none other than the father of the defendants. He further contended that the plaintiffs claims that the said Savasere Nanjundappa executed 'Will' on 17/3/1988 bequeathing the suit schedule property in favour of the plaintiffs and the husband of 1st plaintiff Savasere Nagaraju was died on 10/9/1971 and her father-in- law Savasere Nanjundappa died on 21/3/1988. So they claims that after the demise of Savasere Nanjundappa, they became the absolute owners in possession of the suit schedule property. It is the contention of the plaintiffs that the defendants have no manner of right, title or interest in the suit schedule properties and they are interfering with their peaceful possession and enjoyment of the suit schedule property. So also it is their contention that defendant No.6 forcefully entered into the portion of the suit 30 O.S.No.7521/2008 schedule property in collusion with other defendants, muchless the 'B' schedule property. Therefore he has come up with the present suit.
25. He further contended that the defendants have totally denied the case of plaintiffs. He further contended that the very averments made by the plaintiff No.1 herein in HRC petition shows that the suit schedule property is the joint family property and at no point of time there was demarcation or division by metes and bounds in the suit schedule property. He further contended that the joint family business of silk weaving was throughout done for 30 to 40 years by the defendants and even after the death of Savasere Nanjundappa, they continued the same and also they were doing the same business during the life time of Savasere Nanjundappa. He further contended that the contention of Savasere Nanjundappa to keep the joint family was his prime objective and the movable and immovable properties now in possession of the 31 O.S.No.7521/2008 plaintiffs are procured by the joint labour and contribution made by the defendants.
26. He further contended that the alleged 'Will' as relied upon by the plaintiffs is a concocted document and the same is not executed by Savasere Nanjundappa. He further contended that the alleged 'Will' dated 17/3/1988 is a bogus document and the same came to be created by the 1st defendant in collusion with his son to knock off the valuable property belongs to the joint family. He further contended that there may be partition between the father of defendants Gangappa and his brother Savasere Nanjundappa on 17/8/1963, but it was never acted upon and during the life time of both Savasere Nanjundappa and Gangappa and they continued to live as joint family members. He further contended that the plaintiff No.2 is not the son of Savasere Nagaraju and plaintiff No.1, he is the son of 1st defendant and adopted son of plaintiff No.1 and 32 O.S.No.7521/2008 Savasere Nagaraju. So what he contended that the plaintiff No.2 in collusion with his genitive father, i.e., defendant No.1, without the knowledge of plaintiff No.1, got created the alleged Ex.P26 'Will'. He further contended that in fact, the plaintiff No.1 assured the defendants that as per her father-in-laws ambition and wish, the joint family property should be equally divided between the sons of Gangappa, i.e., defendants. He further contended that the plaintiff No.1 is not at all aware of the filing of the present case and her signature in the plaint and vakalath are forged by plaintiff No.2 in collusion with his genitive father defendant No.1. In order to substantiate his contention, he placed his reliance upon the evidence given by PW1, during the course of his cross examination. What he contended that PW1 in his cross-examination admitted that he was born in the year 1975 and in all the birth certificates and school certificates, his father name is mentioned as G.Gangadhara, who is none other than the defendant 33 O.S.No.7521/2008 No.1. So also, he contended that even PW1 in his cross-examination admitted that in his wedding card also, the name of his father is mentioned as G.Gangappa, i.e., defendant No.1. So also, he contended that PW1 in his cross-examination at page No.1, 1st para admitted that Savasere Nagaraju is not his father. So also he contended that the very evidence given by him in the cross-examination shows that he residing along with his family members, but not with plaintiff No.1. He further contended that the very evidence given by PW1 shows that he does not know anything from whom Savasere Nanjundappa purchased the suit schedule property. He further contended that the very answer given by him during the course of his cross examination shows that the alleged Ex.P26 'Will' is a concocted and created document by him in collusion with his genitive father defendant No.1. So by placing his reliance upon the evidence given by PW1 in the cross-examination, he contended that the plaintiff No.2 without the 34 O.S.No.7521/2008 knowledge of plaintiff No.1 in collusion with his genitive father got created Ex.P26 'Will', just to knock off the suit property. He further contended that the suit property is in joint possession and defendants and plaintiff are doing family business, i.e., silk weaving since 30 to 40 years. When that would be the case, the plaintiffs falsely contended that in the year 2008, the defendants particularly defendant No.6 encroached in the suit 'A' schedule property to an extent of 10 x 8 feet, which is shown as 'B' schedule property.
27. He further contended that the plaintiff in support of his case, got examined two witnesses as PW2 and 3. He further contended that the evidence given by the said witnesses before the court clearly shows that even though they does not know anything about the 'Will', only at the instance of plaintiff No.2 and his genitive father, defendant No.1, they falsely deposing before the court that Savasere Nanjundappa executed Ex.P26 'Will' in favour of the plaintiffs. He 35 O.S.No.7521/2008 further contended that PW3 is none other than the brother of genitive mother of plaintiff No.2. He further contended that the evidence on record clearly shows that the plaintiffs claims that Savasere Nanjundappa executed alleged 'Will' on 17/3/1988. So also, the records shows that on 21/3/1988, he was dead. So what he contended that after four days of execution of the alleged 'Will', Savasere Nanjundappa was dead and prior to his death, he was in the hospital. So he contended that the question of Savasere Nanjundappa executed registered 'Will' in favour of plaintiffs does not arise at all and the above said aspects clearly depicts Ex.P26 alleged 'Will' is nothing, but a concocted and fabricated document, just to knock off the suit schedule property. He further contended that the evidence given by PW2 and 3, who are claims to be the witnesses to Ex.P26, 'Will' shows that they have not denied the factum of Savasere Nanjundappa admitted to hospital before his death. So the very evidence given by plaintiff and his witnesses clearly shows 36 O.S.No.7521/2008 Ex.P26 is a concocted and fabricated document to knock off the suit schedule property.
28. He further contended that the oral and documentary evidence placed before the court by the defendants at Ex.D1 to Ex.D4 clearly shows that after the demise of father-in-law of plaintiff No.1 and defendant's father, both plaintiffs and defendants were living together. When that would be the case, the contention of the plaintiffs that they are in exclusive possession and enjoyment of item No.1 of the suit schedule property and the alleged interference/ causing obstruction to the peaceful possession and enjoyment of the suit schedule property by the plaintiff and alleged encroachment to the extent of 10 x 8 feet and the alleged illegal construction put up by the defendants does not arise at all. So he specifically contended that the over all facts and circumstances of the case clearly indicates that plaintiff No.2 and defendant No.1 in collusion with each other are 37 O.S.No.7521/2008 making all hectic efforts to knock off the valuable properties belonging to the joint family by avoiding / defeating the rights of defendant No.2 to 6 over the suit schedule property as successors as per the wishes and intention of father-in-law of plaintiff No.1. He further contended that the evidence placed before the court by the plaintiffs does not help them to discharge the burden of proof which is casted upon them. He further contended that the evidence on record clearly shows that the suit schedule property is the joint family property and at no point of time, the plaintiffs had the exclusive possession, muchless, the right over the suit schedule property. So in view of his above arguments, he urged to answer issue No.1 to 4 in the Negative.
29. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. Admittedly this is a suit filed by the plaintiffs against the defendants for mandatory injunction, possession, permanent injunction and for 38 O.S.No.7521/2008 damages. It is the case of the plaintiffs that the suit schedule property originally belongs to Savasere Nanjundappa and who got the same through family partition deed dated 17/8/1963 between himself and his brother Gangappa. It is the contention of the plaintiff that Savasere Nanjundappa executed registered 'Will' dated 17/3/1988 bequeathing the suit schedule property in favour of the plaintiffs. It is the further contention of the plaintiff that the husband of plaintiff No.1 Savasere Nagaraju was dead on 10/9/1971 and Savasere Nanjundappa died on 21/3/1988. After their demise, they became the absolute owners in possession of the suit schedule property. It is the further contention of the plaintiffs that the defendants have no manner of right, title or interest in the suit schedule property and they are interfering with the plaintiff's possession and defendant No.6 in collusion with other defendants, he encroached the suit schedule property on the western portion to the extent of 10 feet x 8 feet. So they have 39 O.S.No.7521/2008 come up with the present suit seeking for the reliefs as stated above.
30. It is the contention of the defendants that they have not much disputed with regard to the factum of the partition that had taken place between Savasere Nanjundappa and Gangappa, who is none other than the father of the defendant on 17/8/1963. The main contention of the defendants is that they have not at all acted upon as per the partition deed dated 17/8/1963 during their life time and they continued to live as joint family members. It is the further contention of the defendants that ever since their birth, they continued to carry on family business of silk weaving. So also, it is their contention that the plaintiff No.1 in the HRC case sought eviction of the tenants contending that the family of Gangappa and his children, i.e., the defendants herein are put together. So they contended that the very facts pleaded by plaintiff No.1 herein in HRC cases, i.e., at 40 O.S.No.7521/2008 Ex.D1 to Ex.D4, it clearly shows that there was no partition and both plaintiffs and defendants are in joint possession of the suit schedule property. It is the further contention of the defendants that the plaintiff No.2 is the son of defendant No.1 and he is not the son of plaintiff No.1. It is their further contention that Savasere Nagaraju, during his life time, he desired and expressed to leave the property belong to joint family of surviving legal heirs of the greater family. So they contended that the plaintiff's have no exclusive legal right to claim the plaint schedule property, as it belongs to the joint family.
31. In the light of the above contention, on going through the records, it shows that absolutely there is no much dispute with regard to the partition that has taken place in between Savasere Nanjundappa and Gangappa, who is none other than the father of defendants on 17/8/1963. The main contention of the defendants is that though there was partition on 41 O.S.No.7521/2008 17/8/1963, but the same was not acted upon and till this date, the suit schedule properties are in joint possession and enjoyment of themselves and the plaintiff. Now let us examine whether the defendants in proof of their contention, i.e., to say, the partition deed dated 17/8/1963 is not at all acted upon, and is there acceptable evidence placed before the court by them. Ex.P1 is the registered partition deed. Upon perusal of the same, it shows that there was division of properties in between Savasere Nanjundappa and Gangappa, who is none other than the father of defendants. The main contention of the defendants is that the plaintiff No.1 herein who is the wife of Savasere Nagaraju filed HRC case against the tenants as per Ex.D1 to Ex.D3 wherein she has stated certain facts as stated by the defendants in the written statement and the said aspect clearly shows that though there was partition in the year 1963, but the same was not acted upon. So far as the said aspect is concerned, it can be said that the plaintiff No.1 herein 42 O.S.No.7521/2008 might have stated like so in the HRC petition, but it is only the pleadings pleaded by her in HRC petition, but not the evidence.
32. On the other hand, upon perusal of the evidence given by DW1, who is the defendant No.6, it shows that as per the registered partition deed, in between Savasere Nanjundappa and Gangappa, who is none other than the father of the defendants, they have acted upon. At this juncture, it would be relevant to state the evidence given by DW1, during the course of his cross examination at page No.5, 4th line from the top which reads as under:
D ªÀÄ£É UÀAUÀ¥Àà ºÁUÀÆ £ÀAdÄAqÀ¥Àà¤UÉ dAnAiÀiÁV ¸ÉÃjzÀÄÝ D ªÀÄ£É UÀAUÀ¥£Àà À ºÁUÀÆ £ÀAdÄAqÀ¥Àà£À ºÉ¸jÀ £À°è ¨ÉÃgÉÉ ¨ÉÃgÉ SÁvÉAiÀÄ°èzÉ .
33. So also DW1 during the course of his cross examination at page No.6, 7th line, from the top wherein he has admitted as under:
43 O.S.No.7521/2008
UÀAUÀ¥Àà£À ªÀÄPÀ̼ÀÄ GvÀÛgÁzÀsð ¨sÁUÀz° À è ªÁ¹¸ÀÄwÛzÀÄÝ £ÀAdÄAqÀ¥À£à À ªÀÄPÀ̼ÀÄ zÀQëuÁzÀsð ¨sÁUÀz° À è ªÁ¹¸ÀÄwÛzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¤d .
34. Again DW1 in the same page in the middle portion admitted as under:
¢£ÁAPÀ 17.8.1963 gÀ £ÀAvÀgÀzÀ°è UÀAUÀ¥Àà£À ºÁUÀÆ £ÀAdÄAqÀ¥Àà£À ªÁgÀ¸ÀÄzÁgÀgÁUÀ°Ã AiÀiÁªÀÅzÉà ªÀåªÀºÁgÀªÀ£ÀÄß MnÖUÉ ªÀiÁr®è . UÀAUÀ¥Àà£À ¥Á°UÉ §AzÀ D¹ÛUÉ PÁ¥ÉÇðÃgÉõÀ£ïgÀ£ÀªÀgÀÄ £ÀA.15/1 JAzÀÄ £ÀA§gÀÄ PÉÆnÖzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¤d . CzÉà jÃw £ÀAdÄAqÀ¥Àà£À ¥Á°UÉ §AzÀ D¹ÛUÉ PÁ¥ÉÇðÃgÉõÀ£ïgÀ£ÀªÀgÀÄ £ÀA.15 JAzÀÄ £ÀA§gÀÄ PÉÆnÖzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¤d . PÁ¥ÉÇðÃgÉõÀ£ïgÀ£ÀªÀgÀÄ D¹Û ¸ÀASÉå 15/1 ºÁUÀÆ 15 PÉÌ ¨ÉÃgÉ ¨ÉÃgÉ PÀAzÁAiÀÄ ªÀ¸ÀÆ° ªÀiÁqÀÄwÛzÁÝgÉ JAzÀgÉ 1983 jAzÀ ¨ÉÃgÉ ¨ÉÃgÉ PÀAzÁAiÀÄ ªÀ¸ÀÆ° ªÀiÁqÀÄwÛzÁÝgÉ JAzÀÄ ¸ÁQë £ÀÄr¢zÁÝgÉ . D¹Û ¸ÀASÉå 15 PÉÌ £ÀAdÄAqÀ¥Àà PÀAzÁAiÀÄ vÀÄA§ÄwÛzÀÄÝ CªÀ£À ªÀÄgÀtzÀ £ÀAvÀgÀ CªÀ£À ¸ÉÆ¸É PÀAzÁAiÀÄ vÀÄA§ÄwÛzÁÝ¼É J£ÀÄߪÀÅzÀÄ ¤d . ¢B17.8.1963 gÀ ¥Á®Ä«¨sÁUÀz° À è £ÀAdÄAqÀ¥Àà£À ¥Á°UÉ 44 O.S.No.7521/2008 D¹Û ¸ÀASÉå 15 gÀ ¥ÀǪÀð - ¥À²ÑªÀÄ 44 Cr GvÀÛgÀ - zÀQët 23 Cr C¼ÀvÉAiÀÄ ¸ÀévÀÄÛ §A¢vÀÄÛ JAzÀgÉ D ¥Á®Ä¥ÀvÀæzÀ°è £ÀªÀÄÆ¢¹gÀĪÀ ZÀPÀÄ̧A¢ UÉÆwÛ®è JAzÀÄ ¸ÁQë £ÀÄr¢zÁÝgÉ . ¸ÀzÀj ¥Á®Ä«¨sÁUÀ ¥ÀvÀæz° À è D¹Û ¸ÀASÉå 15 gÀ ¥ÀǪÀð - ¥À²ÑªÀÄ 44 Cr GvÀÛgÀ - zÀQët 23 Cr C¼ÀvÉAiÀÄ ¸ÀéwÛ£À ZÀPÀ̧A¢ £ÀªÀÄÆ¢¹zÀÄÝ D ZÀPÀÄ̧A¢AiÀÄ°ègÀĪÀ ¸ÀévÀÄÛ £ÀªÀÄUÉ ¸ÉÃjzÀ® Ý è J£ÀÄߪÀÅzÀÄ ¤d. zÁªÁ D¹Û £ÀA§gÀÄ 15 £ÀªÀÄä ªÀiÁ°ÃPÀvÀéPÉÌ ¸ÉÃj®è ºÁUÀÆ £ÀªÀÄä ¸Áé¢üãÀzÀ°è®è JAzÀgÉ FUÀ EzÉÝÃªÉ JAzÀÄ ¸ÁQë £ÀÄr¢zÁÝgÉ .
35. Looking into the above evidence given by DW1, during the course of his cross examination, it clearly goes to falsify the stand taken by them that the partition that had taken place on 17/8/1963 as per Ex.P1 is not at all acted upon. On the contrary, the above evidence clearly goes to show that as per Ex.P1 registered partition deed, Savasere Nanjundappa and Gangappa, who is none other than the father of the defendants have acted upon the same and in 45 O.S.No.7521/2008 pursuance of the same they were living separately and the plaintiff No.1 is paying taxes in respect of the portion fallen to the share of Savasere Nanjundappa and ultimately the said property was bequeathed by Savasere Nanjundappa in favour of plaintiffs as per Ex.P26.
36. If according to the defendants the partition deed dated 17/8/1963 is not at all acted upon, there was no need for the Corporation authorities to give separate numbers to the properties fallen to the share of Savasere Nanjundappa and Gangappa and even the defendants have not given any application to the Corporation authorities raising their objection for giving separate numbers to the respective shares of Savasere Nanjundappa and Gangappa. Even that fact has been admitted by DW1 during the course of his cross examination at page No.8 in the middle portion which reads as under:
46 O.S.No.7521/2008
1983 gÀ°è PÁ¥ÉÅÁðÃgÉõÀ£ïgÀ£ÀªÀgÀÄ UÀAUÀ¥Àà£À ¥Á°UÀÉ §AzÀ D¹ÛUÉ £ÀA. 15/1 JAzÀÄ £ÀAdÄAqÀ¥Àà£À ¥Á°UÉ §AzÀ D¹ÛUÉ £ÀA.15 JAzÀÄ ¨ÉÃgÉ ¨ÉÃgÉ SÁvÉ £ÀA§gÀÄ PÉÆlÖ ªÉÃ¼É CzÀÄ vÀ¥ÀÅà JAzÀÄ PÁ¥ÉÇðÃgÉõÀ£ïgÀ£ÀªÀjUÉ vÀPÀgÁgÀÄ Cfð PÉÆnÖ®è . D¹Û ¸ÀASÉå 15/1 PÉÌ ªÀÄvÀÄÛ D¹Û ¸ÀASÉå 15PÉÌ ¨ÉÃgÉ ¨ÉÃgÉ ¤Ãj£À «ÄÃlgï EzÉ J£ÀÄߪÀÅzÀÄ ¤d . £Á£ÀÄ D¹Û ¸ÀASÉå 15/1 gÀ°ègÀĪÀ ¤Ãj£À ©®è£ÀÄß PÀlÄÖvÉÛÃ£É . D¹Û ¸ÀASÉå 15 gÀ ¤Ãj£À ©®è£ÀÄß £Á£ÀÄ PÀlÄÖªÀÅ¢®è .
37. The above evidence given by DW1 also goes to show that as per Ex.P1 registered partition deed Savasere Nanjundappa and Gangappa have acted upon. Hence the whole theory of the defendants that though there was partition in the year 17/8/1963, but the same was not acted upon cannot be accepted.
38. Another important aspect and also why a doubt may arises to believe the stand taken by the defendants is that the suit schedule property is in their 47 O.S.No.7521/2008 joint possession and enjoyment and Ex.P1 partition deed is not at all acted upon is that, if according to the defendants the suit schedule property is in their joint possession, certainly they being the male members of the family, it is their duty to pay the water charges, meter charges and to take care of change of khathas relating to the suit schedule properties, but the evidence on records shows that the same has not been done by them.
39. At this juncture, it would be relevant to state the evidence given by DW1 during the course of his cross examination at page No.9, 2nd line which reads as under:
D¹Û ¸ÀASÉå 15 gÀ «zÀÄåvï «ÄÃlgï£À UÁæºÀPÀ£À £ÀA§gÀÄ UÉÆwÛ®è . D¹Û ¸ÀASÉå 15 PÉÌ ¸ÀA§A¢ü¹zÀ «zÀÄåvï ©®è£ÀÄß vÀÄA©gÀĪÀ §UÉÎ DzsÁgÀ £À£Àß §½ E®è. D¹Û ¸ÀASÉå 15 PÉÌ £Á£ÀÄ AiÀiÁªÀvÀÆÛ PÀAzÁAiÀÄ PÀnÖ®è J£ÀÄߪÀÅzÀÄ ¤d . zÁªÁ D¹ÛAiÀÄ°è ¤ªÀÄUÉ AiÀiÁªÀÅzÉà ºÀPÀÄÌ E®è JAzÀgÉ vÁ£ÀÄ EgÀĪÀªÀgÀUÉUÉ zÁªÁ 48 O.S.No.7521/2008 D¹ÛAiÀÄ°ègÀÄvÉÛÃ£É £ÀAvÀgÀ CzÀ£ÀÄß ¤ªÀÄUÉ PÉÆqÀÄvÉÛÃ£É JAzÀÄ ±ÁgÀzÁ¨Á¬Ä PÉÆqÀÄvÉÛÉÃ£É JAzÀÄ £ÀÄr¢zÁÝgÉ .
40. Again DW1 in the same page in the middle portion, he has deposed as under:
2002 gÀ°è zÁªÁ D¹Û ±ÁgÀzÁ¨Á¬ÄAiÀÄzÀÄ JAzÀÄ £ÀªÀÄUÉ UÉÆwÛvÀÄÛ ºÁUÀÆ zÁªÁ D¹Û ±ÁgÀzÁ¨Á¬ÄUÉ CªÀ¼À ªÀiÁªÀ¤AzÀ §AzÀzÀÄÝ JAzÀÄ £ÀªÀÄUÉ UÉÆwÛvÀÄÛ .
41. Again DW1 in the same page, in the last portion, he has deposed as under:
±ÁgÀzÁ¨Á¬Ä ¸ÀévÀÄÛ zÀQëtzÀ CzÀsð ¨sÁUÀ DVvÀÄÛ. zÀQëuÁzÀsðzÀ ±ÁgÀzÁ¨Á¬Ä ¸ÀévÀÛ£À°è £Á£ÀÄ ªÀÄvÀÄÛ PÀȵÀÚªÀÄÆwð EzÉݪÀÅ GvÀÛgÁzÀsð ¨sÁUÀª£À ÀÄß ¨ÁrUÉUÉ PÉÆnÖzÀݼÀÄ . ±ÁgÀzÁ¨Á¬ÄUÉ CªÀ¼À ªÀiÁªÀ¤AzÀ §AzÀ ¸ÀévÀÛ£ÀÄß gÁªÀÄAiÀÄå ºÁUÀÆ gÀAUÀ¸Áé«ÄUÉ ¨ÁrUÉUÉ PÉÆnÖzÀݼÀÄ J£ÀÄߪÀÅzÀÄ ¤d.
42. Looking into the above evidence given by DW1, it can be said that though the defendants are very well aware that Savasere Nanjundappa and 49 O.S.No.7521/2008 Gangappa, who is none other than their father have acted upon as per Ex.P1 registered partition deed, they have falsely contended for the best reasons known to them that though the partition deed was in existence, but the same was not acted upon by the parties. Apart from that the documents produced by the plaintiff at Ex.P3 it clearly shows that the khatha in respect of the suit schedule property came to be entered in the name of plaintiff and there afterwards the plaintiffs themselves paying the taxes in respect of the suit schedule property which is very evident from Ex.P7 to Ex.P16. So also the above evidence given by DW1 during the course of his cross examination also clearly indicates that by virtue of execution of Ex.P26, 'Will' by Savasere Nanjundappa on 17/3/1988, the plaintiffs have got the property.
43. It is the contention of the defendants that Ex.P26 is a concocted and created document. Their main contention is that the evidence on record shows 50 O.S.No.7521/2008 that the Savasere Nagaraju died on 21/3/1988, i.e., to say, after execution of alleged Ex.P26 'Will' within four days, he was dead and prior to that he was hospitalized, as such there was no chances for him to execute Ex.P26 'Will'. No doubt, in the present case, PW1 pleaded his ignorance about the hospitalization of Savasere Nanjundappa and PW2 and 3, who claims to be the signatories to Ex.P26 admitted with regard to the factum of hospitalization of Savasere Nanjundappa, but though the learned counsel for the plaintiff tried to elicit from the mouth of PW3 that Savasere Nanjundappa was admitted to the hospital on 17/3/1988 itself, but he has failed in his attempts. On the contrary, PW3 in his cross-examination stated that on 18/3/1988 Savasere Nanjundappa was admitted to the hospital. If that would be the case, the burden heavily lies upon the defendant to prove that Savasere Nanjundappa was admitted to the hospital on 17/3/1988 and as such there was no chance for him to execute Ex.P26, but the same has not been done by 51 O.S.No.7521/2008 the defendants. When absolutely there is no acceptable evidence to prove the stand taken by the defendants, whatever the bald contention taken by the defendants cannot be accepted. No doubt, PW1 to 3 in their cross-examination have given certain admission, but those minor admissions in any way it would goes to effect the case of plaintiffs, in view of the evidence given by DW1, during the course of his cross examination as stated above.
44. The plaintiff in order to prove Ex.P26 'Will', have examined PW2 and PW3 who are the signatories to Ex.P26 'Will'. Apart from that, as it is already referred above, DW1 in the cross-examination in unequivocal terms admitted that the plaintiff No.1 acquired the suit schedule property through her father-in-law, i.e., Savasere Nanjundappa. Under such circumstances, whatever the contention taken by the defendants cannot be accepted.
52 O.S.No.7521/2008
45. It is the contention of the defendants that plaintiff No.2 is the son of defendant No.1. So also, it is their contention that plaintiff No.2 in collusion with defendant No.1 without the knowledge of the plaintiff, by forging her signature, both in the plaint and vakalath, filed the present suit in order to knock off the suit schedule property. Though the defendants contended like so, in order to prove the said aspect, i.e., to say, the plaintiff No.2 in collusion with defendant No.1 forged the signature of plaintiff No.1, they have not taken any steps to prove the said aspect. So also PW1 in his evidence, during the course of his cross examination stated that he has no objection to examine plaintiff No.1, inspite of that, the defendants herein have not taken any steps to call PW1 before the court to elicit from her mouth the truth of the matter.
46. Another important aspect to be taken note of here is that, it is the contention of the defendants that plaintiff No.2 is not the son of Savasere Nagaraju 53 O.S.No.7521/2008 and plaintiff No.1 and he is the son of defendant No.1, and also he is not the adopted son of Savasere Nanjundappa and plaintiff No.1. No doubt, in this case, PW1 in the cross-examination has admitted that in all the school certificates, his father's name has been mentioned as Gangappa who is none other than defendant No.1, but on the said score, the stand taken by the defendants as stated above, cannot be accepted in view of the answer given by DW1 to the questions put by the learned counsel representing the plaintiff during the course of his cross examination at page No.10 in the middle portion which reads as under:
2008 gÀ°è ±ÁgÀzÁ¨Á¬Ä £À£Àß CtÚ UÀAUÁzÀsgÀ£À ªÀÄUÀ £ÁUÀgÁd£À£ÀÄß zÀvÀÛPÀ ¥ÀqÉzÀ £ÀAvÀgÀ ±ÁgÀzÁ¨Á¬ÄAiÀÄ ªÉÄÃ¯É £ÀªÀÄUÉ «gÀ¸À GAmÁ¬ÄvÀÄ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è.
47. Looking into the above evidence given by DW1 as stated above, it clearly shows that he has not whole-heartedly denied the factum of plaintiff No.2 was adopted by Savasere Nagaraju and plaintiff No.1. 54 O.S.No.7521/2008 When that would be the case and in the absence of acceptable evidence, whatever the contention taken by the defendants cannot be accepted.
48. The very oral and documentary evidence adduced and produced by the plaintiff, as discussed above, clearly shows that the plaintiffs are in exclusive possession and enjoyment of item No.1 of the suit schedule property and also the very stand taken by the defendants in their written statement shows that they are causing interference to the peaceful possession and enjoyment of item No.2 of the suit schedule property and ultimately they have encroached and put up construction on the western portion of the suit schedule property to an extent of 12 x 8 feet. So, by considering the over all oral and documentary evidence on record, this court is of the opinion that the plaintiffs have succeeded to prove issue No.1 to 4. Accordingly issue No.1 to 4 are answered in the Affirmative. 55 O.S.No.7521/2008
49. Issue No.5: The defendants in the written statement contended that the plaintiffs have not properly valued the suit and court fee paid by them is insufficient. Upon perusal of the averments made in the written statement, it shows that though the plaintiffs have contended like so, but no where, they have stated what is the value of the property as on the date of filing the suit and the required court fee to be paid by the plaintiffs. When that would be the case, and in the absence of acceptable materials, on the basis of the bald contention taken by them, it cannot be possible to say that the plaintiffs have not properly valued the suit and the court fee paid by them is insufficient. On the other hand, the records shows that the plaintiff, as per the reliefs sought by them, they have paid the required fee. When that be the case, this court is left with no option except to answer issue No.5 for consideration in the Negative. Accordingly issue No.5 is answered in the Negative. 56 O.S.No.7521/2008
50. Issue No.6: In view of detailed discussions made in the above issues, the plaintiff is entitled for the relief of mandatory injunction, possession and permanent injunction. So far as the damages claimed by the plaintiffs is concerned, it can be said that there is no sufficient evidence / materials to decide the said aspect, as such, the same shall be determined in a separate enquiry under Order 20 Rule 12 C.P.C. Accordingly issue No.6 for consideration is answered in the Affirmative.
51. Issue No.7: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby decreed.
The defendants are hereby directed to remove and demolish the illegal construction put up to an extent of 10 x 8 feet over the item No.2 of the suit schedule 57 O.S.No.7521/2008 property and hand over the possession of the same to the plaintiffs within four months. So also the defendants, their men, agents, servants or anybody claiming under them are hereby restrained from interfering with plaintiffs peaceful possession and enjoyment of the item No.1 of the suit schedule property by way of permanent injunction. Failing which the plaintiffs are at liberty to take steps as per law.
So far as the damages as
claimed by the plaintiffs is
concerned, the same shall be
determined in a separate enquiry
under Order 20 Rule 12 C.P.C.
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 4th day of August 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.58 O.S.No.7521/2008
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 : G.Nagaraj P.W.2 : C.N.Rama Rao P.W.3 : C.N.Narasimhamurthy
Witnesses examined for the defendant:
D.W.1 : Vijayakumar
Documents marked for the plaintiff:
Ex.P1 : Original registered partition deed
Ex.P2 : Notice cum spl. notice
Ex.P3 : Khatha extract
Ex.P4 : Notice for transfer of property
Ex.P5 : BWSSB register extract
Ex.P6 : Notice issued by ADLR
Ex.P7-16 : 10 Tax Paid Receipts
Ex.P17-19 : Death certificates
Ex.P20 : Office copy of representation
Ex.P21 : Copy of building plan
Ex.P22,23: Office copy of complaints given by
BBMP
Ex.P24,25 : Two photos with negatives
Ex.P24(a)
& 25(a) : Negatives
59 O.S.No.7521/2008
Ex.P26 : 'Will' deed executed by
Savasere Nanjundappa
Ex.P26(a)
&
Ex.P26(b) : Thumb impression of
Savasere Nanjundappa & the signature Ex.P26(c) : Signature of PW3 Documents marked for the defendant:
Ex.D1 : Certified copy of petition in
HRC No.1476/89
Ex.D2 : Certified copy of petition in
HRC No.384/2002
Ex.D3 : Certified copy of petition in
HRC No.385/2002
Ex.D4 : Certified copy of judgment in
HRC No.384/02 & 385/02
(Sadananda M. Doddamani)
XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 60 O.S.No.7521/2008 Judgment pronounced in open court (vide separate detailed order) with the following operative portion:-
ORDER The suit of the plaintiffs is hereby decreed.
The defendants are hereby directed to remove and demolish the illegal construction put up to an extent of 10 x 8 feet over the item No.2 of the suit schedule property and hand over the possession of the same to the plaintiffs within four months. So also the defendants, their men, agents, servants or anybody claiming under them are hereby restrained from interfering with plaintiffs peaceful possession and enjoyment of the item No.1 of the suit schedule property by way of permanent injunction.61 O.S.No.7521/2008
Failing which the plaintiffs are at liberty to take steps as per law.
So far as the damages as claimed by the plaintiffs is concerned, the same shall be determined in a separate enquiry under Order 20 Rule 12 C.P.C.
No order as to cost.
Draw decree accordingly.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.