Bangalore District Court
Sri.Gopal Reddy vs Sri.Gutta Reddy on 11 November, 2019
IN THE COURT OF THE LVI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 57)
:Present :
Sri. N.Sunil Kumar Singh., B.Com.,LL.B.,
LVI Addl. City Civil & Sessions Judge,
Bengaluru
Dated this the 11 th Day of November, 2019
O.S.No.5834/2010
PLAINTIFF Sri.Gopal Reddy
S/o Late Chicka Annayya Reddy,
Aged about 50 years,
R/at No.261/4th Cross,
V.P.Road, Old Madiwala,
Near Mariyamma Temple,
BTM 1st Stage, Bangalore-560 068.
Since suffering from unsoundness
of mind, represented by his next
friend
Sri.Nanja Reddy
S/o Sri.Gopala Reddy,
Aged about 23 years,
R/at No.261/2, 4th Cross,
V.P.Road, Old Madiwala,
Near Mariyamma Temple,
BTM 1st Stage, Bangalore-560068.
(By Sri.S.Nagesh, advocate)
- Vs.
DEFENDANTS 1. Sri.Gutta Reddy
S/o Late Thimu Reddy,
Aged about 80 years,
Since dead no Lrs
2. Smt.Ammayyamma
W/o Gutta Reddy,
Aged about 65 years,
3. Smt. Lakshmamma
W/o Late Srinivasa Reddy,
Aged about 70 years,
2
O.S.No.5834/2010
4. Sri.Kodanda Reddy
S/o Late Srinivasa Reddy,
Aged about 62 years,
5. Sri.Babu Reddy
S/o Late Srinivas Reddy,
Aged about 58 years,
Sine Dead Represented by His Lr's
5(a). Smt.Sudha
W/o Late Babu Reddy,
Aged about 52 years,
5(b). Sri.Sunil
S/o Late Babu Reddy,
Aged about 34 years,
5(c). Sri.Anil
S/o Late Babu Reddy,
Aged about 32 years,
5(d). Smt.Deepa
D/o Late Babu Reddy,
Aged about 30 years,
All are residing at
No.128, V.P.Road,
Old Madiwala, BTM 1st Stage,
Bangalore-68.
6. Sri.Ramakrishna Reddy
S/o Late Srinivasa Reddy,
Aged about 52 years,
7. Sri.Venkatesh Reddy
S/o Late Srinivasa Reddy,
Aged about 37 years,
All are R/at No.128, V.P.Road,
Old Madiwala, BTM 1st Stage,
Bangalore-68.
8. Smt.Gowramma
W/o Sri.Annayya Reddy,
Aged about 56 years,
R/at Anjanadri Nilaya,
No.37/7, V.P.Road, Old Madiwala,
BTM 1st Stage, Near Someshwara
Temple, Bangalore-68.
3
O.S.No.5834/2010
9. Smt.Jayamma
W/o Babu Reddy,
Aged about 49 years,
No.222, Hanumappa Road,
New Thippasandra, HAL 3rd Stage,
Bangalore-71.
10. Smt.Kanakamma
W/o Krishna Reddy,
Aged about 47 years,
R/at Hulimangala Village & Post,
Jigani Hobli, Anekal Taluk,
Bangalore District.
11. Smt.Savithri
W/o Muninanja Reddy,
Aged about 45 years,
R/at Kudly Village,
Singasandra Post, Sarjapura Hobli,
Anekal Taluk,
Bangalore District.
12. Smt.Jayalakshmi
D/o Late Srinivasa Reddy,
Aged about 56 years,
R/at No.128, V.P.Road,
Old Madiwala, BTM 1st Stage,
Bangalore-68.
Date of institution of the : 20.08.2010
suit
Nature of the suit : Partition
Date of commencement of : 04.03.2017
recording of the evidence
Date on which the : 11.11.2019.
Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
09 02 22
JUDGMENT
The suit is filed by plaintiff against defendants for partition and separate possession of his legitimate 1/4th share in the suit properties and consequential relief of mandatory injunction restraining the defendants from 4 O.S.No.5834/2010 interfering with peaceful possession and enjoyment of 1/4th share of the plaintiff in the suit properties and such other reliefs.
2. The facts in brief of plaintiff's case is that, the relationship of plaintiff and defendants is shown in the genealogy tree which is furnished here under;
Thimmareddy
↓
_________________________
↓ ↓
Chinnamma Gowramma
↓ ↓
__________________ _______________________________________
↓ ↓ ↓ ↓
Chikka Annaiah Reddy (1) Srinivasareddy (2) Gundappa (3) Guttareddy
+ Lakshmamma (the husband (the husband of (the defendant-1)
of defendant No.3) the defendant-2)
↓ ↓
__________________ |
↓ ↓ |
(1) Venkatesh (2) Gopalareddy |
|
________________________________ |______________________________ ↓ ↓ ↓ ↓ | (1) Kodandareddy (2) Gowramma (3) Babureddy (4)Ramakrishna Reddy | (defendant No.4) (defendant No.5) (defendant No.6) (defendant No.7) | ___________________________________________________________________________| ↓ ↓ ↓ ↓ ↓ (5) Jayamma (6) Kanakamma (7) Savitri (8)Jayalakshmi (9)Venkatesh Reddy (defendant No.8) (defendant No.9) (defendant No.10) (defendant No.11) (defendant No.12) One Thimmareddy is the original propositus of the joint family and Thimmareddy had two wives by name Chinnamma and Gowramma. Chinnamma had one son by name Chikka Annaiah Reddy and Gowramma had got three sons by name Srinivasareddy, Gundappa and 5 O.S.No.5834/2010 Guttareddy. Chikka Annaiah Reddy married to Lakshmamma and he has got two sons by name Venkatesh and another son Gopalareddy who is the plaintiff herein. Srinivasareddy had four sons and five daughters who are Kodandareddy, Gowramma, Babureddy, Ramakrishna Reddy, Jayamma, Kanakamma, Savitri, Jayalakshmi and Venkatesh Reddy. Gundappa and Guttareddy are married but they have no children out of their wedlock.
3. Thimmareddy was looking after family properties bearing Sy.No.90/4, 90/5, 35/7, 2/2 and Kaneshumari No.160. Due to non-agricultural potentiality the lands was converted from agricultural purpose to non-agricultural purpose and formed house sites. Presently, there are 27 house sites in the said survey numbers which are referred in the suit schedule. Thimmareddy was in possession and enjoyment of suit properties and died leaving behind Chikka Annaiah Reddy who is the father of plaintiff and Srinivasareddy, Gundappa, Guttareddy have succeeded to the estate of Thimmareddy. After the death of Thimmareddy Guttareddy continued to manage joint family properties along with his brothers as the Kartha of the family and all the sons of Thimmareddy are in joint and constructive possession of suit properties and suit properties are not yet divided between four sons of Thimmareddy.
6O.S.No.5834/2010
4. In the mean time Srinivasareddy died leaving behind his wife defendant No.3 and four sons and five daughters who are defendant No.4 to 12 herein. Gundappa Reddy died leaving behind his wife Ammayyamma who is the 2nd defendant herein. Thus the plaintiff and defendants constitute undivided joint family. Plaintiff is suffering from ill-health due to paralysis and brain disorder from the year 1993 and plaintiff is under continues medical treatment. Taking undue advantage of said fact the defendants completely neglected the family of plaintiff and refused to provide partition in the suit properties to the plaintiff.
5. Earlier the suit properties are agricultural properties and due to rapid development of Bangalore city and escalation of land price the defendants have taken undue advantage of illness of the plaintiff and tried to dispose of suit properties through the developers. Recently, on verification of the documents at BBMP it came to know that, defendants got changed revenue records into their name without the consent of plaintiff even though the suit properties are not partitioned. Plaintiff is entitled for 1/4th share in the suit properties. The demand of the plaintiff for partition of the suit properties and allotment of legitimate share of the plaintiff in the suit properties the defendants have not complied. Hence without any alternative the plaintiff has filed present suit for partition and separate possession of his legitimate share representing through his son and 7 O.S.No.5834/2010 plaintiff is entitled for 1/4th share in the suit properties. Hence prayed to decree the suit of plaintiff with cost.
6. The brief averments of Written Statement filed by defendant No.1 is that, the suit of the plaintiff is not maintainable and it is liable to be dismissed. The relationship as averred by the plaintiff in the suit is admitted. It is admitted that, after the death of original propositus plaintiff and defendants have continued the possession of suit properties. But it is denied that, the plaintiff was suffering from ill-health and brain disorder and defendants have taken undue advantage and got changed revenue records into their name. It is admitted that, there was devision or partition effected in the family and it is also admitted that plaintiff is entitled for 1/4 th share in the suit properties. It is further denied that, behind the back of the plaintiff the revenue records of the suit properties have been changed into the name of defendants in order to deprive the legitimate right of plaintiff over the suit properties. Since there is no cause of action for the suit the suit of the plaintiff is liable to be dismissed.
7. It is further contended by defendants that, the agricultural lands possessed by the family was converted from agricultural purpose to non-agricultural purpose and plaintiff and defendants have decided to partition the suit properties in the year 1993 and accordingly the suit properties were divided between plaintiff and defendants 8 O.S.No.5834/2010 as per Panchayathi Palupatti dated 08.02.1993 in the presence of witnesses. As per such Palupatti the Suit Item No.1 was alloted to defendant No.1 Gutta Reddy. The plaintiff was alloted the Suit Item No.2 and 3 properties along with two floor RCC house which fetch monthly income of Rs.20,000/- to 25,000/- from the tenants. As per the said Palupatti the plaintiff is in possession and enjoyment of properties and revenue records have been changed into his name at BBMP. But plaintiff has suppressed these material facts and filed the false suit which is not sustainable.
8. Suit Item No.4 to 7 properties fallen to the share of defendant No.4 Kodanda Reddy. Suit Item No.8 to 10 fallen to the share of defendant No.5 Babureddy. Suit Item No.11 to 14 fallen to the share of Ramakrishna Reddy who is defendant No.6. Suit Item No.15 was sold by the family members for the welfare and necessity of joint family. Thus Suit Item No.15 property is no more joint family property. Suit Item No.16 to 19 alloted to the defendant No.7 Venkateshreddy. Suit Item No.20 to 27 standing in the name of 1st defendant. Thus plaintiff and his wife executed relinquishment deed dated 17.06.2005 and defendant No.1 having no interest on Suit Item No.20 to 27 properties. The plaintiff hale and healthy and not suffering form any mental illness or disability despite of that he has not appeared before court deliberately in order to avoid with regard to deposing about the partition effected in the family. Due 9 O.S.No.5834/2010 to Palupatti in the year 1993 plaintiff is out of possession of suit properties and plaintiff cannot seek partition with respect to the suit properties. Since there is no cause of action for the suit, suit of the plaintiff is liable to dismissed and prayed to dismiss the suit of the plaintiff with cost.
9. On the above pleadings following issues have been framed by my learned predecessor.
1. Does the plaintiff proves that he along with the defendants constitute an undivided Hindu Joint Family and he is entitled for partition and separate possession of his 1/4 th share in the suit schedule properties by metes and bounds as claimed?
2. Whether the 1 st defendant proves that in view of the Release- Deed Dt:17.06.2005 executed by the plaintiff and his wife the plaintiff or other defendants except him are not having any right, title or interest in the suit schedule Item Nos.20 to 27?
3. Whether the suit of the plaintiff is barred by limitation law?
4. Whether the defendant No.1 proves that plaintiff being a signatory to the "Panchayath Parupatti" Dt:08.02.1993 he cannot claim partition now and the plaintiff's prayer is hit by principle of estoppel?
5. Whether the court fee paid by the plaintiff is proper and correct?
10O.S.No.5834/2010
6. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed against the defendants?
7. What Order or Decree?
10. In order to prove the case of the plaintiff, plaintiff's son being the next friend and guardian of plaintiff got examined himself as P.W.1 by filing his affidavit evidence and got marked documents Ex.P.1 to P.35. On behalf of the defendants, defendant No.5(b) got examined himself as DW.1 by filing his affidavit evidence and got marked documents Ex.D.1 and D.2 and the GPA holder of defendant No.6 got himself as DW.2 by filing his affidavit evidence and got marked documents Ex.D.3 to D.12.
11. Heard arguments of both the sides.
12. My answer to the above issues are as follows:
Issue No.1 : In the Affirmative
Issue No.2 to 4 : In the Negative
Issue No.5 : Do not arises for
consideration
Issue No.6 : In the Affirmative
Issue No.7 : As per my final order
for the following:
REASONS
13. ISSUE NO.1 TO 6: Since these six issues are interconnected to each other, they have been taken together for my discussion in order to avoid repetition of facts and findings to be given their under.
11O.S.No.5834/2010
14. The brief averments of plaintiffs case is that, the relationship of plaintiff and defendants as shown in the genealogy tree which is furnished here under;
Thimmareddy
↓
_________________________
↓ ↓
Chinnamma Gowramma
↓ ↓
__________________ _______________________________________
↓ ↓ ↓ ↓
Chikka Annaiah Reddy (1) Srinivasareddy (2) Gundappa (3) Guttareddy
+ Lakshmamma (the husband (the husband of (the defendant-1)
of defendant No.3) the defendant-2)
↓ ↓
__________________ |
↓ ↓ |
(1) Venkatesh (2) Gopalareddy |
|
________________________________ |______________________________ ↓ ↓ ↓ ↓ | (1) Kodandareddy (2) Gowramma (3) Babureddy (4)Ramakrishna Reddy | (defendant No.4) (defendant No.5) (defendant No.6) (defendant No.7) | ___________________________________________________________________________| ↓ ↓ ↓ ↓ ↓ (5) Jayamma (6) Kanakamma (7) Savitri (8)Jayalakshmi (9)Venkatesh Reddy (defendant No.8) (defendant No.9) (defendant No.10) (defendant No.11) (defendant No.12) One Thimmareddy is the original propositus of the joint family and Thimmareddy had two wives by name Chinnamma and Gowramma. Chinnamma had one son by name Chikka Annaiah Reddy and Gowramma had got three sons by name Srinivasareddy, Gundappa and Guttareddy. Chikka Annaiah Reddy married to Lakshmamma and he has got two sons by name Venkatesh and another son Gopalareddy who is the plaintiff herein. Srinivasareddy had four sons and five 12 O.S.No.5834/2010 daughters who are Kodandareddy, Gowramma, Babureddy, Ramakrishna Reddy, Jayamma, Kanakamma, Savitri, Jayalakshmi and Venkatesh Reddy. Gundappa and Guttareddy who are married but they have no children out of their wedlock.
15. Thimmareddy was looking after family properties bearing Sy.No.90/4, 90/5, 35/7, 2/2 and Kaneshumari No.160. Due to non-agricultural potentiality the lands was converted from agricultural purpose to non-agricultural purpose and formed house sites. Presently, there are 27 house sites in the said survey numbers which are referred in the suit schedule. Thimmareddy was in possession and enjoyment of suit properties and died leaving behind Chikka Annaiah Reddy who is the father of plaintiff and Srinivasareddy, Gundappa, Guttareddy have succeeded to the estate of Thimmareddy. After the death of Thimmareddy Guttareddy continued to manage joint family properties along with his brothers as the Kartha of the family and all the sons of Thimmareddy are in joint and constructive possession of suit properties and suit properties are not yet divided between the four sons of Thimmareddy.
16. In the mean time Srinivasareddy died leaving behind his wife defendant No.3 and four sons and five daughters who are defendant No.4 to 12 herein. Gundappa Reddy died leaving behind his wife Ammayyamma who is the 2nd defendant herein. Thus the 13 O.S.No.5834/2010 plaintiff and defendants constitute undivided joint family. Plaintiff is suffering from ill-health due to paralysis and brain disorder from the year 1993 and plaintiff is under continues medical treatment. Taking undue advantage of said fact the defendants completely neglected the family of plaintiff and refused to provide partition in the suit property to the plaintiff.
17. Earlier the suit properties are agricultural properties and due to rapid development of Bangalore city and escalation of land price the defendants have taken undue advantage of illness of the plaintiff and tried to dispose of suit properties through the developers. Recently, on verification of the documents at BBMP it came to know that, defendants got changed revenue records into their name without the consent of plaintiff even though the suit properties are not partitioned. Plaintiff is entitled for 1/4th share in the suit properties. The demand of the plaintiff for partition of the suit properties and allotment of legitimate share of the plaintiff in the suit properties the defendants have not complied. Hence without any alternative the plaintiff has filed present suit for partition and separate possession of his legitimate share representing through his son and plaintiff is entitled for 1/4th share in the suit properties. Hence prayed to decree the suit of plaintiff with cost.
18. In order to prove the case of the plaintiff, plaintiff's son being the next friend and guardian of 14 O.S.No.5834/2010 plaintiff got examined himself as PW.1 by filing his affidavit evidence reiterated the plaint averments and deposed that, his father who is the plaintiff herein is suffering from serious mental disorder. Hence, he has represented his father who is the plaintiff herein and deposing on his behalf. PW.1 being the son of plaintiff herein has got personal knowledge about the family transaction and about the suit properties. Hence he is capable of deposing on behalf of the plaintiff. But the defendants have contended that, PW.1 cannot depose on behalf of the plaintiff without complying the provisions of Order 32 Rule 15 of CPC and Sec.52 to 55 of Mental Health Act of 1987 and in this regard the learned counsel for defendants relied upon decisions reported in AIR 1999 Supreme Court Page No.3511 which is the case of Raj Kumar V/s Rameshchand and others and also relied upon in AIR 2014 Gauhati Page No.50 which is the case of Benoy Bhusan Choudhury and others V/s Smt.Rekha Rani Deb and others . I have gone through the principles laid down in the said decisions. Even though the principles laid down in the said decision is applicable to the facts and circumstances of this case. In the present case before adducing evidence and representing the plaintiff PW.1 has filed I.A.No.VII under Order 32 Rule 15 r/w 151 CPC which was allowed by this court on 28.09.2016 after providing an opportunity on both the sides to contest on the said application. After allowing I.A.No.VII the provisions of 15 O.S.No.5834/2010 Order 32 Rule 15 CPC was complied by PW.1 herein and the order passed by this court on I.A.No.VII has reached its finality, since the defendants herein have not preferred any appeal aggrieved by the said order of this court permitting PW.1 to represent the plaintiff in the present suit. Thus, at this belated stage the contention taken by the defendants that, PW.1 has no authority to represent the plaintiff nor complied the provisions of Order 32 Rule 15 of CPC cannot be taken into consideration. Thus after permitting by this court PW.1 has represented the plaintiff and adduced evidence on behalf of plaintiff herein. Thus the objections raised by the defendants at this belated stage that, PW.1 has no authority to represent the plaintiff and depose on his behalf holds no water.
19. PW.1 further deposed that, one Thimmareddy is the propositus of the joint family and he has two wives by name Smt. Chinnamma and Gowramma. PW.1 further deposed that, Chinnamma had a son by name Chikka Annaiah Reddy and Gowramma had three sons by name Srinivasareddy, Gundappa and Guttareddy out of their wedlock. It is further deposed by PW.1 that, Chikka Annaiah Reddy married to Lakshmamma and he has got two sons by name Venkatesh and another son Gopalareddy who is the plaintiff herein. PW.1 further deposed that, Srinivasareddy had four sons and five daughters who are Kodandareddy, Gowramma, Babureddy, Ramakrishna Reddy, Jayamma, 16 O.S.No.5834/2010 Kanakamma, Savitri, Jayalakshmi and Venkatesh Reddy. PW.1 further deposed that, Gundappa and Guttareddy who are married but they have no children out of their wedlock. In order to prove the said relationship of parties to the suit PW.1 has produced the genealogy tree which is marked as Ex.P.1. The recitals of Ex.P.1 clearly discloses the relationship of plaintiff and defendants and even otherwise there is no dispute with regard to relationship as averred by PW.1 in the present suit. In the cross-examination of DW.1 by plaintiff's counsel he has specifically admitted the relationship of plaintiff and defendants as averred by PW.1 in his evidence and also as per the recitals of Ex.P.1. Thus there is no such dispute with regard to the relationship of parties to the present suit.
20. PW.1 further deposed that, the propositus Thimmareddy had possessed lands bearing Sy.No.90/4, 90/5, 35/7, 2/2 and Kaneshumari No.160 and due to non-agricultural potentiality of the lands the landed properties were converted as non-agricultural lands and house sites were formed and at present there are 27 house sites situated on these properties which are referred in the suit schedule. The properties possessed by propositus Thimmareddy is not in dispute between the parties to the suit. It is further deposed by PW.1 that, after demise of Thimmareddy suit properties were managed by 1st defendant herein as their Kartha of the family along with his three brothers Chikka Annaiah 17 O.S.No.5834/2010 Reddy, Srinivasareddy and Gundappa. It is also deposed by PW.1 that, Chikka Annaiah Reddy father of plaintiff herein Srinivasareddy, Gundappa who is the husband of 2nd defendant herein and Guttareddy are in joint and constructive possession of suit properties. These facts are not in dispute between the parties to the suit. It is further deposed by PW.1 that, Chikka Annaiah Reddy died intestate leaving behind plaintiff to succeed undivided interest in the suit properties and Srinivasareddy also died intestate leaving behind defendant No.3 to 12 as legal representatives to succeed undivided interest in the suit properties. Likewise, Gundappareddy died leaving behind defendant No.2 as their legal representatives to succeed undivided interest in the suit properties Guttareddy and his wife died issue- less. Hence the undivided interest in the suit properties devolved upon other legal representatives who are left behind to succeed undivided interest in the suit properties. These facts are not in dispute between the parties to the suit.
21. It is further deposed by PW.1 that, plaintiff was suffering from ill-health, paralysis and brain disorder since 1993 and he was under continuous medical treatment. But taking undue advantage of situation the defendants colluding with each other got changed revenue records with respect to the suit properties. It is also deposed by PW.1 that no such partition affected in the joint family and there was no 18 O.S.No.5834/2010 such severance of status in the joint family. In order to substantiate the ill-health of plaintiff herein medical certificate and documents are marked as Ex.P.33 to P.35. These documents clearly discloses that, plaintiff was suffering from certain mental disorder. Even though the doctor who has treated the plaintiff not examined on behalf of plaintiff, the medical documents issued by consultant psychiatrist as per Ex.P.33 and other medical documents Ex.P.34 and P.35 discloses the mental disability of the plaintiff herein and for having possessed the suit properties by the joint family members and changed the revenue records in their name as deposed by PW.1and the Katha Extract of the suit properties issued in the name of the plaintiff and defendants are marked as Ex.P.2 to P.28 and RTC extract with respect to the land possessed by the joint family which are marked as Ex.P.29 to P.32. The recital of E.P.29 to 32 clearly discloses that, the said lands were acquired by BDA and said landed properties are not available for partition since they have acquired by BDA. As already discussed above as per the evidence of PW.1 the landed properties possessed by propositus Thimmareddy have lost agricultural potentiality and converted to non- agricultural purpose and house sites were formed as per the recitals of Ex.P.2 to P.28. Even though DW.1 has admitted these facts and also admitted that, the Suit Item No.1 to 19 are family properties out of which Suit Item No.15 was already sold and it is in possession of 19 O.S.No.5834/2010 some other person who has constructed building and in possession of Suit Item No.15 property and the person who has purchased Suit Item No.15 property is not made as party to the present suit. But DW.1 has specifically admitted that, Suit Item No.1 to 14, 16 to 19 are in possession of the plaintiff and defendants herein. Admittedly the Suit Item No.20 to 27 are not in possession of any of the family members as on the date of filing of this suit.
22. In order to rebut the evidence and documents of plaintiff herein defendant No.5(b) got examined himself as DW.1 by filing his affidavit evidence reiterated the Written Statement averments and denied all the allegations made by plaintiff in the present suit against the defendants and deposed that, the relationship as averred by the plaintiff is correct. It is also admitted that Thimmareddy who is propositus of their family was holding the properties as claimed by the plaintiff. But it is denied that, the plaintiff is suffering from mental disorder and he is not capable of deposing before the court. This aspect is already discussed above and PW.1 was permitted by this court to represent plaintiff and prosecute the case of the plaintiff. The medical documents of the plaintiff Ex.P.33 to P.35 discloses that, plaintiff is suffering from mental disorder. Even though the doctor is not examined on behalf of the plaintiff to prove the same, the contents of Ex.P.33 clear to enough 20 O.S.No.5834/2010 to come to the conclusion that plaintiff is suffering from mental disorder.
23. It is further deposed by DW.1 that, the defendants are never in dominating possession and d to maintain the plaintiff's family. It is also denied that, the defendants are mismanaging the schedule properties without providing share of the plaintiff in the suit property. It is further deposed by DW.1 that, the plaintiff is unable to ascertain and furnish details of joint family properties. But in the cross-examination of DW.1 by plaintiff's counsel he has specifically admitted that, Suit Item No.15 property is already sold to 3 rd person and Suit Item No.20 to 27 are not available for partition and Suit Item No.1 to 14 and 16 to 19 are in possession of plaintiff and defendants herein. Thus, the question of ascertaining the joint family properties is not doubtful. It is further deposed by DW.1 that, on 08.02.1993 there was partition effected in the joint family and properties are divided and the properties are alloted to plaintiff and defendants are in separate possession of the properties to the suit. In order to substantiate the same original partition deed is marked as Ex.D.1. Even though the recitals of Ex.D.1 discloses such partition effected in the family of plaintiff and defendants herein. In order to prove that, Ex.D.1 was acted upon no corroborative revenue records have been furnished by defendants. In order to prove the execution of Ex.D.1 no witnesses have been examined on behalf of the defendants. The plaintiff 21 O.S.No.5834/2010 has denied the execution of Ex.D.1 and partition effected in accordance with the contents of Ex.D.1. DW.1 further deposed that, with regard to Suit Item No.20 to 27 release deed was executed in the family on 17.06.2005 to which plaintiff and his wife have also signed and the said release deed is registered in the office of Sub-Registrar. In order to substantiate the same, copy of release deed is marked as Ex.D.2. Even though the plaintiff has denied the execution of Ex.D.2 PW.1 has contended that, the said document got executed fraudulently. But in order to prove that, Ex.D.2 came into existence by playing fraud, undue influence and coercion there is no convincing evidence on behalf of plaintiff. By signing the registered document Ex.D.2 the plaintiff has conceded that, Suit Item No.20 to 27 are not available for partition, since plaintiff has relinquished his right over said properties.
24. In the cross-examination of DW.1 he has specifically admitted that, Ex.D.2 is subject matter of Suit Item No.20 to 27 properties and for having effected partition as per Ex.D.1 there is no recitals in Ex.D.2. Hence it will create a doubt about execution of Ex.D.1 in the family of plaintiff and defendants herein. In the pleadings of DW.1 and in the cross-examination of plaintiff's counsel DW.1 has specifically admitted that, there was no such partition effected in the family. With regard to execution of Ex.D.1 DW.1 not examined any witness to prove the same. Admittedly, as per the recitals of Ex.D.1 the revenue records were not changed 22 O.S.No.5834/2010 into the name of the respective parties. DW.1 has specifically admitted in the cross-examination of plaintiff's counsel that, there was no impediment to registered Ex.D.1 at the relevant point of time.
25. In order to prove the case of defendants the GPA holder of 6th defendant who is also son of 6th defendant got examined himself as DW.2 by filing his affidavit evidence and deposed that, he is representing his father who is the 6th defendant herein and the special power of attorney executed by the 6 th defendant in his favour is marked as Ex.D.3. It is further deposed by DW.2 that, the property alloted to his father in the partition effected in the family as per Ex.D.1 and revenue records have been changed into the name of his father. The Katha Extract with respect to Suit Item No.6, 9, 13 and 18 property marked as Ex.D.4 in which the name of 6th defendant is incorporated and the Katha Extract marked as Ex.D.5 which discloses that, the name of defendants No.4 to 7 is incorporated and it is not exclusively alloted to the share of any one party to the suit and Ex.D.6 discloses that, the name of D.5(a) is mentioned as Kathedar and in Ex.D.7 also the name of defendant No.5(a) is incorporated as Kathedar with respect to Suit Item No.1 and tax paid receipts are marked as Ex.D.8 to D.15 with respect to Suit Item No.8, 10, 11, 14 and 15 properties. In order to prove that, the suit properties are partitioned as per Ex.D.1 and respective parties are in separate possession of their 23 O.S.No.5834/2010 legitimate share no such revenue records have been produced. In the cross-examination of plaintiff's counsel DW.2 has specifically admitted that, his father defendant No.6 not filed any Written Statement in the present suit. Hence, there is no evidenciary value to the deposition of DW.2 and his documents Ex.D.3 to D.12. Since there is no pleadings on behalf of defendant No.6 his defence taken in the evidence cannot be looked into. Anyhow in the cross-examination of DW.2 he has specifically admitted that, there is no recital of Ex.D.1 in Ex.D.2. Admittedly, Ex.D.2 is relinquishment deed executed in the family for having relinquished right over Suit Item No.20 to 27 properties. If really partition was effected in the family as per Ex.D.1 which is unregistered partition deed the execution of the same would have reflected in Ex.D.2. Admittedly, on the date of execution of Ex.D.1 DW.2 was minor and he has no personal knowledge about the said document Ex.D.1. The learned counsel for defendants argued that, there is no bar or total prohibition to consider unregistered partition deed in the evidence for collateral purpose and also submitted that, Ex.D.1 has to be considered to know whether partition is effected in the family. But for having executed Ex.D.1 none of the witnesses have been examined nor it is supported by the evidence of other defendants who are parties to the said document Ex.D.1. In this regard the learned counsel for defendants relied upon decision reported in ILR 2002 KAR Page 3613 which is the 24 O.S.No.5834/2010 case of K.Anjaneya Setty V/s K.H.Rangaiah Setty. I have gone through the principles laid down in the said decision which are not applicable to the present facts and circumstances of this case. Even though Ex.D.1 is considered for collateral purpose to know the partition effected in the family of plaintiff and defendants. In order to prove that, Ex.D.1 was acted upon there is no corroborative revenue records standing in the name of respective sharers produced by the defendants. There is no consistency in the evidence of DW.1 and 2 with regard to partition effected as per Ex.D.1. Hence Ex.D.1 cannot be taken into consideration to know whether partition is effected in the family of plaintiff and defendants herein.
26. All the defendants in the present suit have not contested the matter and defendant No.5(b) who is examined on behalf of the defendants and produced Ex.D.1 and 2 and there is no consistency in his evidence. DW.2 who is examined as power of attorney holder of defendant No.6 and produced certain documents Ex.D.3 to D.12 and there is no consistency in his evidence and admittedly defendant No.6 not filed any Written Statement on his behalf in the present suit. In the absence of defence and pleading of defendant No.6 the evidence of DW.2 has no evidenciary value and further the evidence of DW.1 and 2 is not in consistent with the documents produced. Hence the evidence of DW.1 and 2 cannot be taken into consideration to decide the matter in issue in the present suit. As per evidence of PW.1 and 25 O.S.No.5834/2010 his documents Ex.P.1 to P.35 and admissions of DW.1 and 2 it can be safely held that, there was no such partition effected in the family of plaintiff and defendants herein.
27. As per the evidence of PW.1, after the death of Thimmareddy his estate was succeeded by Chikka Annaiah Reddy, Srinivasaredyy, Gundappa and Guttareddy and admittedly plaintiff is the son of Chikka Annaiah Reddy and another son of Thimmareddy who is the 1st defendant herein died issue-less and his wife also reported to be dead and Gundappareddy had no issues. Thus, plaintiff is entitled for 1/3 rd share in the Suit Item No.1 to 14, 16 to 19. Since Ex.D.2 was executed with respect to Suit Item No.20 to 27 properties the plaintiff has relinquished his right over the said properties and admittedly Suit Item No.15 property was already sold and plaintiff and defendants have lost their right over Suit Item No.15 property which is in possession of some other person who is not party to the present suit. The plaintiff has not sought for the relief of mesne profit in the present suit. Thus, plaintiff is not entitled for the mesne profit in the present suit and since the plaintiff and defendants are in joint and constructive possession of the suit properties. The plaintiff alone is not entitled for the relief of Permanent Injunction restraining the defendants from interfering with the share of the plaintiff in the suit properties. Since the share of plaintiff is not yet determined, he is not entitled for the relief of Permanent 26 O.S.No.5834/2010 Injunction to restrain the defendants from interfering with the suit properties. But as per the evidence and documents of PW.1 he is entitled for the relief of partition with respect Suit Item No.1 to 14, 16 to 19 properties and also entitled for 1/3rd share in the said properties by means and bounds. Accordingly, I hold Issues No.1 and 6 as Affirmative, Issues No.2 to 4 as Negative, Issue No.5 do not arise for consideration.
28. ISSUE NO.7: For my discussion to Issue No.1 to 6 above, I proceed to pass the following:-
ORDER The suit of the plaintiff is partly decreed with cost.
The plaintiff is entitle for 1/3 rd share in Suit Item No.1 to 14, 16 to 19 properties.
Draw preliminary decree
accordingly.
(Typed to my online dictation by Stenographer, revised and signed by me and thereafter pronounced in the Open Court on this the 11 th Day of November, 2019) (N. Sunil Kumar Singh) LVI Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE
1. Witnesses examined on behalf of the plaintiffs.
P.W.1 Sri.Gopala Reddy
P.W.2 Sri.Nanja Reddy
2. Witnesses examined on behalf of the defendants.
D.W.1 Sri.Sunil Kumar M.B.
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D.W.2 Sri.Ravi Kiran R.
3. Documents marked on behalf of the plaintiff .
Ex.P.1 Genealogical Tree.
Ex.P.2 to 28 27 Encumbrance Certificates.
Ex.P.29 to 32 4 RTCs.
Ex.P.33 to 35 Medical certificates.
4. Documents marked on behalf of the defendants.
Ex.D.1 Partition Deed.
Ex.P.2 Release Deed.
Ex.D.3 GPA of defendant No.6.
Ex.D.4 to 6 Three Katha Certificates.
Ex.D.7 Katha Certificate of suit item No.10.
Ex.D.8 to 12 Tax receipts of suit item Nos.8,10, 11,
14 & 15.
( N. Sunil Kumar Singh)
LVI Addl.City Civil & Sessions
Judge, Bengaluru.
28
O.S.No.5834/2010
Order pronounced in open Court.
(Vide separate order)
ORDER
The suit of the plaintiff is
partly decreed with cost.
The plaintiff is entitle for 1/3rd
share in Suit Item No.1 to 14, 16 to
19 properties.
Draw preliminary decree
accordingly.
LVI Addl.City Civil & Sessions
Judge, Bengaluru.
29
O.S.No.5834/2010