Bangalore District Court
M/S. New Femila Enterprises vs Smt. M.Jayalakshmi on 29 February, 2016
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated, this the 29th day of February 2016.
PRESENT
Sri. RAVI M. NAIK,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S. NO.4115/2014
PLAINTIFF M/s. New Femila Enterprises,
(Previously known as M/s Femila
Frozen Foods). A partnership Firm
Represented by its Managing Partner,
Sri.Mohan Ramachandrasa Jituri,
S/o Ramachandrasa Jituri, Major,
No.67/13, Industrial Subrub,
Yeshwanthpur, Bangalore - 22.
(By Sri. Subhash Shalgar - Adv)
- V E R S U S -
DEFENDANTS 1. Smt. M.Jayalakshmi,
W/o Late Munirathnam Naidu,
2. Sri.M.Prakash,
S/o Late Munirathnam Naidu,
3. Sunanda,
D/o late Munirathnam Naidu,
4. Jalajakshi,
D/o late Munirathnam Naidu,
5. Bhagirathi,
D/o late Munirathnam Naidu,
2 O.S.No.4115/2014
All are majors and r/o No.77,
2nd floor, 1st main, 3rd cross,
Yagappa Layout, B.N.Halli,
RT Nagar, Bangalore - 32.
(D.1 to D.5- Exparte)
Date of institution of the suit : 05-06-2014
Nature of the suit (suit on Suit for direction to the
pronote, suit for declaration and defendants to execute rectification
possession suit for injunction,etc) : deed.
Date of the commencement of 05.01.2016
recording of the evidence :
Date on which the Judgment was 29.02.2016
pronounced :
Total duration Year/s Month/s Day/s
01 08 24
(RAVI M. NAIK),
I Addl. City Civil & Sessions Judge,
Bangalore.
J U D G M E N T
The plaintiff partnership firm represented by its Mg.Partner Mohan Ramchandrasa Jituri has filed a suit against the defendants with a prayer to pass judgment and decree directing the defendants to execute a registered rectification deed for the rectification of the measurement mentioned in the sale deed dated 21.11.1979 so far as the north and south measurement 3 O.S.No.4115/2014 40' + 42'/2 to 40' + 48'/2 holding that the said mistake is a typographical mistake in the sale deed. On the failure on the part of the defendants, the same may be executed through court and cost of the suit and for such other reliefs.
2. The brief averments of the plaint are that the property bearing no.67/A of the Industrial estate Suburb yeshwanthpur Bangalore originally belonged to one Munirathnam and said Munirathnam raised a loan from KSFC and he died on 15.6.1977 and the defendants being the legal heirs of the said Munirathnam, succeeded to his estate including the aforesaid property. It is further stated that the loan obtained from KSFC was on the security of the said property became overdue. Therefore, the KSFC initiated legal proceedings against the defendants for recovery of the said loan along with interest in the court of the Addl.District Judge, Bangalore. It is further stated that at that juncture, the defendants approached the plaintiff and made offer to 4 O.S.No.4115/2014 purchase the property and after negotiation, the deal was fixed and the plaintiff purchased the portion of the property under a registered sale deed dated 21.11.1979 for valuable consideration of Rs.90,000/-.
3. It is further stated that along with the sale deed the plan is also attached duly signed by the first defendant as per the plan the property sold to the plaintiff is marked at ABCD and that is the suit schedule property. The first defendant has signed the said plan as a general power of attorney holder of defendant nos.2 to
5. It is further stated that the suit schedule property totally measures 5,280sq.ft., i.e., east to west 130' + 110'/2 and north to south 40' + 48'/2ft. But, in the sale deed, while mentioning the east to west and north to south, the measurement is mentioned as east to west 130' + 110'/2 and north to south 40' + 42'/2 which is a typographical mistake. The plaintiff realized the said mistake in the year 2012 when the defendants sold the remaining portion of their property retained by them in 5 O.S.No.4115/2014 favour of the third persons. Then the plaintiff requested the defendants to execute appropriate registered rectification deed and the plaintiff issued a legal notice dated 5.3.2014 by registered post acknowledgement due and the same was returned with a postal shara 'incomplete address'. Thereafter, the said copy of the legal notice was sent by courier. Inspite of that, the defendants failed to comply the notice. Hence, the plaintiff constrained to file the present suit.
4. After registering the suit, the suit summons was issued to the defendants by way of paper publication in 'Prajavani' Kannada daily. Inspite of issuance of paper publication, the defendants failed to appear before the court. Hence, on 5.11.2015 the defendants were placed exparte.
5. Thereafter, the plaintiff in order to prove his case, he himself examined before the court as PW.1 and got marked Exs.P.1 to P.12 documents.
6 O.S.No.4115/2014
6. Heard the learned Counsel appearing for the plaintiff.
7. The points that would arise for my consideration are:
1. Whether the plaintiff is entitled for judgment and decree as prayed ?
2. What Order ?
8. My findings on the above points are :
Point no.1 : In the affirmative Point no.2 : As per final order For the following;
REASONS
9. Point no.1 : In line with the plaint averments, the Mg.partner of the plaintiff firm i.e., PW.1 Giridhar Ramchandra Jituri has stated that the plaintiff firm is a registered firm. To substantiate his contention, he has got marked Ex.P.12 i.e., register of firm. The recitals of the said document disclose that the plaintiff firm is a registered firm. His version coupled with the recitals of 7 O.S.No.4115/2014 Ex.P.1 i.e., sale deed dated 21.11.1979 and its typed copy i.e., Ex.P.1(a) discloses that the plaintiff firm represented by its managing partner PW.1 purchased the suit schedule property from the defendants under Ex.P.1. The schedule of Ex.P.1 discloses that the plaintiff purchased a portion of site no.67/A situated at Industrial suburb, Yeshwanthpur, Bangalore measuring east to west 130' + 110'/2 and north to south 40' + 42'/2, totally measuring 5,280sq.ft., i.e., ABCD portion shown in the sketch annexed to the sale deed. Ex.P.2 is the letter issued by the plaintiff firm to the first defendant and in the said letter, the plaintiff firm requested the defendants stating that there is a typographical mistake occurred in the measurement. The measurement is north to south 40' + 48'/2 and not 40' + 42'/2. Ex.P.3 is the original of the said Ex.P.2. Ex.P.5 is the legal notice dated 1.4.2014 issued to the defendants calling upon them to rectify the said mistake. Ex.P.6 to P.10 are the copies of the said legal notice and Ex.P.6(a), 7(a), 8(a), 9(a) and 10(a) are 8 O.S.No.4115/2014 the postal envelopes sent by courier. Ex.P.11 is the sketch. Inspite of the repeated requests made by the plaintiff firm, the defendants failed to rectify the typographical mistake occurred in the measurement of the schedule to Ex.P.1.
10. Thus, the overall material placed before this court clearly discloses that the total measurement of the suit schedule property sold to plaintiff is 5,280sq.ft. The measurement towards north to south is 40'+48'/2 and not 40'+ 42'/2. The plaintiff firm is entitled for the relief as prayed.
11.The defendants inspite of service of suit summons by way of paper publication have failed to appear before the court, failed to file written statement, failed to cross-examine PW.1 and failed to lead any evidence on their behalf. Thus, the version of PW.1 remains uncontroverted. Under these circumstances, the plaintiff is entitled for judgment and decree as prayed. Accordingly I answer point no.1 in the affirmative. 9 O.S.No.4115/2014
12.Point no.2 : In the result, I proceed to pass the following :
ORDER The suit of the plaintiff firm is decreed. The defendants are hereby directed to execute a registered rectification deed for rectification of the measurement mentioned in the sale deed dated 21.11.1979 as the north to south from 40' + 42'/2 to 40' + 48'/2. If the defendants fail to rectify the said mistake, the plaintiff is at liberty to carry out the said rectification through process of law with the assistance of the court.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer through i-pad, typed by her, corrected and then pronounced by me in open Court on this the 29th day of February, 2016).
(RAVI M.NAIK), I Addl.City Civil & Sessions Judge, Bangalore.
10 O.S.No.4115/2014ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 Giridhar M.Jituri LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 Certified copy of sale deed dtd 21.11.1979 " P-2 Office copy of request letter dtd 05.03.2014 " P-3 & P-4 Notices " P-3 (a) & Envelopes 4(a) " P-5 Office copy of legal notice " P-6 to P.10 Notices inside the said envelopes " p.6(a) to Envelopes 10(a) " p.11 sketch " p.12 Registrar of Firms LIST OF WITNESSES EXAMINED FOR DEFENDANTS
---- Nil ------
LIST OF DOCUMENTS MARKED FOR DEFENDANTS
-- Nil --
(RAVI M. NAIK), I Addl.City Civil & Sessions Judge, Bangalore.