Bangalore District Court
Sri.A.Lakshminarayana vs Smt.B.K.Manjula on 9 October, 2019
1
O.S.No.4238/2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 9th day of October, 2019.
Present
SRI.DINESH HEGDE, B.A.LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.4238/2015
PLAINTIFF : Sri.A.Lakshminarayana,
s/o late Achappa,
aged about 48 years,
r/at & Working at
SRS Travels, Wilson Garden Branch,
Shanthinagar,
Bangalore-560 027.
( By Sri.Madan.R, Advocate)
-VS-
DEFENDANTS : 1. Smt.B.K.Manjula,
d/o late B.K.Meenakshamma,
w/o Sri.P.R.Venkatesh,
aged about 56 years.
2. Smt.B.K.Gayathri,
d/o late B.K.Meenakshamma,
aged about 48 years.
3. Smt.B.K.Geetha,
d/o late B.K.Meenakshamma,
w/o P.R.Sreedhar,
aged about 51 years.
2
O.S.No.4238/2015
Defendants 1 to 3 are r/at
No.9/2, Dattaraya Road,
Basavanagudi,
Bangalore-560 004.
4. Smt.Vedavathi,
d/o late B.K.Meenakshamma,
w/o Sri.N.S.Ramesh,
aged about: 54 years,
r/at No.389/C, Railways Quarters,
City Railway Station,
Bangalore-560 009.
5. Smt.Lalithamma,
w/o late S.R.Jaganatha Rao,
d/o late Acchappa,
aged about: 67 years,
No.82, 2nd Floor, S.C.Layout,
Thyagarajanagar Main Road,
Bangalore-560 082.
6. Smt.Malathi,
w/o late Sathyanarayan,
aged about 54 years,
r/at 206, 14th Main,
Madivala Mandira,
Ward No.156, Srinagar,
Bangalore.
7. Smt.Pankaja,
d/o late Acchappa,
w/o Sri.Shashibhushan,
aged about: 55 years,
r/at 84/15, 19th Main,
Nagendra Block, BSK -III Stage,
Bangalore-560 079.
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O.S.No.4238/2015
8. Smt.Vijayalakshmi,
d/o late Acchappa,
w/o Sri.Raghunath,
aged about 60 years,
r/at No.327, 5th Cross,
Gayathrinagar,
Rajajinagar, Bangalore-10.
9. Smt.Parvathamma,
w/o Sri.T.Narayanabhatta,
aged about 75 years,
r/at Kamminje Village,
Puttur Kasaba,
PUttur, Udupi.
10. Sri.D.A.Ramanatha,
s/o Sri.D.Ananda Rama,
aged 60 years.
11. Smt.D.R.Lakshmi,
w/o D.A.Ramanatha,
aged about 55 years.
Both defendant No.10 & 11 r/at
No.37/2, 5th Cross,
7th Block (West)
Jayanagar, Bangalore-82.
(D.1 to 4, 7 - By Sri.HVBR,
Advocate)
(D.10 & 11 - By Sri.MVM, Advocate)
(D.5, 6 & 8 - By Sri.PNK, Advocate)
(D.9 - By Sri.KVS, Advocate)
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O.S.No.4238/2015
Date of Institution of the suit : 5/5/2015
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 1/3/2017
Date on which the Judgment was
pronounced : 9/10/2019
Year/s Month/s Day/s
Total Duration : 04 05 04
(Dinesh Hegde)
XIX Addl.City Civil & Sessions Judge,
Bangalore City.
JUDGMENT
This suit is filed by the plaintiff for partition, declaration and consequential relief of injunction.
2. The case of plaintiff in nutshell is that:-
One Achhappa is the propositor and he married one Smt.Susheelamma and out of their wedlock, 3 daughters & 3 sons were born namely 1) Smt.B.K.Meenakshamma who died leaving behind the defendant No.1 to 4 2) 5 O.S.No.4238/2015 Smt.Lalithamma, the defendant No.5 3) Sri Sathyanarayana, who died leaving behind the defendant No.6, who is his wife 4) Smt.Pankaja, the defendant No.7
5) Smt.Vijayalakshmi, the defendant No.8 and (6) Sri A.Lakshminarayana, the plaintiff in this suit. The defendant No.9 is the purchaser of a portion of the suit schedule property and defendant No.10 & 11 are subsequent purchasers of a portion of the suit schedule property from defendant No.9.
3. The plaintiff and the defendant No.1 to 8 are the joint-owners in peaceful, lawful, physical possession and enjoyment of the property bearing No.37, 5 th Cross, 7th Block (West), Jayanagar, Bangalore measuring East to West 50.6 ft and North to South (56.6+57.6)/2 ft and bounded on East by Road, West by private property, North by 5th Cross and South by property of Sri.Ramaraju which is more fully described as 'A' schedule property. 'A' schedule property was belong to one Munivenkatappa who has succeeded to the same from his ancestors. During his 6 O.S.No.4238/2015 life time he was in continuous possession and enjoyment of the 'A' schedule property as absolute owner thereof along with his family members. After his death, his children, namely M.Venkatappa and M.Byanna to meet their family and legal necessities, have offered to sell the 'S' schedule property in favour of Achhappa - father of the plaintiff, defendant No.5, late Sathyanarayana, husband of the defendant No.6, defendant No.7, defendant No.8 and late Smt.B.K.Meenkashamma, the mother of the defendant No.1 to 4 and the plaintiff's father has agreed to purchase the suit 'A' schedule property. Plaintiff's father Achhappa has purchased the suit 'A' schedule property out of his income in the name of Sathyanarayana, husband of the defendant No.6, when he was aged about 6 years representing himself as minor guardian and natural father to him which clearly discloses that the suit 'A' schedule property was actually acquired by the plaintiff's father out of his earnings. It is also relevant to note that as on the date of acquisition of the 7 O.S.No.4238/2015 schedule property in the name of late Sathyanarayana, husband of the defendant No.6, the said Sathyanarayana was admittedly a minor and he had no source of income and hence Achhappa has acquired the suit 'A' schedule property in the name of late Sathyanarayana.
4. During the life time of Achhappa, he continued in peaceful possession and enjoyment of the suit schedule property along with his children including the plaintiff, mother of the defendant No.1 to 4, the defendant No.5, husband of the defendant No.6 - late Sathyanarayana and the defendant No.7 & 8 and the schedule property has been treated as Hindu Undivided Joint Family Property by putting the suit 'A' schedule property in to undivided joint- family hotch pot and thus suit 'A' schedule property is a joint-family property. Though the sale deed was obtained in the name of late Sathyanarayana, at no point of time, the said property was treated as separate property of Sathyanarayana. In view of the fact that the same is being acquired by the plaintiff's father Achhappa out of his 8 O.S.No.4238/2015 own earnings in the interest of all his children and hence, during the life time of Sathyanarayana, he never claimed the suit 'A' schedule property as his separate property because of the reason that the suit property has been treated as Hindu Undivided Joint Family property of himself. Even after attainment of the majority of Sathyanarayana, there was no claim on his part over the suit 'A' schedule property and he has treated the suit 'A' schedule property as joint-family property and the same has been continued in joint possession of the plaintiff and the defendant No.1 to 8.
5. During the life time of Achhappa, he has put up construction of a dwelling house over a portion of the 'A' schedule property and has continued to reside therein along with his children including the plaintiff and except the same, there is no other alternative to the family of Achhappa. Said Achhappa died on 12/7/1998 and till his death, he continued to reside along with his children in the 'A' schedule property and 'A' schedule property has been 9 O.S.No.4238/2015 treated as Hindu Undivided Joint Family Property. The plaintiff's elder sister Meenakshamma passed away long back leaving behind her children the defendant No.1 to 4 and after demise of Smt.Meenkashamma, her children have also continued in joint-possession of the suit 'A' schedule property along with other family members. The elder brother of the plaintiff Sathyanarayana married to one Malathi who is defendant no.6 in this suit and they have no issues out of the wedlock between himself and Malathi. Said Sathyanarayana died on 22/2/2013 leaving behind defendant No.6 as his wife to succeed his legitimate share of his estate over the suit schedule property and also he has left behind him the plaintiff, his other sisters and brothers including his sister's children the defendant No.1 to 4 to succeed the suit schedule property.
6. After the death of Sathyanarayana and Meenakshamma, the defendant No.1 to 8 have continued in peaceful, lawful, physical possession and enjoyment of 10 O.S.No.4238/2015 the suit schedule property. After the death of Sathyanarayana with the consent of the plaintiff and other joint-family members, the revenue records pertaining to 'A' schedule property transferred in the name of defendant No.6 who is the wife of deceased Sathyanarayana.
7. Since for the last 6 months, misunderstanding arose between the plaintiff and the defendants and the plaintiff is not intending to continue in the joint-family along with the defendant No.1 to 8 and hence, on 15/9/2014, the plaintiff has demanded the defendants to effect partition of the suit schedule property in to six equal shares and to put the plaintiff in separate possession and enjoyment of his legitimate 1/6th share over the schedule property, for which the defendant No.6 has agreed to give his legitimate share, but all of a sudden started to proclaim that the suit schedule property is standing in her name and the same was acquired in the name of her husband by late Achhappa, father of the plaintiff and that she is not 11 O.S.No.4238/2015 ready and willing to effect partition of the suit schedule property and to allot the share of the plaintiff or to the other joint-family members. In this regard, Panchayath was held on 10/4/2015 and the panchayathdars advised the defendant No.6 to effect partition of the suit schedule property and to allot the share of the plaintiff out of the suit schedule property, but the defendant No.6 did not heed to the advisee of the elders and well wishers. Without having any other alternative, plaintiff has approached the office of the Sub-Registrar and obtained certified copy of the sale deed dtd:18/6/1959, another sale deed dtd:17/1/1994 and further, he came to know that in respect of a portion of the suit 'A' schedule property measuring East to West 30 ft and North to South 50 ft, totally measuring 1200 sq.ft. including the residential portion thereon has been encumbered in favour of the defendant No.9 by way of Regd. Sale deed dtd:17/1/1994. The plaintiff has never executed the sale deed nor given consent for sale of the same. Quite a long back, during 12 O.S.No.4238/2015 the life time of plaintiff's elder brother Sathyanarayana, he made a request to the plaintiff to sign a document as the same was required to produce before the Corporation authorities for entering the name of all the family members in respect of the suit schedule property as the same is a joint-family property and believing the representation made by late Sathyanarayana, plaintiff has signed on a stamp paper without looking to the contents of the same. After obtaining the certified copy of the sale deed, plaintiff realized that Sathyanarayana alogn with other family members has sold a portion of 'A' schedule property to an extent of East to West 30 ft and North to South 57.6 ft, including either squares of residential house. Plaintiff's signature was obtained by his elder brother Sathyanarayana to the said sale deed as a consenting witness without disclosing the sale of the property. Hence, the sale deed executed by Sathyanarayana in favour of defendant No.9 to the extent of the plaintiff's legitimate share is not binding on him as 13 O.S.No.4238/2015 the plaintiff is having his legitimate 1/6th share over the suit 'A' schedule property including a portion of the property sold in favour of the defendant No.9 which is referred as 'B' schedule property.
8. On further verification, plaintiff came to know that defendant No.9 under the guise of the sale deed dtd:17/1/1994, in turn has sold the same in favour of the defendant No.10 & 11 through a Regd. Sale deed dtd:20/4/2000. In the year 1994, the brother of the plaintiff sold the Eastern portion of the 'A' schedule property measuring East to West 30 ft and North to South 50 ft to the defendant No.9 for valuable consideration under the Regd.Sale deed dtd:17/1/1994. The sold portion is referred as 'B' schedule property and in the said sale deed, there was a typographical error in respect of the measurement of the property, and hence, a rectification deed was also executed by the plaintiff's brother for setting right the said mis-description. At the time of effecting the said sale deed, made a provision for 14 O.S.No.4238/2015 a small passage on the western side of the schedule property all along the western edge measuring East to West 50 ft and North to South which was to be beneficially enjoyed by the plaintiff's family and the defendant No.9 herein. Accordingly, the plaintiff's family and defendant No.9 both enjoyed the right of passage so left between the 'B' schedule property and the portion retained by the plaintiff's family out of the 'A' schedule property. The plaintiff's family did not face any difficulty as long as 'B' schedule property was being enjoyed by both of them.
9. In the year 2000-2001 the defendant No.9 sold 'B' schedule property to the defendant No.10 &11 for valuable consideration by registered sale deed. On perusal of the plaint averments in O.S.No.1351/2009 filed by the plaintiff's brother against defendant No.10 & 11 on the file of the City Civil Court, Bangalore, for the relief of permanent injunction from obstructing the plaintiff from enjoying the right to access, ingress and egress to the passage on the west of the suit 'B' schedule property 15 O.S.No.4238/2015 shown more fully in sketch prepared and field with the plaint marked as EFGH in the sketch and the said suit was compromised on 27/11/2013 between the defendant NO.6 with defendant No.10 & 11.
10. It is further averred in the plaint that entire 'A' schedule property is a joint-family property of the plaintiff and the defendant No.1 to 8 and the plaintiff is not a party to the sale deed nor executed the same with knowledge of its contents and hence, the sale deed executed by the defendant No.9 in favour of defendant No.10 & 11 is not binding on the plaintiff and in fact, defendant No.9 himself did not derive any exclusive right, title and interest, much less possession over the suit schedule property. Consequently, on the basis of the sale deed executed by defendant No.9 in favour of defendant No.10 & 11, the defendant No.10 did not derive any manner of right, title and interest much less possession over the suit schedule property and the said sale deed is also not binding to the extent of plaintiff's 1/6th share. Hence, plaintiff was 16 O.S.No.4238/2015 constrained to file this suit for the relief as claimed in the plaint and prays to decree the suit as prayed for.
11. After service of suit summons, defendant No.1, 2,3, 4 & 7 appeared through their counsel and filed their written statement by contending that the above defendants along with the plaintiff are the Coparceners of the Hindu Undivided family (HUF) to which the suit schedule property belongs and each of them are entitled for equal share in the HUF property. Since they do not differ from the views of the plaintiff and have the same interest as the plaintiff, except bringing forth some additional facts to the knowledge of this court, they pray for transposition from defendants to plaintiffs in the above case. The suit schedule property was purchased by the propositor Mr.Acchappa (out of HUF funds) in the name of his eldest minor son late Sathyanarayana, husband of defendant No.6 only with an intention that he would be the next Kartha of the HUF. The suit schedule property being the HUF property was purchased only for the 17 O.S.No.4238/2015 dwelling purpose of the HUF members and not as an individual property of eldest minor son late Sathyanarayana. Since the time of purchase of the suit schedule property, all the coparceners are living together as coparceners of the HUF, under the same roof. Late Sathyanarayana husband of the defendant NO.6 sold the schedule 'A' property without the consent/knowledge or signature of the defendant No.1 to 4 and 7. Since the sale deed dtd:17/1/1994 executed by late Sathyanarayana husband of defendant No.6 of the schedule property is done without the consent/knowledge or signature of the defendant No.1 to 4 and 7 and the other coparceners of the HUF, the same is void AB-Initio.
12. Defendant No.5, 6 & 8 filed their written statement by contending that the suit filed by the plaintiff is hopelessly barred by limitation. The plaintiff was well aware of the fact that a portion of the property purchased under sale deed dtd:18/6/1959 was sold by late 18 O.S.No.4238/2015 Sathyanarayana to defendant No.9 herein vide Regd.Sale deed dtd:17/1/1994 to which the plaintiff is a consenting party and has witnessed the execution of the sale deed. Therefore, the cause of action had arisen to the plaintiff on the date of execution of said sale deed and not at any time later. Therefore, the relief of declaration sought for by the plaintiff should have been made by him within a period three years from the date of execution of the sale deed dtd:17/1/1994 in favour of the defendant No.9. In para No.18 of the plaint, plaintiff states that his signature as consenting party to the sale was obtained by late Sathyanarayana without disclosing the details of the said document and also admits to that fact that he has been residing in portion of the 'A' schedule property after it was purchased in the name of late Sathyanarayana by late Achhappa. Therefore, as claimed by the plaintiff if he was residing in the aid property on and after the execution of the sale deed dtd:17/1/1994, he as knowledge of the fact that portion of 'A' schedule property was sold in favour of 19 O.S.No.4238/2015 defendant No.9. Thus the suit as filed by the plaintiff is hopelessly barred by limitation and on this ground alone the suit is liable to be dismissed with exemplary costs. None of the defendants can question the sale of the suit 'A' schedule property by late Sathyanarayana in favour of the 9th defendant at this length of time as the same is barred by limitation.
13. They have further contended that the plaintiff has chosen to suppress from this Hon'ble Court, the execution of a Release Deed dtd:15/1/1994 releasing all his rights, title and interest whatever in all properties, including the one described by him in the present suit as 'A' schedule property, of late Achhappa and late Sathyanarayana in their favour on receipt of Rs.2 Lakhs is full and final settlement of all his claims. The plaintiff is not entitled to file the present suit and has lsot his locus to seek the relief. On this ground also the suit filed by plaintiff is liable to be dismissed. Plaintiff has not made payment of the 20 O.S.No.4238/2015 court fees as required by under the Karnataka Court Fees & Suits Valuation Act, 1958. The plaintiff was never in joint possession of 'A' schedule property or any part thereof, the plaintiff is required to compute court fee as has been provided under Section 35(1) and 24(b) and not under Section 35(2) of the said Act. On account of the suit being undervalued, it is required to be dismissed with exemplary costs. The plaintiff has sought for a declaration that the sale deed dtd:20/4/2000 executed by defendant No.9 in favour of defendant No.10 & 11 as not binding on the plaintiff cannot be granted as the plaintiff has not produced the said document along with the plaint. The plaintiff has not described the land in dispute properly so as to identify the land over which the plaintiff is claiming his alleged right. Since the date of purchase of the said property in the name of deceased Sathyanarayana, the name of Sathyanarayana is appearing in the revenue records. All the family members of late Achhappa always considered the said property as the property of late 21 O.S.No.4238/2015 Sathyanarayana and no claims whatever was made by anybody including the plaintiff, the mother of defendant No.1 to 4, defendant No.1 to 4, defendant No.5, 7 and 8 in respect of 'A' schedule property or any portion thereof. On 15/1/1994 the plaintiff executed the Release Deed in favour of his father late Achhappa and brother late Sathyanarayana over the 'A' schedule property. On 17/1/1994 late Sathyanarayana being the absolute owners of 'A' schedule property sold a portion of the said property measuring East to West 30 ft and North to South 57 to defendant No.9 and plaintiff was the consent party to the said sale and therefore, the challenge to the said sale at the instance of the plaintiff is unsustainable for want of locus-standi. In the year 2009 late Sathyanarayana instituted a suit in O.S.No.1351/2009 on the file of City Civil Court, claiming the relief of permanent injunction from defendant No.9 for permitting him to enjoy his property by granting his right of ingress and egress to the unsold portion of the 'A' schedule property. Thereafter, 5 22 O.S.No.4238/2015 ft on the eastern portion of the remaining unsold portion of 'A' schedule property was taken away to form a passage for ingress and egress to the said unsold portion that was retained by late Sathyanarayana who died on 22/2/2013. On account of Sathyanarayana's death, defendant No.6 being the sole legal heir to the remaining unsold proton of 'A' schedule property got transferred the khatha in her name on 10/2/2014. Hence, defendants prays for dismissal of the suit with exemplary costs.
14. Defendant No.10 & 11 filed their separate written statement by contending that the suit is not valued properly in as much as the plaintiff has never been in joint possession and enjoyment of the suit schedule property. Under these circumstances, they ought to have valued the suit schedule property on the present market value and paid the court fee, accordingly, having not been done, the suit is liable to be dismissed for want of deficit court fee, hence, the plaintiff is not entitled for any reliefs against 23 O.S.No.4238/2015 these defendants. The suit schedule property was acquired by the 6th defendant's husband Sathyanarayana in the year 1959 and the said Sathyanarayana and his family members were in possession and enjoyment of the suit schedule property without disturbance from the plaintiff or defendant No.1 to 5 during the life time of Sathyanarayana, he has constructed the two portions of RCC roofed building i.e., 'B' schedule property and 'C' schedule property . In the year 1994 he has sold his self- acquired property of 'B' suit schedule property for his family and legal necessities, through regd. Sale deed dtdd:17/1/1994 in favour of defendant No.9 by receiving the valuable sale consideration from the defendant No.1 and since from that date, defendant No.9 is in exclusive possession and enjoyment of the 'B' schedule property without disturbance from anybody and he is paying taxes to the concerned authorities after obtaining khatha. In the year 2000, defendant No.9 sold the 'B' schedule property in favour of defendant No.10 & 11 by executing 24 O.S.No.4238/2015 Regd.Sale deed which was registered on 28/5/2000 and since then, defendant No.10 & 11 are in exclusive possession and enjoyment of the 'B' schedule property without any disturbance of plaintiff nor defendant No.1 to 7.
15. During the life time of said Sathyanarayana, he filed a suit against these defendants for permanent injunction, common 5 ft passage in O.S.No.1351/2009 on the file of Prl.City Civil & Sessions Judge, Bangalore and during the pendency of the above suit, these defendants have field another suit for declaration and mandatory injunction against the husband of defendant No.6. During the pendency of the above said suits, Sathyanarayana died leaving behind his wife only. Thereafter, the defendant No.6 and defendant No.10 & 10 have amicably settled their dispute by filing the compromise petition stating that the defendant No.10 & 11 are the absolute owner of the 'B' schedule property with common passage of 2 ½ fts, 25 O.S.No.4238/2015 western side of 'B' schedule property. 'A' schedule property was the self-acquired property of Sathyanarayana and he has got every independent right, title and interest to sell or alienate the same to the prospective purchaser for a consideration as he deems fit and defendant No.9 has purchased the 'B' schedule property by paying the sale consideration amount in the said sale deed and the plaintiff has also signed as a consenting witness to the said sale transaction and when once plaintiff came to know of the said transaction, plaintiff has no right, title and interest over the 'B' schedule property and hence the suit of the plaintiff is to be dismissed with exemplary costs. These defendants have invested all their fortunes for acquisition of the 'B' schedule property and now they are already dealt with the same within the knowledge of the plaintiff. The plaintiff and defendant No.1 to 7 have colluded with each other to file this false suit against these defendants in particular and others with a hidden agenda. The same has caused a 26 O.S.No.4238/2015 serious mental agony, inconvenience and loss to these defendants and same has to be made good by the plaintiff. Hence, defendant No.10 & 11 prays to dismiss the suit with exemplary costs.
16. Based on the above pleadings, the following issues were framed:-
ISSUES
1. Whether plaintiff proves that plaintiff and defendant No.1 to 8 are members of joint family and succeeded to suit 'A' schedule property?
2. Whether plaintiff proves that without his knowledge and consent, suit 'B' schedule property was sold by husband of defendant No.6 Sathyanarayana in favour of defendant No.9 under registered sale deed dtd:17/9/1994 and it is not binding on the share of plaintiff?
3. Whether plaintiff proves that defendant No.9 had no right, title or interest over suit 'B' schedule property to sell the same to defendant No.10 & 11 27 O.S.No.4238/2015 and said sale deed dtd:20/4/2000 is not binding on the share of plaintiff?
4. Whether suit is barred by limitation?
5. Whether defendant No.5, 6 & 8 proves that plaintiff has executed release deed dtd:15/1/1994 by his own will and volition by relinquishing all his rights, title and interests in all properties including suit 'A' schedule property in favour of Achhappa and Sathyanarayana by receiving Rs.2,00,000/-
from them?
6. Whether court fee paid on plaint is insufficient?
7. Whether there is mis-description of suit 'B' schedule property in the plaint?
8. Whether plaintiff is entitled for 1/6 th share in suit schedule properties by metes and bounds?
9. Whether plaintiff is entitled for the relief of permanent injunction against defendant No.6 as prayed in prayer No.(d) of the plaint pertaining to suit 'A' schedule property?
10. Whether plaintiff is entitled for the relief of permanent injunction against defendant No.6, 10 & 11 as prayed in prayer No.(e) of the plaint?
11. What order or decree?
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17. Plaintiff has been examined as P.W.1 and marked Ex.P.1 to Ex.P.9. On behalf of the defendants, defendant No.6, 10 and 8 are examined as D.W.1 to 3 and marked Ex.D.1 to Ex.D.18.
18. Heard the arguments and perused the records.
19. My findings on the above issues are as follows:-
Issue No.1:- In the Negative;
Issue No.2:- In the Negative;
Issue No.3:- In the Negative;
Issue No.4:- In the Affirmative; Issue No.5:- In the Affirmative; Issue No.6:- In the Affirmative; Issue No.7:- In the Affirmative; Issue No.8:- In the Negative;
Issue No.9:- In the Negative;
Issue No.10:- In the Negative;
Issue No.11:- As per the final order for the following:-
REASONS 29 O.S.No.4238/2015
20. ISSUE No.1 to 3 & 5:- These issues are taken up together for discussion as they are inter-related to each other.
21. To prove his contention, plaintiff has been examined as P.W.1 and he relied upon the documents marked at Ex.P.1 to Ex.P.9. It is not in dispute that deceased Achhappa had purchased the suit schedule property in the name of his minor son Sathyanarayana under the sale deed dtd:18/6/1959. It is also not in dispute that Sathyanarayana himself had alienated the portion of the suit schedule property during his life time in favour of the defendant No.9 under the sale deed dtd:17/1/1994. It is also not in dispute that Sathyanarayana died on 22/2/2013 and after his demise, the khatha of the remaining property changed in to the name of his wife i.e., defendant No.6. It is also not in dispute that the defendant No.9 had alienated the property purchased by her under the sale deed dtd:17/1/1994 in favour of defendant No.10 & 11 through a sale deed dtd: 26/4/2000.
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O.S.No.4238/2015 ]
22. Ex.P.1 is the certified copy of the sale deed dtd:17/1/94 reveal the fact that Sathyanarayana has sold the portion of the suit schedule property in favour of defendant No.9 for the valuable sale consideration amount. The defendants have produced the original sale deed dtd:17/1/1994 marked at Ex.D.2 by confronting the same to the P.W.1 during the cross-examination. On perusal of the recitals of the said sale deeds, it is clearly mentioned that father of the deceased Sathyanarayana purchased the schedule property in his name when he was minor. Therefore, it is clear that the title of the suit schedule property was registered in the name of Sathyanarayana by virtue of the sale deed dtd:18/6/1959. He being the owner of the schedule property had alienated the portion of the schedule property in favour of defendant No.9 for valuable sale consideration amount of Rs.2 Lakhs.
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23. Based on the title, the defendant No.9 had alienated the property in favour of the defendant No.10 & 11 under the sale deed dtd:26/4/2000 marked at Ex.P.9 for valuable sale consideration amount of Rs.9 Lakhs. The defendants have also produced the original sale deed dtd:26/4/2000 marked at Ex.D.7. Ex.P.2 is khatha extract reveal that after the death of Sathyanarayana, the khatha with respect of the remaining schedule property was changed in to the name of the defendant No.6 Smt.Malathi. The concerned revenue officer has also issued khatha extract marked at Ex.P.3 in favour of defendant No.6. Therefore, it is clear that after the demise of her husband Sathyanarayana, she being the successor of deceased Sathyanarayana had acquired the ownership and title to the remaining suit schedule property by succession.
24. Ex.P.6 to 8 are the encumbrance certificates reveal that Smt.Parvathamma i.e., the defendant No.9 had alienated the portion of the suit schedule property in favour of defendant No.10 & 11 for a sale consideration 32 O.S.No.4238/2015 amount of Rs.9 Lakhs and this transaction was reflected in the encumbrance certificates.
25. It is the specific contention of the defendant No.5, 6 & 8 that the plaintiff himself had executed a Regd. Release Deed in favour of Sathyanarayana and his father Achhappa. On perusal of Ex.D.1 the Regd.Release Deed dtd:15/1/94 that was confronted to P.W.1 during the cross- examination reveal that the plaintiff himself relinquished his all rights and liabilities over the suit schedule property in favour of his father Achhappa and his brother Sathyanarayana under the Release deed , he has relinquished his rights by receiving an amount of Rs.2 Lakhs. This fact is suppressed by the plaintiff in the plaint. Further, Ex.D.2 the sale deed dtd:17/1/94 reveal that the plaintiff is a consenting witness to the sale deed that was executed in favour of the defendant No.9. Ex.D.3 is the certificate issued by the Survey Department reveal the existence of the schedule property in the name of Sathyanarayana s/o Acchappa. Ex.D.4 khatha transfer 33 O.S.No.4238/2015 receipt reveal that after the death of Sathyanarayana, the khatha has been changed in to the name of defendant No.9. Ex.D.5 is the khatha extract stands in the name of defendant No.9. Ex.D.6 is the khatha certificate also reveal the name of defendant No.9.
26. Ex.D.7 is the original sale deed dtd:26/4/2000 reveal the alienation of property by the defendant No.9 in favour of defendant No.10 & 11. The defendants have also produced the certified copy of compromise petition, sketch and copy of the decree marked at Ex.D.8 to 10 that reveal, husband of the defendant No.6 i.e., Sathyanarayana had instituted a suit in O.S.No.1351/2009 against the defendant No.10 & 11 herein for the relief of injunction against them by restraining them from obstructing the plaintiff therein from enjoying a right of access, ingress and egress to the property. Both the parties to the suit in O.S.No.1351/2009 entered into a compromise on 27/11/13 by filing a compromise petition under Order 23 Rule 1 of 34 O.S.No.4238/2015 CPC and the suit was decreed in terms of the compromise petition.
27. Ex.D.11 is the certificate issued by the BBMP reveal the name of defendant No.9 with respect of the house property No.37/2 situated at Ward No.59, 5 th Cross, WKP Road, 7th Block i.e., the suit schedule property. Ex.D.12 is the application form submitted by the defendant No.9 for change of khatha in the name of defendant No.10 & 11. Ex.D.13 is the certificate issued by the Revenue Officer of BBMP to change the khatha in to the name of defendant No.10 & 11 based on the sale deed. Ex.D.14 to 16 are the encumbrance certificate reveal that based on the sale deed dtd:7/4/98, the schedule property was first changed in to the name of defendant No.9. Ex.D.17 is the original notice dtd:10/11/78 issued by the Special Land Acquisition Officer in favour of Sathyanarayana s/o Achhappa. Ex.D.18 is the tax-paid receipts from 30/9/2009 to 26/4/2014 reveal that ever since the date of purchase, the defendant No.10 & 11 paid the revenue tax to the BBMP. 35
O.S.No.4238/2015
28. In the cross-examination, P.W.1 has stated that he has not read over the contents of the plaint when he signed it. He do not know the contents of his examination-in-chief filed in English language. He has further stated that his advocate did not explain the contents of the affidavit by translating in to Kannada language. He has admitted that he has signed the sale deed as a witness executed in favour of defendant No.9. He has further stated that he has not challenged the sale deed Ex.P.1. He has admitted that he must have executed the Release Deed two days earlier to execution of Ex.P.1. He has admitted that he received an amount of Rs.2 Lakhs at the time of execution of the Release Deed. This release deed was confronted to D.W.1 and he has admitted it and marked at Ex.D.1. He has further admitted that he went to the Sub-Registrar's office at the time of execution of the sale deed at Ex.P.1 and Regd.Release Deed marked at Ex.D.1. He has further stated that no steps were taken by 36 O.S.No.4238/2015 him for cancellation of the sale deed or the release deed. He has further admitted that himself, his brother and his father executed the sale deed in favour of Smt.Parvathamma.
29. It is pertinent to note that in order to substantiate their defence, defendant No.6, 10 and husband of the 8th defendant are examined as D.W.1 to 3 and they relied upon Ex.D.1 to 18. The plaintiff has not cross-examined defendant No.1 to 3. Therefore, the defence put forwarded by the defendant No.5, 6, 8, 11 remains unchallenged and the documents produced by them remains unrebutted. Further, the defendant No.1 to 4 & 7 who sought in their written statement for transposition of themselves as plaintiffs have not taken any steps to transpose themselves as plaintiffs or to lead any evidence. Therefore, it is clear that defendant No.1 to 4 & 7 and the plaintiffs colluded together and filed a false suit against the purchasers.
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O.S.No.4238/2015
30. The documents produced by both the sides reveal that inspite of execution of Regd.Release Deed, by suppressing the sale, the plaintiffs filed suit for partition and injunction against the defendants. The plaintiff has not adduced any evidence to show that the suit schedule property was the joint-family property and plaintiff also contributed his income to purchase the suit schedule property in the name of Sathyanarayana. During his life time, the father of deceased Sathyanarayana who purchased the suit schedule property in the name of his minor son Sathyanarayana has not questioned the title of Sathyanarayana with respect of the suit schedule property. It is only the plaintiff who sought for partition in the schedule property inspite of execution of Regd.Release Deed. During his life time itself, Sathyanarayana had alienated portion of the suit schedule property in favour of defendant No.6. After his demise, the remaining property is vested with his wife i.e., defendant No.6 by succession. The plaintiff has no right to seek partition in the suit 38 O.S.No.4238/2015 schedule property. For the above reasons, plaintiff has failed to prove that himself and defendant No.8 are the members of the joint-family to succeed the 'A' schedule property. He has also failed to prove that without his consent, Sathyanarayana sold the 'B' schedule property in favour of defendant No.9. The defendant No.9 being the absolute owner of the 'B' schedule property had alienated the same in favour of defendant No.10 & 11 under the sale deed dtd:20/4/2000 and therefore, the defendant No.10 & 11 become the absolute owner of the property purchased by them and they were put in possession. The defendant No.5, 6 & 8 have proved that plaintiff himself had relinquished his right over the schedule property by executing the Regd.Release deed dtd:15/1/94 by receiving the consideration amount of Rs.2 Lakhs. Hence, I answer Issue No.1 to 3 in the Negative and Issue No.5 in the Affirmative. 39
O.S.No.4238/2015
31. ISSUE No.4:- It is the specific contention of defendant No.5, 6, 8, 9 to 11 that the suit of the plaintiff is hopelessly barred by Law of Limitation. According to them, plaintiff was well aware of the sale of suit schedule property through a sale deed dtd:17/1/94 executed by Sathyanarayana in favour of defendant No.9. They further contended that plaintiff has filed suit for partition in the year 2015 i.e., after lapse of 19 years from the date of execution of sale deed and hence, the suit of the plaintiff is barred by the Law of Limitation.
32. In the cross-examination, P.W.1 has admitted that the sale deed dtd:17/1/94 bears his signature as a consenting party. On perusal of Ex.D.2 sale deed, it bears the signature of the plaintiff. The contents of Ex.D.2 and also the signature of the plaintiff in the sale deed remains unchallenged as the D.W.1 to 3 were not subjected to cross-examination.
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33. Under Article 110 of the Limitation Act, 1963, a suit filed by a person excluded from a joint-family property to enforce a right to share therein is 12 years. The time begins to run from the date when the exclusion becomes known to the plaintiff. Admittedly, the plaintiff is the consenting witness to the sale deed dtd:17/1/94. Further, in Para No.17 of the plaint, the plaintiff has averred that since the defendant No.6 did not heed to the advise of the elders for partition, he approached the Sub-Registrar's office and obtained the sale deed dtd:18/6/1959 and another sale deed dtd:17/1/94. Absolutely, there is no pleading that the plaintiff was not aware of the sale deed dtd:17/1/94 executed by Sathyanarayana in favour of defendant No.9. In ILR 2009 KAR 1525 between "Shanthappa and others v/s Channabasavaiah and others" the Hon'ble High Court of Karnataka held that "
Article 110 of the Limitation Act provides for a period of limitation for 12 years for a person excluded form joint- family property to enforce right to share there and the 41 O.S.No.4238/2015 said period begins to run from the date of knowledge of plaintiff from such exclusion. Thus, since no suit came to be filed by Channabasavaiah or the deceased original plaintiff within the said period of 12 years, the court below were right in holding that the suit of the plaintiff is barred by limitation."
34. The plaintiff filed the suit for partition after lapse of 19 years from the date of execution of the sale deed. Therefore, the suit of the plaintiff is barred by the Law of Limitation. Hence, I answer Issue No.4 in the Affirmative.
35. ISSUE No.6:- The defendant No.5, 6, 8, 9 to 11 have contended that the plaintiff was not in joint- possession of the 'A' schedule property or any part thereon and he has computed court fee as provided under Section 35(1) and 24(B) and not under Section 35(2) of the Karnataka Court Fees & Suits Valuation Act, 1958. They further contended that the plaintiff sought for 42 O.S.No.4238/2015 declaration that sale deed dtd:20/4/2000 executed by defendant No.9 in favour of defendant No.10 & 11 as not binding on him and hence, he ought to have paid the court fee for the relief of declaration.
36. On perusal of the valuation slip annexed to the plaint, the plaintiff valued the schedule property as Rs.10 Lakhs and adopted the valuation under Section 35(2) of the Karnataka Court Fees & Suits Valuation Act and paid the court fee of Rs.300/-. Under Sub-section(1) of Section 35, if the plaintiff's title to the property is denied or he is excluded from possession, he has to pay court fee on the market value of his share. Under Sub-Section(2), if the plaintiff is in joint -possession, fee has to be paid at the rate mentioned therein. The maximum payable there under is Rs.200/-. Invariably in partition suits, the defendants take up a contention that the plaintiff is not in joint-possession and therefore, he has to value the suit under Section 35(1) of the Act. But, the settled legal position is that the court must determine the fee payable 43 O.S.No.4238/2015 on the basis of the plaint averments and not on the contentions raised in the written statement. If the plaintiff avers that he is in joint-possession, suit can be valued under Sub-Section (2). On perusal of the plaint, the plaintiff has averred that he is in joint-possession of the suit schedule property. Therefore, the declaration sought by the plaintiff that the sale deed dtd:17/1/94 executed by Sathyanarayana in favour of defendant No.9 as well as the subsequent sale deeds executed by the defendant No.9 in favour of defendant No.10 & 11 dtd:26/4/2000 are not binding on his share. Therefore, it is clear that both the reliefs are consequential reliefs and no separate court fee is required. Further, the plaintiff has also sought for injunction against the defendant No.6 from putting up construction over the 'A' schedule property and to restrain the defendant N0.6, 10 & 11 from alienating the schedule property. The plaintiff has paid total court fee of Rs.300/- i.e., Rs.200/- for the relief of partition and remaining RS.100/- for the relief of injunction. Hence, the court fee 44 O.S.No.4238/2015 paid by the plaintiff is sufficient. Hence, I answer Issue No.6 in the Affirmative.
37. ISSUE No.7:- According to the defendant No.5, 6, 8, 9 to 11, the plaintiff has given wrong description of the 'B' schedule property in the plaint. On perusal of the plaint schedule, the plaintiff has given the 'B' schedule property as "all the part and parcel of the House property No.37/2, 5th Cross, 7th Block, West, Jayanagara, B'lore -82 measuring East to West - 30 ft, and North to South 50 ft bounded East by Road, West by 5 ft common passage, north by 5th Cross and South by portion retained by the plaintiff's family. According ot the plaintiff, this is the portion of the 'A' schedule property that was sold by Sathyanarayan in favour of the defendant No.6 under the sale deed dtd:17/1/94. On perusal of the Ex.D.2 sale deed dtd:17/1/94, reveal that the schedule is B'lore City, Jayanagara Corporation, Old No.34, New No.59, 5 th Cross, West by Kanakapura Road, 7th Block, Municipal No.37, 45 O.S.No.4238/2015 measuring 50.6 ft x56 -6, 57-6 divided by 2, totally measuring East - West 30 ft and South -North 57-6 ft along with residential house measuring 8 Squares bounded East by Corporation road, West by remaining land of A.Sathyanarayana and passage, North by Corporation Road and South by vacant site of Sri.Ramaraju.
38. On perusal of the schedule mentioned in the sale deed and the 'B' schedule property, it is clear that though the North to South is 57.6 ft, the plaintiff has mentioned the measurement as 50 ft to North to South. Therefore, it is clear that the description and measurement of the 'B' schedule property is not correct. The plaintiff has not furnished the proper description of the 'B' schedule property. Hence, I answer issue No.7 in the Affirmative.
39. ISSUE No.8 to 10:- The plaintiff has sought for 1/6 th share in the suit schedule property by metes and bounds. He also sought for the relief of permanent injunction 46 O.S.No.4238/2015 against defendant No.6, 10 & 11 from restraining the defendant No.6 putting up construction and defendant No.10 & 11 from alienating the suit schedule property. B The plaintiff has failed to prove that he is entitled for partition as per the above findings to Issue No.1 to 3 & 5. Therefore, the plaintiff is not entitled for any reliefs. Hence, I answer Issue No.8 to 10 in the Negative.
40. ISSUE No.11:- For the above reasons, I proceed to pass thee following:-
ORDER Suit of the plaintiff is dismissed with costs. Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 9th day of October, 2019.) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY ANNEXURE 47 O.S.No.4238/2015 I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - A.Lakshminarayana
b) Defendants' side :
D.W.1 - Smt.Malathi D.W.2 - D.A.Ramanath D.W.3 - H.Raghunath II. List of documents exhibited on behalf of :
a) Plaintiff's side :
Ex.P.1 Certified copy of sale deed
dtd:17/1/1994
Ex.P.2 Khatha certificate relating to 'A'
schedule property
Ex.P.3 Khatha extract of 'A' schedule
property
Ex.P.4 Genealogical tree
Ex.P.5 Khatha extract relating to 'B'
schedule property
Ex.P.6 Encumbrance certificate in Form
No.15
Ex.P.7 & 8 2 Encumbrance certificates in
Form No.16
Ex.P.9 Certified copy of the sale deed
dtd:18/6/1959
b) Defendants' side : -
48
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Ex.D.1 Release deed
Ex.D.1(a) Signature of D.W.3
Ex.D.2 Sale deed dtd:17/1/1994
Ex.D.2(a) Signature of D.W.3
Ex.D.3 Survey Report
Ex.D.4 Khatha transfer receipt
Ex.D.5 Khatha extract
Ex.D.6 Khatha certificate
Ex.D.7 Original sale deed dtd:28/5/2000
Ex.D.8 Certified copy of the compromise
petition in O.S.No.1351/2009
Ex.D.9 Certified copy of the rough
sketch
Ex.D.10 Certified copy of the decree in
O.S.No.1351/2009
Ex.D.11 Certified copy of the khatha
relating to 'B' schedule property
Ex.D.12 Original application of the
transfer of khatha in the name of
defendant No.10 & 11
Ex.D.13 Original Utharapathra
dtd:3/7/2000
Ex.D.14 to 16 Original 3 encumbrance
certificates
Ex.D.17 Original notice dtd:10/11/1978
Ex.D.18 Original tax-paid receipt
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-
49
O.S.No.4238/2015
Judgment pronounced in open court
vide separate detailed judgment with
the following operative portion:-
ORDER
Suit of the plaintiff is dismissed with
costs.
Draw decree accordingly.
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY.