Bangalore District Court
Smt. Vijayalakshmi Bajaj vs Gouhar Naaz W/O Late on 1 January, 2016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. G.L. LAKSHMINARAYANA, B.Com., LL.B.
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 2nd DAY OF JANUARY 2016
OS.NO.649 OF 2008
PLAINTIFF/S SMT. VIJAYALAKSHMI BAJAJ
W/O SYAMASUNDAR BAJAJ
AGED ABOUT 54 YEARS,
RESIDING AT No. 489/25,
ASHRIYA APARTMENTS
13TH CROSS, WILSON GARDEN,
BANGALORE - 560 027.
(By Sri. S.A. Sami, Advocate).
Versus
DEFENDANT/S 1. GOUHAR NAAZ W/O LATE
AMEER HAMZA, AGED ABOUT 47
YEARS.
2. RAUSEEF AHMED S/O LATE
AMEER HAMZA, AGED ABOUT 20
YEARS.
3. TABREZ PASHA S/O LATE AMEER
HAMZA, AGED ABOUT 16 YEARS.
4. SABA AFRIN D/O LATE AMEER
HAMZA, AGED ABOUT 15 YEARS.
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O.S.No. 649 / 2008
DEFENDANTS No.3 AND 4 ARE
MINORS REPRESENTED BY THEIR
MOTHER NATURAL GUARDIAN AND
NEXT FRIEND SMT. GOUHAR NAAZ.
ALL ARE RESIDING AT No. 178,
AHMED NAZAR,
GANGONDANAHALLI,
NAYANDAHALLI POST, BANGALORE
- 560 039.
5. ABBAS (DIED) S/O SHAIKH
AHMED, AGED ABOUT 68 YEARS,
C/O SHABBIR M. MOMIN
MANGALVARPET, POONA - 11,
SINCE DEFENDANTS No.5 DIED
HIS LRS ARE IMPLEADED AS PER
COURT ORDER.
5(a) MS. ARIFA ABBAS AHMED
SHAIK W/O LATE ABBAS
MOHAMMED SHAIK, AGED
ABOUT 48 YEARS.
5(b) MR. AHMED S/O LATE ABBAS
MOHAMMED SHAIK, AGED
ABOUT 27 YEARS.
5(c) MR. JAVEED SHAIK, S/O LATE
ABBAS MOHAMMED SHAIK,
AGED ABOUT 25 YEARS.
5(d) MS. JAREENA W/O
MAINOWUDDIN, D/O LATE
ABBAS HOMAMMED SHAIK,
AGED ABOUT 23 YEARS.
ALL ARE RESIDING AT No. 75,
SURVEY No. 6, GREEN PARK, CHAR
MEETANAGAR, BABUBHAI
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O.S.No. 649 / 2008
ROLISHWALA, KONDHWA
BHUYDRU, POONE, MAHARASHTRA.
6. HAZIRABEE W/O BABU, MAJOR,
RESIDING AT DOOR No. 56, 8TH
CROSS, OLD PENSION MOHALLA,
BANGALORE - 560 018.
7. MAQBUL JAAN W/O NAZEER
AHMED, MAJOR.
8. SHAIRA BEGUM, D/O LATE
SHAIK AHMED, MAJOR.
9. SHAH NAWAZ W/O ROOHULLA,
MAJOR.
DEFENDANTS No. 7 TO 9 ARE
RESIDING AT DOOR No. K/73, II
FLOOR, 14TH CROSS, LALBAGH
FORT ROAD, DODDAMAVALLI,
BANGALROE - 560 004.
(Defendants 1 to 4 - By Sri. K.S.R.
Adv.
LRs of defendants - 5 (a) to (d) - By
Sri. K.N. Adv.
Defendants 6, 8 & 9 - Exparte.
Defendant - 7 - Party in person.
Date of Institution of the 21.01.2008
suit
Nature of suit Suit for cancellation of
judgment and decree dated
15.06.2005.
Date of commencement of 22.06.2011
recording of evidence.
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O.S.No. 649 / 2008
Date on which judgment 01.01.2016
was pronounced.
Total Duration. Years Months Days
07 11 10
XXXVII ACCJ, BANGALORE
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O.S.No. 649 / 2008
JUDGMENT
The plaintiff has filed the suit against the defendants for cancellation of the judgment and decree dated 15.06.2005 passed in O.S. No. 8623 of 2001 on the file of Addl. City Civil Judge, Bangalore (CCH-32) as null and void and not binding on the plaintiff.
2. The brief facts of the plaintiff case are as follows.
The plaintiff is the absolute owner in possession of the suit schedule property and the same has been purchased from its owner under a registered sale deed dated 17.06.2003, Katha in respect of the suit schedule property is transfer in the name of the plaintiff and she is paying the taxes in respect of suit schedule property to BBMP and the husband of the plaintiff Sri. Shyamsundar Bajaj is carrying on the business in the suit schedule property under the name and style of M/s Bajaj Crockery House. In the last week of November 2007 some persons visited the suit schedule property and stated before the husband of the plaintiff that the said person is appointed 6 O.S.No. 649 / 2008 as Commissioner by the Court for the purpose of taking measurement of the suit schedule property and took measurement of the schedule property. Thereafter the plaintiff got suspicion and made enquiries and came to know that the defendant No.1 to 4 have filed a case against the defendant No.5 to 9 in respect of the suit schedule property belonging to the plaintiff as if the suit schedule property is the joint family property of defendant No.1 to 9 in O.S.No.8623 of 2001 on the file of Addl. City civil Judge, at Bangalore CCH-32 and the defendants No.1 to 4 have managed to obtain an exparte judgment and decree dated 15.06.2005 as if the defendant No.1 to 4 have got alleged 2/9th share in the suit schedule property and further 1/6th share in respect of the alleged share of Zubedabi. Originally the suit schedule property belonged to one Smt. Zulekha Bee W/o Late Shaik Ahmed Sahed who had acquired the same for valuable consideration from its owner under a registered sale deed dated 06.08.1981. The said Zulekha Bee died intestate leaving behind five daughters by name Smt. Mazbool Jan, Smt. Saira Begum, Smt. Subeda Begum, 7 O.S.No. 649 / 2008 Smt. Hazira Bee, Smt. Sahahnaz and two sons by name Sri. Mohd. Abbas and Sri. Ameer Hamza. Thereafter all the children of Smt. Zulekha Bee i.e. Sri. Ameer Hamza the husband of defendant No.1 and father of defendant No.2 to 4 and defendant No.5, 6, 8 & 9 have gifted their share in the suit schedule property in favour of Smt. Mazbool Jan, the 7th defendant by way of HIBA and also executed a declaratory affidavit to that effect. The 7th defendant being the absolute owner of the suit schedule property has executed registered sale deed dated 17.06.2003 for a valuable consideration in favour of the plaintiff. Thus the plaintiff is the absolute owner in possession of the suit schedule property and is exercising her right of ownership. The defendant No.1 to 4 have suppressed the aforesaid facts before the Court and in collusion with the defendant No.5 to 9 have field the suit in O.S. No. 8623 of 2001 and obtained an exparte judgment and decree dated 15.06.2005 by misrepresenting the court and playing fraud on the court stating that the suit schedule property is the joint family property of defendants No.1 to 9 and they are now 8 O.S.No. 649 / 2008 making illegal attempts to execute the said illegal judgment and decree dated 15.06.2005. Based on the illegal judgment and decree dated 15.06.2005 passed in O.S. No. 8623 of 2001 the defendants No.1 to 4 are making illegal attempts to dispossess the plaintiff from the suit schedule property illegally by initiating proceeds in FDP No. 2 of 2006 and as such since the judgment and decree obtained by the defendant No.1 to 4 is illegal, contrary to law and has to be declared as null and void and not binding on the plaintiff by this court. The defendants have no manner of right, title and interest over the suit schedule property and the judgment and decree dated 15.06.2005 passed in O.S. No. 8623 of 2001 obtained by the defendants No.1 to 5 is collusive decree by suppressing the true state of affairs and the same is not binding on the plaintiff. Hence, the plaintiff filed the suit.
3. On registration of the suit, the defendants were summoned to appear before the court. The defendants No.1 to 5 appeared through their counsel. Defendants No.6 to 9 were placed exparte. The defendant No.5 not 9 O.S.No. 649 / 2008 filed written statement. The defendants No.1 to 4 filed written statement, denying that the plaintiff is the absolute owner of the suit schedule property. Further denied that last week of November 2006 the plaintiff came to know about the preliminary decree obtained by the defendants. In fact, the plaintiff was very much known about the proceedings and she was watching proceedings in O.S. No. 8623 of 2001 before the Court. In this regard, the defendant No.2 had informed the plaintiff about the pendency of the suit. Even otherwise, the so called sale deed dated 17.06.2003 under which the plaintiff is claiming ownership over the property is hit by doctrine of lis-pendence. These defendants deny that Ameer Hamza gifted his share in the suit schedule property in favour of the defendant No.7 by way of HIBA under the provisions of Mohammedan law and also executed a declaratory affidavit to that effect. The entire allegations of the plaintiff is false and plaintiff and defendant No.7 have colluded with each other to gain mutual undue enrichment at the cost of these defendants. The question of these defendants 10 O.S.No. 649 / 2008 suppressing the alleged sale deed dated 17.06.2003 in the plaint in O.S. No. 8623 of 2001 do not arise as the same is of a later origin. There is no cause of action. Therefore, the defendants No.1 to 4 prays for dismissal of the suit.
4. On the basis of the pleadings of the parties, my learned predecessor framed the following ISSUES (1) Whether the plaintiff proves that she is the absolute owner of the suit schedule property as contended in the plaint?
(2) Whether the plaintiff proves that defendants No.1 to 4 have obtained a collusive exparte decree in O.S. No. 8623 of 2001 on 15.06.2005 by suppressing the true facts before the Court, so the said judgment and decree is not binding on her?
(3) What order or decree?
5. In order to prove the case of the plaintiff, herself examined as PW 1, her husband has been examined as PW 2, and 2 more witnesses as PWs 3 & 4 and got 11 O.S.No. 649 / 2008 marked Ex.P1 to P27. The defendant No.1 got herself examined as DW 1. No documents were produced.
6. Heard arguments on both side .
7. My finding on the above Issues are as follows:
Issue No.1: In Negative
Issue No.2: In Negative
Issue No.3: As per final order for the following.
REASONS
8. ISSUE NO.1: The plaintiff in the plaint contended
that she is the absolute owner of the suit schedule property and the same is purchased under a registered sale deed dated 17.06.2003 from defendant No.7. The defendant No.7 has acquired the same under HIBA from the husband of defendant No.1 and father of defendant No.2 to 4 and defendants No. 5, 6, 8 & 9. Ever since the date of purchase the plaintiff is in possession of the property and Katha has been transferred in the name of the plaintiff and she is paying the taxes to the BBMP. 12
O.S.No. 649 / 2008 The contention of the defendants that the plaintiff is not the owner of the suit schedule property. The husband of defendant No.1 and father of defendant No.2 to 4 and Defendant No.5, 6, 8 & 9 have no personal right to executed HIBA in favour of defendant No.7.
9. PW 1 in the chief examination reiterated the facts as alleged in the plaint. PW 2 is the husband of the plaintiff and in his evidence deposed that plaintiff has purchased the suit schedule property under the registered sale deed dated 17.06.2003 from the 7th defendant. Originally the suit schedule property belongs to one Smt. Zulekha Bee and she has acquired the suit schedule property under the registered sale deed dated 06.08.1981. After the death of Smt. Julekha Bee the defendants have succeeded to the estate. The husband of defendant No.1 and father of defendant No.2 to 4 and defendant No.5, 6 8 & 9 have executed HIBA in favour of the defendant No.7. Therefore the plaintiff has purchased the suit schedule property from the defendant No.7 and 13 O.S.No. 649 / 2008 plaintiff paying taxes to the suit schedule property and Katha has been standing in her name.
10. PW 3 in his examination in-chief deposed that the defendants have executed declaratory affidavit by way of HIBA in favour of defendant No.7. He has identified physically and personally the signature of the defendants and date of execution of the declaratory affidavit. On the strength of the declaratory affidavit, the defendant No.7 has executed the registered sale deed in favour of the plaintiff. On the same day the physical possession was delivered in favour of the plaintiff as personally present on the date of execution of the sale deed and have affixed his signature in the capacity of drafted the sale deed.
11. PW 4 is the witness to Ex.P4 to P7. In his evidence deposed that the father of the defendant No.2 to 4 and defendant No.5, 6, 8 & 9 have executed the declaratory affidavit by way of HIBA in favour of the defendant No.7 on the date of execution of Ex.P4 to P7 putting his signature as witness to the said document. 14
O.S.No. 649 / 2008
12. DW 1 in her chief-examination reiterated the facts as alleged in the written statement. The learned counsel for the plaintiff in her cross examination elicited that the plaintiff is in possession of the suit schedule property. Ex.P2, Ex.P9 to P16 clearly reveals that the plaintiff is the owner in possession of the suit schedule property. But Ex.P1 reveals that present defendant No.1 to 4 have filed the suit for partition and separate possession against the present defendant No.5 to 9. The said suit was instituted on 19.11.2001. The said suit was decreed on 15.06.2005. The plaintiff has purchased the property from the defendant No.7 under the registered sale deed dated 17.06.2003. It shows that during the pendency of the suit in O.S. No. 8623 of 2001 the plaintiff purchased the property, which is hit by doctrine of lis-pendence. Any transaction in respect of the property, during the pendency of the suit which is the subject matter of the said suit, such transaction has got no value at all in the eye of law.
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O.S.No. 649 / 2008
13. PW 1 in her cross examination deposed that she do not know as to whether 2 sons and 3 daughters of Zuleka Bee have executed any document in favour of 7th defendant authorizing her to deal with the property on their behalf or not. It shows that PW1 having no knowledge about execution of Ex.P 4 to Ex.P7.
14. The plaintiff in the plaint pleadings contended that after the death of Zuleka Bee her sons and daughters have executed the declaratory affidavit of HIBA in favour of 7th defendant, but in her cross examination deposed the facts that she do not have the knowledge about execution of Ex.P4 to P7. Further PW 1 in her cross examination admitted that personally she do not know about the parties to Ex.P4 to P7 and between whom those documents are executed. PW 1 produced Ex.P4 to P7, which reveals that the husband of the defendant No.1 and father of defendant No.2 to 4 & defendant No. 6, 8 & 9 have executed HIBA in their share in the suit schedule property in favour of the defendant No.7. PW 4 is also witness to the Ex.P4 to P7. PW 4 in his cross examination 16 O.S.No. 649 / 2008 admitted that Nazeer is the husband of Muqbool Jan. The said Nazeer is also witness to Ex.P4 to P7, but he has not stepped into the witness box. Nazeer is the husband of the defendant No.7 who is also signatory to Ex.P4 to P7. It shows that Ex.P4 to P7 created by the defendant No.7 in collusion with other defendants. Further PW 1 in her cross examination deposed that she was not having any dealings with Ameer Amzad and that she cannot identify the signatures of the parties to Ex.P6. Ex.P6 was executed by the husband of defendant No.1. In her plaint pleadings stated that all the children of Zulekha Bee have executed the HIBA in favour of the 7th defendant, but Pw1 in her cross examination deposed that she cannot identify the signatures of all the parties to Ex.P6. Further PW 1 in her cross examination deposed that Ameer Amzad has not put his signature on any documents in her presence. Her husband told her stating that the signature appearing on Ex.P6 is the signature of Ameer Amzad. This portion of the cross examination clearly goes to show that PW 1 having no knowledge about the execution of Ex.P6 by Ameer Amzad, who is the husband 17 O.S.No. 649 / 2008 of defendant No.1 and father of defendants No.2 to 4 and she is not the direct witness. On the instructions of her husband she deposed before the Court. Therefore, PW 1 is hearsay witness. Further PW1 in her cross examination deposed that she do not know as to whether Ameer Amzad used to sign only in Urdu or not, but her husband knew about it. This portion of the cross examination also clearly goes to show that PW 1 having knowledge of Ex.P6.
15. PW 2 is the husband of plaintiff. In his cross examination deposed that before purchasing the property verified the HIBA, registered sale deed standing in the name of mother of defendant No.7, documents of transfer of property in the name of defendant No.7 from his mother and other documents. In this regard, the plaintiff only produced Ex.P4 to P7 and Ex.P3 - sale deed. Katha and other revenue records are not produced by the plaintiff, to show that as on the date of execution of HIBA, Katha and other revenue records are standing in the name of defendant No.7.
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O.S.No. 649 / 2008
16. PW 3 is the person who had drafted Ex.P2 & P3 and he identified Ex.P4 to P7. PW 3 in his cross examination deposed that the plaintiff has taken his advice and opinion and she purchased the property under Ex.P2. On perusal of the same, it reveals that PW 3 drafted Ex.P2 and Ex.P3. Further he also identified Ex.P4 to P7 and their documents was verified by PW 3. On the advise of PW 3 the plaintiff has purchased the property during the pendency of the suit in O.S. No. 8623 of 2001.
17. In this case there is no offer and acceptance with regard to Ex.P4 to Ex.P7 and there is no delivery of possession in favour of the defendant No.7. In Ex.P4 to Ex.P7 Donee has not accepted the HIBA and not delivered the possession in favour of the defendant No.7. If the possession is delivered in favour of the defendant No.7 what prevented the defendant No.7 to get the Katha in his name and at the time of execution of Ex.P4 to P7 Katha was not standing in the name of husband of the defendant No.1 and father of defendant No.2 to 4 and 19 O.S.No. 649 / 2008 defendant No. 5, 6, 8 & 9 as on the date of the execution of Ex.P4 to P7, no Katha has been standing in the name of defendant No.7. Therefore, the sale deed executed by the defendant No.7 in favour of plaintiff has no value at all in the eye of law. After execution of Ex.P2, Ex.P8 to P16 are standing in the name of plaintiff. The plaintiff sale deed is not a valid sale deed, as he has purchased the property during the pendency of the suit in O.S. No. 8623 of 2001 and at the time of execution of Ex.P4 to P7, the Katha has not been standing in the name of defendant No.7. Therefore, the sale deed executed by defendant No.7 in favour of the plaintiff is null and void. On the basis of Ex.P2 and Ex.P9 to P16 the plaintiff is in possession of the property. The said fact was also admitted by DW 1 in his cross examination. But the sale deed itself is not valid sale deed. Therefore, the ownership acquired by the plaintiff is not valid.
18. In this case, the Notary has not been examined by the plaintiff to prove Ex.P4 to P7. Originally the present suit was filed by PW 3 and therefore, PW 3 present before 20 O.S.No. 649 / 2008 the court and adduced evidence on behalf of the plaintiff and he has drafted Ex.P2 and P3 and identified Ex.P4 to P7. Later PW 3 has given NOC on the Vakalat for engaging another advocate on behalf of the plaintiff. It shows that evidence of PW 3 creates some doubt.
19. Sri. Nazeer is the husband of the defendant No.7 who has attester of Ex.P4 to P7. It also shows that defendant No.7 and other defendants have colluded with each other and created HIBA. On the basis of Ex.P4 to P7 delivery is not passed from the husband of the defendant No.1 and father of defendant No.2 to 4 and defendant No. 5, 6, 8 & 9 in favour of defendant No.7 and Katha is not standing in the name of defendant No.7 at the time of execution of HIBA. Therefore, execution of the sale deed by the defendant No.7 in favour of the plaintiff is not valid in the eye of law.
20. The learned advocate for the plaintiff relied upon the following rulings.
21
O.S.No. 649 / 2008
1. AIR 2011 SUPREME COURT 1695 (HAFEEZA BHBI & ORS. VS. SHAIKH FARID (DEAD) BY LRs AND OTHERS).
2. AIR 1971 SUPREME COURT 1949 (BISHWANATH RAI VS. SACHHIDANAND SINGH).
3. AIR 2006 SUPREME COURT 1971 (ANIL RISHI VS. GURBAKSH SINGH).
4. AIR 1998 SUPREME COURT 3006 (BISHUNDEO NARAIN RAI (DEAD) BY LRs AND OTHERS, VS. ANMOL DEVI AND OTHERS).
5. ILR 1999 KAR 1524 (A.V. RANGACHARYA AND ANOTHER VS. PILLANJINAPPA AND ANOTHER).
6. ILR 2003 KAR 2253 (SUPREME COURT) (BONDAR SINGH AND OTHERS VS. NIHAL SINGH AND OTHERS).
7. AIR 2005 SUPREME COURT 2209 (AMIT KUMAR SHAW AND ANOTHER VS. FARIDA KHATOON AND ANOTHER).
8. AIR 1971 SUPREME COURT 2548 (DATTATREYA VS. RANGANATH GOPALRAO KAWATHEKAR (DEAD) BY HIS LEGAL REPRESENTATIVES AND OTHERS).
9. AIR 1929 BOMBAY 1 (KOUDI RAVJI FADTARE VS. CHUNILAL RUPAHAND MARWADI).
10. (2000) 6 SUPREME COURT CASES 402 (R.K. MOHAMMED UBAIDULLAH AND 22 O.S.No. 649 / 2008 OTHERS VS. HAJEE C. ABDUL WAHAB (D) BY LRs AND OTHERS).
11. AIR 1969 SUPREME COURT 1147 (M.L. ABDUL JABBAR SAHIB VS. H. VENKATA SASTRI AND SONS AND OTHERS ETC.).
12. AIR 1973 DELHI 280 (V 60 C78) (HAFIZ ABDUL BASIT AND ANOTHER VS. HAFIZ AHMAD MIAM AND OTHERS).
13. AIR 1959 SUPREME CORUT 443 (V 546 C
56) (VENKATACHALA IYENGAR VS. B.N. TIMMAJAMMA).
14. 2014 AIR SCW 6261 (RASHEEDA KHATOON (D) THROUGH LRs VS. ASHIQ ALI THROUGH LRs.)
15. AIR 2010 SUPREME COURT 211 (ABDUL RAHIM AND OTHERS VS. SK. ABDUL ZABAR AND OTHERS).
16. AIR 1964 MADRAS 373 (V51 C113) (JOHARA BIBI VS. SUBERA BIBI AND OTHERS).
17. AIR 1964 SUPREME COURT 275 (V 51 C
30) (VALIA PEEDIKAKKANDI KATHEESSA UMMA AND OTHERS. VS. PATHAKKALAN NARAYANATH KUNBAMU (DECEASED) AND AFTER HIM HIS LEGAL REPRESENTATIVES AND OTHERS).
18. ILR 1995 KAR 3525 (GUNDEGOWDA @ MOGANNA VS. STATE).
21. I have gone through the rulings cited above. The facts and circumstances of the case on hand are entirely 23 O.S.No. 649 / 2008 different from the rulings cited at the Bar. The learned counsel for the defendants No.1 to 4 also cited the following rulings.
1. AIR 1984 GAUHATI 41 (MOHAMMED HESABUDDIN AND OTHERS VS. MD.
HESARUDDIN AND OTHERS).
2. AIR 1973 MADRAS 280 (V 60 C. 87) (S.M. USMAN ALI AND ANOTHER VS. O.B.V. KUBENDRA BAI AND ANOTHER).
3. AIR 1978 JAMMU AND KASHMIR 92 (WALI MOHAMMAD ETC. VS. FAQIR MOHAMAD AND OTHERS ETC.)
4. (1993) 2 SUPREME COURT CASES 199 (AMERICAN EXPRESS BANK LIMITED VS.
CALCUTTA STEEL CO. AND OTHERS).
22. The citation submitted at the Bar on behalf of the defendants No.1 to 4 are not relevant to the facts and circumstances of the present case.
23. Plaintiff has purchased the suit property during the pendency of the suit and after purchased suit property Katha has been mutated in the name of plaintiff is no value at all in the eye of law. And plaintiff ownership is also illegal. Hence, it is clear from the records that the 24 O.S.No. 649 / 2008 plaintiff has got no right over the suit schedule property Hence issue No.1 is answered in negative.
24. ISSUE No.2: The plaintiff in the plaint contended that defendant No.1 to 4 have obtained exparte judgment and decree in O.S. No. 8623 of 2001 and further contended that defendant No.1 to 4 have obtained collusive exparte decree dated 15.06.2005 by suppressing true facts before the court and the same is not binding on the plaintiff. PW 1 in her chief examination also reiterated the same. The defendant No. 1 to 4 in the written statement denied the said fact. DW 1 in her chief examination also reiterated the facts as alleged in the written statement. The plaintiff produced Ex.P1, which reveals that present defendants No.1 to 4 have filed the suit against the present defendant No.5 to 9 for partition and separate possession. The said suit was also decreed in favour of the present defendant No.1 to 4. After decreeing the suit present defendant No.1 to 4 have filed FDP No. 2 of 2006. The order sheet is marked at Ex.P26. The said FDP No. 2 of 2006 is pending for 25 O.S.No. 649 / 2008 consideration. Ex.P23 is the plaint copy in O.S. No. 8623 of 2001. The defendant No.1 to 9 contended that the address shown in the said O.S. No. 8623 of 2001 and the address mentioned in the present suit are one and the same. Ex.P 24 reveals that on 15.03.2003 the defendants No.1 to 5 called out. The service of the defendant No.5 is sufficient and hence, defendant No.5 is placed exparte and the said case is posted to 10.04.2003. On that day, the plaintiff filed IA under Order 5 Rule 20 of CPC and the case was posted to 10.06.2003. That on 10.06.2003 the case was called out and the defendant No.1 to 4 absent and the service is sufficient and hence, the defendant No.1 to 4 placed exparte. In the present suit and in the previous suit mentioned parties address are one and same. In the previous suit the present defendant No.5 to 9 placed exparte and the case was posted for the plaintiff's evidence. After evidence recorded by the plaintiff the case was decreed in favour of the present defendant No.1 to 4. There is no question of collusive with each other. The plaintiff was having the knowledge about the suit and she watching the 26 O.S.No. 649 / 2008 proceedings all along. Though she was aware of the fact that the suit schedule property in the present was also the subject matter of the suit in O.S. No. 8623 of 2001. Therefore, it cannot be said that the present defendant No.1 to 4 have obtained collusive exparte decree and hence, issue No.2 is answered in negative.
25. ISSUE NO.3: In view of the discussion on the issues No.1 & 2, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed. No order, as to the costs.
Draw decree accordingly.
(Dictated to the Typist Online, corrected and then pronounced by me in open court, this the 2nd DAY OF JANUARY 2016) (G.L. LAKSHMINARAYANA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE 27 O.S.No. 649 / 2008 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Smt. Vijayalakshmi Bajaj PW2 Sri. Shyamsundar Bajaj PW3 Sri. Sami PW4 Sri. Fazlu Rahaman
Documents marked on behalf of the plaintiff/s:
Ex.P1 Certified copy of judgment and decree in O.S. No. 8623 of 2001.
Ex.P2 Sale deed dated 07.06.2003
Ex.P2(a) Signature
Ex.P3 Sale deed dated 06.08.1981
Ex.P4 Declaratory affidavit.
Ex.P5 to 7 Affidavits
Ex.P8 Endorsement by BBMP
Ex.P9 Katha Certificate
Ex.P10 Katha Extract
Ex.P11to16 Tax paid receipts
Ex.P17 Certified copy of order sheet in PTC 2 of
2006.
Ex.P18to22 Encumbrance Certificates
Ex.P23 Certified copy of plaint in O.S. N. 8623 of
2001
Ex.P24 Certified copy of order sheet in O.S. No.
8623 of 2001
Ex.P25 Certified copy of Decree in O.S. No. 8623 of
2001
Ex.P26 Certified copy of order sheet in FDP No. 2 of
2006
Ex.P27 Voters ID Card
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O.S.No. 649 / 2008
List of witnesses examined on behalf of the Defendant/s:
DW1 Smt. Gouhar Naaz Documents marked on behalf of the Defendant/s:
NIL XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BANGALORE.29
O.S.No. 649 / 2008 02.01.2016 Judgment passed and pronounced in the open court (vide separate judgment). The operation portion of the order reads thus -
The suit of the plaintiff is hereby dismissed.
No order, as to the costs.
Draw decree accordingly.
XXXVII ACCJ, (CCH-38)