Bangalore District Court
Smt. Kempamma W/O Late vs Smt Gowramma W/O Late M on 7 December, 2017
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. VENKATARAMAN BHAT, B.Sc.,., LL.B. (Spl.)
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 7th DAY OF DECEMBER 2017
OS.NO.7209 of 2008
PLAINTIFF/S 1. SMT. KEMPAMMA W/O LATE
NARAYANASWAMY, AGED
ABOUT 46 YEARS.
2. SRI. CHIKKARUDRAPPA S/O
LATE CHIKKANAGAPPA, AGED
ABOUT 52 YEARS,
BOTH ARE RESIDING AT
THINDLU VILAGE,
VIDRANYAPURA POST,
YELAHANKA HOBLI, BANGALORE
NORTH TALUK, BANGALORE.
(Plaintiff by Sri. GRN, adv.)
Versus
DEFENDANT/S SMT GOWRAMMA W/O LATE M.
RAMAIAH, AGED ABOUT 65 YEARS,
RESIDING AT THINDLU VILLAGE,
VIDYARANYAPURA POST,
YELAHANKA HOBLI, BANGALORE
NORTH TALUK, BANGALORE.
(Defendant by Sri R.A. Adv.)
Date of Institution of the 30.10.2008
suit
Nature of the suit. Suit for declaration and
permanent injunction.
2 O.S.No.7209 of 2008
Date of commencement of 23.06.2010
recording of evidence.
Date on which judgment 07.12.2017
was pronounced.
Total Duration. Years Months Days
09 01 23
XXXVII ACCJ, BANGALORE7
3 O.S.No.7209 of 2008
JUDGMENT
Plaintiffs filed this suit against defendant for declaration and permanent injunction. Declaration is to the effect that, plaintiffs are the absolute owners of suit schedule property. Permanent injunction is to restrain defendant from interfering with possession of plaintiffs over suit schedule property.
1. The brief facts of the case are as under.
One Late Sri.Chikkanagappa and Late Smt.Muniyamma had two sons. Husband of the plaintiff
No.1 by name Narayanaswamy is the 1st son of Muniyamma. Whereas plaintiff No.2 is the 2nd son of Smt.Muniyamma. Item No.1 of suit schedule property is bearing Sy.No.181/6 B measuring 5 guntas . Whether Item No.2 property is bearing Sy.No.no.181/6 C measuring 6 guntas. Both the properties are situated at Kodigehalli village, Yelahanka Hobli, Bengaluru North Taluk. Originally suit schedule property were owned by Sri.Badrappa who was the father of Muniyamma. After the death of Badrappa, Muniyamma succeeded the suit schedule properties. Accordingly, 4 O.S.No.7209 of 2008 revenue records have been changed into the name of Smt.Muniyamma.
According to the plaintiffs Smt.Muniyamma died on 6- 5-1984. It is submitted that, as per MR No.41/2007-2008 , name of plaintiffs jointly entered in the record of rights of suit schedule properties. Tahsildar conducted survey and prepared the survey sketch. Plaintiffs are in actual possession and enjoyment of suit schedule properties. That being the position, plaintiffs had received a notice in the appeal No.RA 186/2008 - 2009 before Asst.Commissioner, Bengaluru. Thereafter, plaintiffs put appearance in RA 186/2008-2009 and made enquiry . It was disclosed that, by virtue of registered sale deed dated 6-8-1984 husband of the defendant started assertion of rights over suit schedule properties. According to the plaintiffs, Muniyamma died on 6-5-1984. It is submitted that, husband of the defendant committed fraud and got sale deed in respect of suit schedule properties. It is submitted that, at no point of time, mother of the plaintiffs by name Muniyamma did not execute any sale deed in favour of Ramaiah.
According to the plaintiffs, Muniyamma did not execute any sale deed in favour of husband of defendant nor 5 O.S.No.7209 of 2008 Narayanasway and plaintiff No.2 have given consent to the said sale deed. It is submitted that, the sale deed dated 6- 8-1986 is created and void and not binding on the plaintiffs. Hence, plaintiffs are constrained to filed this suit.
2. On being noticed, defendant put appearance through her advocate and filed written statement as under :
Suit is not maintainable. Suit is barred by limitation . It is submitted that husband of the defendant had purchased suit schedule properties under a registered sale deed dated 6-8-1984 and the name of husband of defendant came to be entered in the revenue records. It is further submitted that Narayanaswamy and plaintiff No.2 had put their signatures on sale deed as consenting witnesses. It is denied that, Muniyamma died on 6-5-1984. Husband of the defendant was in possession and enjoyment of suit schedule properties till his death. Thereafter, the name of defendant has been mutated in the revenue records and defendant is in possession of suit schedule properties. Mutation Entry No.41/2007-08 was cancelled in RA No.186/2008-09 by Asst. Commissioner, Bengaluru North Taluk. One Kenchanna and Kempamma had several 6 O.S.No.7209 of 2008 disputes against the husband of the defendant and husband of the plaintiff No.1 and plaintiff No.2 in respect of suit schedule properties. The said Kenchanna and Kempamma had filed O.S No.6766/1996 against husband of the defendant for declaration and permanent injunction in respect of suit schedule properties. Later, it was ended in compromise. Survey proceedings were challenged by Kenchanna and Kempamma in JDLR / Appeal 62/1997-98 and it was decided in favour of husband of the Defendant. Even Karnataka Appellant Tribunal confirmed this order in Revision No.42/2000. Though, Kenchanna and Kempamma had preferred RA No.73/1999-2000 in respect of suit schedule properties it was decided against them. Though a Revision Petition No.141/2001-02 was preferred by Kenchanna and Kempamma, it was dismissed. All other allegations of Plaint are denied by this Defendant. It is submitted that, suit is not maintainable and Court fee paid is insufficient. There is no cause of action to file this suit. On these grounds Defendant prays for the dismissal of the suit with costs.7 O.S.No.7209 of 2008
3. Out of the above pleading the following issues are framed:
1. Whether the plaintiffs prove that the mother of the husband of the first plaintiff and second plaintiff died on 06.05.1984?
2. Whether the plaintiffs prove that the sale deed dated 06.08.1984 in respect of the suit schedule property is created and out come of fraud played by Defendant and her husband as contended in para 9 of the plant?
3. Whether the plaintiffs prove that the said sale deed dated 06.08.1984 is null and void and not binding on them?
4. Whether the plaintiffs prove that they are the owners of the suit schedule property?
5. Whether the plaintiffs prove that they were in actual and lawful possession and enjoyment of the suit schedule property as on the dated of the suit?
6. Whether the plaintiffs prove that the Defendant has interfered in their peaceful possession and enjoyment of the suit schedule property?
7. Whether the suit of the plaintiffs is not maintainable in law?
8. Whether the suit of the plaintiffs is barred by law of limitation?
9. Whether the court fee paid by the plaintiffs is proper and correct?
10. Whether the plaintiffs prove that there arose a cause of action to file them suit against the Defendant?8 O.S.No.7209 of 2008
11. Whether the plaintiffs are entitled to the relief sought for?
12. What order or decree?
4. During the course of trail, Plaintiff No.2 was examined as P.W.1 and Ex.P.1 to P.15 got marked. Defendant was examined as D.W.1 and Ex.D.1 to D.30 got marked.
5. Advocate for plaintiff submitted notes of written argument. Heard oral argument of advocate for Defendant.
6. My findings on the above issues are as under.
Issue No.1 : In negative
Issue No.2 : In negative
Issue No.3 : In negative
Issue No.4 : In negative
Issue No.5 : In negative
Issue No.6 : In negative
Issue No.7 : In affirmative
Issue No.8 : In affirmative
Issue No.9 : In aiirmative
Issue No.10 : In affirmative
Issue No.11 : In negative
Issue No.12 : As per final order, for the
following.
REASONS
7. ISSUE No.1 to 6: For the sake of convenience and
also to avoid reputation of facts, I would like to discuss all these issues together. Apart from this, the subject matter of these issues are interlinked to each other in such a way 9 O.S.No.7209 of 2008 that, it is just and proper to hold a common discussion. No party will be put to any prejudice by doing so. During the pendency of the suit, plaintiff No.2 had filed an impleading application under Order 1 rule 10(2) CPC to implead the applicants as Defendants in this suit. Notice served on some of the applicants. However, on the perusal of records, it does not disclosed passing any order on this application, it appears that on account of mistake LRs of proposed Defendant No.7 were brought on record by way of amendment. When there is no order on the impleading application this court did not consider that application and Defendant is considered as only one Defendant in this case.
8. There are some admitted facts in this case. Admittedly, one Narayanaswamy and Plaintiff No.2 are the sons of Late Muniyamma and Chikkanagappa. Muniyamma is the only daughter of Badrappa. Originally, suit schedule properties were owned by one Badrappa. He died intestate. Consequently, Late Muniyamma being only daughter of Late Badrappa succeeded right, title and interest over suit schedule properties. Even revenue records were changed in the name of Muniyamma. She used to pay taxes and land 10 O.S.No.7209 of 2008 revenue in respect of suit schedule properties . During her life time, Late Muniyamma executed a registered sale deed in favour of husband of the Defendant on 6-8-1984. According to the plaintiffs Muniyamma died on 6-5-1984. It is not in dispute that Plaintiff No.1 is the wife of Narayanaswamy. Whereas, Plaintiff No.2 is the another son of Muniyamma. In other words, Plaintiffs have challenged the alleged sale deed dated 6-8-1984. Ex.P.14 is the certify copy of the sale deed said to have been executed by Late Muniyamma in favour of husband of Defendant on 6-8- 1984. Ex.D.1 is the original sale deed dated 6-8-1984. The only document relied by the plaintiffs to show that they are having right over the suit schedule properties is MR No.41/2007-08. Ex.P.10 is the certify copy of MR Register No.41/2007-08. Ex.P.1 to 8 are the record of rights standing in the name of Late Muniyamma. Plaintiffs much relied on Ex.P.1 to 8. It can be noticed that, even after the death of Muniyamma RTC continued in the name of Muniyamma for few years. According to the plaintiffs Muniyamma died on 6-5-1984. I have perused the oral as well as documentary evidence placed by the plaintiffs before this Court. Absolutely there is no evidence to show that 11 O.S.No.7209 of 2008 when Muniyamma died. Plaintiffs failed to produce death extract of Late Muniyamma. There is no other document to show or support the contention of the plaintiffs that Muniyamma died on 6-5-1984. P.W.1 was cross examined with regard to death of Muniyamma. P.W.1 has duly admitted to the effect that, there is no document to show that when Muniyamma died.
9. On the perusal of Ex.D.1 / P.14 it can be noticed that, Narayanaswamy and Plaintiff No.2 were present at the time of Registration of Sale Deed dated 6-8-1984 and put their signatures as consenting witnesses . Except fraud and void are the two words used in the plaint, there are no other particulars pleaded in the plaint as required U/O 6 Rule 4 CPC . A registered sale deed cannot be set aside easily. On the perusal of Ex.D.1 it discloses that, a sum of Rs.10,000/- has been received as consideration amount and Muniyamma put the husband of Defendant into possession of suit schedule properties. It is further supported by signatures of Narayanaswamy and Plaintiff No.2 as consenting witness. That being the position, it is proved that Late Muniyamma had executed the registered sale deed 12 O.S.No.7209 of 2008 in favour of husband of the Defendant on 6-8-1984 and put him into possession of schedule properties. As soon as sale deed is registered, title has been transferred in favour of the husband of Defendant. Once right is vested it cannot be divested. Unless by mode of another conveyance deed. It already stated there is no document to show the death of Muniyamma on 6-5-1984. In the absence of any documentary evidence, the only possible conclusion is that, Muniyamma personally executed sale deed in favour of husband of the Defendant.
10. One thing is very clear that, plaintiffs failed to prove the date of death of Muniyamma. On the other hand registration of sale deed is not empty formality. The executant of the sale deed, must come before the Sub- registrar and Sub-registrar after verification takes the LTM of the executant and signature of the executant. On being satisfied the enquiry, Sub-Registrar took steps to register the sale deed. It is not the contention of the Plaintiff's that somebody impersonated the signatures of Muniyamma. Moreoever, when Narayanaswamy and Plaintiff No.2 were present at the time of registration of sale deed on 6-8-1984. 13 O.S.No.7209 of 2008 The contention of the plaintiffs that, by contending fraud and illegality, husband of the Defendant got sale deed registered in his name is devoid of the merits. Advocate for Plaintiffs much relied on MR No.41/2007-08 which is standing in the name of Plaintiffs. It can be noticed that, the said MR No.41/2007-08 was cancelled in RA No.186/2008-09 by Asst.Commissioner, Bengalru North Taluk. That being the position, MR No.41/2007-08 has not any value in the eye of law. Apart from this, it is settled principle of law that revenue records are not document of title. That is the position of law, Ex.D.1 sale deed prevails over MR No.41/2007-08. I have gone through the oral testimony of P.W.1 and D.W.1. When there is documentary evidence to prove the title of the husband of Defendant, it can be safely held that, by virtue of sale deed dated 6-8- 1984 husband of the Defendant got right, title and interest over the suit schedule properties. When there is recital in Ex.D.1 sale deed to the effect that, Muniyamma delivered the possession of the suit schedule properties as vendor in favour of husband of the Defendant, the say of the plaintiff's that they are in actual possession and enjoyment of suit schedule properties cannot be accepted.
14 O.S.No.7209 of 2008
11. During the course of argument, advocate for Defendant referred the following decisions.
1. 2006 (6) SCJ 338 (A. JITHENDRANATH Vs. JUBLIEE HILLS CO-OP. HOUSE BUILDING. SOC.
AND ANOTHER)
2. AIR 1991 ANDHRA PRADESH 50
(KUTCHERLOKOTA VIJAYALAKSHMI VS.
RADIMETI RAJARATNAMBA AND OTHERS)
3. AIR 1993 SUPREME COURT 957 (VINAY KRISHNA VS. KESHAV CHANDRA AND ANOTHER).
4. AIR 2000 MADRAS 465 (S. MADASAMY THEVAR VS. A.M. ARJUNA RAJA).
5. AIR 2007 KARNATAKA 91 (ARALAPPA & ETC. VS.
JAGANNATH AND OTHERS)
6. AIR 2007 SUPREME COURT 1499 ( MEHAR CHAND DAS VS. LAL BABU SIDDIQUE AND OTHERS).
7. 2004 (1) KCCR 662 (K. GOPALA REDDY (DECEASED) BY LRS. VS. SURYANARAYANA AND OTHERS).
8. AIR 2009 SUPRME COURT 2966 (T.K. MOHAMMED ABUBUCKER (D) THR. L.RS. AND OTHERES VS.
V.P.S.M. AHAMED A DUL KHADER AND OTHERS).
9. (1995) 1 SUPREME COURT CASES 198 (RAMTI DEVI (SMT) VS. UNION OF INDIA).
12. I have gone through the legal principles laid down in these decisions.
15 O.S.No.7209 of 2008
13. Plaintiffs have failed to prove their burden of proving the death of Muniyamma on 6-5-1984 and any right over suit schedule properties and alleged interference by the Defendant. Hence, I answered Issue No.1 to 6 in Negative.
14. ISSUE NO.7: A specific plea has been taken in the written statement filed by the Defendant to the effect that, suit for declaration without seeking possession is not maintainable. Advocate for Defendant on this aspect much relied on a decision reported in AIR 2007 KARNATAKA 91 (ARALAPPA & ETC. VS. JAGANNATH AND OTHERS). At Para No.30 Hon'ble High Court of Karnataka held as under:
"In a suit, for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not on appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title 16 O.S.No.7209 of 2008 of the property and the person in possession would be having possessory title to the property. It would lead to anomalous situation and create confusion in the public, which is to be avoided."
15. The other decisions referred by the advocate for Defendant on this aspect also supported the view taken by Hon'ble High Court of Karnataka, Bangalore. In the case on hand, Plaintiffs are seeking declaration and permanent injunction against Defendant. A finding has been already given to the effect that, by virtue of sale deed dated 06.08.1984 executed by Muniyamma, husband of the Defendant was in possession of suit schedule properties. When Defendant is in possession of suit schedule property plaintiffs ought to have sought the relief of possession also. On this count alone, it is held that, suit for declaration and permanent injunction in the present form is not maintainable. Accordingly, I answer above issue in the Affirmative.
16. ISSUE NO.8: Defendant has taken a specific plea in the Written statement to the effect that suit is barred by limitation. It is pertinent to note that, Plaintiffs have challenged the execution of the sale deed dated 6-8-1984 in 17 O.S.No.7209 of 2008 the year 2008. In other words, this suit has been filed after 24 years of execution of the sale deed. It is more important to note that, husband of Plaintiff No1 by name Narayanaswamy and Plaintiff No.2 were consenting witnesses . Ex.D.1 is sale deed. In other words it can be inferred that, Narayanaswamy and Plaintiff No.2 had the knowledge of execution of the sale deed on 6-8-1984 itself. Article 58 of Limitation Act deals with suit for declaration. The period of Limitation is 3 years from the date of cause of action, first accrued. In the case hand there is evidence to show that, Narayanaswamy and Plaintiff No.2 were present at the time of registration of sale deed dated 6-8-1984. There is material to show that, husband of the Defendant had earlier filed one suit and it was ended in compromise against one Kenchanna and Kempamma. Plaintiffs had the knowledge of all the earlier proceedings and well acquainted with appeal matter pending before Revenue Authorities. However, a false cause of action has been shown in the plaint that for the first time that Plaintiff came to know the alleged title of the husband of the Defendant on 2-9-2008. It is an imaginary cause of action with an intention, only to save limitation. In my view, for the first time Plaintiffs came 18 O.S.No.7209 of 2008 to know the execution of a sale deed on 6-8-1984 itself. That being the position, cause of action accrued for the first time on that date itself. The suit filed on 30-10-2008 is beyond the period of 3 years from the date of first accrued cause of action and the same is hopelessly barred by limitation. Accordingly, I answer the above issue in the Affirmative.
17. ISSUE NO.9: Defendant has taken up a contention in the Written Statement to the effect that Court fee paid by the plaintiff is in-sufficient. I have gone through the valuation slip filed by the advocate for Plaintiffs . A sum of Rs 275/- has been paid for the purpose of court fee. Market value is shown as Rs 10,000/-. As per RTC suit schedule properties are assessed land revenue. It discloses that, now suit schedule properties are lost agricultural features . Any how, sale consideration amount in the sale deed dated 6-8- 1984 is shown as Rs 10,000/-. Plaintiffs paid court fee on Rs 10,000/- for declaratory relief. A sum of Rs 25/- has been paid for the relief of permanent injunction. It discloses that, Plaintiffs have challenged the sale deed dated 6-8- 1984. No relief of cancellation of this sale deed is sought. 19 O.S.No.7209 of 2008 When sale consideration amount is shown as Rs 10,000/-, the payment of Court fee on that value is just and proper. Even as per Sec.24 (d) Karnataka Court Fees and Suit Valuation Act the payment of Court fee is just and proper. Accordingly, I answer above issue in Affirmative.
18. ISSUE NO.10: This issue is pertaining to cause of action to file this suit by the Plaintiffs. In order to say whether there is any cause of action or not, entire plaintiff averments shall be looked into. Plaintiffs have challenge the sale deed dated 6-8-1984. On going to averments of the plaint, there is cause of action to file this suit. Success of the plaintiffs is different from cause of action. In the case on hand, Plaintiffs failed to prove material issues . However, it cannot be held that, there is no cause of action to file this suit. Hence, without any further discussion I answer above issue in the Affirmative.
19. ISSUE NO.11: Now the question for consideration is whether Plaintiffs are entitled for the relief of declaration and permanent injunction. A finding has been given to the effect that, plaintiffs fail to prove their title over suit 20 O.S.No.7209 of 2008 schedule properties as on the date of filing of the suit much less on the date of alleged sale deed dated 6-8-1984. Plaintiffs are not in possession of suit schedule properties . Suit is barred by limitation also. Already title has been transferred in favour of husband of the Defendant . Plaintiff failed to prove the material issues. That being the position, Plaintiff are not entitled any relief as prayed in the suit. Consequently, suit is going to be dismissed. Hence, I answer above issue in the Negative.
20. ISSUE No.12: In the result, I proceed to pass the following:
ORDER (1) Suit is dismissed with cost (Dictated to the TYPIST, online, corrected and then pronounced by me in open court, this the 7th DAY OF DECEMBER 2017) (VENKATARAMAN BHAT) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. Chikkarudrappa.21 O.S.No.7209 of 2008
Documents marked on behalf of the plaintiff/s:
Ex.P1to8 - Record of rights Ex.P9 - Sketch map Ex.P10 - Certified copy of Mutation Ex.P11 - Record of rights Ex.P12 - Revenue paid receipts Ex.P13 - Notice issued by D.C. Ex.P14 - Certified copy of sale deed Ex.P15 - Office copy of notice of Talsidar
List of witnesses examined on behalf of the Defendant/s:
DW1 Smt. Gowramma Documents marked on behalf of the Defendant/s:
Ex.D1 - Sale Deed dated 06.08.1984
Ex.D2 - Certified copy of Mutation
Ex.D3 to 11 - Certified copy of Pahni records
Ex.D12 to14 - Land revenue receipts
Ex.D15to19 - Encumbrance certificates
Ex.D20 - Certified copy of Settlement Akar band
Ex.D21 - Certified copy of application
Ex.D22 - Certified copy of application
Ex.D23 - Certified copy of Order of JDLR
Ex.D24 - Certified copy of order of KAT
Ex.D25 - Certified copy of order in RA 73/2000
Ex.D26 - Certified copy order of Addl. DC
Ex.D27 - Certified copy of order of A.C.
Ex.D28 - Certified copy of order sheet of O.S.
No.6766/1996
Ex.D29 - Certified copy of compromise petition
Ex.D30 - Certified copy of decree in
O.S.No.6966 of 1996
XXXVII ADDL. CITY CIVIL JUDGE,
(CCH-38), BANGALORE.
22 O.S.No.7209 of 2008
7-12-2017
Judgment passed and pronounced in the
open court (vide separate judgment). The operative portion of the order reads thus -
Suit is dismissed with cost XXXVII ACCJ, (CCH-38)