Bangalore District Court
Smt. Nanjamma vs Smt.J.Kumari on 30 March, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the 30th day of March, 2015
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O.S.No.4255/2007
PLAINTIFFS: 1. Smt. Nanjamma
First w/o V.Venkataswamy Reddy,
Aged 73 years.
2. Smt.Bhagya (Bhagya G.Reddy)
D/o late V.Venkataswamy Reddy by
His first wife- Smt.Nanjamma and
W/o Gajendra Reddy J.S.A,
Aged 53 years.
3. Smt.Amarjyothi
W/o late V.Rama Reddy,
Aged about 35 years.
4. Sri. Chethan
S/o late V.Ramareddy,
Aged about 15 years, Minor.
5. Sri. Punith
S/o late V.Ramareddy,
Aged about 13 years.
Plaintiffs 4 & 5 being minors,
Reptd. By their mother-natural guardian
Smt.Amarjyothi, the 3rd plaintiff.
6. Smt.Annapurna
D/o late V.Venkataswamy Reddy by
His second wife-Rajeshwari,
Aged 42 years.
-2- O.S.4255/2007
7. Sri.V.Mallesh Reddy,
S/o late V.Venkataswamy Reddy,
By his second wife- Rajeshwari,
Aged 40 years.
All r/at B.Narayanapura,
K.R.Puram Hobli, Bangalore East Tq.
Bangalore- 560 016.
(By Sri.P.Krishnappa, Advocate)
Vs.
DEFENDANTS: 1. Smt.J.Kumari
D/o V.Venkataswamy Reddy,
W/o late Ramachandra Rao,
By his second wife,
Aged about 45 years,
R/at No579, C.G.Compound,
Doorvani Nagar Post,
Bangalore- 560 016.
2. Sri. J.Ramu,
S/o J.Kumari,
Aged 23 years,
R/at No.579, C.G.Compound,
Doorvani Nagar Post,
Bangalore- 16.
3. Sri.J.Lakshmana,
S/o J.Kumari,
Aged 22 years,
R/at No.579, C.G.Compound,
Doorvani Nagar Post,
Bangalore- 16.
(By Sri.MBS, Advocate)
Date of institution of the suit: 04.06.2007
Nature of the suit: Declaration & Injunction Suit
Date of commencement of 06.07.2009
-3- O.S.4255/2007
recording of evidence:
Date on which Judgment was 30.03.2015
pronounced:
Duration Days Months Years
26 09 08
JUDGMENT
The instant suit filed by the plaintiffs against the defendants is one for declaration to declare that the alleged unregistered will dated 12.10.2001, which is stated to have been executed by V.Venkataswamy Reddy in favour of the defendants is a concocted, forged, fabricated and got up document in respect of the schedule property and consequently, the same is not binding on the plaintiffs in any manner; to declare that the mutation effected by the Tahsildar, Bangalore East Taluk in MR No.3/2003-04 dated 16.1.2004 and in MR No.2/2005-06 dated 15.10.2005 and the order made by the Assistant Commissioner, Bangalore North Sub-Division, Bangalore in RA No.560/2005-06 dated 17.1.2007 are all invalid and contrary to law, which cannot bind the plaintiffs; and for permanent injunction restraining the defendants from alienating
-4- O.S.4255/2007 or encumbering the schedule property in any manner in favour of third persons and also from putting up any kind of constructions over the schedule property and from demolishing the constructions belonging to the plaintiffs thereon and also for costs and such other reliefs.
2. a) The plaintiff has stated that the land in Sy.No.76 in total measuring 3-36 acres including 0.14 guntas of Phut Karab, situated at B.Narayanapura village, K.R.Puram Hobli, Bangalore East Taluk was possessed and enjoyed by V.Venkataswamy Reddy.
b) He further stated that out of the said extent of land, the occupancy right was granted in respect of 02-11 acres under the Land Reforms Act in favour of V.Venkataswamy Reddy in LRF No.2840/75-76 dated 4.5.1988. Accordingly mutation was also effected in MR No.131/1980-81 and khatha was also made out in the name of V.Venkataswamy Reddy. He further stated that apart from the said extent of 2-11 acres, which was conferred on Venkataswamy Reddy by the
-5- O.S.4255/2007 Land Tribunal, an extent of 1-11 acres of land comprised in the said Sy.No.76 was purchased by V.Venkataswamy Reddy on 21.6.1973. The mutation has been effected in the name of V.Venkataswamy Reddy to an extent of 1-11 acres as per MR No.132/1980-81. This fact is also clear from the RTC records. The plaintiffs also stated that consequent upon the death of V.Venkataswamy Reddy, who died on 20.9.2003, his descendants including the plaintiffs having succeeded-inherited the said property. Out of the said total extent of 3-36 acres, 0-14 guntas of land had gone for the formation of the road and 0-11 guntas of land has been taken over by the Government for public purpose. This fact is also clear from the entries in the RTC, whereas some portions out of the said survey number are in unauthorized occupation of certain other persons.
c) The plaintiffs further stated that the plaintiffs and other descendants of Venkataswamy Reddy, who were in occupation of the portions out of the said
-6- O.S.4255/2007 survey number and such portions, which were being enjoyed by them during the life time of Venkataswamy Reddy and as desired by Venkataswamy Reddy, the same was reduced into writing by way of registered partition deed dated 23.10.2003. Accordingly such persons including the plaintiffs as per the said deed of partition continued to be in separate possession and enjoyment of such portions of the said survey number to the knowledge of the defendants without any kind of interference. As per the recital of the said partition deed, the property described as 'H' schedule was agreed to be divided equally between the parties. The properties shown in 'H' schedule there under in the partition deed are disputed portions, which are in unauthorised occupation of certain other persons in the said survey number and the particulars of 'H' schedule is also shown in para-6 of the plaint, which reads as follows:
1. All that piece and parcel of the partly constructed property out of property No.76, khatha No.248, situated at B.Narayanapura Village, K.R.Puram Hobli, Bangalore East
-7- O.S.4255/2007 Taluk, now comes under Mahadevapura CMC Limits, Bangalore measuring East to West 50 feet and North to South 163 feet approximately running by the tenants M/s.
Khera Transco & Bounded on East by Huts, West by SA Gas Agency, North by Road and South by Quarry (8150 Square feet).
2. All that piece and parcel of property No.76, khatha No.248, situated at B.Narayanapura Village, K.R.Puram Hobli, Bangalore East Taluk, now comes under Mahadevapura CMC Limits, Bangalore measuring 18,000 square feet and bounded on East by Village Road, West by Shammanna Reddy Property, North by Road and South by Quarry (18,000 Square feet).
3. All that piece and parcel of building property in property No.76, khatha No.248, situated at B.Narayanapura Village, K.R.Puram Hobli, Bangalore East Taluk, now comes under Mahadevapura CMC Limits, Bangalore measuring 2200 square feet approximately and bounded on East by Chinnappa's property, West by D.R.Basavarajappa's property and North by Lowry School Compound and South by Village Road. (2,200 Square feet).
d) The plaintiffs further stated that all the said three items in all measuring 26-03 guntas out of the said Sy.No.76 i.e. in respect of the property, which is morefully shown in 'H' schedule of the partition deed dated 23.10.2003.
-8- O.S.4255/2007
e) The plaintiffs also stated that it has come to the knowledge of the plaintiffs during the year 2005-06 with regard to the alleged Will dated 12.10.2001, which is stated to have been executed by V.Venkataswamy Reddy, when he was alive in favour of the defendants. They further stated that without conceding as to the validity of the said alleged will dated 12.10.2001, it is stated to have been executed by Venkataswamy Reddy and which is disputed by the plaintiffs in this case and such other descendants of deceased Venkataswamy Reddy. According to the plaintiffs, the alleged extent shown in the disputed will is the extent of 21,908.25 square feet i.e. 20-02 guntas, whereas on the basis of the alleged concocted, forged and fabricated will, the mutation has been effected to a larger extent of 1-00 acre of land in the said survey number in favour of the defendants. This fact is clear as to the misrepresentation and fraud played by the defendants in connivance with Revenue Officials concerned, though the property in the said survey number has
-9- O.S.4255/2007 been inherited by the plaintiffs and other descendants of late Venkataswamy Reddy. After the death of V.Venkataswamy Reddy, the plaintiffs and other descendants of V.Venkataswamy Reddy have effected the partition on 23.10.2003 in respect of such portions, which were in their possession, even during the life time of their father V.Venkataswamy Reddy. Accordingly the plaintiffs were in separate possession and enjoyment of such portions of the property in said survey number except the properties shown in 'H' schedule of the partition deed.
f) The plaintiffs further stated that the Will in question is concocted, forged and fabricated and got up document by the defendants. The said will do not relate to the portion of the said survey number as shown in 'H' schedule of the partition deed dated 23.10.2003. The said concocted will relates to a portion in occupation of the plaintiffs and such other sharers/descendants of late V.Venkataswamy Reddy.
- 10 - O.S.4255/2007
g) According to the plaintiffs, V.Venkataswamy Reddy died intestate and he had not executed any will, which is alleged to have been executed on 12.10.2001 in favour of the defendants, but the defendants have concocted, forged and fabricated the will dated 12.10.2001, which is an unregistered will, which came into existence under mysterious circumstances and without the knowledge or consent of the plaintiffs in this case and such other descendants of late V.Venkataswamy Reddy.
h) The plaintiffs further stated that mutation is stated to have been effected in MR No.3/2003-04 dated 16.1.2004 in favour of the defendants jointly. Subsequently the defendants in collusion with the Revenue Officials got the mutation effected in MR No.2/2005-06 dated 15.10.2005, thereby effected bifurcation of Sy.No.76 as 76/1 measuring 2-36 acres including 0-14 guntas of phut karab, Sy.No.76/2 measuring 0-18 acres, Sy.No.76/3 measuring 0-22 acres. The said mutation was effected without the
- 11 - O.S.4255/2007 consent and knowledge of the plaintiffs and the same has no legal effect and the same do not bind on the plaintiffs in any manner. The mutation entries so effected do not convey any right, title or interest of any kind in favour of the defendants. Those mutation entries do not bind the plaintiffs and other descendants of late V.Venkataswamy Reddy.
i) In para-10 of the plaint, they have also stated that the mutation entries cannot be made based on the unregistered will and accordingly referred to two of the Judgments of the Hon'ble High Court of Karnataka reported in KLJ 2002(6)391/FB and ILR 2002 KAR 4637. The plaintiffs also stated that they questioned the mutation entries by filing appeal in RA No.560/2005-06 before the Assistant Commissioner, but the Assistant Commissioner by its order dated 17.1.2007 has recognized and given effect to the alleged change of mutation so effected by the concerned Tahsildar based on the unregistered
- 12 - O.S.4255/2007 disputed will etc, which is contrary to the established principles of law.
j) In para-12 of the plaint, the plaintiffs also stated with regard to the documents that they are produced at serial No.1 to 11 i.e. survey sketch, sale deed dated 21.6.1973, mutation register extracts in MR No.131/1980-81, MR No.132/1980-81, RTC extract in respect of Sy.No.76, mutation register extracts in MR No.3/2003-04, MR No.2/2005-06, copy of the will dated 12.10.2001, death certificate of V.Venkataswamy Reddy etc., orders passed by the Assistant Commissioner, tax paid receipts etc.
k) In para-13 and 14 of the plaint, the plaintiffs also stated that the concerned Assistant Commissioner ought to have allowed the appeal, but on the other hand, he has misunderstood the said authorities and gone to the extent of confirming the orders passed by the Assistant Commissioner. In para-15 of the plaint, he pleaded cause of action and praying this Court to decree the suit as prayed.
- 13 - O.S.4255/2007
3. The plaint schedule reads as follows:
An extent of property measuring on the Eastern Side: 150 Ft., on the Western Side: 123 Ft., on the Northern Side : 177 Ft., and on the Southern Side : 144 Ft., (i.e., 21,908.25 Sq, Ft., i.e., to say 20-2 Guntas.,) together with 5 Godowns and Mangalore tiled residential houses situated in Sy.No.76 measuring 1 Acre 11 Guntas of B. Narayanapura Village, K.R. Puram Hobli, Bangalore East Taluk and bounded on:
East by: B. Narayanapura Road,
West by: Lowry Memorial School
compound and vacant land,
North by: Lowry Memorial School
compound,
South by: B. Narayanpura Road.
4. a) The defendants filed written statement
denying all the plaint averments and further
contended that the averments made in para-2, 3 and
4 of the plaint are all admitted. The plaint averment that V.Venkataswamy Reddy purchased the land in Sy.No.76 and mutation entry with respect to the Sy.No.76 to an extent of 1-11 acres was made out in the name of Venkataswamy Reddy is no doubt true. But the averment that the descendants of the deceased succeeded to the estate after his demise is false and concocted story. The plaint averment that
- 14 - O.S.4255/2007 certain portions of the land in the said survey number have been occupied un-authorisely and further averment in the plaint that to an extent of 0-11 guntas had been taken over by the Government for the public purpose is also denied.
b) The defendants further contended that the plaint averment that the descendants of late Venkataswamy Reddy were in occupation of the portion of the said Sy.No.76 and were enjoying during his life time are true. According to the defendants, late Venkataswamy Reddy had made will in two sets of which one is given to the 1st plaintiff, where under an extent of 1-11 acre has been bequeathed in favour of the defendants and accordingly the defendants have taken possession and got mutation entries in their respective names. They further stated that to circumvent the said will without posing any challenge the will, which came into effect, the plaintiffs have mischievously made a partition deed to the exclusion of the 1st defendant, who is none other than the
- 15 - O.S.4255/2007 daughter of late Venkataswamy Reddy. As such the said partition deed is void ab-initio for the exclusion of the 1st defendant. The said partition deed is also questioned and partition suit is pending in respect of all the properties belongs to the joint family in O.S.16483/2004-05 before the City Civil Court CCH- 29, Mayo Hall Unit, where the plaintiffs have also entered appearance and filed written statement.
c) The defendants further contended that after the partition deed, to the exclusion of the 1st defendant, a notice dated 17.3.2004 was issued calling upon the legal heirs of the deceased Venkataswamy Reddy including the plaintiffs to effect an equal share to the 1st defendant or otherwise suitable action will be taken against the plaintiffs as per law. In that notice also, the existence of will dated 12.10.2001, which is now questioned, brought to the notice and personal knowledge about the existence of the will. That notice was replied as per the reply notice dated 1.4.2004 and there under the
- 16 - O.S.4255/2007 plaintiffs have made irrelevant averments with malafide intention of denying lawful right of the 1st defendant and as such the plaint averment at para-6 is also denied.
d) The defendants further contended that during the life time of Venkataswamy Reddy, he also handed over the copy of the will to the 1st plaintiff. It is clear from the reply given to the legal notice dated 1.4.2004 that the plaintiffs have gained knowledge about the existence of the will. According to the defendants, it may be gathered from the contents of the will that what ever he has been purchased under sale deed dated 21.6.1973 by late Venkataswamy Reddy has been bequeathed in favour of the defendants.
e) The defendants also specifically contended that the plant averments that during the life time of late Venkataswamy Reddy, he has not executed any will and he died intestate are all specifically denied as false. During the life time of deceased Venkataswamy
- 17 - O.S.4255/2007 Reddy, he has executed a will in favour of the defendants, which is a fair and genuine document. On the date of execution of the will, the 1st plaintiff was also present and copy of the will was given to the 1st plaintiff, which is also well within the knowledge of the plaintiff in this case. The said will is not surrounded by mysterious circumstances. The plaintiffs are all also aware of the execution of the will prior to 1.4.2004 when the reply notice was issued by the plaintiffs. Even at the time of entries made in the mutation registere, the plaintiffs had the knowledge of changing the name of the defendants in the entries of mutation. After the change of the mutation entries in the name of the defendants, the defendants are in possession and enjoyment of the bequeathed property. When the defendants are in occupation and enjoyment of the bequeathed property, the question of re-conveyance of right, title does not arise.
f) The defendants also further contended that the revenue authorities cannot sit in judgment over
- 18 - O.S.4255/2007 the will and as such the allegation in para-10 of the plaint is mischievous, frivolous and baseless. They further contended that upon the documents produced and on perusal of the documents, the Tahsildar and the Assistant Commissioner rightly upheld the entries made in the mutation, which is questioned in RA 560/2005-06. The Assistant Commissioner has rightly upheld the decision of the Tahsildar with respect to the mutation entries. They further contended that it is not within the knowledge of the defendants with regard to Revision Petition filed by the plaintiffs in RP No.211/2006-07 before the Deputy Commissioner.
g) According to the defendants there is no cause of action to file this suit. The period of limitation has to be reckoned from 1.4.2004, but not from 18.3.2006 and therefore, the suit is liable to be dismissed. The suit is also barred by limitation for the simple reason that to file the suit for declaration and injunction, the period of limitation fixed is only for
- 19 - O.S.4255/2007 three years from the date of knowledge of the execution of the document. The plaintiffs had the knowledge of the execution of the will long back to 1.4.2004, when the reply given to the notice issued by the defendant denying the execution of the will. Therefore, the period of limitation begins from 1.4.2004 and ends on 1.4.2007. This suit is filed on 4.6.2007, which is beyond the period of limitation. The Court fee paid is also insufficient. The defendants also resisted the suit on various several other grounds and pray for dismissal of the suit with costs.
5. Based on the above pleadings of the parties, my learned predecessor has framed the following issues:
1. Whether plaintiffs prove that the unregistered will dated 12.10.2001 is concocted and got up document in respect of schedule property?
2. Whether the plaintiffs prove that the said will dated 12.10.2001 is not binding on them?
3. Whether the plaintiffs prove that the mutation effected by the Tahsildar dated 16.1.2004 and order made by Assistant Commissioner, Bangalore North Sub-Division, Bangalore in RA
- 20 - O.S.4255/2007 No.560/2005-06 dated 17.1.2007 are all invalid and not binding on them?
4. Whether the plaintiffs prove that the suit is maintainable?
5. Whether plaintiffs are entitled for the permanent injunction as sought in the plaint?
6. Whether the suit is barred by limitation?
7. What order or decree?
6. In support of the case of the plaintiff, the 2nd plaintiff is examined as PW.1 and got marked Ex.P.1 to Ex.P.26. Ex.P.27 and Ex.P.28 both are marked in the cross-examination of DW.1 by confronting those documents.
7. On 20.6.2014, the 1st defendant is examined as DW.1 and got marked Ex.D.3 to Ex.D.6. It appears that, Ex.D.1 and Ex.D.2 both are marked in the cross- examination of PW.1 by confronting the said documents.
8. Learned counsel for the plaintiff filed written arguments. Also heard the arguments of both sides
- 21 - O.S.4255/2007 and perused the records and also perused the written arguments filed by the plaintiff.
9. My findings on the above issues are:
Issue No.1: Negative.
Issue No.2: Negative.
Issue No.3: Negative.
Issue No.4: Negative.
Issue No.5: Negative.
Issue No.6: Affirmative.
Issue No.7: As per the final order
for the following;
REASONS
10. Issue No.1 to 5: Since these five issues are
inter linked with each and require common discussion of facts, they have taken together for discussion to avoid repetition of facts.
11. When the plaintiffs pleads that the unregistered will dated 12.10.2001 is concocted and got up document in respect of the suit property and when the plaintiffs plead that the said will dated 12.10.2001 is not binding on the plaintiffs, the burden is always on the plaintiffs to prove issue Nos.1 and 2.
- 22 - O.S.4255/2007
12. Similarly when the plaintiffs pleads that the mutation effected by the Tahsildar on 16.1.2004 and orders passed by the Assistant Commissioner, Bangalore North in RA No.560/2005-06 dated 17.1.2007 are invalid and not binding on the plaintiffs, the burden is also on the plaintiffs to prove issue No.3.
13. The burden is also on the plaintiffs to prove that the suit is maintainable and further to prove that he is entitled for the relief of permanent injunction.
14. In support of the case of the plaintiffs, he relied upon documents Ex.P.1 to P.26.
15. Ex.P.1 is the certified copy of the registered sale deed dated 21.6.1973 executed by Patel Narasimhaiah in favour of the deceased V.Venkataswamy Reddy and possession of the property is delivered in favour of the purchaser. The recital also shows that the purchaser was already in possession of the property by constructing the house.
- 23 - O.S.4255/2007 This document has also been admitted by the
defendants in the written statement with regard to the purchaser of 1 acre 11 guntas of land in Sy.No.76 by the deceased V.Venkataswamy Reddy. The boundary is also shown in the sale deed Ex.P.1 with regard to the land purchased by the deceased to an extent of 1 acre 11 guntas. This is an undisputed document, which has been admitted by the defendants also. Typed copy of Ex.P.1 is also produced.
16. Ex.P.2 is the certified copy of the mutation register extract in MR No.131/1980-81, which shows that khatha in respect of 2 acres 11 guntas of land in Sy.No.76 was recorded in the name of deceased V.Venkataswamy Reddy as per the orders passed by the Special Tahsildar in LRF No.2840/1975-76. This document also shows that mutation was accepted in the name of deceased Venkataswamy Reddy to an extent of 1 acre 11 guntas of land in the same Sy.No.76, which has been purchased by the deceased
- 24 - O.S.4255/2007 Venkataswamy Reddy under Ex.P.1 sale deed and accordingly khatha was made out in the name of deceased Venkataswamy Reddy as per MR No.132/1980-81. This fact is also admitted by defendants 1 to 3 in the written statement and grant of land in favour of the deceased in LRF No.2840/1975-76 is also an undisputed fact, which has been admitted by the defendants 1 to 3 in the written statement.
17. Ex.P.3 is the RTC in respect of Sy.No.76 measuring 3 acres 36 guntas out of which phut karab is shown as 0.14 guntas, remaining extent is shown as 3 acres 22 guntas for the assessment year 2006- 07, wherein the deceased Venkataswamy Reddy is shown to be the cultivator and kathedar to an extent of 2 acres 11 guntas as per the orders passed by the Land Tribunal in MR No.131/1980-81. Similarly the State Government is shown to be the kathedar and cultivator to an extent of 0-11 guntas as per MR No.1/1987-88. Similarly the defendants 1 to 3 are
- 25 - O.S.4255/2007 shown to be the kathedars and cultivators to an extent of 1-00 acre of land and accordingly mutation was accepted in the name of defendants 1 to 3 to an extent of 1-00 acres based on the Will and as per the orders passed in MR No.3/2003-04 dated 16.01.2004. Cl.No.11 also indicates that 0-11 guntas of land has been acquired by the Government as per the orders of the Assistant Commissioner in LRF No.83/1984-85 dated 4.5.1988 and accordingly the property was taken possession by the Government.
18. Ex.P.4 is the certified copy of the mutation in MR No.3/2003-04 wherein mutation has accepted in the name of defendants 1 to 3 to an extent of 1.00 acre of land in Sy.No.76 based on the will dated 12.10.2001. Ex.P.5 and P.6 both are certified copies of Mutation register extracts in MR No.2/2005-06, which shows that Sy.No.76 has been bifurcated as Sy.No.76/1 measuring 2 acres 26 guntas including 0.14 guntas of karab, Sy.No.76/2 measuring 0-18 guntas and Sy.No.76/3 measuring 0-22 guntas.
- 26 - O.S.4255/2007 19. Ex.P.7 is the death certificate of
V.Venkataswamy Reddy, who died on 20.9.2003. Ex.P.8 is the certified copy of the orders passed by the Assistant Commissioner in RA.560/2005-06 dated 17.1.2007, wherein the Assistant Commissioner dismissed the appeal filed by the present plaintiffs, which is filed against defendants 2 to 3 and the Tahsildar holding that there is no merits in the appeal.
20. Ex.P.9 to Ex.P.14 are all tax paid receipts dated 25.5.2007 and 21.3.2007 for the assessment year 2006-07, 2007-08 paid by the plaintiffs 1 and 2 in respect of Sy.No.76.
21. Ex.P.15 is the certified copy of the plaint in O.S.7096/2005 filed by the 1st defendant in this case by name J.Kumari against one Gajendra Reddy and Pradeep for permanent injunction, which is also in respect of very same Sy.No.76 measuring 1 acres 11 guntas. Ex.P.16 and P.17 both are certified copies of the Judgment and decree in O.S.7096/2005 dated
- 27 - O.S.4255/2007 1.7.2013, wherein the suit filed by the present 1st defendant by name J.Kumari came to be dismissed.
22. Ex.P.18 and Ex.P.19 are the certified copies of the tax paid receipts dated 19.5.2008 paid by the 2nd plaintiff Smt.Bhagya G.Reddy in respect of Sy.No.76 and khatha No.76 for the assessment year 2008-09.
23. Ex.P.20 is the certified copy of the tax paid receipt dated 19.5.2008 paid by the 1st plaintiff Smt. Nanjamma in respect of Sy.No.76 and khatha No.76.
24. Ex.P.21, Ex.P.22 and Ex.P.25 are the tax paid receipts and acknowledgement paid by the 1st plaintiff dated 22.9.2010 in respect of Sy.No.76 for the assessment year 2009-10 to 2011-12. It is worth to mention that all these documents Ex.P.21, Ex.P.22 and P.25 came into existence subsequent to filing of the suit.
25. Ex.P.23 and Ex.P.24 are the tax paid receipts and acknowledgement paid by the 2nd plaintiff Smt.Bhagya G.Reddy dated 22.9.2010 in respect of
- 28 - O.S.4255/2007 the very same Sy.No.76 for the assessment year 2010-11 to 2011-12.
26. Ex.P.26 is the certified copy of the unregistered Will dated 12.10.2001 alleged to have been executed by the deceased Venkataswamy Reddy in favour of the defendants 1 to 3 i.e. second wife's daughter and her children. It is worth to mention that what has been purchased by the deceased Venkataswamy Reddy under Ex.P.1 has been bequeathed by the deceased in favour of defendants 1 to 3. The contents of Ex.P.26 also indicates that the deceased has got four sons and the ancestral properties of the deceased has already been divided to his four sons and also stated that his sons have no right over the properties shown in the Will Ex.P.26. The recital further indicates that one of the copies of the will is given to the first wife of deceased by name Smt.Nanjamma, who is the 1st plaintiff in this case. The defendants 1 to 3 in their written statement also taken the defence contending that one of the copies
- 29 - O.S.4255/2007 of the will was also handed over to the first wife of deceased Venkataswamy Reddy. Ex.P.26 is the certified copy of the will and the original will is not produced in this case by any of the parties. It is also worth to mention that Ex.P.26 came into existence on 12.10.2001. V.Venkataswamy Reddy died on 20.9.2003 as per the death certificate i.e. produced and marked in this case as per Ex.P.7.
27. Ex.P.27 and Ex.P.28 certified copies of judgment and decree passed in O.S No.16483/2004 dated 13.8.2014 wherein suit filed between the sons and daughters along with deceased Venkataswamy Reddy, the alleged tenants seeking the relief of partition came to be dismissed.
28. On the other hand, the defendants also relied upon Ex.D.1 to Ex.D.6.
29. Ex.D.1 is the reply notice dated 1.4.2004 issued by the plaintiffs 1 and 2 to the legal notice issued by the defendants. In para-2 of the reply notice Ex.D.1, the plaintiffs 1 and 2 have stated that late
- 30 - O.S.4255/2007 V.Venkataswamy Reddy has not executed any will in respect of 1-00 acre of land in Sy.No.76 of B.Narayanapura Village in favour of the sons of late Venkataswamy Reddy. In para-3 of the reply notice, they have also stated that the defendants 1 to 3 never demanded for partition either during the life time of late Venkataswamy Reddy or after his death. The legal notice dated 17.3.2004, which is referred to in Ex.D.1 has not produced by the plaintiffs and the defendants to know what was the contents of legal notice issued by the defendants 1 to 3. In my opinion, Ex.D.1 might have been produced by the defendants to show that the plaintiffs are well aware of the will in question in 2004 itself, when the reply was given on 1.4.2004 i.e. prior to filing of the suit. But inspite of that, the plaintiffs in para-9 of the plaint goes to the extent of saying that the said fact of will dated 12.10.2001 came to their knowledge during 2005-06. The contents of reply notice Ex.D.1, in my opinion, falsifies the theory of the plaintiffs that they
- 31 - O.S.4255/2007 only came to know the execution of the will Ex.P.26 during 2005-06.
30. Ex.D.2 as per the deposition of PW.1 is the signature of Bhagya Reddy. Ex.D.3 is the certified copy of the order sheet in O.S.16483/2004, wherein the suit is filed by one V.Lakshmipathi against the 1st plaintiff Nanjamma and others. Ex.D.4 to Ex.D.6 are the depositions of one J.Kumari, Chandrashekar and R.Amarendra recorded in O.S.16483/2004.
31. Plaintiff No.2, who is examined in this case as PW1 reiterated the plaint averments in her chief examination affidavit on par with the plaint allegations and accordingly relied on documentary evidence Ex.P1 to Ex.P.28. However, PW1 in his cross-examination admitted that after the death of her father, they have partitioned the family properties as per the registered partition deed. She denied the suggestion that she herself has issued the reply notice to the legal notice issued by the first defendant. She
- 32 - O.S.4255/2007 admitted sale deed Ex.P1 and also admitted that her signature in Ex.D1 as per Ex.D2.
32. She also admitted in her cross-examination that she is aware of the suit pending before the Mayo Hall in O.S.No.16483/2004, which is filed by one Lakshmipathi seeking partition. She also admitted that she is one of the party in the said suit and further admitted that one J.Kumari is the first defendant in this case is also a party in O.S. No.16483/2004.
33. The first defendant herself is examined as DW1 by filing chief examination affidavit, wherein she has reiterated the written statement averments in her chief examination affidavit. She also stated in her evidence that the suit for negative declaration apart from being futile declaration together with such prayer in respect of which this Court is statutorily precluded from exercising jurisdiction is not maintainable. Further, DW1 in her cross-examination admitted that her father was granted with land from
- 33 - O.S.4255/2007 the Land Tribunal to an extent of 2 acre 11 guntas in Survey No.76. A strange suggestion is made in the cross-examination of DW1 by suggesting that her father has purchased 01 acre 11 guntas of land by utilizing the joint family funds and this suggestion was denied by DW1 in her cross-examination and also stated that out of his self-acquisition her father purchased 01 acre 11 guntas of land in Survey No.76. She also admitted in her cross-examination that her father was ailing from Asthama, since four to five years period to his death. She also admitted that her father was taking treatment at Mallige Nursing Home and also admitted that for treatment of Asthama her deceased father was admitted to Mallige Nursing Home. In her cross-examination she goes to the extent of saying that, her father executed a Will in her favour and also in favour of her sons, but she do not know the date on which the Will was executed. She also admitted that at the time when her father admitted at Mallige Nursing Home, a Will was handed over to her that too in the presence of her elder
- 34 - O.S.4255/2007 sister(zÉÆqÀتÀÄä) and the first plaintiff in this case. She also admitted in her cross-examination that one week prior to the death of her father, her father has handed over the will to DW1. She also specifically admitted in her cross-examination that no special reason assigned in the Will by her father as to why he is executing the Will only in favour of the defendants in this case.
34. DW1 in her cross-examination also admitted that she has set up a counter claim in respect of property shown in the Will to declare her as the owner of the property shown in the Will and also sought partition in respect of other properties. She also stated that no share was allotted to her in O.S. No.16483/2004 and also admitted that, that suit was dismissed. In the course of her cross-examination, she has admitted that, plaintiff preferred revision petition before the Deputy Commissioner in RP. No.211/2006-07 questioning the orders passed by the Assistant Commissioner in RA. 560/2005-06 and further admitted that the revision petition is pending. A specific suggestion was made in the cross-
- 35 - O.S.4255/2007 examination of DW1 by suggesting that plaintiffs were able to know the orders of mutation only in 2005 and this suggestion is denied by DW1 in her cross- examination. From the contents of Ex.P1, it is crystal clear that the plaintiffs were aware of the Will in question, which is marked as Ex.P.26 as on 1.4.2004 when reply notice was issued by the plaintiffs 1 and 2 in this case.
35. It is undisputed fact that Survey No.76 measures in all 3 acres 36 guntas. It is also not in dispute that land to the extent of 2 acre 11 guntas in Survey No.76 was granted by Land Tribunal in favour of deceased Venkataswamy Reddy and this aspect is clear from the document Ex.P.2. It is also not in dispute that deceased Venkataswamy Reddy purchased 1 acre 11 guntas of land in the same survey No.76 on 21.6.1973 as per the sale deed Ex.P.1. Now the plaintiff is questioning the Will, which is marked in this case as Ex.P.26 on two grounds i.e. on the ground that the Will in question is
- 36 - O.S.4255/2007 created and concocted and surrounded by suspicious circumstances and also on the ground that the same is not binding on the plaintiffs.
36. Plaintiff in this case setup the partition deed in respect of family properties, partition deed dated 23.10.2003. The alleged Will is dated 12.10.2001. The Will in question is much earlier document than the alleged partition deed dated 23.10.2003. Though plaintiff has set up partition deed dated 23.10.2003, which is a registered partition deed, the same is not produced nor marked by any of the parties and this vital document has been withheld by the plaintiffs in this case. The written statement filed by defendants at para 4 discloses that to circumvent the Will in question the plaintiffs mischievously made a partition deed excluding the first defendant in this case. It appears that that is the only reason why plaintiffs have not produced nor marked the said partition deed.
- 37 - O.S.4255/2007
37. Plaintiffs in this case in the plaint schedule questioned the property shown in the alleged Will Ex.P.26 by keeping the other properties intact, which they stated to have got under the alleged partition deed dated 23.10.2003.
38. O.S.16483/2004 is filed by the sons of the deceased Venkataswamy Reddy against his brothers and sisters, other family members, some of the tenants who appears to be in possession of the property therein, for partition and also by questioning the alleged partition deed dated 23.10.2003. Now the plaintiffs in this case is questioning the alleged Will dated 12.10.2001 said to have been executed by deceased Venkataswamy Reddy.
39. It is worth to mention that in O.S. No.16483/2004 the learned Additional City Civil and Sessions Judge, framed issues, which reads as follows:
- 38 - O.S.4255/2007
ISSUES
1) Whether the plaintiff proves that the suit properties are the joint family properties liable for partition?
2) Whether the plaintiff is entitled for 1/5th share in the suit properties?
3) Whether the plaintiff proves that partition deed dated 23.10.2003 is not binding on him?
4) Whether the plaintiff is entitled for mesne profits?
5) Whether the defendant No.5 proves that his father Venkataswamy Reddy bequeathed 1 acre in Sy.No. No.76 of B.Narayanapura along with building in favour of second son of plaintiff?
6) Whether the defendant No.5 proves that defendant No.5 is entitled for share in a counter claim in the properties share in the written statement?
7) What order or decree?
Addl. Issue No.1:- Whether the defendant No.22 proves that he is the absolute owner in possession of the properties described in the written statement?
40. The learned City Civil and Sessions Judge also held Issue Nos.1 to 6 and additional issue No.1 all in the negative and ultimately dismissed the suit filed by the plaintiffs therein. In O.S.No.16483/2004, the
- 39 - O.S.4255/2007 Hon'ble Court, after perusing the entire evidence available on record held that Will in question is not proved by the 5th defendant therein and also observed in para No.40, page 44 to the effect that " ... .. .. .. .. .. ... ... ... Further the 5th defendant has also failed to establish the bequeath of property in favour of her sons in Sy.No.No.76 of B.Narayanapura by her father. Thus the counter claim sought by defendant No.5 has not been established by her".
41. There are no grounds for this Court to arrive at a different conclusion than the one arrived at by the Court in O.S.No.16483/2004 with respect to the Will in question, which is now questioned by the Plaintiffs in this case. The first defendant therein who is subsequently transposed as one of the plaintiff also questioned the Will in O.S.No.16483/2004 by filing written statement and by producing authorities. The learned City Civil and Sessions Judge in O.S.No.16483/2004 also held that Will in question is not proved (Ex.P26). The finding with respect to the
- 40 - O.S.4255/2007 Will in question is already recorded in O.S.No.16483/2004. Now again the present plaintiffs questioning the very same Will Ex.P.26 in this case.
42. The learned counsel for the defendants 1 to 3 vehemently contended during the course of arguments that the first relief sought by the plaintiff is negative in nature and such a relief cannot be granted and further contended that finding recorded in O.S.No.16483/2004 in so far as it relates to the Will in question operates as res judicata. I find much force in the argument of the learned counsel for the defendants for the simple reason that the judgment and decree passed in O.S.No.16483/2004 it appears has not been questioned any further by any of the parties. To show that the said judgment and decree has been questioned by any of the parties, no documents are produced before this Court.
43. On careful perusal of Section 11 of CPC, the same reads as follows:
- 41 - O.S.4255/2007 "11. Respondent Judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
44. O.S.No.16483/20004 is an earlier suit wherein issue No.5 and 6 was held in the negative. Aggrieved by the same, it is questioned in this suit, which in my opinion operates as res judicata. With respect to the otherr two relief two and three are concerned, the same cannot be granted by a Civil Court. This is not the Form nor Forum in which proceedings of the Tahsildar or the Assistant Commissioner can be questioned by the plaintiffs. Those things are to be agitated before the appropriate authorities. In addition to this, plaintiff himself has pleaded that order passed by the Assistant Commissioner in RA. 560/2005-06 is questioned by the present plaintiff before the Deputy Commissioner in R.P.No.211/2006-
- 42 - O.S.4255/2007 07, which is still pending, as such plaintiffs are also not entitled for prayer No.2 and 3 also.
45. Hence, on careful perusal of the oral and documentary evidence on record, plaintiffs thoroughly fails to prove issue Nos.1 to 5 and accordingly issue Nos.1 to 5 are held in the negative.
46. Issue No.6: The defendant Nos.1 to 3 in the written statement taken defence contending that the suit is barred by limitation and the said defence finds a place in para 13 and 14 of the written statement.
47. The suit is one for declaration to declare that the unregistered Will dated 12.10.2001 is got up, fabricated etc. and not binding on the plaintiffs and for declaration that the Mutation entries passed by the Tahsildar and the Assistant Commissioner are invalid, contrary to law, which cannot bind the plaintiffs and for consequential relief of injunction.
- 43 - O.S.4255/2007
48. The plaintiffs in para 7 of the plaint stated that it has come to the knowledge of the plaintiffs during 2005-06 with regard to the alleged Will dated 12.10.2001 stated to have been executed by deceased B.Venkataswamy Reddy. So from this it is clear that the plaintiff came to know about the Will in question only during 2005-06 and this suit is filed on 4.6.2007. Ex.D1 is a reply notice issued by the plaintiffs 1 and 2 on 1.4.2004 wherein at para 2, the plaintiffs 1 and 2 have replied stating that deceased Venkataswamy Reddy has not executed any Will during his lifetime. From this, it is crystal clear that the fact of the alleged Will was well within the knowledge of the plaintiffs on 1.4.2004 and first and second plaintiffs also affixed the signatures in the Reply Notice Ex.D1 and the signature of the second plaintiff is also marked as Ex.D2.
49. Even assuming that on 1.4.2004 is the starting point of limitation, suit ought to have been filed on or
- 44 - O.S.4255/2007 before 1.4.2007. This goes to show that suit ought to have been filed well within three years.
50. On perusal of Article 58 of the Limitation Act, the same reads as follows:
Description of Period of Time from which suit limitation period begins to run
58. To obtain Three years. When the right any other to suit first declaration. accrues.
51. Admittedly the suit was filed on 4.6.2007. It is filed beyond three years and it is also barred by limitation. Defendants 1 to 3 successfully proved that the suit is barred by limitation and accordingly issue No.6 is answered in the affirmative.
52. Issue No.7: In view of the findings on issue Nos.1 to 6, I proceed to pass the following:
ORDER
- 45 - O.S.4255/2007 The instant suit filed by the plaintiff's against the defendant's is here by dismissed.
Taking into consideration the relationship between the parties, I made no orders as to cost.
(Dictated to the Judgment Writer, computerized print out taken thereof is corrected, signed and pronounced by me in Open Court on this the 30th day of March, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: Smt. Bhagya G. Reddy.
List of documents marked for the plaintiff:
Ex.P.1: Certified copy of the sale deed dated 21.06.1973.
Ex.P.2: Certified copy of the Mutation Register Extract relating to Sy. No. 76.
Ex.P.3: Record of Rights.
Ex.P.4 to Mutation Register Extract.
Ex.P.6:
Ex.P.7: Death Certificate.
- 46 - O.S.4255/2007
Ex.P.8: Order passed in R.A No.560/2005-06..
Ex.P.9 to Tax paid receipts.
Ex.P.14:
Ex.P.15: Certified copy of the plaint in O.S
No.7096/2005
Ex.P.16 & Certified copy of the Judgment and decree
Ex.P.17 in O.S No.7096/2005.
Ex.P.18 to Certified copy of the Tax paid receipts.
Ex.P.23:
Ex.P.24 & Certified copy of the endorsements issued
Ex.P.25: by BBMP.
Ex.P.26: Certified copy of the Will dated
12.10.2001.
Ex.P.27 & Certified copy of Judgment and decree in
Ex.P.28: O.S No.16483/2004.
List of witnesses examined for the defendants:
D.W.1 Smt. J.Kumari.
List of documents marked for the defendants:
Ex.D.1: Legal Notice dated 1.4.2004.
Ex.D.2: Signature found in Ex.D.1.
Ex.D.3: Certified copy of order sheet in
O.S.16483/2004.
Ex.D.4: Certified copy of deposition in
O.S.16483/2004.
Ex.D.5: Certified copy of deposition of
Chandrashekar in O.S.16483/2004.
Ex.D.6: Certified copy of deposition of amarendra
in O.S.16483/2004.
(S.SRIDHARA)
XXIV ADDL.CITY CIVIL &
SESSION JUDGE,
BANGALORE CITY.