Bangalore District Court
B.Chandrashekhar vs Sri. K.Srinivas on 8 January, 2020
1
O S No.3844/2010
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS JUDGE
AT BANGALORE CITY: (CCH-56)
: Present :
SRI. K. NARAYANA PRASAD, B.Sc., LL.M.,
LV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S. No. 3844/2010
DATED THIS THE 08th DAY OF JANUARY, 2020
PLAINTIFFS :: 1. B.Chandrashekhar, S/o.late
G.H.Bangera, Aged 62 years,
Residing at No.12/1, 2nd
Main, IX Cross, Chamrajapet,
Ram Chandra Agrahara,
Bangalore-560 018.
2. Uttama Kumar, S/o. late.
G.H.Bangera, Aged 54 years,
Residing at No.404, 'Bilva
Shree Nilaya, IX Cross, 1st
Main Road, Panchasheela
Nagar, Moodalapalya,
Bangalore-560 078.
3. Smt. Hemavathi, Since
dead by her Legal Heirs
(a) Sri. H.Sharath Kumar, S/o.
Late Harischandra, Aged
about 42 years,
(b) Sri. H.Puneeth Kumar, S/o
Late Harischandra, Aged
about 41 years,
(c) Smt. H.Rashmi, D/o Late
Harischandra, Aged about 38
years,
Sl.No.1(a) to (c) are
represented by their GPA
Holder Sri.H.Rajesh
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O S No.3844/2010
(d) Sri. H.Rajesh, S/o Late
Harischandra, Aged about 36
years,
(e) Smt. H.Surekha, D/o. Late
Harischandra, Aged about 35
years,
Sl.No.1(a) to (e) are residing
at No.45, Perianna Agrahara,
Naidu Layout, Rajiv Gandhi
Road, Kanakapura Main Road,
L.Rs of deceased Plaintif
No.3 (a) to (e)
4. Mangala Gowri, D/o. late.
G.H.Bangera, W/o
Sri.Raghuram, Aged 56 years,
Residing at No.8/1, 4th Main, IX
Cross, Ramachandra
Agrahara, Chamrajapet,
Bangalore-560 018.
5. Sujatha B., D/o. late.
G.H.Bangera, W/o Sri.Kumar.
S., Aged 51 years, Residing at
C/o Tanuja Srinivas (Ex-
President), Doddagubbi
Village, Bidarahalli Hobli,
Bagalur Road, Hoskote
Taluk,Bangalore East Taluk.
(Plaintif No.3(a) to (c) By Sri
H.M.,Plaintif No.1, 2, 4 & 5
By Sri C.R., Adv.)
/VS/
DEFENDANT :: Sri. K.Srinivas,
S/o Krishnappa, Aged about
51 years, Resident of
Sarjapura Village, Anekal
Taluk, Bangalore District.
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O S No.3844/2010
(Exparte)
Date of Institution of the suit : 08-06-2010
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 23-04-2015
Date on which the Judgment was
pronounced : 08-01-2020
Year/s Month/s Day/s
09 07 00
JUDGMENT
This is a suit for Declaration to declare that, plaintifs are the absolute owners of suit schedule property and also to declare that, Sale Deed Dated: 23-09-1996 is not binding on them.
2. The case of the plaintifs is that, they are children of Sri. G.H.Bangera. Sri. G.H.Bangera during his life time has purchased plaint schedule property from one Jajappa Achari @ Joseph vide Sale Deed Dated: 16-04-1971 for valuable sale consideration. The said property was purchased from joint family funds and plaintifs and their parents were in joint possession of the said 4 O S No.3844/2010 property. The plaintifs and their parents are in actual physical possession of the suit schedule property and they are enjoying the property from the date of purchase of property by Sri. G.H.Bangera. The plaintifs and their mother used to cultivate the property and their name is entered in revenue records. Sri. G.H.Bangera died on 18-07-1997 leaving behind the plaintifs as legal heirs. The mother of plaintifs by name Smt. Indira also died on 18-03-2006. The plaintifs are Hindus and they are joint family members and they have succeeded to the suit schedule property, which was purchased out of joint family funds. The defendant is a stranger to the joint family and he has no right, title or interest over the suit schedule property. Sri. G.H.Bangera has executed a sale deed in favour of defendant to the extent of 1 acre out of 2 acres 31 guntas. The said act of the father of plaintifs is illegal and it is forged document. The sale deed is not binding on the shares of plaintifs and they are entitle for 1/5th share in the suit 5 O S No.3844/2010 schedule property. In view of all these, the plaintifs states that, they are entitled for 1/5th share. In view of these, plaintifs prayed for declaration to declare that, they are the absolute owners and the sale deed is not binding on them.
3. The presence of defendant is not secured by way of ordinary service of summons. On going through records, the plaintifs have taken paper publication by way of substituted service. After paper publication, the defendant was placed Exparte.
4. Smt. B.Sujatha, 5th plaintif got herself examined as PW-1 and she has produced documents at Ex.P-1 to P-25. Sri. H.Rajesh one of the Legal heirs of plaintif No.3 got examined himself as PW-2 and he has produced documents at Ex.P-26 to P-38. The defendant remained exparte and not lead any evidence.
5. Heard the arguments of learned counsel for 6 O S No.3844/2010 plaintifs.
6. Now the points that arise for consideration are;
1. Whether the plaintifs prove that, suit schedule property is a joint family property and purchased out of joint family funds ?
2. Whether the plaintifs prove that, the sale deed executed by their father G.H.Bangera in favour of defendant is highly illegal and it is a fraudulent document as alleged in the plaint ?
3. Whether the plaintifs are entitled for the relies as claimed ?
4. What decree or order?
7. The answer to above points are as follows;
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative,
Point No.4 : As per final order for the
following...
REASONS
8. Points No.1 to 3 :: I am considering
these points for consideration, as they are interlinked 7 O S No.3844/2010 to each other and this is also done with a view to avoid repetition of facts.
The plaintifs are claiming that, suit schedule property is joint family property and their father G.H.Bangera has no exclusive right to sell the property or portion of property in favour of defendant.
9. On going through the plaint, specific allegation is made against their father stating that, suit schedule property was purchased out of joint family funds and their father had no exclusive right to alienate the property in favour of defendant. In order to prove this fact the plaintifs have produced Ex.P-1 to P-38 documents. PW-1 & 2 have reiterated the plaint averments in their evidence. During the pendency of the suit, plaintif No.3 passed away and her legal representatives are brought on record.
10. The suit schedule property is situated at Sy.No.282 of Halage Vaderahalli Village, Kengeri 8 O S No.3844/2010 Hobli to the extent of 1 acre 07 guntas. It is the case of the plaintifs that, their father G.H.Bangera has purchased the property situated in Sy.No.282 measuring 2 acres 32 guntas. Out of which, he has illegally sold 1 acre and kharab of 07 guntas in favour of defendant. The contention of the plaintifs is that, it is illegal document and it is not binding on them. They have further stated that, the revenue records continued in the name of father of plantifs even after alienation of the property.
11. It is an admitted fact that, the property in question was originally purchased by the father of plaintif by name G.H.Bangera during 1971 from Jajappa Achari. The said document is not produced by the plaintifs before the court. It is their allegation that, their father G.H.Bangera has sold an extent of 1 acre of land + 7 guntas of kharab land in favour of defendant as per Ex.P-1 Sale Deed. On going through Ex.P-1 Sale Deed it is 9 O S No.3844/2010 clearly mentioned by the father of plaintifs that, he is the absolute owner of the property and in possession of the same. Said documents further reveals that, property was sold in favour of defendant for valuable sale consideration of Rs.1,85,000/-, for personal necessity the property was sold. Now the plaintifs states that Sri. G.H.Bangera had no right to sell the property, as it is the joint family property. In order to show that, suit schedule property was ancestral or joint family property, no documents are produced before the court. There is absolutely no evidence to trace the title of suit schedule property as joint family property. The plaintifs have not even produced the certified copy of the sale deed, wherein the suit property was purchased by the father of plaintifs to know as to whether there is any mention about any joint family nucleus or status of G.H.Bangera in the said document. Except making allegation that, it is joint family property there is absolutely no convincing evidence available before the court. 10
O S No.3844/2010
12. Coming to the documents produced by PW-1, Ex.P-1 is the Sale Deed Dated: 23-09-1996, which disclose that suit schedule property was sold in favour of defendant by G.H.Bangera, Ex.P-2 is the RTC, it discloses that at present the suit property is standing in the name of defendant. Ex.P-3 is the death certificate of G.H.Bangera, it discloses that, the said person died on 18-07-1997. Ex.P-4 is the death certificate of Smt. Indira, which disclose that on 18-03-2006 she passed away. Ex.P- 5 is an important document, which throws light on present litigation. On going through Encumbrance Certificate Ex.P-5, it discloses that, G.H.Bangera has not only sold the present property in favour of defendant, but also sold the property of diferent measurement in favour of other two persons. Ex.P- 6 to P-8 are Mutation Register extracts, which discloses that, after purchase of suit schedule property, defendant got the property in his name. Ex.P-9 to P-25 are RTC extracts related to suit property and on going through the same, the 11 O S No.3844/2010 property is mutated in the name of present defendant as per sale deed Ex.P-1. Ex.P-9 disclose that till 2002 the name of G.H.Bangera continued in the revenue records but it was changed during 2002-2003. Now the point that has to be seen is whether the delay in transfer of khatha by itself gives raise to any title is the matter to be looked into.
13. In order to show that the plaintifs have enjoyed the suit schedule property all these years and even after sale they are enjoying the suit property etc., there is absolutely no acceptable evidence available before the court. The plaint averments disclose they are in possession and enjoyment of the suit property, in order to substantiate that, there is absolutely no acceptable or convincing documents placed before the court. Hence the possession of the plaintifs is doubtful. In order to have declaratory relief on title , the possession is an important aspect. 12
O S No.3844/2010
14. Now coming to the documents produced by the PW-2, they are totally diferent. Ex.P-26 is the Genealogical Tree to establish the relationship of plaintifs with deceased G.H.Bangera. Ex.P-27 is the certified copy of ordersheet in OS No.5442/2009 Partition Suit filed by the plaintifs for division of property. On going through Ex.P-27 to P-30 it appears that, the plaintifs herein have compromised the matter before the Mediation Center and they have divided their property. There is absolutely no reference to the present suit schedule property in the said suit. If the present suit property is really joint family property and it was illegally sold by the father of plaintifs and in the event the plaintifs are in possession of the said property, it would have been mentioned in the partition suit.
15. Ex.P-31 disclose that, after partition, the properties alloted to their respective shares are transferred to the name of plaintifs. PW-2 has 13 O S No.3844/2010 produced the certified copy of Order passed in O S No.1646/2991, which is in respect of Sy.No.62, 63, 64, 66/1, 67 and it is a suit for bare injunction and it was withdrawn by the plaintifs by name Jai Hanuman Granite Works. How these documents are relevant is not explained before this court. Almost all the documents produced by the plaintifs never show that, they are exercising the right of ownership of suit property all these years and even after sale of property. The plaintifs have not produced any convincing proof before this court to show that, the property purchased by the plaintif's father out of joint family nucleus. Whether the joint family of G.H.Bangera and his brothers and their parents were in existence is un known to this court. Not even a scrap of paper is produced to show that, a joint family was in existence at the time of purchase of property by G.H.Bangera. Even though PW1 states in the evidence that schedule property was purchased after selling family property at Mangalore, no 14 O S No.3844/2010 documents are filed to that efect. The details of joint family properties owned by late B.H.Bangera or existance of such joint family is not proved with cogent proof.
16. It is relevant and pertinent to mention here that, the plaintifs have filed this suit only against defendant challenging the alienation to the extent of 1 acre. On the same day of selling the property in favour of defendant, the father of plaintifs has also sold the property in same Sy.No. In favour of H.L.Dharani Gowda and Damji D.Patel. This fact is not at all stated in the plaint and they have not stated as to how the plaintifs are justifying the other alienations made by their father by excluding the alienation in favour of defendant.
17. In view of the above discussions, convincing and acceptable materials are not placed before this court to hold that, the property 15 O S No.3844/2010 was purchased out of joint family funds. When the plaintifs claim that there exists joint family nucleus and property, it is their duty to prove the same before the court. Whether G.H.Bangera has inherited any ancestral property and was there any partition of said properties or status of G.H.Bangera during the time of purchase of property are not all available before the court. The original sale deed of the year 1971 or certified copy of the same is not before the court to verify more details about the status of the purchasers of the property as to whether it is purchased on behalf of family or not. The transfer of revenue records during 2002 by itself is not a ground to trace the title in favour of plaintifs. The transfer of revenue records is important for payment of tax and for any stretch of imagination it can be treated as document of title.
18. The plaintifs have filed this suit without any merits. There is no material placed to hold that 16 O S No.3844/2010 it is joint family property and their father had no right to sell the same. It is also relevant that, their father passed away in the year 1997, but the present suit is filed in the year 2010. It appears that, the present suit is filed without any merits and the alienation made during 1996 is questioned in the year 2010 without ofering proper explanation.
19. The learned counsel for plaintifs relies on decision reported in 2015 (2) KCCR 1368 - Smt. . Puttasiddamma Vs. Siddaraju. The Hon'ble High Court has observed that, burden of proof in civil cases; cannot expect higher degree of proof. The said decision is in the matter of partition. Here is a case, wherein the plaintifs have stated that, they have undivided share in the property, but this suit is filed for the relief of declaration. When the plaintifs claim that they need declaratory relief and sale deed is not binding on them, the burden of proof rests on the plaintifs. Learned counsel for 17 O S No.3844/2010 the plaintif relies on a decision reported in 2015(4) KCCR 3858 - Syed Basheer Malik and Another Vs. Smt. Jameela Begum- This citation supports the defendant and not plaintifs. On going through the Head Note-B and also at Para-32- the Hon'ble High Court has clearly stated that, Registered document has its own value. Unless its execution by the person by whom it purported to have been executed is denied, the production of the said document is sufficient to prove the said document. Admittedly, during the life time of G.H.Bangera he never questioned the sale deed in any manner. Hence, the ratio clearly states that, Sale Deed cannot be canceled when it is not denied by the person who has executed the said document.
20. Learned counsel for the plaintifs also relied on AIR 2005 GAUHATI 37 - Sukhdeo Rai Vs. Ashok Kumar Rai and others and AIR 2000 Supreme Court 3585- Om Prakash Gupta Vs. Union of India and another, wherein the Hon'ble High 18 O S No.3844/2010 Court and Supreme Court have held that, when the person remains exparte the court can decree the suit. In cases like this, when the defendant remains exparte, the duty of the court is high and court should be cautious. In such circumstances the responsibility of the court is more. The Court cannot blindly decree the suit just because the defendant remained exparte. The plaintifs, who have approached the court have to prove the case by producing convincing evidence and documents. When the title is claimed and the declaration is sought stating that sale deed is not binding on them, the plaintifs are expected to prove the case to the satisfaction of the court. It would be highly unsafe to decree the suit just because defendant is not contesting the case. Hence, the rulings and the present set of facts are totally diferent. The ratio laid down are not applicable to the present set of facts.
21. In view of the above discussions, this 19 O S No.3844/2010 court is of the view that, the plaintifs have failed to prove that, the document executed by their father is illegal or fraudulent document. They have further failed to show that they are in possession of the property and the sale deed is not binding on them. The plaintifs have also failed to prove that it is joint family property. Hence, points No.1 to 3 are answered in negative and proceed to pass the following...
ORDER Suit is dismissed.
Parties have to bear their own costs.
Draw Decree Accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by me in the open court on the 8th day of January, 2020).
(K. Narayana Prasad), LV Addl. City Civil & Sessions Judge, Bengaluru.
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O S No.3844/2010 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF::
PW-1 :: B. Sujatha
PW-2 :: H.Rajesh
LIST OF WITNESSES EXAMINED ON BEHALF OF
DEFENDANT ::
NIL
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF
PLAINTIFF ::
Ex.P-1 :: Certified copy of Sale Deed
Dt: 23.9.1996
Ex.P-1(a) :: Typed copy is Ex.P.1 Ex.P-2 :: RTC extract Ex.P-3 :: Death certificate father of PW.1 Ex.P-4 :: Death certificate mother of PW.1 Ex.P-5 :: E.C. Ex.P-6 to P.8:: Certified Copies of 3 MR Extracts Ex.P-9 to P.21:: Certified Copies of Pahani Ex.P-22 to P.25:: Certified Copies of Pahani Ex.P-26 :: Certified copy of family tree 21 O S No.3844/2010 Ex.P-27 :: Certified copy of Order sheet in O.S.No.5442/2009 Ex.P-28 :: Certified copy of joint memo filed in O.S.No.5442/2009 Ex.P-29 :: Certified copy of compromise petition in O.S.No.5442/2009 Ex.P-30 :: Certified copy of amended compromise petition in O.S.No.5442/2009 Ex.P-31 :: Certified copy of RTC in respect of Sy.No.98/2001 Ex.P-32 :: Certified copy of order sheet in O.S.No.1646/1991 Ex.P-33 :: Certified copy of Sketch Ex.P-34 :: Certified copy of sketch in Sy.No.98/1 & 98/3 Ex.P-35 :: Certified copy of RTC in respect of Sy.No.66/1 Ex.P-36 :: Certified copy of RTC of Sy.No.67 Ex.P-37 :: Certified copy of RTC of Sy.No.98/3 Ex.P-38 :: Certified copy of MR extract LIST OF DOCUMENTS EXHIBITED ON BEHALF OF DEFENDANT::
NIL (K. Narayana Prasad), LV Addl. City Civil & Sessions Judge, Bengaluru.
22 O S No.3844/2010