Bangalore District Court
Sri. B. Shivakumar vs Smt. Anasuya on 17 December, 2016
IN THE COURT OF LXIV ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU CITY
Dated this 17th day of December, 2016
-: P R E S E N T :-
Sri. MADHUSUDHAN B.
B.Com, LL.B (Spl.).,
LXIV ADDL. CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
O. S. No. 10221/2015
PLAINTIFF : Sri. B. Shivakumar,
S/o. Late. Sri.S.Boraiah,
Aged about 48 years,
R/at.No.28-A, 20th Cross,
Bhuvaneshwari Nagara,
Magadi Road,
Bengaluru-560 023.
(By Sri. R.B.Sadasivappa, Adv.)
/Vs/
DEFENDANTS 1. Smt. Anasuya,
W/o. Late. Sri.B. Balakrishna,
Aged about 40 years,
2. Miss. B.Bhavana,
D/o. Late. Sri.B. Balakrishna,
Aged about 22 years,
2 O.S.No.10221/2015
3. Miss. B.Bindu,
D/o. Late. Sri.B. Balakrishna,
Aged about 19 years,
4. Miss. B.Sindhu,
D/o. Late. Sri.B. Balakrishna,
Aged about 18 years,
Defendants No.1 to 4 are
Residing in a portion of property
bearing No.28-A,
One of the tenements out of
7 tenements, 20th Cross,
Bhuvaneshwari Nagara,
Magadi Road,
Bengaluru-560 023.
1. Date of institution of the : 15.12.2015
suit
2. Nature of the suit : Declaration and Possession
3. Date of commencement of : 28.04.2016
recording of evidence
4. Date on which the : 17.12.2016
judgment
was pronounced
5. Duration : day/s month/s year
2 - 1
JUDGMENT
Plaintiff herein filed suit against defendants seeking the relief of declaration to the effect that, he is absolute owner of 3 O.S.No.10221/2015 plaint 'A' schedule property with consequential relief of possession of plaint 'B' schedule property.
2. Brief averments of plaint may be stated as under:
Plaintiff is absolute owner of the plaint schedule 'A' property which consisting of 7 tenements for total measurement towards East-West 30 X 50 feet. Plaint 'B' schedule property is a part and parcel of plaint 'A' schedule property, which consists of 7 residential houses with ACC roof. Plaintiff acquired valid right, title and interest over suit schedule 'A' property under registered Partition Deed dated 26.12.2003. Defendants have no any right, title and interest over plaint 'B' schedule property. Defendant No.1 is the wife of deceased- B.Balakrishna, who is brother of plaintiff. Defendants No.2 to 4 are children of deceased- B.Balakrishna. During life of time of Balakrishna, registered Partition Deed is executed between plaintiff and his brothers and sisters and same is registered with Sub-Registrar, Srirampura, Bengaluru city. Plaintiff paid an amount of Rs.2,00,000/- to his brother- Balakrishna and an amount of Rs.2,00,000/- to his another brother B.Venkatesh, thereby both brothers of plaintiff have given up their right, title and interest over plaint 'A' schedule property by 4 O.S.No.10221/2015 receiving Rs.2,00,000/- in lieu of their shares in plaint 'A' schedule property. Likewise, sisters of plaintiff have also given up their right, title and interest over plaint 'A' schedule property by receiving an amount of Rs.50,000/- each. Plaintiff let out 6 tenements to the different tenants, while in plaint 'B' schedule property, defendants are in permissive possession, since they are legal heirs of brother of plaintiff. Said B.Balakrishna died on 12.5.2008. Thereafter, plaintiff directed the defendants to vacate plaint 'B' schedule property for which defendant No.2/Bhavana filed suit in O.S.No.8266/2012 against plaintiff and others seeking relief of partition and separate possession of her share in plaint 'A' schedule property. Said suit is till pending for consideration before competent court. Defendants had filed one suit in O.S.No.1172/2004 against said Balakrishna and others. But that suit came to be dismissed for non-prosecution on 17.12.2016. It is further contended that, defendants failed to vacate and deliver vacant possession of suit 'B' schedule property, thus, plaintiff constrained to issue legal notice to the defendants calling upon them to vacate and deliver vacant possession of plaint 'B' schedule property. But defendants without complying the legal notice have 5 O.S.No.10221/2015 sent reply notice with false contentions. Therefore, plaintiff constrained to file suit seeking the relief of declaration to the effect that, he is the absolute owner with consequential relief of possession of plaint 'B' schedule property with further relief of damages to the extent of Rs.5,000/- per month for illegal occupation of defendants over plaint 'B' schedule property.
3. Suit summons were ordered to be issued to the defendants, who appeared through their counsel and resisted the claim of plaintiff by presenting their contested written statement in which they have denied all material averments of plaint including cause of action. It is denied that, defendants are in permissive possession of the said premises. It is denied that, there was partition in the joint family of plaintiff and husband of defendant No.1 as well as father of other defendants No.2 to 4. Alleged Partition Deed is concocted and fabricated and obtained through malpractices taking disadvantage of bad habits of deceased -B.Balakrishna. It is contended that, prior to the death of B.Balakrishna, he was patient in private Hospital/Ananya Hospital and he had no any control over his body and mind for 6 O.S.No.10221/2015 long period. Thus, it is contended that, no any partition effected between plaintiff and his brother with respect of plaint 'A' schedule property. Therefore, prayed for dismissal of the suit with costs.
4. On the basis of pleadings, following issues framed; [
1. Whether plaintiff proves that, he is the owner of suit property as on the date of suit?
2. Whether plaintiff further proves that, he acquired title to the suit property under registered Partition Deed dated 26.12.2003?
3. Whether plaintiff further proves that, defendants are in illegal possession of the suit property?
4. Whether plaintiff is entitled for damages @ Rs.5,000/- per month till they vacate suit premises?
5. Whether plaintiff is entitled for the relief sought for?
6. What Order or Decree?
5. In order to substantiate their contentions, parties led their evidence. Plaintiff has been examined as Pw.1 and as many as 8 documents got exhibited at Ex.P.1 to Ex.P.8. Defendants also led evidence of two witnesses as Dw.1 and Dw.2. However, no documents were got exhibited on their behalf.
7 O.S.No.10221/2015
6. Heard arguments on both side.
7. My findings on the above issues are as under:
Issue No.1 : In Affirmative Issue No.2 : In Affirmative Issue No.3: In Affirmative Issue No.4: Plaintiff is entitled for mesne profits Issue No.5: In Affirmative Issue No.6: As per final order for the following:
REASONS
8. ISSUES.NO.1 & 2: I have taken these two issues together to avoid repeated discussions.
9. Before dealing with disputed facts, I feel it necessary to indicate some important admitted facts of this case. Relationship of plaintiff with defendants is not in dispute. It is admitted fact that, defendant No.1 is legally wedded wife of deceased-B.Balakrishna while defendants No.2 to 4 are his children. It is not in dispute that, plaintiff is the real brother of deceased - B.Balakrishna. It is also admitted fact that, Balakrishna died intestate on 12.5.2008. Further it is also admitted fact that, prior to filing of this suit by plaintiff, this defendant No.2/Bhavana 8 O.S.No.10221/2015 filed another suit in O.S.No.8266/2012 seeking relief of partition and separate possession of her share in the very suit property. That suit admittedly previously instituted suit, which is disposed of on 4.7.2016 as plaint is ordered to be rejected under Order 7 Rule 11 of C.P.C. In the earlier suit in O.S.No.8266/2012 this plaintiff/Shivakumar resisted the claim of plaintiff of that suit by name Bhavana (who is defendant No.2 in this suit) by filing contested written statement and finally, in the said suit on the file of VII-Addl.City Civil Judge (CCH-19), Bengaluru, passed orders thereby plaint is rejected for want of cause of action and also barred by lawful limitation. Even a step ahead, during the life time of B.Balakrishna, defendant No.1 of this suit, who is legally wedded wife of said Balakrishna filed another suit in O.S.No.1172/2004 in respect of this very subject matter of the suit against her husband and this plaintiff/Shivakumar. Said suit also came to be dismissed for default. Thereafter, this very defendant No.1 filed miscellaneous application for restoration of original suit in O.S.No.1172/2004 by filing civil Misc.Petition No.665/2008. Said Misc.Petition also came to be dismissed for non-prosecution. Further, this very defendant No.1/Anasuya filed another civil 9 O.S.No.10221/2015 Mis.Petition in Misc.Petition No.423/2011 for restoration of Misc.Petition No.665/2008, but that Mis.petition No.423/2011 also came to be dismissed on merits. Therefore, this is third round of litigation between plaintiff and these defendants with respect of this suit property bearing No.28-A, which consist of 7 residential ACC roofed tenements situated at 20th Cross, Bhuvaneshwari Nagar, Magadi Road, Bengaluru city. With these admitted facts, now, I will deal with contentions of parties with respect of suit property.
10. It is specific case of the plaintiff that, he is absolute owner of plaint 'A' schedule property, which consist of 7 tenements out of which, he is seeking decree for possession of plaint 'B' schedule property, in which defendants are residing. It is his contention that, he became absolute owner of the property bearing No.28-A by virtue of registered Partition Deed dated 26.12.2003. It is also his contention that, as per the registered Partition Deed, neither B.Balakrishna nor his other brother and sisters have right, title and interest. It is also his contention that, defendants were in permissive possession of plaint 'B' schedule 10 O.S.No.10221/2015 property, but he requested defendants to vacate and deliver the vacant possession for which defendants did not agree. It is also his contention that, even he issued legal notice directing defendants to vacate premises, then also defendants have not complied with such notice. Therefore, he is constrained to file this suit seeking relief of declaration of his title with respect of plaint 'A' schedule property and also seeking relief of possession of plaint 'B' schedule property. On the other hand, it is specific contention of defendants that, so called Partition Deed is out come of fraud and misrepresentation of facts. It is their contention that, no any partition is effected between plaintiff and his brothers and sisters with respect of 'A' schedule property. In the written statement, they have categorically contended that, alleged Partition Deed is concocted, fabricated and obtained through malpractice taking disadvantage of bad habits of deceased -B.Balakrishna. It is their further contention that, said Balakrishna was patient and was hospitalized, thus, he had no any control over the body and mind for long period. Therefore, it is for the plaintiff to prove that, Partition deed is executed without any fraud or malpractice. Plaintiff is also expected to prove that, he is acquired right, title 11 O.S.No.10221/2015 and interest over plaint 'B' schedule property by virtue of Partition Deed. Hence, burden of proof is on the plaintiff to prove his valid right, title and interest over plaint 'A' schedule property.
11. In order to prove these two issues, plaintiff led his evidence as Pw.1 and also got exhibited as many as 8 documents, which consisting of original registered Partition Deed, Khata Certificate, Khata Extract, Tax paid Receipt, Death Certificate, copy of order passed in O.S.No.8266/2012, Legal Notice issued to defendants and Reply Notice.
12. In order to disprove or to rebut evidence of plaintiff, defendants have also led oral evidence of two witnesses. Dw.1 is defendant No.1, while Dw.2 is close relative of defendants. I have gone through the oral testimony of Pw.1 and Dw.1. During course of cross-examination, Pw.1 is very much consistent about execution of registered Partition Deed with respect of suit property. Ofcourse, on going through the cross-examination of Pw.1 coupled with contents of Ex.P.1, it infers that, family of the plaintiff and deceased-Balakrishna having their ancestral land in their native place i.e. Kamanahalli village. Landed property, which 12 O.S.No.10221/2015 is situated in Kamanahalli village is not included in the Partition Deed. But so for as plaint 'A' schedule property is concerned, it is clear that, plaint 'A' schedule property is self-acquired property of plaintiff's father by name Boraiah and more over, it is not the defence of the defendants that, other properties of family have not been included in Partition Deed. No where in the written statement it is contended that, other properties are not included in Partition Deed. More over, there is no prohibition in Hindu Law for effecting partition with respect of few properties of their family, leaving other properties of their family that is to say there is no prohibition for partial partition of family properties. Merely because, few properties are not included in Partition Deed, it does not infers that, no any partition has been effected with respect of plaint 'A' schedule property between children of deceased- Boraiah. In that view of the matter, this court is the opinion that, though it is borne on the records that, some other properties are situated in Kamanahalli village, but those properties have not been included in Partition Deed. But that circumstance does not create any suspicion about the genuineness or truthfulness of contents of Ex.P.1, which is original registered Partition Deed. Pw.1 in his 13 O.S.No.10221/2015 cross-examination has admitted the possession of defendants with Balakrishna in the plaint 'B' schedule property during life time of said Balakrishna. He has also stated that, other 6 tenements are let-out to different persons and it is he, who is receiving rent from those tenants. On this aspect, even Dw.1 in her cross-examination clearly admitted that, it is plaintiff, who is receiving rent amounts from the tenants. Thus, it is not the case of defence of the defendants that, all 7 tenements are owned and possessed jointly by them with other members of the family. Further, it is not their contention that, rent amount is shared jointly by them and plaintiff. If really no any partition is effected, as contended by defence, then defendants were also receiving rent amount from the tenants, who occupied other 6 tenements of plaint 'A' schedule property.
13. I have also gone through the version of Pw.1. It is clear that, Pw.1 has denied almost all suggestions as suggested during his cross-examination.
14. I have also gone through version of Dw.1, who in her examination-in-chief reiterated the facts, which are averred in 14 O.S.No.10221/2015 their written statement. But during course of her cross- examination, she has admitted the fact of filing of earlier suit in O.S.No.1172/2004. She has also admitted fact of dismissal of said suit for non-prosecution. She further admitted the fact of initiating of Misc.Petition in Misc.Petition No.665/2008, which also came to be dismissed for default. She further admitted fact of filing of another civil Misc. Petition No.423/2011 for restoration of petition filed in civil Misc.Petition No.665/2008. She also admitted fact of filing suit by defendant No.2 in O.S.No.8266/2012 with respect of very suit property. In the said suit, already Competent Court has passed orders rejecting plaint under Order 7 Rule 11 (a) and (d) of C.P.C., as is evident from contents of Ex.P.6, which is certified copy of order dated 4.7.2016 passed in O.S.No.8266/2012 on the file of CCH-19. She has also admitted that, O.S.No.1172/2004 was filed during life time of her husband/Balakrishna. She further admitted that, in the said suit, said Balakrishna admitted execution of registered Partition Deed. Further, she clearly admitted that, suit property in O.S.No.1172/2004 is plaint schedule property of this suit. Thus, during lifetime of Balakrishna itself, said suit in O.S.No.1172/2004 15 O.S.No.10221/2015 was filed, in which deceased-Balakrishna was defendant and he admitted existence of Partition Deed. If really, Partition Deed is out come of fraud and by misrepresentation, then during the life time of Balakrishna, he would have challenged registered Partition Deed by filing suit for cancellation of Partition Deed. It is pertinent to note that, Ex.P.1/Partition Deed is executed on 26.12.2003 while Balakrishna died on 12.5.2008, which means said Balakrishna was alive for more than 4 years, after registration of Partition Deed. This circumstance also falsifies the very contention of the defendants that, Ex.P.1 is registered Partition Deed is concocted and fabricated document. I have gone through the recitals of Partition Deed marked at Ex.P.1. Recitals of Partition Deed are very much clear and there is no any ambiguity. In lieu of his share in the said property, Balakrishna received an amount of Rs.2,00,000/- and another brother by name Venkatesh also received an amount of Rs.2,00,000/- and has given up his right, title, interest and share over plaint 'A' schedule property. Even sisters of plaintiff has also subscribed their signatures and they are also party to the registered Partition Deed dated 26.12.2003. Other parties to the Partition Deed, neither challenged the 16 O.S.No.10221/2015 Partition Deed, nor filed suit seeking their share with respect of 'A' schedule property. It is only the legal heirs of Balakrishna, who are resisting the claim of plaintiff mainly on the ground that, Partition Deed is not genuine one, same is fabricated and concocted document, obtained through malpractice taking undue advantage of bad habits of Balakrishna. But to rebut the recitals of Ex.P.1 or to infer that, same is fabricated and concocted document, no evidence except self serving testimony of Dw.1. No other evidence or circumstances are made out by defence to hold that, Ex.P.1 is concocted document.
15. Further, I have also gone through the contents of Ex.P.2 and 3 which are Khata Certificate and Khatah Extract. On perusal of these documents, it is very much clear that, name of plaintiff is recorded as owner of plaint 'A' schedule property. Thus, it is clear that, Ex.P.1 is acted upon. Further, contents of Ex.P.4 discloses that, it is the plaintiff who paid property tax. Therefore, cumulative effect of entire material on record probabalises the contention of plaintiff. On evaluating the evidence on record, I am of the opinion that, version of Pw.1 is supported by 17 O.S.No.10221/2015 documentary evidence. On the other hand, evidence of Dw.1 is not supported by other evidence, either oral or documentary. I have gone through the version of Dw.2. Even if his evidence is considered, I am of the opinion that, say of Dw.2 that, no partition took place appears to be false in view of recitals of Ex.P.1. Further, Dw.2 has not disclosed other facts in order to appreciate his statement that, Partition Deed is concocted and fabricated one. Therefore, evidence of Dw.2 also is not suffice either to discard or to disbelieve the recitals of Ex.P.1.
16. In view of my above discussions and in the result, I have come to the conclusion that, evidence of Dw.1 and Dw.2 cannot be relied upon. On the other hand, evidence projected by plaintiff is to be believed, since same is supported by documentary evidence. Thus, plaintiff acquired valid and absolute right ,title and interest over plaint 'A' schedule property by virtue of registered Partition Deed dated 26.12.2003. Accordingly, I answer issues No.1 and 2 in affirmative.
17. ISSUE NO.3: In view of my findings on issues No.1 and 2, it is very much clear that, defendants neither tenants of 18 O.S.No.10221/2015 plaint 'B' schedule property nor having any right, title and interest to continue their possession over the said property. It is admitted fact that, prior to institution of suit, plaintiff issued legal notice calling upon the defendants to vacate and to deliver vacant possession of plaint 'B' schedule property to the plaintiff. But for that legal notice, defendants sent reply notice as is evident from the contents of Ex.P.8. In the reply notice, they have taken contention and pleas, which are raised in their written statement. Further, in the reply notice, they have taken contention that, another suit is pending for enquiry. But as already observed, said suit in O.S.No.8266/2012 is already disposed of as is evident from contents of Ex.P.6. Thereby all contentions, which defence taken in this case are not sustainable, since it is held that, plaintiff is the absolute owner of plaint 'A' schedule property, in which plaint 'B' schedule property is included, by virtue of registered Partition Deed, thus, defendants are not entitled to continue their possession. Therefore, possession of the defendants is nothing but illegal and unauthorized possession. Accordingly, I answer issue No.3 in affirmative.
19 O.S.No.10221/2015
18. ISSUE NO.4: In this suit, plaintiff has also sought for damages of Rs.5,000/- per month from the date of suit till vacating the premises. Admittedly, this suit is for declaration of title and for possession. Though plaintiff in his evidence stated that, if plaint 'B' schedule property is let out, he would get minimum rent of Rs.5,000/- per month. This fact has been denied by Dw.1, during her cross-examination. It is suggested to Dw.1 that, if plaint 'B' schedule property is let out, plaintiff in minimum would get Rs.5,000/- per month, which has been denied by her. Thus, it is clear that, there is no any positive evidence on record to assess the damages. On the other hand, plaintiff, who is entitled to recover the possession of plaint 'B' schedule property, is also entitled for mesne profits as provided under Order 20 Rule 12(1)(c) of C.P.C., for which plaintiff is to initiate separate proceedings to ascertain quantum of mesne profits from the date of suit till handing over the possession of plaint 'B' schedule property. Accordingly, I answer this issue No.4.
19. ISSUE NO.5: In view of my findings on the above issues, suit of the plaintiff for the relief of declaration of title and 20 O.S.No.10221/2015 recovery of possession as sought for is to be decreed. As already observed, plaintiff is also entitled for mesne profits and to ascertain such mesne profits, plaintiff is entitled to initiate separate proceedings as provided under Order 20 Rule 12 of C.P.C. Accordingly, I answer this issue No.5 in affirmative.
20. ISSUE NO.6 : In view of my findings on above issues No.1 to 5, suit of the plaintiff is to be decreed with costs. Being of that opinion, I proceed to pass the following:-
ORDER Suit of the Plaintiff is hereby decreed with costs, as under;
It is ordered and declared that, plaintiff is the absolute owner of plaint 'A' schedule property, which includes plaint 'B' schedule property.
It is further ordered that, defendants No.1 to 4 are hereby directed to vacate plaint 'B' schedule property and to deliver the vacant possession of the said property to the plaintiff, within 3 (three) months from this day.21 O.S.No.10221/2015
Plaintiff is entitled for mesne profits for which, he is required to initiate separate proceedings to ascertain actual amount of mesne profits from the date of suit, till recovery of possession of plaint 'B' schedule property.
Office to draw decree, accordingly.
(Dictated to the Judgment Writer, script typed by her, corrected and then pronounced by me in open court on this 16th day of December 2016).
(MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 B.Shivakumar
WITNESSES EXAMINED FOR THE DEFENDANT:
Dw.1 Smt. Anusuya
Dw.2 Sri. Ganganna
22 O.S.No.10221/2015
DOCUMENTS MARKED FOR THE PLAINTIFF:
Ex.P.1 Original registered Partition Deed
Ex.P.2 Khatha Certificate
Ex.P.3 Khata Extract
Ex.P.4 Tax paid receipt
Ex.P.5 Death Certificate
Ex.P.6 Certified Copy of Judgment in
O.S.No.8266/2012
Ex.P.7 Legal Notice dated 9.11.2015
Ex.P.8 Reply Notice dated 26.11.2015
DOCUMENTS MARKED FOR THE DEFENDANT:
NIL
(MADHUSUDHAN B.)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65) BENGALURU CITY.