Bangalore District Court
Smt.M.Deepa vs ) Sri.P.Bheema on 13 April, 2023
KABC010081652014
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 13th day of April 2023
PRESENT: Sri. D.P. Kumara Swamy, B.Com., LL.M.,
(Name of the Presiding Judge)
O.S.NO. 2435/2014
PLAINTIFFS : 1. Smt.M.Deepa,
Aged about 35 years,
D/o.Murgesh & Smt.Velliyamma,
2. Smt.M.Uma,
Aged about 39 years,
D/o.Murgesh & Smt.Velliyamma,
3. Sri.M.Harish,
Aged about 37 years,
S/o.Murgesh & Smt.Velliyamma,
4. Sri.M.Santhosh,
Aged about 32 years,
S/o.Murgesh & Smt.Velliyamma,
All are children of Grand Children
O.S. 2435/2014
of Late.Sri.Perumal
All are residing at No.3,
Gandhinagara Colony,
Munnekolala, Varthur Hobli,
Marathahalli Post,
Bangalore-560037.
[By Pleader Sri. P. Srinivasaiah ]
/Vs/
DEFENDANTS: 1) Sri.P.Bheema,,
S/o.late.Perumal,
Aged about 62 years.
2) Sri.B.Jagadisha,
S/o.P.Bheema,
Aged 30 years.
3) Smt.Nirmala,
D/o.P.Bheema,
Aged about 32 years,
Defendants 1 to 3 are
residing at No.29,
Gandhinagara Colony Munnekolala,
Varthur Hobli, Marathahalli Post,
Bangalore East Taluk,
Bangalore-560037.
4) Smt.Chandramma,
W/o.G.Nataraj & D/o.Late.Peruaml,
Aged about 64 years,
5) Smt.Velliyamma,
W/o.Murugesh,
D/o.Late.Perumal,
Aged about 60 years,
Defendants 4 & 5 are residents of
Gandhinagara Colony,
O.S. 2435/2014
Munnekolala,
Varthur Hobli, Marathahalli Post,
Bangalore East Taluk,
Bangalore-560037.
6) Sri.K.Purushothama Reddy,
S/o.Late.R.Krishna Reddy,
Aged about 53 years,
Chowdeshwari Nilaya,
Marathahalli Main Road,
Varthur Hobli,
Bangalore-560037.
[D-4 represented by Pleader Sri N.
Shankaranarayana Bhat]
[ D1 to 3, 5 : Ex-parte]
[D-6 represented by Pleader Sri V.R.
Muralidhara]
Date of Institution of the suit : 25.03.2014
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 16.01.2015
Date on which the Judgment was
pronounced : 13.04.2023
Year/s Month/s Day/s
Total Duration : 09 00 18
(D.P.KUMARA SWAMY)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This is a suit for partition and separate possession.
O.S. 2435/2014
2. The pleaded facts of the case of the plaintif may be stated to the following efect:-
2.1 An agricultural land in Sy.No.42/3 of Munnekolala Village, Varthur Hobli, Bengaluru East Taluk (old Bengaluru Sough Taluk), which is fully described in the schedule of the plaint is the suit property.
2.2 One Sri Muniga @ Muniyappa had got 2 acres of land acquired through Darkasth. 2.3 Said Sri Muniga @ Muniyappa had two sons.
They are, one Sri Muniswamy and one Sri Perumal. 2.4 Under a registered partition deed dated 09.12.1968, said Sri Muniswamy and said Sri Perumal have got divided said 2 acres of land. Under the said partition deed, the suit property fell to the share of Sri Perumal and the remaining 1 acre of land fell to the share of Sri Muniswamy.
O.S. 2435/2014 After the said partition deed, Sri Perumal and his joint family members were in joint possession and enjoyment of the suit property.
2.5 Sri Perumal had three children, namely, Smt. Chandramma (4th defendant), Sri Bheema (1st defendant) and Smt. Veliyamma (the defendant No.5). The plaintifs are the children of defendant No.5.
2.6 The plaintifs requested the defendants No.1 to 5 to give their legitimate share in the suit property. The defendants No.1 to 5 were evading to allot to the plaintifs their legitimate shares in the suit property.
2.7 During talks for partition, the defendants No.1 to 3 have claimed to have executed a document in favour of the defendant No.6. On verification of the RTCs, mutations and O.S. 2435/2014 encumbrance certificates pertaining to the suit property, the plaintifs have noticed that there are entries regarding some transactions pertaining to the suit property. The said transactions are illegal and not binding on the plaintifs. The defendants No.1 to 3 have no exclusive right to convey and confirm transfer of title in respect of the suit property in favour of the defendant No.6. 2.8 The defendant No.6 is not a bonafide purchaser as he is not aware of the entire members of the joint family who are entitled to the rights in the suit property.
2.9 Upon verification of the concerned deed it is found that the defendant No.6 is alleged to have purchased the suit property from a stranger by name Sri Thimma Reddy under a registered sale deed bearing document No.705/1987-88 dated 29.04.1987. Said Sri Thimma Reddy was not the O.S. 2435/2014 owner of the suit property and he was not in possession of the suit property. Said Sri Thimma Reddy and the defendant No.6 have colluded with each other and created the said sale deed dated 29.04.1987 to knock of the valuable suit property. There is no transfer of title over the suit property under the said sale deed dated 29.04.1987. The said sale deed dated 29.04.1987 is illegal and liable to be ignored in the eye of law. The said sale deed dated 29.04.1987 is not binding on the shares of the plaintifs. The suit property is liable to be divided by metes and bounds among the plaintifs and the defendants No.1 to 5.
2.10 The above are the facts constituting the cause of action for this suit. Hence, this suit. 2.11 The plaintifs have sought for the following relief:
(i) For partition and separate possession of the suit property by metes and bounds.
O.S. 2435/2014
(ii) To declare that the said sale deed dated 29.04.1987 as well as the said consent deed dated 23.12.2003 are not binding on the plaintifs. And
(iii) To grant such other further relief in the fitness of facts and circumstances of the case on hand.
3. After service of suit summons, the defendant No.4 has filed the written statement admitting all the facts of the case of the plaintifs and seeking for allotment of a share to the defendant No.4, if the suit is decreed. The defendant No.4 has stated that she is not aware of the said consent deed executed by the defendants No.1 to 3 in respect of the suit property in favour of the defendant No.6. The defendant No.4 has also stated that the said consent deed is not binding on the defendant No.4. The defendant No.4 has paid the court-fee and sought for allotment of a share to her.
O.S. 2435/2014 4 After service of suit summons the defendants No.1 to 3 and 5 have not appeared before the Court and they are placed ex-parte.
5 After service of suit summons, the defendant No.6 has filed his written statement stating to the following efect:
5.1 The plaintifs have not approached the court with clean hands.
5.2 There is no cause of action for the suit. 5.3 The suit is not properly valued and the court-
fee paid is not sufficient. As the plaintifs are not in possession of the suit property, the plaintifs ought to have valued the subject matter of the suit under Section 35(1) (but not under Section 35(2)) of the Karnatkaa Court Fee and Suits Valuation Act, 1958. 5.4 The defendant No.6 is not aware if 2 acres of land were granted under Darkasth Scheme in favour of said Muniga @ Muniyappa.
O.S. 2435/2014 5.5 The defendant No.6 admits the said registered partition deed dated 09.12.1968. The defendant No.6 admits that the defendant No.1, one Smt. Chandramma and the defendant No.5 are the children of said Sri Perumal. In the very next sentence, the defendant No.6 has stated that the defendant No.6 does not know if Smt. Chandramma is a daughter of said Sri Perumal.
5.6 It is admitted that this defendant purchased the suit property from Sri Thimma Reddy under said sale deed dated 29.04.1987.
5.7 In order to perfect his title to the suit property, the defendant No.6 has got executed a consent deed dated 23.12.2003 from the defendants No.1 to 3 and 5 by paying consideration amount of Rs.12,00,000/-. The said consent deed is registered as document No.BNG(U)-BLR(S)/ O.S. 2435/2014 19148/2003-04 of the Office of Sub-Registrar, Bengaluru South Taluk.
5.8 Since the defendant No.5 has executed the said consent deed, the plaintifs being children of the defendant No.5 have no manner of right, title or interest over the suit property.
5.9 The plaintifs have filed this suit only with an intention to extract money if possible. 5.10 With the above explanations and assertions, the defendant No.6 has denied rest of the pleaded facts of the case of the plaintif allegedly constituting the cause of action for the suit. The suit may be dismissed.
6. Based on the pleadings and other materials on record, this Court has framed the following Issues:
1) Whether the plaintifs prove that they have succeeded to the schedule property as legal heirs of late Perumal?
O.S. 2435/2014
2) Whether the defendant No.6 proves that the defendants No.1 to 3 and defendant No5 have executed a consent deed dated 23.02.2003 by receiving a sum of Rs.12,00,000/-?
3) Whether defendant No.6 proves that he is a bona fide purchaser of the schedule property?
4) Whether the valuation of the suit is proper and Court Fee paid is sufficient?
5) Whether the suit is barred by time?
6) Whether the plaintifs are entitled for the reliefs claimed?
7) What order or decree ?
Additional Issues framed on
2-8-2017:
1) Whether the defendant No.1 is
entitled to 1/3rd share in the suit schedule properties ?
2) Whether defendant No.4 further proves that the sale deed executed by defendants 1 to 3 in favour of defendant No.6 is not valid and not binding on her share ?
7. On behalf of the plaintifs, the plaintif No.1 - Smt. M. Deepa is examined as PW.1 and got marked documents at Ex.P.1 to Ex.P.12 and got closed their side evidence. On behalf of defendant No.4 - Smt Chandramma, she herself got examined as DW.1 O.S. 2435/2014 and no document is marked on her behalf; and on behalf of the defendant No.6 - Sri Purushothama Reddy, he got himself examined as DW.2 and on his behalf Ex.D.1 to Ex.D.28 are marked. Accordingly, the defendant No.4 and the defendant No.6 got closed their sides.
8. Heard the arguments of both sides. Perused the records.
9. During the arguments the learned Advocate for plaintifs have submitted that one Mr.Thimma Reddy could not have conveyed a better title than what himself has acquired. The Defendant No.1 could have sold only his share but not the entire property. The DW-2 has stated that he did not enquire as to who were all the persons who had title over the suit property at the time of obtaining consent deed. The rights of the plaintifs and the Defendant No.4 in the suit property is not afected by the said consent deed. The suit property is very O.S. 2435/2014 much available for partition. The suit may be decreed granting a share in the suit property and also awarding mense profits. Said consent deed shows that none of the members of the family had executed any title deed other than the consent deed. Hence, the suit property is liable to be divided among the all the shares.
10. The learned advocate for the Defendant No.6 during his arguments has submitted as follows:
(i) He relies upon 1971 sale deed executed by Sri.Perumal.
(ii) He also relies upon 1987 sale deed executed by Sri.Thimma Reddy (purchaser from said Perumal).
(iii) He also relies upon the consent deed of 2013 executed by Defendants No.1 to 3 wherein the Defendant No.5 is the consenting witness.
(iv) He further submits that the plaintifs are the daughters of Defendant No.5. The Defendants No.4 O.S. 2435/2014 and 5 are daughters of said Sri.Perumal. Defendant No.1 is the only son of Sri.Perumal. Defendants No.2 and 3 are children of Defendant No.1.
(v) The Defendant No.6 has disputed the fact that the Defendant No.4 is a daughter of Sri.Perumal. The Defendant No.4 has not adduced any acceptable evidence to prove the said fact.
(vi) Last 6 lines in Ex.P.2 partition deed of the year 1968 shows that the property involved therein is Sy.No.42/2. Last line shows that 1 acre out of 2 acres in said survey number is given to the share of Sri.Perumal. The plaintif claims the suit property situated in Sy.No.42/3. It is for the plaintif to clarify the said fact.
(vii) Documents (other than Ex.P.2) relied upon by the plaintifs do not agree with Ex.P.2 regarding survey number.
O.S. 2435/2014
(viii) Even during the course of cross examination of DW-2, the DW-2 has categorically explained the circumstances under which the said consent deed came into existence. The presence or absence of consent deed makes no diference in the facts and circumstances of the case on hand.
(ix) There is no pleading either in the plaint or in the written statement of Defendant No.4 regarding 1971 sale deed. Once Sri.Perumal has sold the suit property in 1971, in view of proviso to sub Section (1) of Section 6 of the Hindu Succession Act, 1956 as amended in 2005, the said sale deed being prior to 20-12-2004, neither the plaintifs (being children of daughter of Sri.Perumal) nor the Defendants No.4 and 5 being daughters of Sri.Perumal can have any right to partition in the suit property. In support of this Argument he relies upon a judgment of the Hon'ble Supreme Court in Vineeth Sharma v/s Rakesh Sharma reported in 2020 (2) Karnataka Law Reporter (SC) 161 (relevant page-259).
O.S. 2435/2014
(x) A women (daughter) who gets a share in the coparcenary property of her father would get such property as her absolute property. Once such coparcenary property comes to her, such a property would not remain as coparcenary property in her hand. But, by virtue of Section 14 of Hindu Succession Act, 1956, it becomes her absolute property. Plaintifs being children of Defendant No.5, the plaintifs cannot claim any right to partition during the lifetime of Defendant No.5.
11. During arguments of Sri.RL for Sri.NSB Advocate for Defendant No.4, has submitted to the following efect:
(i) The relationship between the Defendant No.4 and Sri.Perumal is not disputed by any of the members of the family of Sri.Perumal. Even the plaintif has admitted the said fact. The Defendant No.6 who is outsider to the family has disputed. The O.S. 2435/2014 evidence on record would clearly indicate that the said relationship is proved.
(ii) So far as the arguments of learned advocate for Defendant No.6 regarding discrepancy in respect of survey number of the suit property is concerned,the recital in Ex.P.4 which is the document for the claim of the Defendant No.6 is the answer.
(iii) The parties to the suit namely plaintifs and Defendants No.1 to 5 belong to Schedule Caste. No permission is obtained by either Sri.Perumal or Sri.Tippa Reddy for sale of the suit property which is a granted land. The sale deeds relied on by the Defendant No.6 are hit by the provisions of Section 4 of the Karnataka SC/ST PTCL Act. Hence, the said sale deeds have to be ignored.
(iv) In para-2 of the written statement of the Defendant No.4, it is clearly stated that the grant is made in favour of a member of Schedule Caste and, as such, the sale deed relied on by the Defendant O.S. 2435/2014 No.6 has no sanctity in the eye of law. He further argues that under the said circumstances, the presence of the consent deed alleged to have been executed by the Defendants No.1 to 3 and 5 in favour of the Defendant No.6 is inconsequential. The suit may be decreed as prayed for.
12. During the Arguments of Sri.JMR Advocate for Defendant No.6, he has submitted that the plaintif or the Defendant No.4 has not pleaded that the suit property is a granted land and they have not pleaded details of the grant, if any. They have not produced any piece of paper regarding the said grant. There is no issue regarding the said grant. There is no oral or documentary evidence regarding the said grant. In the absence of all these, for the first time during the course of arguments on merits after full pledged trial, the learned advocate for the Defendant No.4 came up with the plea regarding the said grant and regarding applicability of the O.S. 2435/2014 PTCL Act. Whether such an argument can be entertained in the absence of the above noted aspects would be a pertinent question. The answer is an emphatic no.
12.1 In a judgment reported in ILR 2018 Karnataka 1352(SC) Nekkanti Ramalakshmi v/s State of Karnataka and other, the Hon'ble Supreme Court had dealt with the said Act. One of the principles of law declared in the said judgment is that the condition would apply to those transactions which takes place subsequent to the said law coming into force. The said law came into force 1979. Whereas, the sale deed relied on by the Defendant No.6 as per Ex.D.2 is dated 11-02-1971. Hence, the Ex.D.2 does not satisfy the said ground. 12.2 Another principle of law declared in the said judgment is that such alienation should be challenged within reasonable time. The Ex.D.2 sale deed is of the year 1971. The Act came into force in O.S. 2435/2014 1978. The suit is filed in 2014. From the date of execution of Ex.D.2 sale deed of the year 1971, the gap between filing of the suit and the said sale deed is 43 years. From the date of commencement of the said Act, the time gap is 36 years. It cannot be said that the present suit is filed within the reasonable time.
12.3 The original or even the certified copy of the said grant is not produced in the case on hand. It is not possible to know as to whether or not any condition of non alienation clause is incorporated in the grant order if any. In Ex.D.2 sale deed, the vendor does not refer to any grant. All that the vendor says is that he got the suit property in a partition which took place between himself and his younger brother. For this reason also, the arguments advanced by the learned advocate for Defendant No.4 is neither tenable nor acceptable.
O.S. 2435/2014 12.4 Without conceding for a moment, just for the sake of arguments, even if the recitals in Ex.P.2 is considered, the dharkasth grant is dated 30-11- 1931. But there is no material on record to show that the said dharkasth grant contained any non alienation clause. The Ex.D.2 sale deed dated 11- 07-1971. The Ex.D.2 sale deed is 40 years later than the said grant.
12.5 In Thimma Bhovi (DD on 20-01-2020), at para-6 the Hon'ble High Court of Karnataka has ruled that in case of free grant non alienation period is 15 years and in case of grant for upset price non alienation period is 10 years. The grant of the year 1930-31, if considered in the light of the said law, the non alienation period was over long before execution of Ex.D.2 sale deed. The 1956 Dharkasth Rules has prospective efect and the same is not applicable to the grant claimed by the Defendant No.4.
O.S. 2435/2014
13. Heard reply of Sri.RL for Sri.NSB Advocate for Defendant No.4. He relies upon a Judgment of the Hon'ble Supreme Court in AIR 2019 SC 2797 Satyan v/s Deputy Commissioner and others paras- 8, 14 to 16, 19, 20, 21, 27, 28, 30, 33 and 34 (relevant portion marked by the marker). He submits that according to the said judgments the alienation which took place either prior to the 1979 enactment or subsequent thereto, both situations are covered under Section 4 of the said Act. 13.1 Sri.RL Advocate submits that if the case of the Defendant No.6 to the efect that they rely upon consent deed, it presumes that the Defendant No.6 admits that the legal heirs have succeeded to the property. He also submits that the secondary evidence adduced by the Defendant No.6 cannot be relied upon as the Defendant No.6 has not laid O.S. 2435/2014 foundation for leading secondary evidence. He relies upon Section 62 to 66 of Evidence Act.
14. My findings on the above Issues are as follows:
Issue No.1 : In the Negative Issue No.2 : In the Affirmative Issue No.3 : In the Affirmative Issue No.4 : In the Negative Issue No.5 : In the Affirmative Issue No.6 : In the Negative Addl. Issue No.1 : In the Negative Addl. Issue No.2 : In the Negative Issue No.7 : As per the final order, for the following:
REASONS
15. Issues No.1 : - Having taken part in the trial, having heard the arguments of the learned Advocates for parties on record in this case, having gone through the records of the case on hand bearing in mind the anxious submissions made by the learned Advocates, and also having considered the judgments cited at the Bar, in my considered O.S. 2435/2014 view, it would be apposite, in the facts and circumstances of the case on hand, to appreciate the efect of documentary evidence (which serve as milestones in the history of the suit property) at the very outset itself.
16. Ex.P2 - It is a certified copy of a registered partition deed dated 09.12.1968 entered into between two sons of one Sri Muniyappa namely one Sri M. Muniswamy and one Sri M. Perumal in respect of two acres of land. It is recited therein to the efect that said two acres of land in Sy.No.72/2 of Munnekolala Village, Varthur Hobli, Bengaluru South Taluk was granted under Darkhast in favour of said Sri Muniyappa on 20.11.1931. It is also recited therein that - (i) one acre of land described in the A
- schedule therein was allotted to said Sri M. Muniyappa ; and (ii) one acre of land described in the B - schedule therein was allotted to said Sri M. Perumal. (Note : In this case, this court is concerned O.S. 2435/2014 with the said one acre of land in the said B - schedule, allotted to the share of said Sri M. Perumal.). It is recited that the parties belong to Adi Dravida Caste (which is a notified Scheduled Caste).
17. Ex.D1 - It is a certified copy of a registered sale deed bearing document No.5297/1970-71, Book-1, Volume 858, Pages 26 to 28, dated 11.02.1971, of the Office of the Senior Sub- Registrar, Bommanahalli (Jayanagara), Bengaluru. A typed copy of Ex.D.1 is produced and marked at Ex.D.2. It is executed jointly by said Sri M. Perumal and one Sri Gurrappa S/o Muddappa in favour of Thimma Reddy. The schedule in Ex.D.1 shows that it is in respect of 1 acre of land in /sy.No.43/2 of said Munnekolala Vilage. But, however, the boundaries of said 1 acre of land mentioned in the schedule of Ex.D.1, tally with the boundaries of 1 acre of land described in the B schedule of Ex.P.2 (which was O.S. 2435/2014 allotted to the share of said Sri M. Perumal). There is no recital regarding partition deed as per Ex.P.2 in the Ex.D.1 - sale deed. But, however, none of the parties of this suit have disputed that the B - schedule property in Ex.P.2 and the schedule property in Ex.P.1 are not distinct and separate, but, they are one and the same.
18. Ex.D.3 : It is a certified copy of a registered sale deed bearing document No.705/1987-88, Book- I, Volume 2585, Pages 44 to 47, dated 29.04.1987 of the Office of the Senior Sub-Registrar, Bommanahalli (Jayanagar), Bengaluru, executed by said Sri Thimma Reddy S/o Nagappa (purchased under Ex.D.1) in respect of the suit property in favour of the defendant No.6 - Sri K. Purushothama Reddy S/o Sri K. Krishna Reddy.
19. Ex.P.3 : It is a certified copy of a registered consent deed dated 23.12.2003 in respect of suit O.S. 2435/2014 property executed by the defendant No.1 - Sri P. Bheema S/o Late Perumal, B. Jagadeesha, and his daughter Smt. B. Nirmala. There is no reference to Ex.D.1 - sale deed dated 11.02.1971 in Ex.P.3.
20. A copy of the Darkasth grant Order dated 20.11.1931 (which is referred to in Ex.P.2 - partition deed dated 09.12.1968) is not produced in this case. As noted supra, in Ex.P.3 - consent deed dated 23.12.2003, there is no reference to Ex.D.1 - sale deed dated 11.02.1971. There is no pleading either in the plaint or in the written statement of the defendant No.4 about the Ex.D.1 - sale deed dated 11.02.1971. Neither the plaintifs nor the defendant No.4 have sought for any relief for declaration or for setting aside or any other relief in respect of Ex.D.1 - sale deed dated 11.02.1971. There is no pleading or proof to the efect that the plaintifs or the defendants No.1 to 5 or any of their ancestors have challenged the Ex.D.1 - sale deed O.S. 2435/2014 dated 11.02.1971 for its cancellation before any competent authorities under the PTCL Act. Even now, in this case also no challenge is laid against Ex.D.1 - sale deed dated 11.02.1971 even though more than 50 years have elapsed from the said date. With this understanding about Ex.P.2, Ex.P.3, Ex.D.1 and Ex.D.3, I proceed to consider the judgments cited at the Bar.
21. The learned Advocate for the defendant No.4, has placed reliance upon a judgment of the Hon'ble Supreme Court in AIR 2019 SC 2797 - Satyan -Vs- Deputy Commissioner and Ors, to submit that no permission of the Government of Karnataka is obtained under Section 4(2) before selling the suit property under Ex.D.1 - sale deed dated 11.02.1971 and, as such, Ex.D.1 - sale deed dated 11.02.1971 is null and void and, as such, the suit property is liable to be restored back to the family of the plaintifs and the defendants No.1 to 5.
O.S. 2435/2014
22. The learned Advocate for the defendant No.6 has drawn the attention of the Court to Para- 20 of the said judgment of the Hon'ble Supreme Court and argued that Ex.D.1 - sale deed dated 11.02.1971 was executed and registered much prior to 01.01.1979 (on which date the PTCL Act came into force) and, as such, Section 4(2) of the PTCL Act has no application to Ex.D.1 - sale deed dated 11.02.1971.
23. Para 20 of the judgment of the Hon'ble Supreme Court in Satyan case (supra) reads as under:
"20. Section 4(2) of the Act, as noted hereinearlier, deals with the transfer of granted land after the commencement of the Act i.e. after 1-1-1979. For the purpose of Section 4(2), the court must be satisfied that (1) the sale deed was O.S. 2435/2014 executed and registered after the commencement of the Act, and (2) the same was executed and registered without seeking prior permission of the State Government. Therefore, Section 4(2) clearly postulates that a transferee cannot acquire the granted land from the grantee without seeking the permission of the Government nor can the grantee transfer it without seeking prior permission from the Government."
24. The learned Advocate for the defendant No.6 has relied on the following judgments:
24.1 A judgment of the Hon'ble High Court of Karnataka in W.P.No.2379 of 2019 (SC-ST) in the matter of Thimma Bhovi Dead by LRs. -Vs- State of Karnataka and Ors., D.D. on 20.01.2020. At Paras O.S. 2435/2014 6, 7, 8 and 9 therein, the Hon'ble High Court of Karnataka has ruled thus:
"6. It is not in dispute that the land bearing No.76/2 measuring 4 acres situated at Veerapura Village, Chennageri Taluk, Davanagere District was originally granted in favour of one Thimma Bhovi under Darkhast Rules in the year 1956. As on the date of grant the rules which prevails from 07.07.1955 to 1960 is, if it is a free grant, non-alienation is 15 years, if the land is granted for upset price, non- alienation period is 10 years. In the case on hand, the land was granted on 16.10.1956, the original grantee has sold the land in favour of the fourth respondent on 02.06.1973, after 15 years. Therefore, Section 4(1) of the PTCL Act is O.S. 2435/2014 not applicable. There is no violation of any provisions of the Land Grant Rules.
7. Section 4(2) of the PTCL Act is extracted hereinbelow:
"4. Prohibition of transfer of granted lands- (1) .....
(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government."
It is very clear from the above provision that after the commencement of this Act transfer of any granted land without previous permission of the Government is null and void. In the case on hand the land was sold on 02.06.1973 before the Act came into force. Therefore, Section 4(2) of the PTCL Act is not applicable to the present case.
O.S. 2435/2014
8. In respect of the delay is concerned, the land was granted on 16.10.1956, it was sold in the year 1973, the PTCL Act came into force on 01.01.1979. The application for restoration was filed in the year 2008 after a lapse of 28 years. There is an inordinate delay in filing the application under Sections 4 and 5 of the PTCL Act. The Apex Court in the case of NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA AND ANOTHER reported in 2017 SCC Online SC 1862 has held as hereinbelow:
"8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an O.S. 2435/2014 application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa vs. Dy. Commissioner & Ors. (C.A.No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for O.S. 2435/2014 arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely, R. Rudrappa vs. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa vs. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and G. O.S. 2435/2014 Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly."
9. In view of the above, even the application filed for restoration of the land after an inordinate delay of 28 years itself is not maintainable. In respect of second contention of the petitioner is concerned, the Division Bench of this Court in W.A.No.846/2019 disposed of on 19.06.2019 has held as hereinbelow:
"5. The law on the aspect is very clear. There is no specific limitation prescribed in Section 5 of the PTCL Act. The application has to be filed within a reasonable time. By no stretch of O.S. 2435/2014 imagination, the application made by the appellants, after a lapse of nearly 32 years from the date on which PTCL Act came into force, can be said to be filed within a reasonable time."
In view of the above, it is very clear that if there is no specific limitation prescribed the application has to be filed within a reasonable time. Hence, the second contention of the petitioner is also unsustainable."
24.2 (2020) 14 SCC 232 - Nekkanti Rama Lakshi
-Vs- State of Karnataka and Anr. This judgment of the Hon'ble Supreme Court is considered by the Hon'ble High Court of Karnataka in Thimma Bhovi Case (supra).
24.3 2021(5) KLJ 561 - Munnaiah -Vs- Deputy Commissioner, Bangalore. In this reported O.S. 2435/2014 judgment, the Hon'ble Full Bench of the Hon'ble High Court of Karnataka had ruled that Section 4(2) of the PTCL Act has no application to a diverted land. The defendant No.6 has not adduced any evidence to show that the suit property was a diverted land by the time Ex.D.1 - sale deed dated 11.02.1971 came to be executed and registered.
25. A perusal of the pleadings in the plaint, in the written statement of defendant No.4 and also in the written statement of defendant No.6 what has to be noticed is that none of them have referred to a registered sale deed bearing document No.5297/1970-71, Book-I, Volume 858 Pages 26 to 28 dated 11.02.1971 of the Office of Senior Sub- Registrar, Bommanahalli (Jayanagar), Bengaluru. A certified copy of the said sale deed is produced and marked at Ex.D.1. The said sale deed dated 29.04.1987 (a certified copy of which is produced and marked at Ex.D.3), would show that there is a O.S. 2435/2014 reference to the sale deed marked at Ex.D.1. As discussed supra, Ex.D.1 has played pivotal role in the history of the suit property. Even the oral evidence of PW.1, DW.1 and DW.2 do not throw much light on Ex.D.1. Fortunately, Ex.D.1 is referred to in Ex.D.3 and arguments are canvassed by the learned Advocates regarding applicability or otherwise of Section 4(2) of PTCL Act and also they have referred to some of the judgments, rendered by the Hon'ble Supreme Court and the Hon'ble High Court of Karnataka. Based on the said arguments, this court has arrived at the above noted conclusion regarding Ex.D.1. In view of the findings on Ex.D.1, pleadings in the plaint and written statement of the defendant No.4 and also oral evidence of PW.1 and the DW.1 do not have the force to take away the impact of the Ex.D.1 and the law applicable to Ex.D.1. In other words, the Ex.D.1 would decide the fate of this case. It fully supports the case of the defendant No.6 and it would falsify the claim of the O.S. 2435/2014 plaintifs and the defendant No.4 for partition and separate possession in the suit property.
26. CONCLUSIONS:
26.1 Late Sri M Perumal succeed to the suit property by way of succession under Section 8 (but, not by way of devolution under Section 6) of the Hindu Succession Act, 1956, in view of the recitals in Ex.P.2 - partition deed dated 09.12.1968 to the efect that 2 acres of land (which was the subject-
matter of partition under Ex.P.2) was granted to the father of Sri M. Perumal as Darkhast grant on 20.11.1931.
26.2 Late Sri Perumal has sold the suit property under Ex.D.1 - sale deed dated 11.02.1971 in favour of one Sri Thimma Reddy.
26.3 Neither the plaintifs nor the defendants No.1 to 5 nor anybody else claiming through or under O.S. 2435/2014 late Sri M. Perumal have challenged the Ex.D.1 - sale deed dated 11.02.1971 before the competent Authority under the PTCL Act, so far. 26.4 Ex.D.1 - sale deed dated 11.02.1971 is not challenged even in this suit.
26.5 It is already concluded supra that the suit property is the separate property of late Sri M. Perumal and that the suit property was not the ancestral property in the hands of late Sri M. Peumal.
26.6 Late Sri M. Perumal has not left behind the suit property to be succeeded by his legal heir after his death.
26.7 The delay in challenging the Ex.D.1 - sale deed dated 11.02.1971 (and in fact, not challenging O.S. 2435/2014 the Ex.D.1 - sale deed dated 11.02.1971) is fatal to the case of the plaintifs and the defendant No.4. 26.8 As the PTCL Act came into force on 01.01.1979; and also as Ex.D.1 - sale deed dated 11.02.1971 was executed and registered much prior to 01.01.1979, by application of the law declared by the Hon'ble Supreme Court in Satyan Case (supra), Section 4(2) of the PTCL Act has no application to the Ex.D.1 - sale deed dated 11.02.1971. 26.9 In view of Ex.D.1 - sale deed dated 11.02.1971 being executed by late Sri M. Perumal, Ex.D.1 - sale deed dated 29.04.1987 is certainly binding on all the legal heirs of late Sri M. Peumal, including the present plaintifs and the defendants No.1 to 5.
26.10 In view of Ex.D.1 - sale deed dated 11.02.1971, the Ex.P.4 - consent deed dated O.S. 2435/2014 23.12.2003 is of no significance (or rather consequence) in the eye of law.
26.11 The suit for partition (by accepting the case of the plaintifs that the suit property is an ancestral property for the sake of argument) is barred under Art 109 of the Limitation Act, 1963, in view of Ex.D.1 - sale deed dated 11.02.1971. 26.12 The plaintifs and the defendant No.4 have not disputed the fact that the defendants No.1 to 3 and 5 have executed consent deed dated 23.02.2003. The defendants No.1 to 3 and 5 have not submitted their pleadings nor adduced evidence to deny the claim of the defendant No.6 regarding the consent deed. The defendant No.6 has pleaded, adduced oral evidence, and produced consent deed. The defendant No.6 has proved Issue No.2.
O.S. 2435/2014 26.13 The plaintifs have failed to prove Issue No.1.
26.14 The defendant No.6 has proved that he is a bonafide purchaser.
26.15 The plaintifs have failed to prove that they are in joint possession of the suit property. Court fee has to be paid on the assertions made in the plaint. The court fee paid on the assertions made in the plaint is sufficient. The legal consequence of non-proof of the fact asserted by the plaintifs that the plaintifs are in possession of the suit property is that the suit is liable to be dismissed on that ground alone as laid down by the Hon'ble High Court of Karnataka in - (i) ILR 2001 KAR 3988 - B.S. Malleshappa -Vs- Koratagigere B. Shivalingappa and Ors., and (ii) ILR 2008 KAR 1420
- Smt. Nanjamma -Vs- Smt. Akkayyamma and Ors.
O.S. 2435/2014 With these conclusions, Issue No.4 is held in the Negative.
27. In view of the above conclusions, Issue Nos. 1,4 and 6 and additional Issues No.1 and 2 are held in the negative and Issue No.2, 3 and 5 are held in the affirmative.
28. In the factual backdrop of the case on hand, and the law applicable to the facts of the case on hand as discussed supra, the oral evidence adduced by the parties does not play any significant (decisive) role. Hence, the oral evidence on record is not discussed.
29. Issue No.7 : Hence, the following :
ORDER (1) The suit and the counter claim of the defendant No.4 are dismissed with costs and exemplary costs of Rs.10,000/- each payable O.S. 2435/2014 by the plaintifs (jointly), and by the defendant No.4.
(2) Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court on this the 13th day of April, 2023).
(D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt. M.Deepa - dt: 16.01.2015
(b) Defendants side :
D.W.1 - Chandramma - dt: 25.02.2021 D.W.2 - K.Purushothama Reddy Dt.19.02.22 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of Index of land
Ex.P.2 Certified copy of Partition Deed dt: 09-
12-1968
Ex.P.3 Genealogical Tree.
O.S. 2435/2014
Ex.P.4 Certified copy of the Consent Deed dt:
23-12-2003
Ex.P.5 Certified copy of the Sale Deed dt: 29-
04-1987
Ex.P.6 to RTC extract and Record of Rights.
12
(b) Defendant's side :
Ex.D.1 Certified copy of Sale Deed dated
11.2.1971.
Ex.D.2 Typed Copy of Ex.D.1
Ex.D.3 Certified copy of Sale Deed
dt.29.04.1987
Ex.D.4 Typed Copy of Ex.D.3
Exs.D.5 RTC for the year 2001-2002
Ex.D.6 RTC for the year 2002-2003
Ex.D.7 RTC for the year 2003-2004
Ex.D.8 RTC for the year 2004-2005
Ex.D.9 RTC for the year 2005-2006
Ex.D.10 RTC for the year 2006-2007
Ex.D.11 RTC for the year 2007-2008
Ex.D.12 RTC for the year 2008-2009
Ex.D.13 RTC for the year 2009-2010.
Ex.D.14 to 19 Tax Paid Receipts.
Ex.D.20 Sketch for Building Construction.
Ex.D.21 & 22 Building Photos and C.D. Ex.D.23 Permission from FIRE Department. Ex.D.24 Registration certificate issued by Commercial Tax department.
Ex.D.25 License issued by Asst. Commissioner of Commercial Tax department Ex.D.26 Registration Certificate issued by the Labour Dept. Ex.D.27 The Times of India - English News O.S. 2435/2014 paper dt: 24-02-2018.
Ex.D.28 Certified copy of Trade License Revival Certificate.
[ VI Addl.City Civil & Sessions Judge Bengaluru City O.S. 2435/2014 13.04.2023: Judgment pronounced in open court (vide separate detailed judgment) ORDER (1) The suit and the counter claim of the defendant No.4 are dismissed with costs and exemplary costs of Rs.10,000/- each payable by the plaintifs (jointly), and by the defendant No.4.
(2) Draw decree accordingly.
(D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City