Bangalore District Court
Rajashekhara M S vs Ambuja A on 12 December, 2024
KABC010102462015
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
Title Sheet for Judgments in Suits
In the Court of the XXIV Additional City Civil and
Sessions Judge (CCH-6) at Bengaluru
Dated this the 12th day of December, 2024.
Present:
Smt.Renuka.D.Raikar, B.Sc.,LL.B., (Spl),
XXIV Addl. City Civil & Sessions Judge (CCH-6),
Bengaluru.
Original Suit No.4066 / 2015
Plaintiff : Sri.M.S.Rajashekhara,
Aged about 63 years,
S/o late Parvathamma &
Late M.J.Shambulingaiah,
R/at No.5/3-1, 1st Cross,
2nd Main, Chairman
Narasimiah Badavne,
Byataranapura, Mysore Road,
Bangalore - 560 026.
(By Sri.R.Venkatesh, Advocate)
-Versus-
2
O.S.No.4066/ 2015
Defendants : 1. Smt.A.Ambuja,
Aged about 70 years,
W/o late B.L.Narasimha Murthy
R/at Govt. School, 1st Main road,
Byatarayanapura, Mysore Road,
Bangalore - 560 060.
2. Sri. Abdul Shoocker @ Ameer,
Aged about 53 years,
S/o late Abdul Aziz,
R/at No. 60, LIG KHB 1st Stage,
Kengeri Upanagara,
Bangalore - 560 060.
3. Sri.M.S.Devananda,
Aged about 74 years,
S/o late Parvathamma &
Late M.J.Shambulingaiah,
R/at No.10, Opp. Sunday Bar,
5th Main Road, BHEL Layout,
Rajarajeshwari Nagar,
Kenchana Halli, Bangalore - 560 098.
(By Sri. C.S.G for D.1,
Sri Y.H for D.2,
Sri. J.S for D.3, Advocates)
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Date of Institution of the Suit : 29.04.2015
Nature of the Suit : For Partition
Date of the commencement : 03.04.2017
of recording of the evidence
Date on which the Judgment : 12.12.2024
was pronounced
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Year/s Month/s Day
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Total duration : 08 07 13
3
O.S.No.4066/ 2015
JUDGMENT
Suit of the plaintiff is for Partition, Separate Possession, Declaration and Permanent Injunction.
The description of the suit schedule property as mentioned in the plaint is as under:
All that piece and parcel of vacant site bearing No.28 formed in Sy.No.4, of Deevatige Ramahalli village, presently coming under the limits of BBMP, Gali Anjaneya Temple, Ward No.158, Bangalore City, having small shed of Asbestos cement sheet roofing measuring, Towards East : North to South 64 feet, Towards West : North to South 31 feet, Towards North : East to West 40 feet, Towards South : East to West 46 feet, Bounded on the :
East by : Private Property
West by : 20 feet road
North by : Site No.29,
South by : Private property.
2. The factual matrix in the nutshell is as under:-
It is averred that, one Moola Purusha by name Hemanna @ Poojari Muniyappa and his wife Mangamma had seven sons 4 O.S.No.4066/ 2015 and a daughter namely M.Narasimhaiah, M.Ramappa, M.Lakshmanappa, M.Varadappa, M.Krishnappa, M.Kariyanna, B.M Seenappa and Smt. Parvathamma. The plaintiff is youngest son of Smt. Parvathamma, D/o Late Hemanna @ Poojari Muniyappa, who was married to one M.J Shambulingaiah, third defendant is the first son of Smt. Parvathamma and M.J Shambulingaiah and is the elder brother of plaintiff. The husband of first defendant, by name B.L Narasimha Murthy is the son of M.Lakshmanappa, who is third son of Hemanna @ Poojari Muniyappa. The husband of the first defendant is dead and Moola Purusha and his sons and daughter namely Smt. Parvathamma are no more.
3. It is further averred that, all the sons and daughter of Poojari Muniyappa @ Hemanna have partitioned family properties by way of Panchayath Parikath dtd.14.11.1975, wherein "I"
Schedule property i.e land in Sy.No.25, Re-survey No.25/1 of Byatarayanapura village to an extent of 0.7 guntas, bounded on the:
East by : Property of Kallappa,
West by : Property of Seenappa,
5
O.S.No.4066/ 2015
North by : Property of Venkatappa,
South by : Property of Matada Rangaiah,
was fallen to the share of Smt. Parvathamma, D/o late Poojari Muniyappa.
4. It is further averred that, the sons of Late Hemanna @ Poojari Muniyappa through the registered partition deed dtd:19.11.1975 have further partitioned the joint family properties and have stated in said deed that, they have already entered into Panchayath Parikath and due to oversight some of the immovable joint family properties were left. Hence they got Registered another Partition Deed by mentioning about the Panchayath Parikath dtd:14.11.1975 executed between all of them.
5. It is further averred that, the father in law of the defendant i.e, father of B.L Narasimha Murthy namely M. Lakshmanappa filed an application on 06.10.1960 before the Special Deputy Commissioner for Inams Abolition claiming occupancy rights in respect of 2 acres of land in Sy.No.3 of Devatige Ramanahalli village and after consent of said Lakshmanappa, the Land Tribunal Bangalore South Taluk, Bangalore in LRF INA/1086/A/79-80, ordered said M. 6 O.S.No.4066/ 2015 Lakshmanappa to be the registered occupant in respect of 1 acre 18 guntas of land in Sy.No.4 of Devatige Ramanahalli village. Remaining extent of 0.20 guntas in Sy.No.4 and Sy.No.3 is ordered to be registered in the name of Diety Sri.Hanumantha Devaru of Devatige Ramanahalli.
6. It is further averred that, after resolving of dispute in the Land Tribunal on 23.10.1982, with respect to 1 Acre 18 guntas of land in Sy.No.4 of Devatige Ramanhalli village, since said land was not subjected for partition on the earlier occasions, the sites were formed in Sy.No.4 of Devatige Ramanhalli village and were partitioned among the family members of Hemanna @ Poojari Muniyappa. In said deed dtd:30.05.1987, Site No.28 was allotted to Smt. Parvathamma, as per the layout map.
7. It is further averred that, the plaintiff came to know that, the second defendant in the above case made an application to BBMP authorities to transfer the "B" Khatha in his name on the ground that, he has purchased the properties bearing House list No.28 and 29 Khatha No.4, situated at Devatige Ramanhalli, Kengeri Hobli, Bangalore South Taluk, Bangalore measuring 7 O.S.No.4066/ 2015 East-West 60 feet, North-South 40 feet. Hence plaintiff on 27.09.2013, made a representation/objection in writing to Asst. Revenue Officer, Sri. Gali Anjaneya Swamy Temple Ward, BBMP, Bangalore that, the site No.28 belongs to his mother and that, she has not sold the site to second defendant and that, the so called registered sale deed dtd:21.09.1995 executed by Smt. A. Ambuja, the first defendant and the mother of plaintiff Smt. Parvathamma in favour of the second defendant is a concocted document and said proceedings is pending before the Revenue Officer, BBMP.
8. It is further averred that, site No.29 formed in Sy.No.4 of Davatige Ramanahalli, as per the Panchayath Parikath dtd:30.05.1987 does not belong to M. Lakshmanappa, in turn it belongs to M. Seenappa, son of late Poojari Muniyappa along with other site Nos.30, 31, 32, 45 and 7 formed in Sy.No.4. Said Mr. M. Seenappa is dead and he has left behind his wife Smt. Gowramma and three daughters. First defendant has no manner of right, title and interest over Site No.29. The father of B.L Narasimha Murthy, Mr. M. Lakshmanappa was allotted site Nos.15, 20, 21, 23 and 2 formed in Sy.No.4 of Devatige 8 O.S.No.4066/ 2015 Ramanahalli. Hence the plaintiff has no right in site No.29 and is not interested in site No.29.
9. It is further averred that, plaintiff and the third defendant along with their sister S. Shivamma, who is no more are the only legal heirs of Smt. Parvathamma w/o Late M.J Sambulingaiah. Their mother from the date of marriage was looking after their own Math run by her as Sri. Devananda Swamy Math situated at Mandi Mohalla, Kamatageri, Mysore City. The mother of the plaintiff was living in the math and she had no occasion to sell site No.28, formed in Sy.No.4 of Devatige Ramanahalli, more fully and particularly described in the schedule here under as suit schedule property.
10. It is further averred that, the husband of first defendant Mr. B.L Narasimha Murthy or the first defendant have no right to sell the schedule property along with the mother of the plaintiff. At no point of time the mother of plaintiff came to Bangalore, executed the registered Sale Deed and the so called registered Sale Deed dtd:21.09.1995, is impersonated by the first defendant, her husband and also the second defendant. The 9 O.S.No.4066/ 2015 mother of the plaintiff resided with the plaintiff during 2002 and she was hospitalized at KIMS Hospital for respiratory failure, died on 07.09.2003 at KIMS Hospital and the address shown in both the records is of the plaintiff. The mother of plaintiff had no occasion to live with the first defendant or with her husband and the first defendant along with her husband have manipulated the process. The husband of first defendant died on 13.11.1997 at Manipal Hospital, after prolonged treatment. The plaintiff learnt that husband of first defendant Mr. B.L.Narasimhamurthy on 21.09.1995 has also alienated the road mentioning it as site No.27/1 to the second defendant and said road is the only road for ingress and egress for Site No.27 and Site No.28.
11. It is further averred that, the schedule property was allotted to plaintiff's mother by their brother in the family arrangement and the mother of the plaintiff had no manner of exclusive right, title or interest to sell the schedule property to the second defendant and the so called registered sale deed is not binding on the plaintiff and the third defendant. Till the death of plaintiff's mother the suit schedule property was in joint possession of plaintiff and third defendant along with their mother 10 O.S.No.4066/ 2015 Smt. Parvathamma. After death of their mother on 17.09.2003, plaintiff and defendant No.3 are in peaceful possession and enjoyment of the suit schedule property.
12. It is averred that the first defendant, her husband or the second defendant are not at all in possession and enjoyment of the suit schedule property at any point of time. The mother of plaintiff had no exclusive right, title or interest to alienate the entire extent of the suit schedule property to second defendant. The suit property was not partitioned, no Khatha was effected in BBMP, and being revenue site no Khatha number was allotted by BBMP.
13. It is further averred that, plaintiff being the son of his parents was insisting the third defendant to make arrangement for the partition of the suit schedule property by metes and bounds. However third defendant did not respond to the request of plaintiff even after the death of their mother.
14. It is further averred that, the act of second defendant in giving application dtd:17.05.2013 to BBMP for transfer of "B" Khatha in his name for the so called acquisition of rights through the registered sale deed dtd: 21.09.1995 shows his conduct. The 11 O.S.No.4066/ 2015 plaintiff coming to know about the fraudulent acts of defendants No.1 and 2, lodged written objection on 27.09.2013 to the BBMP authorities objecting the change of khatha in the name of the second defendant and the same is still pending.
15. It is averred that, the cause of auction for the suit arose on 30.05.1987 i.e on the date of family arrangement by all sons and daughter of Poojari Muniyappa @ Hemanna, 21.09.1995 the date of registered sale deed, on 17.09.2003 the date of death of mother of plaintiff and finally on 27.09.2013, the date of lodging complaint to BBMP authorities from changing Khatha in the name of the second defendant on the basis of the so called registered sale deed, within the territorial jurisdictional of this Court.
16. It is averred that, the plaintiff as one of the sons of late M.J Shambulingaiah and Parvathamma is entitled for ½ share in the suit schedule property. Since defendant No.3 did not effect partition of the suit property by metes and bounds in-spite of repeated requests the plaintiff was constrained to file this suit and prayed for Partition and Separate possession of his ½ share in the 12 O.S.No.4066/ 2015 suit schedule property by metes and bounds and to declare that the Registered Sale Deed dt. 21.09.1995 executed by defendant No.1 mentioning the second vendor as Parvathamma by impersonating the name and signature of Smt.Parvathamma, in favour of defendant No.2, with respect to the suit schedule property i.e., site No.28 is not binding on the share of plaintiff and for Permanent Injunction restraining defendant No.2 from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and for other reliefs.
17. In pursuance of service of suit summons, the defendants Nos.1 to 3 have appeared before this Court through their respective Counsels and filed separate written statements.
18. Defendant No.1 in her written statement has contended that, the suit is wholly misconceived and, as such, liable to be dismissed in limine. She admitted the relationship between the parties and admitted the contents of plaint para.No.2 to 5. The averments made in Para No.6 of the plaint that, after resolving the dispute in the Land Tribunal with respect to 1 Acre 18 guntas of land in Sy.No.4 of Devatige Ramanahalli Village which was not 13 O.S.No.4066/ 2015 partitioned on earlier occasions, the sites formed in Sy.No.4 of the Devatige Ramanahalli Village got partitioned among the family members of Hemanna @ Poojari Muniyappa and in said partition deed dated 30.05.1987, site No.28 was allotted to Smt. Parvathamma is admitted. It is contended that, said Smt. Parvathamma was staying alone at Devatige Ramanahalli Village, Bangalore and it was the family of the first defendant that looked after her well being.
19. She denied the averments made in para.7 and 8 of the plaint and contended that, the plaintiff has no manner of right, title and interest over the properties which are not the subject matter of this suit. The averments made in para.9 of the plaint are denied and it is contended that, the mother of the plaintiff was living in Devatige Ramanahalli, Bangalore and even in her old age, it was defendant No.1 and her husband along with her sons who looked after her till her last day. The plaintiff never cared for his mother and was living separately with his own family. The plaintiff and defendant No.3 were fully aware of the fact that the mother of plaintiff was a signatory to the sale transaction pertaining to the suit property which has been sold to defendant No.2. It was under 14
O.S.No.4066/ 2015 mutual understanding between said Parvathamma and defendant No.1 that the suit property was sold to defendant No.2.
20. Except the date of death of husband of the first defendant and the mother of plaintiff, all the averments made in para 10 of the plaint are specifically denied. All the averments made in para.No.11, 12, 13, 14, 15 are specifically denied.
21. It is further contended that, the plaintiff is not in possession of suit schedule property and as such, it is clear that there is no cause of action for filing this suit and same is imaginary. The suit in its present form is not maintainable. Plaintiff is not entitled for any reliefs claimed as the suit is vexatious, malicious and abuse of the process of law and is liable to be dismissed with exemplary costs. The plaintiff is resorting to strategies and is guilty of Suppressio vary and Suggestio falsi. The plaintiff has not approached this Court with clean hands and as he is already separated from the joint family he is not entitled to maintain the suit at all.
22. It is further contended that, the suit has not been properly valued and the court fee paid is insufficient since the 15 O.S.No.4066/ 2015 plaintiff is not in possession of the suit property at all. Accordingly, prayed to dismiss the suit.
23. Defendant No.2 in his written statement has contended that, the suit is not maintainable under law and there is no cause of action for the suit at all. The averments made in para.Nos.1 to 4, 7 to 18 are denied by defendant No.2 and it is contended that, the plaintiff has suppressed the real facts and not mentioned the date when he came to know regarding the transaction. The plaintiff has no manner of right, title or interest over the suit schedule property and hence the plaintiff has no locus standi to question the same and he himself stated that he is not interested in site No.29.
24. It is further contended that, the mother of plaintiff Smt.Parvathamma who was the absolute owner of the suit schedule property sold the same to this defendant for valuable consideration by executing the Sale Deed dt. 21.09.1995, hence all the allegations made in para-09 are all false and concocted. The mother of plaintiff Smt.Parvathamma got the suit schedule property from her father's family arrangements and same becomes the 16 O.S.No.4066/ 2015 absolute property of plaintiff's mother under law and it amounts to self acquired property and she alienated the same in favour of 2 nd defendant, hence plaintiff or defendant No.3 have no right, title or interest over the same.
25. It is contended that, the plaintiff is not in joint possession of the suit schedule property. Defendant No.2 is in possession and enjoyment of suit schedule property as the absolute owner and constructed small garage in the same after purchasing it in the year 1995 and from that date, till today he is running Mechanic shop for repairing the Lorry etc., and thus this defendant is continuously in possession of the suit schedule property.
26. It is further contended that said Smt.Parvathamma alienated the suit schedule property on 21.09.1995 and plaintiff filed the suit on 27.04.2015, hence the suit is barred by Limitation. The Court fee paid is insufficient.
27. It is further contended that, the plaint averments show that plaintiff's mother Smt.Paravathamma got the suit schedule property through Partition in the family of her father. Hence as per 17 O.S.No.4066/ 2015 Section 14 of the Hindu Succession Act said Smt.Parvathamma was the absolute owner of the suit schedule property and it was the self acquired property of Smt. Parvathamma and she had every right to alienate the suit schedule property and accordingly she sold the above said suit schedule property on 21.09.1995 vide registered Sale Deed in favour of 2nd defendant and since then 2nd defendant being the absolute owner is in enjoyment and possession of the suit schedule property. Hence under law the question of plaintiff inheriting the suit schedule property does not arise at all and on this count only the suit is not maintainable and the plaintiff is not entitled for half share in the suit schedule property as claimed.
28. It is further contended that, the suit is not maintainable since the boundaries mentioned in the plaint are false. The plaintiff has not sought the partition of the all his joint family properties and on this ground alone the suit is liable to be dismissed.
29. It is further contended that, as on the date of execution of Sale Deed Smt.Parvathamma was in possession and enjoyment of the suit schedule property as absolute owner and was also 18 O.S.No.4066/ 2015 paying the Taxes to the concerned authorities. The plaintiff who has no manner of right, title or interest over the suit schedule property, filed false suit with malafide intention in order to grab away the valuable property of this defendant. As on the date of death, said Smt.Parvathamma had no subsisting right over the suit schedule property, hence the suit has no cause of action. As on the date of sale deed dated 21.09.1995 the plaintiff had no manner of right, title or interest over suit schedule property, hence present suit based upon alleged cause of action is not maintainable. Hence, prayed to dismiss the suit with exemplary costs.
30. Defendant No.3 filed separate written statement by admitting the relationship between the parties, regarding Panchayath Parikath and acquisition of 0.7 guntas of land by Smt.Parvathamma, regarding Partition Deed dt.19.11.1975. Further he admitted that, suit schedule property was allotted to plaintiff's mother by her brothers in the family arrangement and she had no manner of right, title or interest to sell the suit schedule property to the second defendant.
31. It is contended that, the acts of defendant No.1 and her husband in getting the Sale Deed executed in favour of 19 O.S.No.4066/ 2015 defendant No.2 and so called registered Sale Deed dt.21.09.1995 is not binding on this defendant. The first defendant and her husband along with defendant No.2 have man-overed the process of representation, got the registered Sale Deed executed in favour of defendant No.2. It is further contended that, this defendant is entitled for his legitimate ½ share in the suit schedule property and is ready and willing to pay the Court fee on the Counter claim. Accordingly, prayed for decree of Partition and Separate Possession of his half share in the suit schedule property by metes and bounds in the interest of justice and equity.
32. On the basis of rival contentions, my Learned Predecessor in Office has framed the following :-
ISSUES (1) Whether the plaintiff proves that defendant No.1 had impersonated name and signature of Smt. Paravathamma and created registered sale deed dated 21.01.1995?
(2) Whether the plaintiff further proves that the sale deed dated 21.09.1995 registered as No.7470/1995-96 is Book No. 1, Volume No.1335 at page.244 to 248 in office of Sub-20
O.S.No.4066/ 2015 Registered, Kengeri is not binding on his share?
(3) Whether plaintiff is entitled for reliefs of declaration as prayed?
(4) Whether plaintiff is entitled for reliefs of injunction as prayed?
(5) Whether defendant No.3 proves that he is entitled for ½ share in suit schedule property? (6) What decree or order?
ADDITIONAL ISSUE (1) Whether present suit is time barred?
33. In support of plaintiff's case, he himself got examined as Pw.1 and got marked 42 documents as per Exs.P.1 to Ex.P.42.
On behalf of defendants, defendant No.2 and one witness on behalf of defendant No.2 i.e Sri.Amjad Pasha and defendant No.1 got examined as DW's.1 to 3 and got marked 29 documents as per Ex.D.1 to Ex.D.29.
34. Heard the arguments on both sides, perused the records.
21
O.S.No.4066/ 2015
35. On considering the materials placed before me, my findings on the above Issues is as under:-
ISSUE No.1 - In Affirmative ISSUE No.2 - In Affirmative ISSUE No.3 - In Affirmative ISSUE No.4 - In Affirmative ISSUE No.5 - In Affirmative ADDITIONAL ISSUE No.1 dtd. 23.03.2019 - In Negative ISSUE No.6 - As per final order, for the following :-
REASONS
36. ISSUE Nos.1 and 2:- Both these issues are inter- linked with each other, hence they are taken together for common discussions, in order to avoid repetition of facts and evidence.
37. Here the present suit is for Partition and Separate Possession, Permanent Injunction and for Declaration that registered Sale Deed dtd.21.09.1995 executed by first defendant, mentioning the 2nd vendor as Parvathamma who has not signed the Sale Deed, is not binding on the plaintiffs share. It is the case of plaintiff that, one Hemmanna @ Pujari Muniyappa and his wife Mangamma had 7 children out of which, Smt.Parvathamma is the 22 O.S.No.4066/ 2015 daughter and plaintiff is the youngest son of Parvathamma, daughter of late Hemanna @ Pujari Muniyappa. Said Parvathamma married to one M.J.Shambulingaiah. Defendant No.3 is the elder son of Smt.Parvathamma and Shambulingaiah and the husband of defendant No.1 by name B.L.Narasimharmurthy is the son of M.Lakshmanappa who is the 3rd son of Hemanna @ Pujari Muniyappa.
38. It is further the contention of plaintiff that, all the children of Hemanna @ Poojari Muniyappa had partitioned the family properties by way of Panchayath Parikath on 14.11.1975 and by virtue of said Partition, Sy.No.25, Re-Sy.No.25/1 measuring 7 guntas of Byatarayanapura was allotted to the share of Smt. Parvathamma.
39. It is further his case that, sons of Hemanna got executed Partition Deed on 19.11.1975 and got divided the joint family properties and got the Partition Deed registered by mentioning Panchayath Parikath dt.14.11.1975. It is further the contention of plaintiff that, there was one dispute between Lakshmanappa and matter was pending before Special Deputy 23 O.S.No.4066/ 2015 Commissioner for Inam Abolition, wherein occupancy right was claimed in Sy.No.4 to the extent of 2 Acres and Lakshamnappa was ordered as registered occupant with respect to 1 Acre 18 guntas in Sy.No.4 of Devatige Ramanahalli Village and Sy.No.3 was ordered to be registered in the name of Diety Sri Hanumanthadevaru of Devatige Ramanahalli. After resolving of dispute with respect to said land, said Sy.No.4 was partitioned among the members of family of Hemanna @ Poojari Muniyappa and in said Partition, Site No.28 was allotted to Smt.Parvathamma as per Layout map.
40. It is also his contention that, as per layout map, site No.29, formed in Sy.No.4 does not belong to M.Lakshmanappa and it belonged to M.Seenappa, s/o late Poojari Muniyappa along with site Nos.30, 31, 32, 45 and 7 formed in Sy.No.4 and said Seenappa died leaving behind his wife Smt.Gowramma and 3 daughters.
41. Hence it is the specific contention of plaintiff that, his mother Parvathamma had no occasion to sell site No.28 formed in Sy.No.4 which is the Schedule Property. The husband of 24 O.S.No.4066/ 2015 defendant No.1 or said defendant No.1 had no right whatsoever to sell the suit schedule property along with plaintiff's mother and plaintiff's mother never came to Bangalore to execute registered Sale Deed on 21.09.1995 and defendant No.1 and her husband by impersonation have executed Sale Deed by taking undue advantage of the ill-health of plaintiff's mother who was hospitalized in KIMS hospital during 2002 for respiratory failure and she died in the hospital on 07.09.2003. The husband of first defendant died on 13.11.1977 at Manipal Hospital after prolonged treatment. Said husband of defendant No.1 alienated the property mentioning as site No.27/1 on 29.01.1995 which was actually the road available for ingress and egress of site Nos.27 and 28.
42. The main contention of plaintiff's is that, as the suit schedule property was allotted to his mother in family Partition and she was in possession and enjoyment of the same and has not sold the property. Plaintiff was in joint possession and enjoyment of suit schedule property along with 3rd defendant and his mother Smt.Parvathamma and after death of Smt.Parvathamma on 17.09.2003, the plaintiff and defendant No.3 continued their possession and enjoyment over the suit 25 O.S.No.4066/ 2015 property. Plaintiff's mother had no exclusive right to alienate the entire extent of suit schedule property to 2nd defendant. Since plaintiff is son of her parents, insisted defendant No.3 to make arrangement for Partition by metes and bounds and 3 rd defendant did not respond for the same. Hence, he was constrained to file the present suit for Partition.
43. In support of the plaintiff's case, he himself got examined as Pw.1 and he has reiterated the plaint averments in his examination-in-chief affidavit and has got marked 42 documents such as Certified copies of registered Partition Deed, order passed by Land Tribunal, RTC, Index of Lands, Sale Deed dt. 21.09.1995, Death Certificate of Parvathamma and Lakshmanappa, Invitation card of Devananda Swamy Muth Function, Certified Copies of Sale Deeds dt.21.09.1995, Objections, Endorsements, Receipts, Police Complaint, Letters etc as per Ex.P.1 to Ex.P.42.
44. In cross-examination of Pw.1, he has admitted that, brother of his mother Parvathamma gave her site No.28 by way of Panchayath Parikath on 30.05.1987. He admitted that, his 26 O.S.No.4066/ 2015 grandfather had totally 8 children and volunteered that, his mother was the only daughter. He admitted that on 14.11.1975, there was registered Panchayath Parikath. It is elicited that, 01 Acre 38 guntas of land was granted by the Land Tribunal in favour of Sri.Lakshman who is the father in law of defendant No.1. Out of 01 Acre 38 guntas, 20 guntas was given by Lakshman for Temple. He admitted that, in said land Lakshman formed Layout and sites and in said sites, site No.28 was allotted to Parvathamma. To the suggestion that Parvathamma was resided with his daughter Ambujamma at Devatige Ramanahalli, he stated that, Ambujamma is not the daughter of Parvathamma and she is daughter- in- law of Lakshmanappa.
45. He denied to the suggestion that his mother sold the property in favour of defendant No.2. He denied that himself and defendant No.3 were aware of said alienation. He denied to the suggestion that, he has created Ex.P.10. To the suggestion that, except Ex.P.10, he has not produced any other documents to show that his mother was residing in Devananda Swamy Mutt, Mandi Mohalla, Mysore, he stated that, all the documents are stolen. Since he was residing at Bengaluru and his mother was 27 O.S.No.4066/ 2015 old aged they have not given any complaint regarding theft of Documents. He admitted that his mother died in the year 2003. He admitted that, after 2003 till this day, he did not get transferred the Khata of said property in his name. He has volunteered that though they had submitted application, the authorities have not transferred the Khatha. He denied to the suggestion that, since they were well aware about alienation of property in favour of defendant No.2, they did not get entered Khatha in their names. To the suggestion that, in Encumbrance Certificate for the period 1998 to 2003 there was entry regarding sale transaction between his mother and defendant No.3, he stated that, it is on the basis of false and fabricated document.
46. It is elicited that, he did not pay any tax with respect to suit property, since the authorities did not get the tax paid. He admitted that, Exs.P.24 to Ex.P.32 tax paid receipts are regarding payment of tax after filing of the suit. He admitted that, Encumbrance Certificate for the period 01.04.2004 to 20.12.2015 is obtained by them on 28.12.2015. He admitted that, from 21.12.2015 to 23.09.2016 he has obtained Encumbrance Certificate in Form No.16 on 23.09.2016. He denied to the 28 O.S.No.4066/ 2015 suggestion that, though he was aware of sale transaction in favour of defendant No.2 in the year 1995, he is deposing falsely that, since it was not entered in the Encumbrance Certificate, he was unaware about the same.
47. He admitted that, on 19.08.2014 he has given complaint before Byatarayanapura police and police officials gave endorsement to approach the Civil Court. He has not filed any private complaint in Criminal Court. He denied to the suggestion that, when defendant No.2 gave application for change of Khata in his name and they received notice regarding the same, they have filed the false suit. He has not produced any documents to show that they are in possession of the suit property.
48. To the suggestion that, there is one small house in the suit property, he stated that there is shed. He denied to the suggestion that, defendant No.2 parks his Lorries and uses the shed as Garage. To the suggestion that, electricity connection to shed is in name of defendant No.2 he stated that, may be it is with respect to site No.29. He admitted that, he has not produced any document to show that as on 21.09.1995 his mother was 29 O.S.No.4066/ 2015 residing in Mysore. He denied to the suggestion that, on 21.09.1995 his mother was in Bangalore and she executed Sale Deed in favour of defendant No.2. He admitted that, in his plaint, he has got mentioned that, since 2003 his mother was residing with him. To the suggestion that, he is unaware about the transactions done by his mother prior to 2003, he stated that, his mother was not doing any work or transactions without bringing to his knowledge. His mother acquired the property from their joint family and later it became her, self acquired property.
49. In support of the defense taken by the defendants, defendant No.1 Mr. Abdul Shoocker @ Ameer got himself examined as Dw.1 and he filed his examination-in-chief affidavit in consonance with his written statement averments and has got marked Ex.D.1 to Ex.D.27 which are, Election Identity Card, Passport, Sale Deed, Encumbrance Certificates, Receipts, BESCOM Bill, Photos along with CD, Certificate U/s.65(B) of Indian Evidence Act etc.
50. In his cross-examination, it is elicited that, he does not know plaintiff Rajashekar. He saw the plaintiff for the first time 30 O.S.No.4066/ 2015 before the Court itself. He denied to the suggestion that, he is not residing in Site No.28 and stated that, he is in possession of said property since 30 years. The address shown in his examination in chief affidavit is rented house and there is distance of 8 K.M between his rented house and Site No.28. There is one sheet room in Site No.28 and there is electricity connection to the same. Said site measures 60 x 40 feet. He has not produced any document to show the existence of shed in site No.28. He purchased Site No.28 from Smt. Parvathamma and Smt.Ambujamma in the year 1995. He does not know the relationship between Parvathamma and Ambujamma. At the time of registration of Sale Deed he saw Parvathamma for the first time.
51. He cannot say in which survey number site No.28 is situated. Apart from site No.28, he has also purchased another site in same survey number. The measurement of that site is about 1000 square feet. He cannot say from whom he purchased that site. Both the sites are abutting to each other and he purchased them on the same day. Smt.Ambujamma and Smt.Parvathamma were the owners of Site No.28. He does not 31 O.S.No.4066/ 2015 know how they acquired said property. He admitted that Rajashekar is son of Smt.Parvathamma. In Sy.No.4 two sites were formed. He does not know the contents of his examination- in-chief affidavit. Smt.Ambujamma and Smt.Parvathamma gave instructions for the same.
52. He admitted that, in Ex.P.22 to Ex.P.25 shed can be seen. He denied to the suggestion that said photographs does not pertains to Site No.28. He admitted that, as per the Partition of the year 1987 Site No.28 was fallen to the share of Smt.Parvathamma and it is the ancestral property acquired by her from her father. He gave evasive reply to the suggestion that, in Ex.D.3 it is mentioned that, site No.28 is ancestral property of Smt.Parvathamma. He admitted that, Ex.D.3 pertains to site Nos.28 and 29.
53. He gave evasive reply to the suggestion that, Sy.No.4 is ancestral property of Lakshmanappa and he formed layout in the same. He gave evasive reply to the suggestion that, there was Partition between Lakshmanappa, his brothers and his sisters and as per said Partition, site Nos.15, 20 to 23 and site No.2 were 32 O.S.No.4066/ 2015 fallen to the share of Lakshmanappa. He does not know to whom Site No.29 was allotted. He gave evasive reply to the suggestion that, Site No.29 was allotted to Seenappa. He does not know who the husband of Smt.Ambujamma is. He does not know the relationship between Smt.Ambujamma and Lakshmanappa. He admitted that, Ambujamma is the wife of Narasimhamurthy who is the son of Lakshmanappa. He admitted that, Ambujamma is not at all concerned with said sites. He gave evasive reply to the suggestion that, Smt. Ambujamma has no authority to sell site No.29. He admitted that, site No.28 was allotted to Parvathamma. He admitted that, he purchased site Nos.28 and 29. There is site of other persons in front of Site No.28. Site No.28 measures 60 x 40 feet.
54. It is elicited that, he knows Narasimhamurthy from the time when he is doing Mechanic work. He purchased one site from Narasimhamurthy. He does not remember the site number. He possesses Sale Deed pertaining to the same and has produced the same to the Court. He denied to the suggestion that, since there is no Site No.27/1, Narasimahamurthy sold him the road by mentioning it as Site No.27/1. He does not know that, Site 33 O.S.No.4066/ 2015 No.29 does not pertain to Narasimhamurthy. He denied to the suggestion that himself, Narasimamurthy and Ambujamma got created the Sale deed. He denied to the suggestion that, by taking some other person and impersonating the same as Parvathamma they have got created the Sale Deed.
55. To the suggestion as to whether he informed the children of Smt.Parvathamma before purchasing the property, he stated that there was no necessity for the same. He does not know who the mother of Narasimhamurthy is. He does not know the relationship between Narasimhamurthy and Parvathamma. At the time of execution of Sale Deed, Ambujamma, Safiulla Khan, Amjad Khan and himself were present. Safiulla Khan and Amjad Khan had seen Smt.Parvathamma. He does not remember for what sale consideration, he purchased the property. He gave consideration amount by way of cash to Smt.Ambujamma. At the time of his purchasing the suit property, it was in the name of Smt.Ambujamma. To the suggestion hat, suit property is not concerned to Smt.Ambujamma, he stated that, Smt.Ambujamma and Smt.Parvathamma are relatives.
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56. He admitted that site number 28 measures 30 x 40 feet. He admitted that, site No.28 is not square property and the measurement of all the four sites is different. He gave evasive reply to the suggestion that, towards Eastern side site no.28 measures 64 feet and Western side it measures 31 feet, Northern side 40 feet and Southern side 46 feet.
57. To show that he is residing in suit property he has produced electricity bill and tax paid receipts. He cannot say which address is mentioned in his Voter I.D Card. He does not know about any other property possessed by Smt.Parvathamma, apart from suit property. At the time of his purchasing the suit property it was vacant site. After purchasing the property, in 2-3 years he has put up shed. Said shed is constructed in half portion of site No.28 and half portion in site No.29. It consists of 3 rooms. His house is situated at a distance of 6 KM from the shed. He admitted that, he is residing in different area. He volunteered that, he carries his work in suit shed.
58. He cannot identify the thumb impression forthcoming in Ex.D.1. He cannot say whether Ambujamma and her husband 35 O.S.No.4066/ 2015 Narasimhamurthy were alive at the time of executing Ex.D.3. He gave evasive reply to the suggestion that, Smt.Parvathamma was residing in a Mutt at Mysore. At the time of executing Sale Deed Smt.Parvathamma was residing in the house of Smt.Ambujamma. Amjad Pasha and Saifulla introduced him to Smt.Parvathamma. He did not obtain license for putting up shed in Site Nos.28 and
29. He cannot identify the thumb impression in Ex.D.3 and volunteered that, it pertains to Smt.Parvathamma. He denied to the suggestion that, since Smt.Parvathamma did not come to the Sub-Registrar Office, he did not pay any amount to her.
59. He admitted that, Narasimhamurthy who is the husband of Ambujamma has not signed on the Sale Deed. He admitted that, on the date of execution of Ex.D.3 he also purchased site No.27(A) from Narasimhamurthy vide Ex.P.12/ Sale Deed. There is shed in site No.27(A). He cannot say how Narasimhamurthy acquired said site. He denied to the suggestion that, as per Ex.P.42 there is no site No.27(A) and that it is a road. He denied to the suggestion that, Narasimhamurthy had no authority to execute Sale Deed with respect to Site No.27(A). He 36 O.S.No.4066/ 2015 cannot say whether there was any document in the name of Narasimhamurthy with respect to site No.27(A).
60. It is elicited that, he has not produced any document to show that site Nos.27(a), 28 and 29 were standing in the name of Ambujamma. He knows Ambujamma and Narasimharmuthy very well. He does not remember that witnesses who signed on the Sale Deeds with respect to site No.27(A), 28 and 29 are one and the same. Ambujamma told him that the lady accompanying her to Sub-Registrar office is Smt.Parvathamma. He kept silent to the suggestion that, road situated towards Western side of suit property was falsely shown as site No.27(A) and sale deed was executed by Narasimhamurthy.
61. To the suggestion that site No.28 is in Ranganath Layout, he stated that, it is in flower garden. Flower garden and Ranganath Layout are abutting to each other. He admitted that as per Ex.D.3 site Nos.28 and 29 totally measures 2400 feet. He admitted that, site No.29 measures 30 x 40 feet. He cannot tell the measurement of site No.28. To the suggestion that, the property purchased as per Ex.D.3 is more than the actual extent of site 37 O.S.No.4066/ 2015 No.28 and 29, he stated that, 8 square feet is the space pertaining to road. He admitted that, there is no impediment to appoint Court Commissioner for measuring the extent. He admitted that, when he submitted application for change of Khatha plaintiff submitted his objections. He admitted that, plaintiff also gave complaint before police. He submitted application for change of Khatha in the year 2014. He does not know the contents of Ex.P.23.
62. He admitted that, when he applied for change of Khatha in B.B.M.P they asked him the original documents pertaining to Smt.Ambujamma and Smt.Parvathamma. He admitted that, in Ex.P.23 it is mentioned that original documents are lost. He further volunteered that, he submitted all documents to BBMP and he has document regarding the same. He submitted all the original documents to BBMP. He cannot say which those original documents are.
63. He admitted that, plaintiff gave complaint in police station alleging that by impersonating different person as Smt.Parvathamma he got registered Sale Deed fraudulently and police officials instructed plaintiff to get the relief before Court. 38
O.S.No.4066/ 2015 Smt.Parvathamma acquired the property by virtue of Gift Deed executed by her father. He does not have that Gift Deed. Ambujamma and Parvathamma told him about the Gift Deed. He denied to the suggestion that suit property is vacant site and volunteered that he has got constructed two rooms. He admitted that, the Khatha of suit property is not standing in his name.
64. One witness by name Amjad Pasha S/o Ibrahim Sab got examined as Dw.2 and he filed his examination-in-chief affidavit wherein he stated that, he knows Smt.Ambuja and Smt.Parvathamma and they are owners of House list Nos.28 and 29 of Khatha No.4 Devatige Ramanahalli, (now called as Deepanjali Nagar) measuring 60 x 40 feet. He came to know regarding the site being for Sale and informed to Abdul Shoocker @ Ameer. Smt.Ambuja and Smt.Parvathamma agreed to sell the property and on 21.09.1995 they executed Sale Deed in favour of Abdul Shoocker with respect to site No.28 for consideration of Rs.1,50,000/- and Abdul Shoocker paid cash to Smt.Parvathamma. At the time of registration of Sale Deed, himself, Parvathamma, Abdul Shoocker, Ambuja, Saifulla were present. Since Ambujamma was looking after Parvathamma at 39 O.S.No.4066/ 2015 that time, she has signed the Sale Deed. He has got marked his Aadhar Card and Driving License as per Ex.D.28 and Ex.D.29.
65. In his cross-examination, it is elicited that he is Lorry Driver. Defendant No.2 is his friend, since 40 to 50 years and defendant No.2 called him for giving evidence. He does not know defendant No. 1 Ambuja and also does not know plaintiff's mother Parvathamma. He does not know how many children Parvathamma had. Present suit is filed with respect to site No.28 and Parvathamma was owner of said site. In the year 1995, Parvathamma told him that, she is the owner of site No.28. Prior to that, he was not knowing Parvathamma and she herself introduced to him and told that, she is Parvathamma and she is the owner of site No.28.
66. It is elicited that, defendant No.2 had workshop in suit property and suit property was sold by Parvathamma to defendant No.2. even Ambujamma signed Sale Deed. He does not know relationship between Ambujamma and Parvathamma. At the time of executing Ex.D.3 Sale Deed Parvathamma, Ambujamma, defendant No.2, Saifulla and he were present. Except them 40 O.S.No.4066/ 2015 nobody else was present in the Sub-Registrar. On that day, he has signed only Ex.D.3 and has not signed any other document. Ex.D.3 is with respect to site No.28 measuring 40 x 60 feet. He has no knowledge about site No.29. Site No.28 is sold for Rs.1,50,000/-. On the date of execution of said Sale Deed, Rs.1,50,000/- was paid by defendant No.2 to Parvathamma and he saw the same. He does know that, whether, Smt.Ambuja had any right over the suit property.
67. It is elicited that, on the date of execution of Sale Deed no one called him to Sub-Registrar Office and he himself went to the Sub-Registrar office since he was the Mediator to said sale transaction. He does not know that Ex.D.3 is with respect to site Nos.28 and 29. He volunteered that, he has got done the transaction only with respect to site No.28 and Rs.1,50,000/- was also paid by defendant No.2 only with respect to site No.28. He has not done any transaction nor mediated the same with respect to site No.29. He does not know who mentioned site No.29 in the Sale Deed.
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68. He identified his signature on Ex.P.12 and stated that, he cannot say to which property Ex.P.12 pertains to. He has signed only on the Sale Deed pertaining to site No.28. He does not know totally how many sites are purchased by defendant No.2. He admitted that, even today site No.28 is vacant site and there is no any building on the same. House of defendant No.2 is at Kengeri and he is residing there since 10 to 15 years. Defendant No.2 is not residing in site No.28. He volunteered that he runs workshop in site No.28.
69. It is elicited that, he did not verify any documents to get confirmed that the Lady who came to Sub-Registrar office is Parvathamma and she is the owner of site No.28. He gave evasive reply to the suggestion that on the date of signing Ex.D.3 he signed on Ex.P.12 also. Though he identified his signature on Ex.P.12, he stated that, he does not know the contents of the same and also cannot say who executed said document, in whose favour, in respect of which property and for what consideration amount.
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70. It is elicited that, in his examination- in- chief affidavit he has not stated that, Parvathamma is the owner of site Nos.28 and 29. He cannot say to whom the three thumb impressions forthcoming in Page No.2 of Ex.D.3 pertain to. He does not know the contents of Ex.D.3. He knows only his signature. He does not know the measurement of site No.29.
71. Smt.A.Ambuja who is defendant No.1 got examined herself as Dw.3 and she filed her examination-in-chief affidavit in contradiction to her written statement averments and stated that, she does not know defendant No.2 Abdul Shookur and she only knows Parvathamma who was her relative. She did not own any property, hence she has not sold any property to anybody. Her husband died on 13.11.1997 at Manipal hospital after prolonged treatment. Many years ago her husband had taken her to Kengeri Sub-Registrar office to sign a document as witness.
72. She further stated that, she has not sold any property as absolute owner nor received any consideration amount from anybody. Sine Parvathamma was her relative she used to visit their house and immediately she used to return back to her 43 O.S.No.4066/ 2015 residence and she was also running Muth at Mysore. Said Parvathamma died in the year 2003.
73. In her cross-examination, it is elicited that, Parvathamma is her husband's maternal aunt. Herself and her husband had been to Kengeri Sub-Registrar office, however Parvathamma did not come there. Parvathamma has not signed any Document in the Sub-Registrar office. During life time of Parvathamma she was taken care by her children. She stated that she is not the owner of suit property. Parvathamma was not residing with her and she has not taken care of Parvathamma at any point of time.
74. In cross-examination on behalf of defendant No.2, she admitted her signatures on her Written Statement and stated that, she is not aware of the contents of said Written Statement. Since her husband told her to sign on the same she has signed the Written Statement. Even she does not know the contents of her examination-in-chief affidavit. She denied to the suggestion that Parvathamma was not taken care by her children. It is elicited that Parvathamma was residing in Mysore and there was one 44 O.S.No.4066/ 2015 Muth pertaining to them. She identified her signature on Ex.D.3 i.e., Sale Deed dtd. 21.01.1995, hence her signatures as marked as Ex.D.3(b).
75. She denied to the suggestion that, in her Written Statement she has mentioned that, herself and Parvathamma executed Sale Deed in favour of defendant No.2 with respect to suit property. She denied to the suggestion that, after receiving consideration amount from defendant No.2, herself and Parvathamma executed Sale Deed in favour of defendant No.2. It is elicited that, at the time of her signing on Ex.D.3 only herself and her husband were present and nobody else were present with them. She does not know the person forthcoming in ex.D.22 and she has no seen him.
76. Here the main contention of plaintiff is that, defendant No.1 Smt.Ambuja impersonated the name and signature of Smt.Parvathamma and created registered Sale Deed dt. 21.9.1995 in favour of defendant No.2, hence, said Sale Deed is not binding on plaintiff and defendant No.3 and that, they being the children of Smt.Parvathamma who was the absolute owner of 45 O.S.No.4066/ 2015 suit schedule property are entitled for half share in the suit schedule property.
77. Here it is undisputed that, the suit property was originally acquired by Smt.Parvathamma from her father in family Partition. Now, the only dispute is with respect to registered Sale Deed dtd. 21.09.1995 standing in the name of defendant No.2, said to have been executed by defendant No.1 and deceased Parvathamma.
78. Here defendant No.2 being the purchaser of suit schedule property is not disputing the acquisition of property by Smt. Parvathamma from her ancestors. Here, the alleged Sale Deed with respect to the suit property in favour of defendant No.2 is executed by Parvathamma and defendant No.1 Ambuja. Said Ambuja is neither daughter nor sister of Parvathamma and she had no right, title or interest over the suit schedule property.
79. Here it is pertinent to note that, said defendant No.1 after appearing in pursuance of suit summons has taken the contention in her Written Statement that, Parvathamma was staying alone at Devatige Ramanahalli, hence said defendant 46 O.S.No.4066/ 2015 No.1 and her family members looked after Smt.Parvathamma. It is her contention that, plaintiff and defendant No.3 did not care for their mother Parvathamma and they were living with their respective families. Hence, defendant No.1 and her family took care of deceased Parvathamma and for the requirements of Parvathamma she intended to sell the suit property and plaintiff and defendant No.3 are very-well aware of said transaction.
80. Further, it is contended in the Written Statement that, under mutual understanding between Parvathamma and defendant No.1 the suit property was sold to defendant No.2 Abdul Shoocker. Hence, she has contended that, plaintiff has no manner of right, title or interest over the suit schedule property.
81. However, it is pertinent to note that, said defendant No.1 has given complete go-bye to her pleadings and gave entirely contradicting evidence before the Court, wherein in her examination in chief affidavit she has stated that, she does not know defendant No.2 and Parvathamma was her relative. She stated that, many years ago her husband took her to Kengeri Sub- Registrar Office to sign a document as witness and accordingly 47 O.S.No.4066/ 2015 she put her signature. Her husband died on 13.11.1997 and after death of her husband she was residing with her children. She has not sold any property as absolute owner and has not received any consideration amount. Parvathamma used to visit their house and would return back to her residence and Parvathamma was running Mutt in Mysore and died during 2003.
82. In her cross-examination though she has admitted her signature on Sale Deed she stated that, as per the directions of her husband she signed on that Sale Deed. Even she denied her Written Statement averments in her examination-in-chief affidavit and so also in her cross-examination.
83. Here admittedly, deceased Parvathamma was the absolute owner of suit schedule property. Said defendant No.1 Ambuja is not at all concerned to the suit property. Any property can be alienated by one person to another only if they have vested right, title and interest over the property. Here, it is not at all the contention of defendant No.1 that, she was also the joint owner of suit property along with Parvathamma. Under such circumstances, registration of Sale Deed jointly by defendant No.1 48 O.S.No.4066/ 2015 and Smt.Parvathamma creates serious doubt regarding the legality and validity of said Sale Deed.
84. Here the disputed Sale Deed is of the year 1995. Dw.1 has admitted that, the Khatha of the property is not changed in his name. Further, he admitted that, when he submitted application for change of Khatha during the year 2014, plaintiff filed objection and also gave police complaint. Here, if at all defendant No.2 had purchased the suit property lawfully from its lawful owner by paying sale consideration amount to her, there was no impediment for him to get the Khatha of the suit property changed in his name immediately or within sometime. However, it is forthcoming that, after lapse of almost 18 to 19 years, defendant No.2 has applied for change of Khatha. Even said fact creates doubt regarding the valid execution of registered Sale Deed in favour of defendant No.2 by deceased Parvathamma. Even on perusal of tax paid receipts produced on behalf of plaintiffs as per Ex.P.24 to Ex.P.32 it is forthcoming that till this day all the documents pertaining to suit property and so also the Khata are in the name of Smt.Parvathamma.
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85. Further, Dw.1 has clearly admitted that, he did not knew Parvathamma personally and that Amjad Pasha (Dw.2) and Saifulla introduced him to Parvathamma and they told that the lady who appeared before Sub-Registrar is Parvathamma. He did not verify any I.D Card etc., to get confirmed as to whether the lady who appeared before Sub-Registrar is Parvathamma or not. Further it is pertinent to note that, Dw.1 who is said to be purchaser of the property stated that, he paid consideration amount to defendant No.1 Ambujamma, Dw.2 who is said to be the witness to Sale Deed and the person who has introduced Parvathamma has stated that, Abdul Shoocker paid the amount to Parvathamma. Dw.3 Ambuja stated in her evidence that she has not received any amount. All these contradicting version of all the three persons create sufficient doubt regarding genuineness of Sale Deed, payment of consideration etc., and thereby makes the contention of plaintiff more probable.
86. No-doubt as defendant No.1 has taken different contentions in written statement and gave contradictory evidence in her examination-in-chief, her evidence cannot be looked into. Moreover as she has not stated anything in support of her 50 O.S.No.4066/ 2015 pleadings, adverse inference can be drawn against her. Here admittedly, in Ex.D.3/ Sale Deed there is thumb impression and it is mentioned that, it belonged to deceased Parvathamma. It is well settled that, without admitted thumb impression of a person said thumb impression cannot be even sent for Expert opinion. Further it is pertinent to note that, Ex.D.3 is executed with respect to House List Nos.28 and 29 and it is clearly averred by the plaintiff in plaint that, site No.29 was allotted to Seenappa in Partition and he died leaving behind his wife Smt.Gowramma and three daughters.
87. It is not at all, the case of plaintiff that, even site No.29 pertains to their mother Smt.Parvathamma and it is not the contention of defendant No.1 that, site No.29 belongs to her or her husband. When Smt.Parvathamma and defendant No.1 Smt.Ambuja were not at all the owners of Site No.29, they had no authority to execute Sale Deed with respect to said property. All these circumstances clearly goes to show that, the rightful owners of site Nos.28 and 29 have not at all executed Ex.D.3 i.e. registered Sale Deed in favour of defendant No.2 and by impersonation defendant No.2, Dw.2, Defendant No.1 and others 51 O.S.No.4066/ 2015 have got the Sale Deed created. Hence, defendant No.2 will not get any right over Site No.28 i.e., suit schedule property and said Sale Deed is not binding on the right and share of plaintiff and defendant No.3 over the suit schedule property.
88. No-doubt the contention taken by defendant No.2 that, as suit property bearing site No.28 was acquired by Smt.Parvathamma in family Partition or arrangements from her father, it is her self acquired property as per Section 14 of Hindu Succession act, she being the absolute owner of the same had every right to deal with the same as per her wish is true. However, said principle of law will be applicable only when there is lawful disposition of the property by its lawful owner. However, in the instant case, as discussed above, the very execution of the Sale Deed by the true owner Parvathamma is doubtful in view of the above discussed circumstances. On careful consideration of recitals of Sale Deed, it is clear that, in Sale Deed it has been mentioned that, Smt.Ambuja and Parvathamma are the sole absolute owners of House List No.28 and 29 of Khata No.4 of Devatigere Ramanahalli Village, Bangalore South Taluk. However as discussed above and from oral and documentary evidence,e 52 O.S.No.4066/ 2015 temporary injunction is clear that, only Parvathamma was the owner of House List No.28 and Ambuja had no right whatsoever either with respect to site Nos.28 or 29. Hence, the very Sale Deed i.e., Ex.D.3 executed jointly in the name of Ambuja and Parvathamma with respect to site Nos.28 and 29 together cannot be considered as lawful document. Hence, as there is no lawful alienation of the property, defendant No.2 does not acquire any right, title or interest over said properties. Hence, Section 14 and 15 of Hindu Succession Act cannot be made applicable to this case.
89. Here, it is further pertinent to note that, Dw.2 Amjad Pasha is the only witness to the Sale Deed and he is not party to the document nor has any right, title or interest over the suit schedule property. However, it is observed during Court proceedings that said Dw.2 was regularly present before the Court even when the matter was posted for hearing, Arguments, Judgment etc. This itself clearly goes to show that, even he had personal interest in said transaction. Hence, the conduct of the parties itself clearly goes to prove that, all of them hand-in-glove 53 O.S.No.4066/ 2015 have created the Sale Deed without the knowledge of Smt.Parvathamma.
90. Hence, from the over all materials available on record, from the oral and documentary evidence, admissions of Dw.1 and 2 and from the conduct of the parties, plaintiff has succeeded to prove that, defendant No.1 had impersonated name and signature of Smt.Parvathamma and created registered Sale Deed dtd. 21.09.1995. Hence, he has proved that, Sale Deed dtd. 21.09.1995 registered as No. 7470/ 1995- 96 in Book No.1, Volume No.1335 at Page Nos.244 to 248 in the office of Sub- Registrar, Kengeri is not binding on him. Hence, in view of my above discussions, I answer Issue Nos.1 and 2 in the Affirmative.
91. Additional Issue No.1 dtd. 23.03.2019:- It is the contention of defendant that the suit of the plaintiff is barred by Limitation. The specific contention of defendant No.2 is that, as Smt.Parvathamma alienated the suit schedule property on 21.09.1995, the suit filed on 27.04.2015 is barred by Limitation and is not maintainable under Law.
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92. Here, admittedly, as discussed above, the alleged Sale Deed is not validly executed by Smt.Parvathamma and already it is proved by plaintiff that, same was impersonated by defendant No.1 with the help of defendant No.2, Dw.2 and others. Moreover, as discussed above, defendant No.2 has not taken any steps nor submitted any application before concerned authorities for change of Khata in his name soon after execution of Sale Deed. He has clearly admitted that only in the year 2013, he submitted application for change of Khata.
93. In plaint it is clearly averred that, only when defendant No.2 submitted application on 17.09.2013 for BBMP for transfer of Khata in his name, plaintiff came to know regarding the fraudulent act of defendnats Nos.1 and 2 and then, lodged written objections on 27.09.2013 before BBMP authorities objecting change of Khata in the name of defendant No.2. Hence, it is clear that, plaintiff got the knowledge of alleged creation of Sale Deed only after 17.05.2013, the suit is filed on 27.04.2015. hence, the same is well within Limitation. Accordingly, I answer above issue in the Negative.
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94. Issue Nos. 3 to 5: All these issues are inter-linked with each other, hence they are taken together for common discussions, in order to avoid repetition of facts and evidence.
95. Plaintiff has sought for Declaration that the Sale Deed dtd. 21.09.1995 is not signed by Smt.Parvathamma, same is impersonated by defendant No.1 and hence, it is not binding on plaintiff and further sought for Partition and Separate Possession of his half share in the suit schedule property by metes and bounds and for the relief of Permanent Injunction restraining defendant No.2 from interfering in his peaceful possession and enjoyment of suit schedule property.
96. Defendant No.3 who is another son of deceased Smt.Parvathamma, so also brother of plaintiff by filing Written Statement and Counter Claim sought for Partition and Separate Possession of his half share in the suit schedule property and there is no dispute between plaintiff and defendant No.3.
97. As discussed above, in view of my findings on Issue Nos.1 and 2, plaintiff has clearly proved that the alleged Sale Deed dtd. 21.09.1995 executed in favour of defendant No.2 with 56 O.S.No.4066/ 2015 respect to suit property is not at all actually executed by true owner Smt.Parvathamma and that it is impersonated by defendant No.1, 2 and Dw.2 and others. Hence, said Sale Deed is not lawful Document, as it is illegal and void Document same is not binding on plaintiff and it will not take away the right of plaintiff and defendant over the suit schedule property, as they being Class-I legal heir of Smt.Parvathamma succeeded to suit property by virtue of inheritance as per Section 15 of Hindu Succession Act.
98. Since defendant No.2 failed to prove his valid acquisition of right, title and possession over suit schedule property, he has no right whatsoever to interfere in the plaintiff's peaceful possession and enjoyment of suit schedule property. As defendant No.3 is also the son and Class-I legal heir of Parvathamma, he is also entitled for half share in the suit property as prayed. Hence, in view of my discussions, I answer issue Nos.3 to 5 in the Affirmative.
99. ISSUE No.6 : In view of my findings on aforesaid Issues, I proceed to pass the following:-
ORDER Suit of the plaintiff is hereby decreed with costs.57
O.S.No.4066/ 2015 It is declared that, plaintiff is entitled for Partition and Separate possession of his half share in the suit schedule property.
It is declared that, Sale Deed dtd. 21.09.1995 executed in favour of defendant No.2 with respect to suit schedule property is obtained by impersonation and hence, same is not binding on the plaintiff and defendant No.3.
Defendant No.2 is restrained by way of Permanent Injunction in any way from interfering in plaintiff's peaceful possession and enjoyment over the suit schedule property.
It is held that, defendant No.3 is entitled for Partition and Separate Possession of his half share in the suit schedule property.
Draw Preliminary decree accordingly.
Office is directed to draw Decree in favour of defendant No.3 on his payment of necessary Court Fees as per law.
(Dictated to the Stenographer Grade-I, directly on computer, typed by her and after corrections, pronounced in open Court on this 12th day of December, 2024).
(Renuka.D.Raikar) XXIV Additional City Civil and Sessions Judge, Bengaluru.
58O.S.No.4066/ 2015 ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
P.W.1 : Rajashekara
2.DOCUMENTS MARKED ON BEHALF OF
PLAINTIFFS:
Ex.P.1 : Certified copy of registered partition
deed dtd 19.11.1975.
Ex.P.2 : Certified copy of order pass by Land
Truibunal.
Ex.P. 3 : RTC in respect of Sy No.4.
Ex.P. 4 : Certified copy of index of land issued by
Tahasildar
Ex.P.5 : Certified copy of registered sale deed
dtd:21.9.1995 executed by Ambuja and
other
Ex.P. 6 : Certified copy of sale deed dtd
21.09.1995 executed by Ambuja &
Parvathamma.
Ex.P.7 : Death certified of Parvathamma
Ex.P.8 : Death caremoney card
Ex.P.9 : Death certificate of Lakshmanappa
Ex.P.10 : Invitation card of Devananda Swamy
Muth Function
Ex.P.11 : Certified copy of sale deed dtd:21.9.1995
executed by Narasimha Murthy in favour
of Abdul Shukur.
Ex.P. 12 : Certified copy of sale deed dtd:
21.9.1995 executed by Narasimha
Murthy in favour of Abdul Shukur.
Ex.P.13 : Copy of objection filed by me before
Revenue officer
Ex.P.14 : Copy of objection filed by me before
BBMP .
Ex.P.15 : Copy of objection filed by me before
Revenue authorities
59
O.S.No.4066/ 2015
Ex.P.16 : Endorsement issued by Revenue officer
furnishing the documents sought be me
under RTI
Ex.P.17 : Tax paid receipt
Ex.P.18 : Copy of objection filed by me before RTI
seeking documents
Ex.P.19 : Copy of objection filed by me before
Revenue authorities
Ex.P.20 : Copy of police complaint
Ex.P.21 : Receipt issued by police
Ex.P.22 : Endorsement issued by police
Ex.P.23 : C/c of affidavit filed by Abdul Shukur
dtd:4.6.13
Ex.P.24
to Ex.P.32 : Nine Tax paid receipts
Ex.P.33
to Ex.P. 35 : Three Tax paid receipts
Ex.P.36 : Endorsement dtd:1.4.15 issued by
Revenue authorities
Ex.P.37 : C/c of order of Land Tribunal
dtd:23.10.1982
Ex.P.38 : Letter issued by Revenue authorities
dtd:29.5.2017 for furnishing document
sought by me under RTI
Ex.P.39 : EC
Ex.P.40 : Tax paid receipt
Ex.P.41 : Another Tax paid receipt
Ex.P.42 : Panchayath Palu-patti dtd;30.5.87
Ex.P.42(a) : Along with Palu-patti sketch
3. WITNESS/ES EXAMINED FOR THE DEFENDANT:
D.W.1 : Abdukul Shoocker @ Ameer DW.2 : Amjad Pasha DW.3 : Smt.Ambuja 60 O.S.No.4066/ 2015 4. DOCUMENT/S MARKED ON BEHALF OF DEFENDANT: Ex.D.1 : Election ID Card. Ex.D.2 : Pass port. Ex.D.3 : Sale deed dated 21.09.1995 Ex.D. 3(a) : Signature of the DW-2 Ex.D.3(b) : Signatures of Dw.3. Ex.D.4 to Ex.D.6 : Encumbrance Certificates Ex.D.7 to Ex.D.20 : 13 Tax paid receipts. Ex.D. 21 : BESCOM bill dated 11.03.2022. Ex.D. 22 to Ex.D.26 : Photos and CD. Ex.D. 27 : Certificate Under section 65(B) of Indian Evidence Act. Ex.D. 28 : Adhaar Card of DW-2 Ex.D. 29 : Driving license of DW-2 (Renuka.D.Raikar) XXIV Additional City Civil and Sessions Judge, Bengaluru. 61 O.S.No.4066/ 2015