H.Ramesh vs Sriram on 27 November, 2017

[Cites 1, Cited by 0]

Bangalore District Court

H.Ramesh vs Sriram on 27 November, 2017

IN THE COURT OF LXIV ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU CITY

Dated this 27th day of November 2017

-: P R E S E N T :-
Sri. MADHUSUDHAN B.
B.Com, LL.B (Spl.).,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.

PARTIES IN O.S.3741/2016

PLAINTIFF : H.Ramesh,
S/o. Late T.H. Hanumanthaiah,
Aged about 61 years,
R/at.No.196, 3rd Cross,
Teachers' Colonyt,
Nagarabhavi Main Road,
Bengaluru-560 072.

(By Sri. R.B.Sadhashivappa,
Advocate)

/Vs/
DEFENDANT : Sriram,
S/o. Rudrappa,
Aged about 35 years,
R/at.No.429, 2nd Cross,
4th Main, Kengunte, Mallathahalli,
Bengaluru-560 056.

(By Sri. M.A.Mulla, Advocate)
2 O.S.No.3741/2016
&
O.S.No.3118/2016
PARTIES IN O.S.No.3118/2016

PLAINTIFF : Sriram,
S/o. Rudrappa,
Aged about 35 years,
R/at.No.429, 2nd Cross,
4th Main, Kengunte, Mallathahalli,
Bengaluru-560 056.

(By M/s. K.Sreedhar Associates,
Advocates)

/Vs/
DEFENDANT : H.Ramesh,
S/o. Late T.H. Hanumanthaiah,
Aged about 61 years,
R/at.No.196, 3rd Cross,
Teachers' Colonyt,
Nagarabhavi Main Road,
Bengaluru-560 072.
(By Sri. R.B.Sadhashivappa,
Advocate)

1. Date of institution of the : 1. O.S.No.3741/2016 on
suit 24.5.2016
2. O.S.No.3118/2016 on
21.4.2016

2. Nature of the suit : 3. O.S.No.3741/2016:
Injunction suit
O.S.No.3118/2016:
Injunction suit

3. Date of commencement of : 13.6.2017
3 O.S.No.3741/2016
&
O.S.No.3118/2016
recording of evidence
4. Date on which the : 27.11.2017
judgment
was pronounced

5. Duration in : day/s month/s year
O.S.No.3741/2016
3 6 1

Duration in day/s month/s year
6.
O.S.No.3118/2016
6 7 1

COMMON JUDGMENT

O.S.No.3741/2016 filed by plaintiff against defendant

seeking relief of declaration of title with consequential relief

of possession of suit property bearing site No.20 formed in

land bearing Sy.No.15/3 of Mallathhalli village, Bengaluru

North Taluk.

2. O.S.No.3118/2016 is filed by plaintiff seeking

decree for perpetual injunction order against defendant in

respect of same property, which is subject matter in

O.S.No.3741/2016.
4 O.S.No.3741/2016
&
O.S.No.3118/2016
3. Thus, plaintiff in O.S.No.3741/2016 is defendant

in counter suit in O.S.No.3118/2016 and plaintiff in

O.S.No.3118/2016 is the defendant in O.S.No.3741/2016.

4. O.S.No.3118/2016 is previously instituted suit.

While suit in O.S.No.3741/2016 is subsequently instituted

suit.

5. Originally suit in O.S.No.3118/2016 filed before

XXXI-ACCJ, (CCH-14) Bengaluru. But as per the directions of

Hon'ble High Court of Karnataka, Bengaluru in

M.F.A.No.5502/2016 (CPC), suit in O.S.No.3118/2016 is

transferred to this court, since in both suits, parties are one

and the same and even property in dispute is also one and

the same. Both suits are clubbed together and common

evidence is recorded in O.S.No.3741/2016, since suit in

O.S.No.3741/2016 is comprehensive suit. With this

background, now I will deal with the pleadings in both suits.
5 O.S.No.3741/2016
&
O.S.No.3118/2016
PLEADINGS IN O.S.NO.3741/2016

Initially plaintiff filed suit against defendant seeking

perpetual injunction order against defendant in respect of

suit property. But during pendency of the suit, plaintiff got

amended his plaint by insertion of para No.15(a) after para

No.15 of the plaint and also by insertion of prayer column

No.(aa) after prayer column No.(a). It is averred that,

plaintiff is the owner of the suit site bearing No.20 formed in

land bearing Sy.No.15/3 of Mallathhalli village, Bengaluru

North Taluk. Plaintiff purchased suit schedule property

under registered Sale Deed dated 5.12.2002 executed by

Shivanna through his general power of attorney holder by

name N.S. Shivalinga. For the said registered Sale Deed,

Shivanna also subscribed his signature as a guardian of his

minor son Eranna, who was aged about 16 years. Even

another son of Shivanna by name Chikkanna also

subscribed his signature as vendor to the Sale Deed dated

5.12.2002. In the Sale Deed dated 5.12.2002, survey
6 O.S.No.3741/2016
&
O.S.No.3118/2016
number of the land bearing Sy.No.15/3 is wrongly indicated

as Sy.No.15/2. Thus, to get it rectify, another registered

Rectification Deed is also executed on 4.2.2015. After

purchase of suit property, plaintiff protected his site by

putting up compound wall in which he has also constructed

watchman shed. Vendor of plaintiff by name Shivanna

acquired suit schedule property under Panchayanath Parikath

dated 7.2.1990 executed by Chikkamuniyappa, who is father

of Shivanna. In the Panchayath Parikath 4 sites were

allotted to the exclusive share to the Shivanna. But

thereafter, 6 sons of Chikkamuniyappa, entered into another

Partition on 21.6.2008, in which suit property and 3 other

sites were fallen to the share of Shivanna, while 4 other sites

bearing No.6, 9, 14, and 21 were fallen to the exclusive

share of Rudrappa, who is father of defendant. Defendant

neither having right, title and interest nor ownership over

the suit property. Since the date of purchase, plaintiff came

in possession of suit property and his possession is continued
7 O.S.No.3741/2016
&
O.S.No.3118/2016
even after execution of registered Rectification Deed dated

4.2.2015. Plaintiff is paying property tax to BBMP., and such

tax is also accepted by BBMP., Authorities. Defendant claims

to be the owner of suit property under registered Gift Deed

dated 21.5.2015, said to have been executed by his father -

Rudrappa. As a matter of fact father of the defendant by

name Rudrappa had no any right, title, interest or possession

over the suit site bearing No.20. Site No.20 neither fallen to

the share of Rudrappa under Panchayath Paritkath nor under

Partition Deed dated 21.6.2008. Vendor of the plaintiff and

Rudrappa are full brothers. Said Rudrappa had no any

authority to execute Gift Deed in favour of his

son/defendant. Thus, defendant neither acquired right, title

and interest nor came in possession of the suit property on

the basis of such Gift Deed. But defendant under the guise

of that illegal registered Gift Deed, filed suit against this

plaintiff in O.S.No.3118/2016 and obtained ex-parte

injunction order and said suit is still pending for
8 O.S.No.3741/2016
&
O.S.No.3118/2016
consideration. It is further contended that, plaintiff availed

loan of Rs.28,92,000/- from State Bank of India,

Basavanagudi Branch, Bengaluru, by mortgaging the suit

property as a security for repayment of loan and in that

connection, he has executed Equitable Mortgage Deed by

deposit of title Deeds of the suit property. In para No.15(a),

it is specifically contended that, after filing of suit, defendant

acting high handedly has taken forcible possession of suit

property, in which shed is constructed and got electricity

supply connection, illegally. Plaintiff came to know about

these facts on 2.4.2017, thus, he lodged complaint with

jurisdictional police. Thus, it is contended that, during

pendency of the suit, defendant came in illegal possession of

suit property. Therefore, with these among other averments,

plaintiff prayed for decreeing suit.

6. Suit summons were ordered to be issued to

defendant, who appeared through his counsel and resisted

the claim of plaintiff by presenting his contested written
9 O.S.No.3741/2016
&
O.S.No.3118/2016
statement and additional written statement in view of the

amendment of plaint.

AVERMENTS OF WRITTEN STATEMENT IN

O.S.NO.3741/2016

All material averments of plaint including cause of

action are categorically denied. It is specifically denied that,

plaintiff acquired title over the suit property under registered

Sale Deed dated 5.12.2002 and protected suit property by

putting up compound wall and small watchman shed therein.

It is contended that, defendant is absolute owner of the suit

property and put up construction wall and also shed and

thereafter obtained electricity power connection. Defendant

is residing in the suit property as its absolute owner. Neither

plaintiff nor his predecessors in title were owners and

possessors of suit property. It is specifically denied that,

there was Panchayath Parikath on 7.2.1990. It is denied

that, Panchayath Parikath dated 7.2.1990 executed by

Chikkamuniyappa. Chikkamuniyappa never executed such
10 O.S.No.3741/2016
&
O.S.No.3118/2016
deed in favour of Shivanna. It is denied that, Shivanna

acquired 4 sites bearing No.5, 16, 19 and 20 formed in land

bearing Sy.No.15/3. However, it is admitted that, Partition

Deed dated 21.6.2008 is executed between 6 sons of

Chikkamuniyappa and have got divided their shares in

ancestral properties. In the said partition, father of

defendant has been allotted sites No.6, 9, 20 and 21 and

vendor of the plaintiff by name Shivanna was allotted 4 sites

bearing sites No.5, 14, 16 and 19. It is denied that, father of

the defendant has been allotted with sites No.6, 9, 14 and

21. Plaintiff neither acquired suit property under registered

Sale Deed dated 5.12.2002 nor vendor of the plaintiff

acquired title over the suit property under Partition Deed

dated 21.6.2008 as well as Panchayath Parikath dated

7.2.1990. It is denied that, Rectification Deed dated

4.2.2015 executed by vendor of the plaintiff. Site No.20

formed in land bearing Sy.No.15/3 has been allotted to the

exclusive share of father of defendant by name Rudrappa in
11 O.S.No.3741/2016
&
O.S.No.3118/2016
the family partition dated 21.6.2008. Thus, said Rudrappa

has executed Gift Deed on 21.5.2015 in favour of

defendant, who on the said of such Gift Deed is in

possession of suit property as its absolute owner. Defendant

paid property tax and even katha of the property is

transferred in the name of defendant. It is further

contended that, defendant filed suit in O.S.No.3118/2016

and obtained interim order in his favour. Father of defendant

had right to execute registered Gift Deed in favour of

defendant in respect of site bearing No.20. It is denied that,

father of the defendant executed Sale Deed on 3.9.2004 by

which, he has alienated site No.14 in land bearing

Sy.No.15/3. It is denied that, plaintiff obtained loan by

executing equitable Mortgage Deed by depositing all title

deeds, as averred in the plaint.

7. In the additional written statement also, it is

categorically denied the averments of para No.15(a) of the

plaint. It is denied that, plaintiff forcibly took possession of
12 O.S.No.3741/2016
&
O.S.No.3118/2016
suit property as averred in the plaint. Claim of the plaintiff is

barred by law of limitation. It is denied that, plaintiff has

been dispossessed from suit property on 2.4.2017. It is

denied that, plaintiff is entitled for damages of Rs.1,000/-

per month from 2.4.2017 as averred in the plaint. Therefore,

with these among other averments, defendant sought for

dismissal of suit with costs.

PLEADINGS IN O.S.NO.3118/2016

Averments of plaint may be stated as under;

Plaintiff is absolute owner and possessor of site No.20

formed in land bearing Sy.No.15/3 of Mallathhalli village,

which he acquired under registered Gift Deed executed by

his father by name Rudrappa. Father of the plaintiff got suit

property under Partition Deed dated 15.6.2008, which was

entered into between father of plaintiff and his 5 brothers

by name - Gangappa, Shivanna, Muni Anjaneyappa,

Uddandappa and Lakkappa, who are sons of Late

Chikkamuniyappa. Said Partition Deed was signed by all
13 O.S.No.3741/2016
&
O.S.No.3118/2016
brothers of Rudrappa in the presence of witnesses. In the

said Partition Deed, father of plaintiff was allotted sites No.6,

9, 20 and 21 to his exclusive share and sites No.5, 4, 16 and

19 were allotted to the exclusive share of Shivanna, who is

the brother of Rudrappa. After execution of Gift Deed, again

father of plaintiff got executed Rectification Deed on

1.6.2015, since name of grand father of the plaintiff has

been wrongly indicated as Kalaiah in original Gift Deed

dated 21.5.2015. Thus, Rectification Deed was executed for

rectifying name of grand father of plaintiff. Name of plaintiff

came to be entered in the Property Register maintained by

BBMP. Defendant without having right, title and interest over

suit property, is trying to interfere in peaceful possession and

enjoyment of the plaintiff over the suit property. Defendant

claiming title in respect of property situated in Sy.No.15/2,

but not in property bearing Sy.No.15/3. Defendant has no

any right, title and interest in respect of property land

bearing Sy.No.15/3. Defendant has no any right, title and
14 O.S.No.3741/2016
&
O.S.No.3118/2016
interest over the suit property. Defendant though having no

right, title and interest over suit property, but trying to

dispossess the plaintiff from the suit property. Therefore,

with these among other averments, plaintiff prayed for

decreeing suit.

8. Suit summons were ordered to be issued to

defendant, who appeared through his counsel and resisted

the claim of plaintiff by presenting his contested written

statement.

AVERMENTS OF WRITTEN STATEMENT IN

O.S.NO.3118/2016

After appearance of the defendant, he resisted the

claim of plaintiff by filing contested written statement, in

which all material averments of plaint including cause of

action are categorically denied. It is denied that, plaintiff

acquired right, title and interest over suit property under

Gift Deed alleged to have been executed by his father

Rudrappa. Father of plaintiff had no any right, title and
15 O.S.No.3741/2016
&
O.S.No.3118/2016
interest over suit site bearing No.20 of land bearing

Sy.No.15/3 of Mallathhalli village. It is contended that,

defendant is absolute owner and it is he who constructed

compound wall with small shed in the suit property. It is

denied that, Rudrappa got suit property under Partition Deed

dated 15.6.2008. Site No.20 fallen to the exclusive share of

Shivanna, who sold it to defendant under registered Sale

Deed dated 5.12.2002. In the Sale Deed survey number is

wrongly mentioned as No.15/2, thus registered Rectification

Deed is executed on 4.2.2015 in which survey number is

rectified as No.15/3. It is further contended that, land

bearing No.15/2 does not belonged to family of Rudrappa

and Shivanna, as since there was typographical error in

original Sale Deed only in respect of survey number. Thus,

such Rectification Deed was executed. It is denied that, site

No.20 was fallen to the share of Rudrappa. It is denied that,

plaintiff came in possession of suit property on the basis of

registered Gift Deed. Therefore, with these among other
16 O.S.No.3741/2016
&
O.S.No.3118/2016
averments, defendant sought for dismissal of suit with

costs.

9. On the basis of pleadings, following issues are

framed:

ISSUES IN O.S.NO.3741/2016

1. Whether plaintiff proves that, he is
the absolute owner of suit property?

2. Whether plaintiff is entitle for
recovery of possession of suit
property?

3. Whether plaintiff is entitle for
damages as sought for?

4. What Order or Decree?

ISSUES IN O.S.NO.3118/2016

1. Whether plaintiff proves that, he is in
lawful possession of the suit
schedule property as on the date of
filing the suit?

2. Whether plaintiff proves that, alleged
obstruction caused by the defendant
in the suit schedule property?
17 O.S.No.3741/2016
&
O.S.No.3118/2016

3. Whether plaintiff is entitle for decree
as prayed for?

4. What Order or Decree?

10. In order to substantiate their contentions,

parties led oral as well as documentary evidence. Plaintiff in

O.S.No.3741/2016 has been examined as Pw.1 and got

exhibited as many as 13 documents marked at Ex.P.1 to

Ex.P.13 and also examined another witnesses as Pw.2.

Defendant, who is plaintiff in O.S.No.3118/2016 also led his

evidence as Dw.1 and one witness examined as Dw.2 and

got exhibited as many as 42 documents marked at Ex.D.1 to

Ex.D.42.

11. Heard arguments on both side.

12. In this judgment, wherever, it is referred as

Pw.1 or plaintiff, it should be read as plaintiff in

O.S.No.3741/2016 and wherever it is referred as Dw.1 or

defendant it should be read as defendant in
18 O.S.No.3741/2016
&
O.S.No.3118/2016
O.S.No.3741/2016, since suit in O.S.No.3741/2016 is

comprehensive suit and more over, evidence is recorded in

O.S.No.3741/2016.

13. Counsel appearing for defendant relied upon

principles laid down in following decisions;

1. AIR 1991 Madhya Pradesh 15 (Head
Note (A) in a case of Smt. Lalita James and
others V/s. Ajit Kumar and other.

2. 2004(1) KCCR 662 in a case of
K.Gopalareddy V/s. Suryanarayana.

3. 2014(2) SCC 269 in a case of Union of
India and others V/s. Vasavi Co-op.Housing
Society and others.
14. My findings on the above Issues in

O.S.No.3741/2016 are as under:

Issue No.1 : In Affirmative
Issue No.2 : In Affirmative
Issue No.3: In Affirmative
19 O.S.No.3741/2016
&
O.S.No.3118/2016
Issue No.4: As per final order for the following:
15. My findings on the above Issues in

O.S.No.3118/2016 are as under:

Issue No.1 : In Negative
Issue No.2 : In Negative
Issue No.3: In Negative
Issue No.4: As per final order for the following:

REASONS

16. ISSUE NO.1 IN BOTH SUITS:- I have taken

these two issues together to avoid repeated discussions.

17. Before dealing with disputed facts, I feel it

necessary to deal with the important admitted facts. Identity

of the suit property with its measurement and boundaries

as claimed by the parties in both suits are not in dispute. It

is admitted fact that, suit property is a part and parcel of

land bearing Sy.No.15/3 situated at Mallathhalli village.

Father of defendant by name Rudrappa and Shivanna,

through whom plaintiff claims to be the owner of the suit

property under registered Sale Deed and registered
20 O.S.No.3741/2016
&
O.S.No.3118/2016
Rectification Deed, are full brothers. It is also admitted fact

that, one Chikkamuniyappa is the grand-father of the

defendant/Sriram. Further, it is also admitted that, Kalaiah

had three sons by name Venkatagiriyappa, Chikkamuniyappa

and Puttarudrappa. It is also admitted fact that,

Chikkamuniyappa had 6 sons by name Gangappa, Shivanna,

Rudrappa (father of the defendant) Munianjanappa,

Lakkappa and Uddandappa. It is also not in dispute that,

among 3 sons of Kalaiah, already Venkatagiriyappa and

Chikkamuniyappa are died. Puttarudrappa is alive. Son of

deceased-Venkatagiriyappa by name Jayaramaiah already

instituted one suit in O.S.No.5939/2015 in respect of land

bearing Sy.No.15/3 claiming his legitimate share. In the said

suit, neither plaintiff nor defendant of this suit are parties.

On the other hand, in that suit, sons of Chikkamuniyappa by

name Gangappa, Shivanna, Rudrappa, Munianjanappa,

Lakkappa and Uddandappa are defendants No.4 to 9. Said

suit is still pending and admittedly, that suit is previously
21 O.S.No.3741/2016
&
O.S.No.3118/2016
instituted suit. In the said suit, except Rudrappa, who is

father of the defendant/Sriram, all other 5 sons of

Chikkamuniyappa presented their written statement in which

also they have taken a specific plea that, in the land

bearing Sy.No.15/3, all 6 sons got partitioned their

respective shares in land bearing Sy.No.15/3. It is also

admitted fact that, in the land bearing Sy.No.15/3,

residential sites are formed and already some of the sites are

alienated by respective brothers including father of

defendant by name Rudrappa. But there is no any approved

lay out plan or for that matter neither plaintiff nor defendant

filed either Construction Permission or Approved Plan issued

by competent authority either to construct one shed or

watchman shed, in the suit site bearing No.20. However,

there is no dispute about the existence of one shed or one

small house in the suit property bearing No.20 formed in

land bearing Sy.No.15/3. Though plaintiff initially filed suit

seeking relief of perpetual injunction order, but during
22 O.S.No.3741/2016
&
O.S.No.3118/2016
pendency of the suit, plaintiff got amended his plaint seeking

relief of title with consequential relief of possession. Thus, at

present, it is the defendant /Sriram, who is in possession of

suit property. But the dispute is as to how he came in

possession and this controversy between the parties has to

be decided. There is no any dispute about partition of a

portion of land bearing Sy.No.15/3 among 6 brothers. In the

written statement, defendant/Sriram, though he denied

material averments of plaint, but in his written statement at

para No.5, he has clearly contended that, under partition

dated 21.6.2008, 6 sons of Chikkamuniyappa have divided

ancestral property and it is also contended in the written

statement that, in the said partition, his father has been

allotted the sites No.6, 9, 20 and 21, while Shivanna has

been allotted sites No.5, 14, 16 and 19. So for as this suit is

concerned, there is rival claim between the parties. Though

defendant-Sriram sought the relief of perpetual injunction

order in his suit filed in O.S.No.3118/2016, but sum and
23 O.S.No.3741/2016
&
O.S.No.3118/2016
substance of the averments of plaint in the said suit as well

as written statement presented by him in O.S.No.3741/2016,

it is very much clear that, he claims to be the owner of suit

property by virtue of Gift Deed said to have been executed

by his father-Rudrappa. On the contrary, it is specific case

of the plaintiff that, he acquired title over the suit property

under registered Sale Deed. With this background, now I will

deal with the documentary evidence, since always contents

of the documents are most relevant and will prevail over the

oral evidence of the parties.

18. If it is held that, in the partition dated

21.6.2008, suit property site No.20 is fallen to the exclusive

share of Rudrappa, then plaintiff in O.S.No.3741/2016 must

be non-suited. If it is held that, site No.20 was allotted to

the exclusive share of Shivanna, then it must necessarily be

held that, defendant -Sriram is in illegal possession of suit

property.
24 O.S.No.3741/2016
&
O.S.No.3118/2016
19. Ex.P.5 is certified copy of registered Sale Deed

dated 5.12.2002 executed by Shivanna, through his G.P.A.

holder and sons of Shivanna in favour of plaintiff/Ramesh.

On perusal of recitals of Sale Deed, site number,

measurement, and the boundaries are same with the

description of the suit property, as indicated in the plaint.

Thereafter, on 4.2.2015 registered Rectification Deed is

executed in favour of Ramesh in respect of very property,

which he has purchased under registered Sale Deed dated

5.12.2002 and on perusal of this instrument, it is clear that,

in the Sale Deed executed on 5.12.2002 survey number is

indicated as Sy.No.15/2 and for rectification of that survey

number, registered Rectification Deed dated 4.2.2015 is

executed by Shivanna and his sons, thereby it is rectified

only with respect of Sy.No.15/3, by retaining all other

recitals of Sale Deed dated 5.12.2002 intact, as indicated in

original registered Sale Deed, which is in the name of

plaintiff-Ramesh. This registered Rectification Deed
25 O.S.No.3741/2016
&
O.S.No.3118/2016
admittedly executed well before the date of registration of

Gift Deed marked at Ex.D.2 dated 21.5.2015. Thus, it

appears that, dispute has arisen with respect of site No.20

only after execution of registered Gift Deed by Rudrappa in

favour of his son-Sriram. Because Gift Deed is also in respect

of same property, which is the subject matter of Sale Deed

dated 5.12.2002. So for as Rectification Deed is concerned,

with regard to the wrong mentioning of survey number could

be further clarified by another document, which is the

registered Sale Deed executed by very Rudrappa in favour

of Shivanna. Certified copy of registered Sale Deed dated

3.11.2004 is produced by the plaintiff and same is marked at

Ex.P.9. This instrument is relied upon by the plaintiff on two

aspects, one is to substantiate that, there is wrong

mentioning of survey number in Sale Deed dated 5.12.2002.

Recitals of Ex.P.9 discloses that, this very Rudrappa

alienated plot No.14 in favour of Shivanna. In the said Sale

Deed, survey number is indicated as 15/2. Therefore, to
26 O.S.No.3741/2016
&
O.S.No.3118/2016
rectify it and for clarification, very Rudrappa, the father of

the defendant -Sriram, executed registered Rectification

Deed on 9.3.2011, by this Rectification Deed Sy.No.15/2 as

indicated in Sale Deed dated 3.11.2004 has been rectified

by deleting Sy.No.15/2 and by inserting Sy.No.15/3. Though

during course of cross-examination of Pw.1, it is suggested

by defence that, Ex.P.9 and Ex.P.10 are manipulated

records, but to substantiate that, these documents are

manipulated documents, nothing has been elicited during

course of evidence of either Dw.1 or Dw.2.

20. Thus, cumulative effect of contents of Ex.D.2,

Ex.D.3, Ex.P.5 and Ex.P.6, it clearly suggests that, one Sale

Deed is in respect of suit property is as for as back during

the year 2002 itself. If it is held that, as on the date of

execution of Sale Deed dated 5.12.2002 and before

21.5.2015, Shivanna had right, title and interest with

respect of suit property, then Rudrappa has no any right,

title and interest to execute Gift Deed in favour of his son-
27 O.S.No.3741/2016
&
O.S.No.3118/2016
Sriram. Therefore, the crucial point to be decided is in the

partition as contended by both the parties, whether suit

property is fallen to the share of Shivanna or it is fallen to

the share of Rudrappa. To ascertain this fact, I have gone

through the contents of other documents and oral evidence.

Plaintiff examined Shivanna as Pw.2, but neither plaintiff

nor defendant produced Partition Deed. Plaintiff is stranger

to the family of Rudrappa and Shivanna. On the other hand,

father of defendant -Sriram and Pw.2-Shivanna are the full

brothers and they are brothers of 4 other sons of

Chikkamuniyappa. In ascertaining the allotment of properties

in the partition, among brothers and in ascertaining which

properties are fallen to the exclusive share of which

brothers, statements of brothers, who are party to the

partition is relevant. In this connection, plaintiff filed certified

copy of the written statement of defendants No.4, 5, 7, 8

and 9 in O.S.No.5039/2015, which is marked at Ex.P.1.

Ex.D.1 is certified copy of the plaint in said suit filed by
28 O.S.No.3741/2016
&
O.S.No.3118/2016
Jayaramaiah. In the joint written statement, averments of

plaint in O.S.No.5039/2015 are categorically denied by all

brothers of Rudrappa. Though Rudrappa has been arrayed

as defendant No.6, in the said suit, but he has not joined

with his other brothers in presenting joint written

statement. In the joint written statement, all brothers of

Rudrappa including Shivanna have categorically contended

that partition among 6 sons of Chikkamuniyappa took place.

It is also contended that, land bearing Sy.No.15/3 was

divided by all brothers in which 24 plots/sites of different

dimensions were formed. Further, it is also contended that,

6 sons of Late. Chikkamuniyappa got divided 24 plots/sites

by allotting 4 sites to each of the brothers. I feel it

necessary to reproduce relevant portion of para No.4 of

written statement, which reads thus;

"Chikkamuniyappa, made a
division of the said sites by way of
palupatti dated 7.2.1990,, amongst
his 6 sons who are the defendants
29 O.S.No.3741/2016
&
O.S.No.3118/2016
4 to 9 herein in the following
manner.
(i) Sri Gangappa - Sites No.1, 8, 17, & 18

(ii) Sri Shivanna - Sites No.5, 16, 19 & 20

(iii) Sri Rudrappa - Sites No.6, 9, 14 & 21

(iv) Sri Munianjinappa- Sites No.2, 3, 13 & 15

(v) Sri Lakkappa - Sites No.7, 22, 23 & 24

(vi) Sri Uddanadappa - Sites No.4, 10, 11 & 12

21. If averments of written statement in

O.S.No.5039/2015 is considered, contention of plaintiff that,

father of defendant-Rudrappa was allotted sites No.6, 9, 14

and 21 and sites No.5, 16, 19 and 20 are fallen to the share

of Shivanna appears to be more probable. Further, if

averments of written statement in the said suit is considered

with other documents filed by parties in these suits,

definitely it further strengthens the contention of plaintiff

that, Shivanna ha been allotted with site No.20 along with

other sites No.5, 16 and 19. Because already Rudrappa
30 O.S.No.3741/2016
&
O.S.No.3118/2016
almost alienated his sites bearing No.14, 9 and 16 as is

evident from contents of Ex.P.9, Ex.P.10 and Ex.P.13,

which are copies of registered documents executed by

Rudrappa. Ex.P.9 is certified copy of registered Sale Deed, in

which he has not only referred the partition dated 7.2.1990

but though which he has alienated plot No.14, in favour of

Shivanna. Ex.P.13 is certified copy of registered G.P.A.,

executed by Rudrappa, in favour of R.Ravi on 6.1.1996 in

respect of site No.6. If really sites No.6 and 14 were not

allotted to the Rudrappa in the said partition, there was no

occasion for Rudrappa to execute Sale Deed and

Rectification Deed in favour of Shivanna and execution of

registered Power of Attorney in favour of R.Ravi in respect of

site No.6. Further, if really site No.14 was not allotted to the

exclusive share of Rudrappa with other sites then, there was

no necessity for Shivanna to purchase site No.14 from

Rudrappa, under registered Sale Deed dated 3.11.2004 and
31 O.S.No.3741/2016
&
O.S.No.3118/2016
registered Rectification Deed dated 9.3.2011, a copy of

which is marked at Ex.P.10.

22. Even a step ahead, in Ex.P.1, which is certified

copy of the written statement, in O.S.No.5039/2015 filed by

all brothers of Rudrappa, it is clearly contended that,

Rudrappa alienated site No.9 to Smt. Nazeem Taj under

registered Sale Deed dated 27.8.2008. Thus, combined

reading of contents of Ex.P.1, Ex.P.9, Ex.P.10 and Ex.P.13

makes it abundant clear that there was a partition among

the brothers of Rudrappa in respect of land bearing No.15/3

in which as many as 24 sites were formed, out of which

Rudrappa was allotted sites No.6, 9, 14, and 21 and

Shivanna was allotted sites No.5, 16, 19 and 20 towards his

exclusive share. Contents of Ex.P.1, Ex.P.9, Ex.P.10 and

Ex.P.13 are not disproved by defendant/Sriram. Even a step

ahead, Ex.D.1 is confronted to the Pw.1 by the defence

during course of his cross-examination. If that is considered,

I have no compelling reasons to discard the averments of
32 O.S.No.3741/2016
&
O.S.No.3118/2016
written statement filed in O.S.No.5039/2015. In Ex.P.13,

Ex.P.9 and Ex.P.10 very Rudrappa has disclosed the factum

of partition, which is almost admitted by plaintiff.

23. Now, I will deal with the oral evidence of Dw.1

before assessing oral evidence of Pw.1 and Pw.2, since

defendant not only defending in O.S.No.3741/2016 but he

has also filed another suit in O.S.No.3118/2016 seeking

perpetual injunction order. It is cardinal principle that, no

kind of evidence can be looked into on a plea which was not

put forward in the pleadings. Evidence is to be given on the

plea properly raised in the pleadings and not in

contradiction of pleadings. Thus material pleas raised in the

pleadings are to be proved by oral or by documentary

evidence. What all contended by defendant Sriram in his

written statement as well as in his plaint are that, in plaint

para No.3 of the plaint Sriram categorically contended that

his father has been allotted with sites No. 6, 9, 20 and 21 in

land bearing Sy.No.15/3. He also pleaded that, Shivanna,
33 O.S.No.3741/2016
&
O.S.No.3118/2016
who is brother of Rudrappa allotted sites No.5, 14, 16 and

19. If I perused the written statement of Sriram in

O.S.No.3741/2016, it is clear that, though he has denied all

material averments of plaint, but he has taken specific plea

in para No.5 of his written statement, which reads thus;

"It is true that under the partition dated
21.6.2008 the six children of
Chikkamuniyappa have divided the
ancestral properties. In the said
partition deed, the father of the
defendant has been allotted site Nos.6,
9, 20 and 21 and the vendor of the
plaintiff Shivanna has allotted Site
Nos.5, 14, 16 and 19. The statement of
the plaintiff that, the father of the
defendant has allotted site Nos.6, 9, 14
and 21 is denied as false and it is further
false to contend that, Shivanna has
allotted site Nos.5, 16, 19 and 20."

But it is very surprise to note that, Dw.1 has given

complete go by to the stand or contentions, which he has
34 O.S.No.3741/2016
&
O.S.No.3118/2016
taken in his pleadings. Because in his examination-in-chief,

which is accepted in the form of affidavit, he never

whispered even in a single sentence about the partition, in

which sites No.6, 9, 20 and 21 allotted to his father -

Rudrappa and sites No.5, 14, 16 and 19 were allotted to the

exclusive share of Shivanna. Therefore, examination-in-

chief of Dw.1 is not with consonance of averments of his

written statement as well as plaint, so for as allotment of

different sites to his father and Shivanna in the partition. On

the contrary, he is claiming properties through succession,

which plea or fact never raised in the pleadings. In para No.8

of his deposition, i.e. examination-in-chief, he states as

under;

"My father being the legal heir
succeeded the land in Sy.No.15/3 of
Mallathahalli village, upon the death of
his father has got every right to enjoy
the suit schedule property as a
successor and my father executed Gift
Deed in my favour."
35 O.S.No.3741/2016
&
O.S.No.3118/2016

In entire examination-in-chief, he never spoken about

the partition and allotment of different sites to his father and

Shivanna. On the contrary, he has gone to the extent of

saying that, his father acquired land bearing Sy.No.15/3,

through succession, which stand is taken only during trial

without there being any pleadings. If cross-examination of

Dw.1 is considered, case put forth by defendant is still more

worst. In his cross-examination, he has stated his ignorance

on material aspect of the case.

24. In his cross-examination Dw.1 states as under;

"£À£Àß vÀAzÉ gÀÄzÀæ¥Àà aPÀÌªÀÄÄ¤AiÀÄ¥ÀàgªÀ Àg À
M§â ªÀÄUÀ¤gÀÄvÁÛ£É. £À£Àß vÀAzÉ gÀÄzÀæ¥Àà
ªÀÄvÀÄÛ DvÀ£À ¸ÀºÉÆÃzÀgÀgÀÄ CAzÀgÉ
aPÀÌªÀÄÄ¤AiÀÄ¥Àà£À UÀAqÀÄ ªÀÄPÀÌ¼ÀÄ D¹ÛUÀ¼°À è
¥Á®Ä«¨sÁUÀ ªÀiÁrPÉÆArgÀÄªÀÅ¢®è ªÀÄvÀÄÛ
¥Á®Ä«¨sÁUÀPÉÌ ¸ÀA§AzÀs¥ÀlÖ ºÁUÉ
AiÀiÁªÀÅzÃÉ ¥ÀAZÁAiÀÄvï ¥ÁjPÀvï PÀÆqÀ
DVgÀÄªÀÅ¢®è."
36 O.S.No.3741/2016
&
O.S.No.3118/2016
If this portion of evidence is considered, it is clear that,

even during course of cross-examination, Dw.1 has

deposed the facts which inconsistent with his pleadings,

which he has taken in his plaint and written statement.

Thus, above statement of Dw.1 is contrary to the pleadings,

which cannot be accepted.

25. He further states as under;

"zÁªÉAiÀÄ D¹Û CAzÀgÉ ¸ÉÊmï £ÀA-20
£ÀªÀÄä vÀAzÉUÉ ºÉÃUÉ §AvÀÄ CAvÁ £À£UÀ É
UÉÆwÛ®è. £ÀªÀÄä vÀAzÉAiÀÄªÀgÀ MlÄÖ
PÀÄlÄA§zÀ D¹ÛAiÀÄ°è, £ÀªÀÄä vÀAzÉUÁUÀ°
CxÀªÁ £ÀªÀÄä vÀAzÉAiÀÄ ¸ÀºÉÆÃzÀgÀjUÁUÀ°
AiÀiÁªÀÅzÃÉ D¹Û §A¢gÀÄªÀÅ¢®è."

If I perused this portion of evidence, it is abundant

clear that, he is not knowing as to how his father acquired

property bearing Site No.20. He also states that, neither his

father nor brothers of his father have acquired property,

which statement runs contrary to the averments of plaint in

O.S.No.3118/2016.
37 O.S.No.3741/2016
&
O.S.No.3118/2016

26. He further states as under;

"¤.r-2 -zÁ£À¥ÀvÀæ ªÀÄvÀÄÛ ¤.r.-3 gÀ
ªÀÄÆ®zÁR¯ÁwUÀ¼À£ÀÄß £À£Àß vÀAzÉ £À£Àß
ºÉ¸Àj£À°è §gÉ¬Ä¹PÉÆmÁÖUÉÎ £ÀªÀÄä
vÀAzÉAiÀÄªÀgÄÀ ¤.r.-3 gÀ°è £ÀªÀÄÆ¢¹zÀ
D¹ÛAiÀÄ°è £ÀªÀÄä vÀAzÉ ªÁ¸À
ªÀiÁqÀÄwÛg°À ®è."

If this portion of evidence of Dw.1 is considered, again

it is contrary to the recitals of Ex.D.2, which is original Gift

Deed on which defendant is claiming his possession over

the suit property. Ex.D.3 is Rectification Deed executed in

favour of plaintiff -Ramesh. As per recitals of Ex.D.2, father

of the defendant -Sriram was in possession of suit property.

But during evidence, Dw.1 has gone to the extent of saying

that, his father was not in possession of site No.20, when his

father executed Ex.D.2 registered Gift Deed. If this

evidence of Dw.1 is considered, it is clear that, main

conditions of valid Gift are lacking, since for valid gift of

immovable property, downer should deliver the
38 O.S.No.3741/2016
&
O.S.No.3118/2016
possession of property to the downee, who has to accept it.

But evidence of Dw.1 discloses that, his father Rudrappa

was not in possession of property bearing No.20, when Gift

Deed is executed.

27. He further stares as under;

"2013 £ÉÃ E¸À«AiÀÄ°è zÁªÉAiÀÄ D¹ÛAiÀÄ°è
MAzÀÄ aPÀÌ ªÀÄ£É¬ÄvÀÄÛ. 15 x 10
CrUÀ¼À UÁvÀæzÀ MAzÀÄ aPÀÌ ªÀÄ£É¬ÄvÀÄÛ.
¸ÀzÀj aPÀÌ ªÀÄ£ÉAiÀÄ°è MAzÀÄ ºÁ¯ï,
MAzÀÄ CqÀÄUÉ ªÀÄ£É EzÀÄÝ ªÀÄvÀÄÛ
ºÉÆgÀUÀqÉ MAzÀÄ mÁAiÉÄèmï EvÀÄÛ. £Á£ÀÄ
¸ÀzÀj ªÀÄ£ÉAiÀi°è ªÁ¸ÀPÉÌ CAvÁ
§A¢gÀ°®è. £À£Àß vÀAzÉ D aPÀÌ
ªÀÄ£ÉAiÀÄ£ÀÄß PÉÉÆnÖzÀgÝ ÀÄ £Á£ÀÄ
vÉUÉzÀÄPÉÆArzÉÝ£ÀÄ."

If this portion of cross-examination of Dw.1 is

considered, again it clearly infers that, Dw.1 is deposing

falsity before the court and even if it is accepted as true,

again it contradicts the contents of Ex.D.2 as well as

averments of his plaint and written statement. On perusal of
39 O.S.No.3741/2016
&
O.S.No.3118/2016
Gift Deed, there is no any recitals about the existence of

premises consisting of one hall, kitchen and one toilet, at out

side. Thus, here again evidence of Dw.1 is not supported by

recitals of Ex.D.2.

28. He further stares as under;

"aPÀÌªÀÄÄ¤AiÀÄ¥Àà£À DgÀÆ d£À ªÀÄPÀÌ¼ÀÄ
D¹ÛUÀ¼À°è ¥Á®Ä «¨sÁUÀ ªÀiÁrPÉÆArzÀgÝ ÀÄ
CAvÁ ºÉÃ¼ÀÄªÀÅzÀÄ ¸ÀjAiÀÄ®è. d«ÄÃ£ÀÄ
¸ÀªÉðÃ £ÀA§gï 15-3 gÀ d«ÄÃ£ÀÄzÀ°è
MlÄÖ 24 ¤ªÉÃ±À£ÀUÀ¼À£ÀÄß ªÀiÁqÀ¯ÁVvÀÄÛ
CAvÁ ºÉÃ¼ÀÄªÀÅzÀÄ ¸ÀjAiÀÄ®è. ¸ÀzÀj 24
¤ªÉÃ±À£ÀUÀ¼À°è £ÀªÀÄä vÀAzÉ ¥Á°UÉ MlÄÖ
4 ¤ªÉÃ±À£ÀUÀ¼ÀÄ §A¢zÀÝªÀÅ CAvÁ
ºÉÃ¼ÀÄªÀÅzÀÄ ¤d«gÀÄvÀÛzÉ. ¸ÁQë
ªÀÄÄAzÀÄªÀgÉzÀÄ ºÉÃ¼ÀÄªÀÅzÃÉ £ÀAzÀgÉ, DzÀgÉ
£ÀªÀÄä vÀAzÉ ªÀÄvÀÄÛ DvÀ£À ¸ÀºÉÆÃzÀgÀgÀ
£ÀqÀÄªÉ ¥Á®Ä «¨sÁUÀªÁVgÀ°®è CAvÁ
w½¹gÀÄvÁÛgÉ.

If this portion of evidence of Dw.1 is considered,

again it runs contrary to the averments of his plaint as well

as written statement. In addition to this, in Ex.D.2, it is
40 O.S.No.3741/2016
&
O.S.No.3118/2016
recited that, downer -Rudrappa and his brothers have got

divided property on 15.6.2008 in which property bearing site

No.20 and other three sites were fallen to the share of

Rudrappa. But during course of cross-examination, Dw.1

denied the suggestions as indicated supra, which does not

corroborates with his stand, which he has taken in his

pleadings. If I carefully gone through the above deposition

of Dw.1, it is clear that, he has admitted that, out of 24

sites, 4 sites were fallen to the exclusive share of his father

and in very next breath, he states that, no partition is

effected between his father and brother of his father.

Therefore, Dw.1 is not consistent about stand, which he has

taken in his pleadings.

29. He further stares as under;

"£ÀªÀÄä vÀAzÉAiÀÄ ¸ÀºÉÆÃzÀgÀjUÉ d«ÄÃ£ÀÄ ¸ÀªÉðÃ
£ÀA§gï 15-3 gÀ°è «AUÀr¹zÀ ¤ªÉÃ±À£ÀUÀ¼ÀÄ vÀ¯Á
£Á®ÄÌ £Á®ÄÌ ¤ªÉÃ±À£ÀUÀ¼ÀÄ ºÀAaPÉAiÀiÁVgÀÄvÀÛªÉ
J£ÀÄßªÀ «ZÁgÀ £À£UÀ É UÉÆwÛ®è."
41 O.S.No.3741/2016
&
O.S.No.3118/2016
On going through the above statement of Dw.1, it is

clear that, he has stated his ignorance on material aspects

of the case, which clearly indicates that, Dw.1 is hiding

material facts deliberately, so as to defeat the claim of the

plaintiff in O.S.No.3741/2016.

30. He further stares as under;

"£ÀªÀÄä vÀAzÉAiÀÄªÀjUÉ §AzÀ ¸ÉÊlÄUÀ¼À-
¤ªÉÃ±À£ÀUÀ¼À ¸ÀASÉåUÀ¼ÀÄ 20, 21, 6 ªÀÄvÀÄÛ
9 CAvÁ EgÀÄvÀª Û .É »ÃUÉ MlÄÖ 4
¤ªÉÃ±À£ÀUÀ¼ÀÄ £ÀªÀÄä vÀAzÉUÉ §A¢zÀÝªÀÅ.
£À£Àß ªÀÄvÀÄÛ £À£Àß vÀAzÉAiÀÄ £ÀqÀÄªÉ M¼ÉîAiÀÄ
¸ÀA§AzÀs EgÀÄvÀÛzÉ DzÀgÉ £ÀªÀÄä vÀAzÉAiÀÄ
ªÀåªÀºÁgÀzÀ «ZÁgÀ £À£ÀUÉ UÉÆwÛ®è. £ÀªÀÄä
vÀAzÉUÉ £Á«§âgÀÄ ªÀÄPÀÌ½gÀÄvÉÛÃªÉ. £ÀªÀÄä
vÀAzÉUÉ §AzÀ ¤ªÉÃ±À£ÀUÀ¼À ¸ÀASÉå 6, 9
ªÀÄvÀÄÛ 21 gÀ ¤ªÉÃ±À£ÀU¼À À §UÉÎ £À£ÀUÉ
UÉÆwÛ®è. D J¯Áè ¤ªÉÃ±À£ÀU¼À ÀÄ FUÀ ¸ÀzÀå
£ÀªÀÄä vÀAzÉAiÀÄ ºÉ¸Àj£À°è EgÀÄvÀÛªAÉ iÉÆÃ
CxÀªÁ ¨ÉÃgÉAiÀÄªÀgÀ ºÉ¸Àj£À°ègÀÄvÀÛªAÉ iÉÆÃ
CAvÁ £À£ÀUÉ UÉÆwÛgÀÄªÀÅ¢®è."
42 O.S.No.3741/2016
&
O.S.No.3118/2016
Again if I perused the above statement of Dw.1, he is

not consistent with his version and totally, he has deposed

his ignorance.

31. He further stares as under;

"£À£Àß zÉÆqÀØ¥Àà£ÁzÀ UÀAUÀ¥Àà£À ¥Á°UÉ ¸ÉÊmï £ÀA-1,
8, 17 ªÀÄvÀÄÛ 18 gÀ ¤ªÉÃ±À£ÀUÀ¼ÀÄ CªÀgÀ ¥Á°UÉ
ºÉÆÃVzÀÝªÀÅ CAvÁ PÉÃ½zÀgÉ ¸ÁQë vÀ£ÀUÉ D §UÉÎ
vÀ£ÀUÉ UÉÆwÛ®è CAvÁ w½¹gÀÄvÁÛgÀÉ. £À£Àß ªÀÄvÉÆÛ§â
zÉÆqÀØ¥À£à ÁzÀ ²ªÀtÚ£À ¥Á°UÉ ¸ÉÊmï £ÀA-5, 16, 19
ªÀÄvÀÄÛ 20 gÀ ¤ªÉÃ±À£ÀUÀ¼ÀÄ CªÀgÀ ¥Á°UÉ ºÉÆÃVzÀÝªÀÅ
CAvÁ PÉÃ½zÀgÉ ¸ÁQë vÀ£ÀUÉ D §UÉÎ vÀ£ÀUÉ UÉÆwÛ®è
CAvÁ w½¹gÀÄvÁÛgÀÉ. £À£Àß aPÀÌ¥À£à ÁzÀ
ªÀÄÄ¤DAd£À¥£Àà À ¥Á°UÉ ¸ÉÊmï £ÀA-2, 3, 13 ªÀÄvÀÄÛ
15 gÀ ¤ªÉÃ±À£ÀU¼À ÀÄ CªÀgÀ ¥Á°UÉ ºÉÆÃVzÀÝªÀÅ
CAvÁ PÉÃ½zÀgÉ ¸ÁQë vÀ£ÀUÉ D §UÉÎ vÀ£ÀUÉ UÉÆwÛ®è
CAvÁ w½¹gÀÄvÁÛgÀÉ. £À£Àß ªÀÄvÉÆÛ§â aPÀÌ¥À£à ÁzÀ
®PÀÌ¥Àà£À ¥Á°UÉ ¸ÉÊmï £ÀA-7, 22, 23 ªÀÄvÀÄÛ 24 gÀ
¤ªÉÃ±À£ÀUÀ¼ÀÄ CªÀgÀ ¥Á°UÉ ºÉÆÃVzÀÝªÀÅ CAvÁ
PÉÃ½zÀgÉ ¸ÁQë vÀ£ÀUÉ D §UÉÎ vÀ£UÀ É UÉÆwÛ®è CAvÁ
w½¹gÀÄvÁÛgÀÉ. £À£Àß E£ÉÆß§â aPÀÌ¥Àà£ÁzÀ GzÀÝAqÀ¥Àà£À
¥Á°UÉ ¸ÉÊmï £ÀA-4, 10, 11 ªÀÄvÀÄÛ 12 gÀ
¤ªÉÃ±À£ÀUÀ¼ÀÄ CªÀgÀ ¥Á°UÉ ºÉÆÃVzÀÝªÀÅ CAvÁ
PÉÃ½zÀgÉ ¸ÁQë vÀ£ÀUÉ D §UÉÎ vÀ£UÀ É UÉÆwÛ®è CAvÁ
w½¹gÀÄvÁÛgÀÉ. £À£Àß aPÀÌ¥Àà ªÀÄvÀÄÛ zÉÆqÀØ¥ÀàgÀªÀgÀ
43 O.S.No.3741/2016
&
O.S.No.3118/2016
¥Á°UÉ ºÉÆÃzÀ ¤ªÉÃ±À£ÀUÀ¼À°è FUÁUÀ¯ÉÃ ªÀÄ£ÉUÀ¼À£ÀÄß
PÀnÖPÉÆArgÀÄvÁÛgÉ DzÀgÉ D ªÀÄ£ÉUÀ¼£À ÀÄß
¤ªÉÃ±À£ÀUÀ¼À£ÀÄß RjÃ¢ ªÀiÁrzÀªÀgÀÄ PÀnÖgÀÄvÁÛgÉÆÃ
CxÀªÁ AiÀiÁgÀÄ PÀnÖgÀÄvÁÛgÉ CAvÁ £À£ÀUÉ UÉÆwÛ®è."

"¤.r.-2 CAvÁ UÀÄgÀÄw¹zÀ zÁ£À¥ÀvÀæ §gÉzÀÄPÉÆlÖ
¢£ÁAPÀ 21-05-2015 gÀAzÀÄ zÁªÁ D¹ÛAiÀÄ ¤ªÉÃ±À£À
¸ÀASÉå 20 gÀ ¤ªÉÃ±À£ÀzÀ AiÀiÁªÀ AiÀiÁªÀ
zÁR¯ÁwUÀ¼° À è £À£Àß vÀAzÉAiÀÄ ºÉ¸ÀgÀÄ EzÀª
Ý ÀÅ CAvÁ
£À£ÀUÉ UÉÆwÛ®è. F zÁªÉU¼À À°è ªÁ¢-gÀªÉÄÃ±ÀgÀªÀgÀÄ
vÀªÀÄä ¥ÀgÀªÁV AiÀiÁªÀ AiÀiÁªÀ zÁR¯ÁwUÀ¼À£ÀÄß
¸À°è¹gÀÄvÁÛgÉ J£ÀÄßªÀ «ZÁgÀ £À£ÀUÉ UÉÆwÛ®è. ¤.r.2
£ÀÄß £À£Àß vÀAzÉ §gÉ¬Ä¹PÉÆmÁÖUÉÎ, zÁªÁ ¤ªÉÃ±À£À
¸ÀASÉå 20 gÀ ¤ªÉÃ±À£ÀPÉÌ ¸ÀA§AzÀs¥ÀlÖ AiÀiÁªÀÅzÉÃ
zÁR¯ÁwUÀ¼° À è £ÀªÀÄä vÀAzÉAiÀÄ ºÉ¸ÀgÀÄ
£ÀªÀÄÆ¢¹gÀ°®è."

If these portions of cross-examination are considered,

again it suggests that, Dw.1 is not knowing true facts

about the partition among his father and brothers of his

father, in respect of land bearing Sy.No.15/3. He states his

ignorance on materials aspects of the case, which again
44 O.S.No.3741/2016
&
O.S.No.3118/2016
falsifies his own contentions in respect of property bearing

No.20.

32. He further stares as under;

"zÁªÉAiÀÄ D¹ÛAiÀÄ°è ªÁ¢-
JZï.gÀªÉÄÃ±ÀgÀªÀgÃÉ ªÀiÁZÀð 2017 gÀ
ªÀgÉUÉ PÀ¨ÉÓ ºÉÆA¢zÀgÝ ÀÄ CAvÁ ºÉÃ¼ÀÄªÀÅzÀÄ
¸ÀjAiÀÄ®è. E¸À« 2013 jAzÀ 2016 gÀ
ªÀgÉUÉ zÁªÁ ¤ªÉÃ±À£ÀPÉÌ «zÀÄåZÀÒQÛ ¸ÀA¥ÀPÀð
EgÀ°®è. 2017 gÀ°è zÁªÁ ¤ªÉÃ±À£ÀPÉÌ
«zÀÄåvï ¸ÀA¥ÀPÀð §AvÀÄ."

If this portion of evidence is read with contents of

Ex.D.17 to Ex.D.26, it is abundant clear that, electricity bills

and receipts does not pertains to the site No.20. Because

Dw.1 in his cross-examination has clearly admitted that,

electricity power connection obtained only during the year

2017. But on perusal of contents of Ex.D.17 to Ex.D.26, all

documents pertaining to the year 2016 and more over,

possession of defendant over the suit property is not in

dispute, since plaintiff sought relief of possession. How

defendant came in possession of suit property will be dealt
45 O.S.No.3741/2016
&
O.S.No.3118/2016
with bit later. But at this stage, I can safely conclude that,

Ex.D.17 to Ex.D.26 are not pertaining to the property

situated at plot No.20.

33. He further stares as under;

"2008 £ÉÃ E¸À«¬ÄAzÀ 2015 gÀ ªÀgÉUÉ zÁªÁ
D¹ÛAiÀÄ PÀgÀ ¥ÁªÀw ªÀiÁrzÀ gÀ¹Ã¢UÀ¼À°è £ÀªÀÄä
vÀAzÉAiÀÄ ºÉ¸ÀgÀÄ §gÉ¢gÀÄªÀÅ¢®è DzÀgÉ CªÀÅUÀ¼À°è
£À£Àß ºÉ¸ÀgÀÄ §gÉAiÀÄ¯ÁVzÉ CAvÁ PÉÃ½zÀgÉ ¸ÁQë D
§UÉÀÎ vÀ£ÀUÉ UÉÆwÛ®è CAvÁ w½¹gÀÄvÁÛ£É. PÀgÀ¥ÁªÀw
ªÀiÁrzÀ gÀ¹Ã¢UÀ¼É¯Áè PÉÃªÀ® F zÁªÉAiÀÄ°è £À£Àß
¥ÀgÀªÁV ¥ÀÅgÁªÉU¼À ÁUÀ° JA§ GzÉÝÃ±À¢AzÀ
¸ÀÈ¶Ö¹PÉÆAqÀAvÀºÀ zÁR¯ÁwUÀ¼ÁVgÀÄvÀÛªÉ CAvÁ
ºÉÃ¼ÀÄªÀÅzÀÄ ¸ÀjAiÀÄ®è."

I have perused the version of Dw.1 as indicated above.

Ex.D.9 to Ex.D.16 and Ex.D.28 are Tax paid receipts

pertaining to the year 2008 -2009 to 2015 - 2016. On careful

perusal of these documents, it is very much clear that, all tax

paid receipts are dated 29.5.2015, which means tax paid

receipts are subsequent to filing of the suit. More over, in

Ex.D.9 to Ex.D.16 site No.20 has not been specifically
46 O.S.No.3741/2016
&
O.S.No.3118/2016
mentioned, on the other hand, property bearing No.15/3 is

indicated in all these recitals. If really katha of site No.20 is

recorded in the name of defendant, then in all these

electricity bills, property number would have been indicated

as site No.20. But no such reference is indicated in Ex.D.9 to

Ex.D.16. Since these documents are subsequent to the

institution of the suit, no much reliance could be placed on

these documents and more over, as per the case of

plaintiff/Ramesh, defendant came in possession, forcibly

during the year 2017. Even if Ex.D.9 to Ex.D.16 are

considered, same are not conclusive proof of lawful

possession of defendant over the suit site.

34. He further stares as under;

"M§â dAiÀÄgÁªÀiï J£ÀÄßªÀªgÀ ÀÄ
¥ÀÅlÖgÀÄzÀæ¥Àà ºÁUÀÆ EvÀgÀgÀ ªÉÄÃ¯É
N.J¸ï.£ÀA-5039-2015 £ÉÃzÀÝgÀ°è MAzÀÄ
zÁªÉ ºÀÆrgÀÄªÀ «ZÁgÀ £À£ÀUÉ UÉÆwÛ®è.
¸ÀzÀj zÁªÉAiÀÄ°è £À£Àß vÀAzÉ ºÁUÀÆ DvÀ£À
¸ÀºÉÆÃzÀgÀgÀÄ ¥ÀæwªÁ¢UÀ¼ÁVgÀÄvÁÛgÉ J£ÀÄßªÀ
47 O.S.No.3741/2016
&
O.S.No.3118/2016
«ZÁgÀ £À£ÀUÉ UÉÆwÛzÀÝgÀÆ PÀÆqÀ FUÀ
£À£ÀUÉ D «ZÁgÀ UÉÆwÛgÀÄªÀÅ¢®è CAvÁ
¸ÀÄ¼ÀÄî £ÀÄrAiÀÄÄwÛzÉÃÝ £ÀAzÀgÉ ¸ÀjAiÀÄ®è.

If this portion of cross-examination of Dw.1 is

considered, again it is clear that, he is deposing falsity before

the court. As a matter of fact, Ex.D.1 is confronted to Pw.1,

during his cross-examination. But, during course of his

evidence, he states that he does not know abut filing of one

suit by Jayaram in O.S.No.5039/2015, which indicates that,

defendant is purposely hiding the true fact, so as to defeat

the right of the plaintiff.

35. Thus, on evaluation of entire evidence of Dw.1,

it is crystal clear that, defendant No.1 has not stick on to his

pleadings. During trial, he has come with a defence that, no

any partition has been effected between sons of

Chikkamuniyappa in respect of property bearing Sy.No.15/3.

Therefore, it is unsafe to place reliance on evidence of Dw.1.
48 O.S.No.3741/2016
&
O.S.No.3118/2016
36. I have also gone through the evidence of Dw.2,

who happens to be close relative of defendant-Sriram. If his

evidence is considered, it appears that, this witness gone a

step ahead of Dw.1 in deposing untrue facts. Because in

his evidence, he states as under;

"d«ÄÃ£ÀÄ ¸ÀªÉÃð £ÀA-15-3 gÀ d«ÄÃ¤£À°è
aPÀÌªÀÄÄ¤AiÀÄ¥ÀàgÀªÀjUÀÆ PÀÆqÀ AiÀiÁªÀÅzÉÃ
¨sÁUÀ §A¢gÀÄªÀÅ¢®è. »ÃUÁV d«ÄÃ£ÀÄ
¸ÀªÉÃð £ÀA-15-3 gÀ d«ÄÃ¤£À°è
aPÀÌªÀÄÄ¤AiÀÄ¥ÀàgÀªÀgÀ ªÀÄPÀÌ½UÀÆ PÀÆqÀ
AiÀiÁªÀÅzÃÉ ¨sÁUÀ §A¢gÀÄªÀÅ¢®è."

If this portion of evidence of Dw.2 is considered, it

appears that, Dw.2 gone much ahead of Dw.1 in deposing

falsity before the court. Dw.2 gone to the extent of saying

that, no share has been allotted to Chikkamuniyappa in the

land bearing Sy.No.15/3, which again contradicts very

averments of written statement and plaint of Sriram.
49 O.S.No.3741/2016
&
O.S.No.3118/2016
37. In his further cross-examination, he states as

under;

"d«ÄÃ£ÀÄ ¸ÀªÉðÃ £ÀA-15-3 gÀ°èAiÀÄ
¤ªÉÃ±À£À ¸ÀASÉå 20 gÀ ¤ªÉÃ±À£Àª£À ÀÄß £À£Àß
ªÀiÁªÀ£ÁzÀ gÀÄzÀæ¥Àà CAzÀgÉ ¥ÀæwªÁ¢AiÀÄ
²æÃgÁªÀÄgÀªÀgÀ vÀAzÉAiÀiÁzÀ gÀÄzÀæ¥ÀàgÀªÀjUÉ
§A¢zÀÄ,Ý CzÀgÀ°è ¸ÀzÀj gÀÄzÀæ¥Àà
FUÁUÀ¯ÉÃ ªÀÄ£É PÀnÖPÉÆArgÀÄvÁÛ£É. DzÀgÉ
¤ªÉÃ±À£À ¸ÀASÉå-20 gÀ ¤ªÉÃ±À£À ¸ÀzÀj
gÀÄzÀæ¥Àà¤UÉ ºÉÃUÉ ¥Áæ¥ÀÛªÁVvÀÄÛ CAvÁ
£À£ÀUÉ UÉÆwÛ®è."

As a matter of fact, it is not the case of defendant

that, his father -Rudrappa already constructed one

residential house, but this witness gone to the extent of

saying that, in site bearing No.20, Rudrappa had constructed

one residential premises, which runs contrary to the

evidence of Dw.1. Thus, even on going through the evidence

of Dw.2 also, I do not find any substance in the contention

of defendant that, he came in possession of suit property on

the basis of registered Gift Deed.
50 O.S.No.3741/2016
&
O.S.No.3118/2016

38. Now, I will deal with the oral evidence of Pw.1

and Pw.2. Plaintiff -Ramesh is claiming title over the suit

property through Pw.2-Shivanna. Therefore, evidence of

Pw.2 is most important and relevant to decide the title of

plaintiff in respect of site No.20. Before assessing oral

evidence of Pw.1, I feel it necessary to deal with version of

Pw.2. His examination-in-chief is accepted in the form of

affidavit as contemplated under Order 18 Rule 4 of C.P.C. On

going through his examination-in-chief, it is very much clear

that, he has stated all material averments of plaint in

O.S.No.3741/2016. He has also stated that, in the partition,

he was allotted with site No.5, 16, 19 and 20 and his

brother-Rudrappa got sites No.6, 9, 14 and 21. He has also

stated that, very Rudrappa sold site No.14 in his favour

under Registered Sale Deed dated 3.9.2004. He further

states that, in the registered Sale Deed, survey number was

wrongly indicated as 15/2. Therefore, in order to over come

that mistake, on 9.3.2011 Rudrappa executed Rectification
51 O.S.No.3741/2016
&
O.S.No.3118/2016
Deed in respect of site No.14. He has also stated that,

though on 25.2.2015 Rudrappa executed Gift Deed, in favour

of his son, in respect of site No.20, but defendant-Sriram has

not derived any right, title and interest over the site No.20. I

have also gone through his cross-examination.

39. In his cross-examination, he states as under;

"£ÀªÀÄä vÀAzÉ aPÀÌªÀÄÄ¤AiÀÄ¥Àà ¯ÉÃOl
ªÀiÁr¹gÀ°®è. £ÀªÀÄä vÀAzÉ aPÀÌªÀÄÄ¤AiÀÄ¥Àà
24 ¤ªÉÃ±À£ÀUÀ¼À£ÀÄß ªÀiÁrzÀÝ DzÀgÉ D
J¯Áè ¤ªÉÃ±À£ÀUÀ¼À §UÉÎ SÁvÉ EgÀ°®è. D
§UÉÎ AiÀiÁªÀÅzÃÉ zÁR¯ÁwUÀ¼ÀÄ
EgÀÄªÀÅ¢®è."

40. He further states as under;

"¢£ÁAPÀ B 07-02-1990 gÀ°è DzÀ «¨sÁUÀ ¥ÀvÀæªÀ£ÀÄß
£Á£ÀÄ £ÉÆÃrzÀÄÝ CzÀÄ £À£Àß ºÀwÛgÀ EgÀÄvÀÛzÉ. ¸ÀzÀj
«¨sÁUÀ ¥ÀvÀæ £ÉÆÃAzÀÄ DVgÀÄªÀÅ¢®è ªÀÄvÀÄÛ ¸ÀzÀj
«¨sÁUÀ ¥ÀvÀæªÀ£ÀÄß F zÁªÉAiÀÄ°è ¸À°è¹gÀÄªÀÅ¢®è."
52 O.S.No.3741/2016
&
O.S.No.3118/2016
Even he has deposed that, he has not got katha in his

name in respect of sites fallen to his share. Since in his

cross-examination he states as under;

"¢£ÁAPÀ B 21-6-2008 gÀAzÀÄ ªÀÄvÉÆÛAzÀÄ
«¨sÁUÀ ¥ÀvÀæ DVvÀÄ.Û ¸ÀzÀj «¨sÁUÀ ¥ÀvÀæ
£ÉÆÃAzÀÄ DVgÀÄªÀÅ¢®è ªÀÄvÀÄÛ ¸ÀzÀj
«¨sÁUÀ ¥ÀvÀæªÀ£ÀÄß F zÁªÉAiÀÄ°è
¸À°è¹gÀÄªÀÅ¢®è. £À£Àß ¨sÁUÀPÉÌ §AzÀ ¸ÉÊl£ÀÄß
£À£Àß ºÉ¸Àj£À°è SÁvÉ ªÀiÁr¹PÉÆArgÀ°®è."

"¢£ÁAPÀ B 7-2-1990 ªÀÄvÀÄÛ ¢£ÁAPÀ B
21-6-2008 gÀAzÀÄ AiÀiÁªÀÅzÉÃ «¨sÁUÀ
¥ÀvÀæUÀ¼ÀÄ DVgÀÄªÀÅ¢®è CAvÁ ºÉÃ¼ÀÄªÀÅzÀÄ
¸ÀjAiÀÄ®è."

41. In his further cross-examination, he states as

under;-

"¢£ÁAPÀ B 7-2-1990 ªÀÄvÀÄÛ ¢£ÁAPÀ B
21-6-2008 gÀAzÀÄ AiÀiÁªÀÅzÉÃ «¨sÁUÀ
¥ÀvÀæUÀ¼ÀÄ DVgÀÄªÀÅ¢®è ªÀÄvÀÄÛ 24
¤ªÉÃ±À£ÀUÀ¼ÀÄ C¹ÛvÀézÀ°ègÀÄªÀÅ¢®è CAvÁ
ºÉÃ¼ÀÄªÀÅzÀÄ ¸ÀjAiÀÄ®è. ¤ªÉÃ±À£À ¸ÀASÉå 20
PÉÌ £Á£ÀÄ ªÀiÁ°ÃPÀ¤gÀÄªÀÅ¢®è ªÀÄvÀÄÛ
53 O.S.No.3741/2016
&
O.S.No.3118/2016
PÀ¨ÉÓzÁgÀ£ÁVgÀ°®è CAvÁ ºÉÃ¼ÀÄªÀÅzÀÄ
¸ÀjAiÀÄ®è."

Therefore, on close scrutiny of his version, it is very

much clear that, katha of the property bearing site No.20

was not changed in the name of Shivanna. Though

Shivanna/Pw.2 contending that, partition was effected

between his brother in respect of 24 sites. Further, he has

also admitted that, neither he nor plaintiff -Ramesh filed

Partition Deed dated 7.2.1990 or another Partition Deed

dated 21.6.2008. Bus sum and substance of evidence of

Pw.2 clearly discloses that, he has alienated plot No.20 in

favour of plaintiff. He deposed that, Lakkappa was allotted

with plota No.7, 22, 23, and 24 while Uddandappa was

allotted plots No.4, 10, 11 and 12. He has also stated for all

24 sites, no katha recorded in the name of any of his

brothers. It is admitted fact that, this very -Rudrappa

already alienated site No.14 in favour of Shivanna as is

indicated in Ex.P.9 and Ex.P.10. In the recitals of Ex.P.9, this
54 O.S.No.3741/2016
&
O.S.No.3118/2016
very Rudrappa has contended that, there was partition on

7.2.1990 and further fact that, Rudrappa has alienated plot

No.14 to Sivanna and even he has executed Rectification

Deed on 9.3.2011 for rectification of survey number. Though

during course of cross-examination of Pw.1, it is suggested

that, Ex.P.9 and Ex.P.10 are concocted documents, but to

substanite that contention, no evidence is brought on the

record by defence. Even for that matter, on going through

the contents of Ex.D.2, which is original registered Gift Deed

through, which defendant -Sriram is claiming his right, the

recitals of Gift Deed, Rudrappa has clearly stated that,

partition was effected and to that effect, one Partition Deed

was also executed between the parties. If this recitals of

Ex.D.2 is considered, it can be inferred that, all 6 sons of

Chikkamuniyappa got their respective sites formed in land

bearing Sy.No.15/3. Even a step ahead, as already observed,

in the written statement filed in O.S.No.5039/2015 also other

brothers of Rudrappa categorically contended that, Partition
55 O.S.No.3741/2016
&
O.S.No.3118/2016
was effected on 7.2.1990 among 6 sons and it is also clearly

contended that, different sites are allotted to them under

partition. In the written statement, it is clearly contended

that, plots No.6.9, 14 and 21 were allotted to the exclusive

share of Rudrappa, while plots No.5, 16, 19 and 20 are

allotted to the exclusive share of Shivanna. Thus, combined

reading of evidence of Pw.2 coupled with contents of Ex.D.2,

Ex.P.9 and Ex.P.10 makes it abundant clear that, partition is

already effected. Among 6 brothers, five brothers

contending that, partition in respect of land bearing

sy.No.15/3 in which as many as 24 sites were formed.

Further, on going through the averments of written

statement filed in O.S.No.5039/2015, it is clearly contended

that, Rudrappa already sold site No.9 under registered Sale

Deed, to Nazeem Taj and Rudrappa sold site No.21 to

G.Shivanna through G.P.A. Agreement dated 18.5.1989 and

it is also contended that, Rudrappa sold site No.14 to his

brother-Shivanna under registered Sale Deed dated
56 O.S.No.3741/2016
&
O.S.No.3118/2016
3.11.2004. If this circumstance is considered, it is highly

improbable to accept the contention of defendant that, site

No.20 is fallen to the exclusive share of his father -

Rudrappa. Ofcourse, original Partition Deed and also revenue

lay out are most material documents. But in view of the fact

that, there is no any dispute between the parties with

respect of situation and identity of site No.20. Thus, even if

original Partition Deed is not produced, it has no any

consequence on the recitals of either Ex.P.9 or Ex.P.10 as

well as original Sale Deed dated 5.12.2002 and registered

Rectification Deed copy of which is marked as Ex.P.6.

Admittedly registered Rectification Deed executed by

Shivanna and his sons thereby Shivanna has rectifed the act

of his G.P.A. holder in the matter of execution of registered

Sale Deed dated 5.12.2002. Registered Sale Deed dated

5.12.2002 in respect of site No.20 and registered

Rectification Deed dated 4.2.2015 are well before execution

of Gift Deed dated 21.5.2015, which means as on the date of
57 O.S.No.3741/2016
&
O.S.No.3118/2016
execution of Gift Deed, dated 21.5.2015 already site No.20

was alienated in favour of plaintiff -Ramesh. Therefore,

subsequent Gift Deed executed by Rudrappa has no

evidentiary value. Sale Deed in favour of plaintiff with

respect of suit property, never denied or challenged by

vendor-Shivanna and his brothers. Thus, other brothers of

Shivanna have also not raised any objections, so for as

alienation of site No.20 to the plaintiff-Ramesh since more

than 10 years. Further, as already observed in my foregoing

paras, defendant-Sriram has not stick on to his pleadings.

He gone to the extent of saying that, no any partition is

effected. But on the contrary, his own document on which,

he is relying, it is clearly recited that, already partition is

effected, in which case, even if either Shivanna or plaintiff

have not produced Partition Deed, no adverse inference

could be drawn against plaintiff for non-production of such

document. Had Shivanna or his sons have challenged the

Sale Deed dated 5.12.2002, under that circumstance,
58 O.S.No.3741/2016
&
O.S.No.3118/2016
Partition Deed was very much necessary. In the instant

case, if entire evidence of Dw.1, is considered, it is unsafe

to be relied, for the simple reason that, defendant in his

pleadings contended that, he is the owner of land bearing

Sy.No.20 under Gift Deed. But during evidence, he stated

facts contrary to his pleadings. In the evidence, he has gone

to the extent of saying that, no any partition is effected, in

which case, evidence projected by defence is unworthy of

credence. On the other hand, evidence of Pw.2 on the

aspect of partition appears to be more probable.

42. I have also gone through the evidence of Pw.1,

who is plaintiff in O.S.No.3741/2016. On perusal of his oral

evidence, it is very much clear that, he has unequivocally

deposed that, he is owner of the site No.20, which he

purchased under registered Sale Deed dated 5.12.2002

executed by Shivanna through his General Power of

Attorney Holder. He also stated that, since there is

discrepancies in the original Sale Deed with respect of survey
59 O.S.No.3741/2016
&
O.S.No.3118/2016
number, said Shivanna executed registered Rectification

Deed only in respect of rectification of survey number. Such

registered Rectification Deed is executed on 4.2.2015

through which Sy.No15/2 as indicated in original Sale Deed

has been rectified by inserting Sy.No15/3 and by deleting

Sy.No.15/2. If I perused his oral evidence with his pleadings

as averred in his plaint as well as in his written statement,

his version so for as purchase of site No.20 is with

consonance of contents of recitals of Sale Deed and

averments of his pleadings. He has also stated that, he has

raised loan of Rs.28,92,000/- by mortgaging Site No.20 by

executing Equitable Mortgage Deed by deposit of title deeds.

He further states that, after filing of the suit, defendant took

forcible possession of the shed constructed in the site No.20

and also he has got electricity power connection, illegally.

He has also spoken about the factum of partition under

which his vendor acquired title in respect of plots No.5, 16,

19 and 20. He has also stated that, father of defendant
60 O.S.No.3741/2016
&
O.S.No.3118/2016
was allotted with sites No.6, 9, 14 and 21 towards his share.

If I perused his examination-in-chief, there is no hesitation

in coming to the conclusion that, his version not only with

consonance of his pleadings but also supported by

documentary evidence marked at Ex.P.1/Certified copy of

written statement in O.S.No.5039/2015, Ex.P.5/Certified

copy of original Sale Deed dated 5.12.2002, Ex.P.6/certified

copy of registered Rectification Deed dated 4.2.2015 and

Ex.P.4, which is issued by State Bank of India,

Basavanagudi Branch, Bengaluru, in which detail description

of documents are indicated for having mortgage of Site

bearing No.20 as a security for repayment of housing loan,

which plaintiff availed.

[

43. Even I have carefully scrutinized his cross-

examination. I feel it necessary to re-produce relevant cross-

examination, which reads thus;

"D §qÁªÀuÉ £ÀPÉëAiÀÄ£ÀÄß £Á£ÀÄ ªÀÄÆ®
ªÀiÁ°ÃPÀjAzÀ ¥ÀqÉzÀÄPÉÆArgÀÄªÀÅ¢®è. ¸ÀzÀj
61 O.S.No.3741/2016
&
O.S.No.3118/2016
£ÀPÉëAiÀÄ£ÀÄß D ªÀiÁ°ÃPÀgÀÄ £À£ÀUÉ
PÉÆnÖgÀÄªÀÅ¢®è. D §qÁªÀuÉ §UÉÎ MAzÀÄ
£ÀPÉë EzÀÝ §UÉÎ £À£UÀ É UÉÆvÀÄAÛ lÄ. ¸ÀzÀj
d«ÄÃ£ÀÄzÀ°è MlÄÖ 24 ¤ªÉÃ±À£ÀUÀ¼£À ÀÄß
ªÀiÁqÀ¯ÁVvÀÄÛ."

44. He further states as under;

"¥ÀAZÁAiÀÄvï ¥ÁjPÀvï£À ¥ÀæPÁgÀ £Á£ÀÄ
PÀæAiÀÄPÉÌ ¥ÀqÉzÀÄPÉÆAqÀ ¤ªÉÃ±À£À d«ÄÃ£ÀÄ
¸ÀªÉð £ÀA-15-2 gÀ°èzÀÝ ¤ªÉÃ±À£À ¸ÀASÉå 20
CAvÁ EgÀÄvÀÛzÉ. d«ÄÃ£ÀÄ ¸ÀªÉð £ÀA-15-2
gÀ°èzÀÝ ¤ªÉÃ±À£À ¸ÀASÉå 20 PÉÌ £Á£ÀÄ 2016
£ÉÃ E¹éAiÀÄ°èAiÀÄÆ PÀÆqÀ PÀgÀ ¥ÁªÀw
ªÀiÁrgÀÄvÉÛÃ£É."

45. He also states as under;

"¢£ÁAPÀ B 5-12-2002 gÀ PÀæAiÀÄ ¥ÀvÀæzÀ°è
¸ÀªÉðÃ £ÀA-15-2 gÀ°èAiÀÄ ¸ÉÊmï £ÀA-20
CAvÁ §gÉAiÀÄ¯ÁVzÉ. D ¢£ÀzÀAzÀÄ ¸ÀªÉð
£ÀA-15-2 gÀ d«ÄÃ£ÀÄzÀ°èAiÀÄ ¤ªÉÃ±À£À
¸ÀASÉå 20 ²ªÀt£Ú À ºÉ¸Àj£À°è SÁvÉ
EgÀ°®è DzÀgÉ ²ªÀtÚ£À f¦J ºÉÆÃ®ØgÁzÀ
²ªÀ°AUÀ£À ºÉ¸Àj£À°è SÁvÉ EvÀÄÛ CAvÁ
¸ÁQë ªÀÄÄAzÀÄªÀgÉzÀÄ w½¹gÀÄvÁÛ£É."
62 O.S.No.3741/2016
&
O.S.No.3118/2016

46. He further states in his cross-examination, which reads

as under

"²ªÀtÚ JA§ÄªÀªÀ£ÀÄ ²ªÀ°AUÀ£À ºÉ¸Àj£À°è
d£ÀgÀ¯ï ¥ÁªÀgï D¥sï CmÁ¤ðAiÀÄ°è
d«ÄÃ£ÀÄ ¸ÀªÉðÃ £ÀA.15-2 gÀ°èzÀÝ ¤ªÉÃ±À£À
¸ÀASÉå 20 CAvÁ §gÉ¢vÀÄÛ D ¤ªÉÃ±À£ÀPÉÌ
¸ÀA§AzÀs¥ÀlÖ ºÁUÉ d£ÀgÀ¯ï ¥ÁªÀgï
D¥sï CmÁ¤ð §gÉzÀÄ PÉÆnÖzÀÝ. ¸ÀzÀj
²ªÀtÚ¤UÉ ¥ÀAZÁAiÀÄvï ¥ÁjPÀvï£À
ªÀÄÄSÁAvÀgÀ §A¢vÀÄÛ. ¥ÀAZÁAiÀÄvï
¥ÁjPÀvï£À zÁR¯ÁwAiÀÄ£ÀÄß F zÁªÉAiÀÄ°è
¸À°è¹gÀÄªÀÅ¢®è. ²ªÀtÚ£À ºÉ¸Àj£À°è zÁªÁ
D¹Û «ZÁgÀªÁV AiÀiÁªÀÅzÉÃ ¥ÀAZÁAiÀÄvï
¥ÁjPÀvï£À zÁR¯Áw EgÀ°®è ªÀÄvÀÄÛ £Á£ÀÄ
D §UÉÎ ¸ÀÄ¼ÀÄî ¸ÁQë £ÀÄrAiÀÄÄwÛzÉÝÃ£ÉAzÀgÉ
¸ÀjAiÀÄ®è."

Thus, even during course of cross-examination, Pw.1 is

very much consistent about his stand, which he has taken in

his pleadings. Though Pw.1 has stated that, he has seen the

Partition Deed and though he has admitted that, his name is

not entered in katha of site No.20, but so for as his
63 O.S.No.3741/2016
&
O.S.No.3118/2016
evidence with regard to purchase of site No.20 from

Shivanna cannot be doubted. Katha Extract is not Title Deed.

Admittedly site No.20 which is formed in land bearing

sy.No.15/3, is revenue site. Even for that matter, defendant

has also not produced Approved Layout Map, but there is no

any dispute between the parties with respect of extent and

measurement with boundaries of suite site, thus, identity of

the suit property is not in dispute. Further more, there is no

any document to indicate that, katha of site No.20 was

recorded in the name Rudrappa also. Ofcourse, defendant

has produced Ex.P.6, which is Property Register Extract. But

on perusal of this document also, there is no any entry

indicating that, name of defendant -Sriram is mutated by

deleting the name of his father-Rudrappa. Thus, non-

production of Partition Deed and even non-production of

Approved Layout Plan are not circumstance to infer that,

plaintiff did not acquired title over the suit property. If really

site No.20 was fallen to the share of Rudrappa, in normal
64 O.S.No.3741/2016
&
O.S.No.3118/2016
circumstances, katha of site No.20 would have been

recorded in the name of Rudrappa. Even in Ex.P.6, there is

no any entry to the effect that, name of defendant -Sriram is

entered on the basis of registered Sale Deed. Therefore,

contents of Ex.P.6 is not sufficient to disprove the fact of

purchase of site No.20 by plaintiff through Shivanna. Even

contents of Ex.P.8, which is certified copy of Record of

Right, in which name of Kalaiah is recorded, is not

conclusive proof that, no residential sites are formed in the

said land, since both the parties have contended that,

residential sites were formed. Thus, merely because still

name of Kalaiah is appearing in revenue records, it cannot

be held that, said land is still agricultural land. Thus, on

going through the material on record with the photos

produces by defendant, it is very much clear that, suit

property is situated within the limits of BBMP., and it is

surrounded by buildings. Thus, already in other portion of

land bearing Sy.No.15/3, residential houses are built. Entire
65 O.S.No.3741/2016
&
O.S.No.3118/2016
area of land bearing Sy.No.15/3 has lost the nature of

agricultural land and area in which suit site is situated is

totally developed area. In that view of the matter, no much

reliance can be placed on Ex.D.8.

47. Version of Pw.1 is supported by evidence of his

vendor. If really, site No.20 was allotted to the exclusive

share of Rudrappa as contended by defendant, then

defendant ought to have examined said Rudrappa to

substantiate his contention. It is not the case of defence

that, his father -Rudrappa is no more. Defendant has not

examined his father as a witness. Ofcourse, plaintiff has also

not examined other brothers of Rudrappa. But in view of

contents of Ex.P.1, which is certified copy of written

statement in O.S.No.5039/2015, plaintiff need not examine

other brothers of Rudrappa and Shivanna. On the other

hand, it was necessary for defendant to examine other

brothers of Rudrappa. Thus, non-examination of other

brothers of Rudrappa and Shivanna is fatal to the case of
66 O.S.No.3741/2016
&
O.S.No.3118/2016
defendant. In view of written statement marked at Ex.P.1,

defendant-Sriram ought to have examined his father to

substantiate that, site No.20 was not fallen to the share of

Shivanna and to substantiate that, suit site was fallen to the

share of his father-Rudrappa. No reasons are assigned by

defendant as to why he has not examined his father-

Rudrappa as witness. When plaintiff examined Shivanna,

then evidence of Rudrappa is very much necessitated. To

prove the recitals of registered Gift Deed and to substantiate

that, plot No.20 is fallen to the share of Rudrappa,

defendant ought to have examined his father, who is very

much available. No reasons are assigned by defendant for

non-examination of his father-Rudrappa. When plaintiff, who

is defendant in O.S.No.3118/2016 has categorically denied

the legal capacity and marketable title of Rudrappa in the

matter of execution of Gift Deed in respect of site No.20,

then it is incumbent upon the defendant -Sriram to

examine his father-Rudrappa, as a witness. Thus, under
67 O.S.No.3741/2016
&
O.S.No.3118/2016
these circumstances, necessarily I should draw an adverse

inference against defendant that, if he had examined his

father-Rudrappa as his witness, real truth would have been

come out, in which case, evidence of Rudrappa would have

gone against his contention. Thus, non-examination of

Rudrappa is fatal to the case of defendant.

48. In view of my above discussion and in the

result, I have come to the conclusion that, there is

irreconcible inconsistency between version of Sriram and in

his pleadings in both suits. Evidence projected by defendant

is contrary to his pleadings. Evidence of Sriram is unworthy

of credence. Hence, I have not placed my reliance on his

evidence. On the other hand, evidence projected by both the

parties, it clearly suggests that, land bearing Sy.No.15/3 is

no more agricultural land and suit site is situated in

developed area, which comes under jurisdiction of BBMP

Limits and evidence of defendant -Sriram suffers from

serious infirmities, which raised considerable doubt in my
68 O.S.No.3741/2016
&
O.S.No.3118/2016
mind, about legal possession of defendant over the suit

property. By the time Gift Deed is executed, already plaintiff

acquired title under registered Sale Deed and subsequently

through registered Rectification Deed. Thereby even if father

of the defendant executed Gift Deed in favour of his

son/defendant, it has no evidentiary value in the eye of law.

Though suit of the plaintiff initially is a simplicitor suit for

perpetual injunction order, but during pendency the suit, he

got amended his plaint and sought declaratory relief with

consequential relief of possession. Under these

circumstances, the only conclusion that could be arrived is

that, though defendant is in possession of suit property, but

his possession cannot be considered as legal possession and

on the other hand, he is in illegal possession. Hence, I have

come to the conclusion that, Sriram failed to prove his legal

possession over the suit property, on the other hand,

Ramesh, who is defendant in O.S.No.3118/2016 sufficiently

disprove the case of plaintiff in O.S.No.3118/2016 with
69 O.S.No.3741/2016
&
O.S.No.3118/2016
reference to Issue No.1 in O.S.No.3118/2016. Accordingly, I

will have to answer Issue No.1 in O.S.No.3118/2016 in

Negative.

49. Even on the aspect of title of the plaintiff-

Ramesh also, I am of the opinion that, though Rudrappa

executed Gift Deed in favour of his son, but as on the date

of registration of Gift Deed, Rudrappa was not owner of suit

site No.20. This plaintiff purchased the suit property under

registered Sale Deed dated 5.12.2002 and recitals of the

Sale Deed are further strengthened by executing registered

Rectification Deed by Shivanna and his sons on 4.2.2015,

which is well in advance before execution of Gift Deed by

Rudrappa by in favour of his son. Therefore, already title in

respect of suit site No.20 is vested with the plaintiff -

Ramesh. As on the date of execution of Gift Deed, father of

the defendant-Rudrappa had no any interest, so as to gift

away site No.20 in favour of his son. More over, defendant

or his father-Rudrappa never challenged the legality and
70 O.S.No.3741/2016
&
O.S.No.3118/2016
validity of registered Sale Deed dated 5.12.2002. It appears

that, Rudrappa just to have claim over the site No.20, has

executed Gift Deed in favour of his son, so as to create

evidence to his false claim over the site No.20. Thus, on

going through the contents of the Ex.P.5, Ex.P.6 and Ex.P.1,

coupled with oral evidence of Shivanna, I can safely

conclude that, as on the date of execution of Sale Deed on

5.12.2002, it is Shivanna, who was owner of the suit

property, which he alienated it to plaintiff -Ramesh, since

plot No.20 was allotted to the exclusive share of Shivanna,

thereby plaintiff- Ramesh acquired right, title interest and

possession over the suit property. Recitals of Sale Deed,

which is in the name of plaintiff are very much clear about

the handing over possession of suit property in favour of

purchaser-Ramesh. Therefore, it is plaintiff-Ramesh, who

was in possession of suit property till, he is dispossessed by

the defendant. Therefore, on considering the entire

evidence, I do not find any substance in the contention of
71 O.S.No.3741/2016
&
O.S.No.3118/2016
defendant that, he acquired title over the suit property on

the basis of Gift Deed. On the other hand, evidence

projected by plaintiff is more probable than the evidence led

in by defence. Since evidence of Pw.1 is supported by oral

testimony of Shivanna coupled with recitals of Ex.P.5, I have

placed my reliance on his evidence. Thus, contention of

defendant that, plaintiff is not owner of suit property cannot

be believed or accepted.

50. I have made it clear that, to consider the title of

plaintiff, I have placed my reliance on the averments of

written statement, copy of which marked at Ex.P.1 coupled

with recitals of original Sale Deed dated 5.12.2002.

Ofcourse, to decide the title, original title deeds are required.

But it is borne out from the records that, plaintiff availed

loan by mortgaging site No.20, as security for repayment of

loan availed by him from State Bank of India, as is evident

from contents of Ex.P.4. Ex.P.5 and Ex.P.6 are certified

copies of registered Sale Deed and Rectification Deed, which
72 O.S.No.3741/2016
&
O.S.No.3118/2016
are admissible in evidence, since those documents are

considered to be secondary evidence to prove the recitals of

original registered deeds. Thus, no adverse inference can be

drawn for non-production of original registered Sale Deed

and Rectification Deed. Availment of loan by the plaintiff has

not been seriously denied by the defendant. Executant of

original Sale Deed as well as Rectification Deed dated

4.2.2015 have not denied by its executants. Therefore, even

if original Sale Deed is not produced by the plaintiff, but the

result is that, plaintiff has successfully proved his title over

the suit property on his own strength, without falling back

on the weakness of defence.

51. I have gone through the ratio laid down in the

dictums, which are relied upon by the defendant -Sriram.

There is no any dispute about the principle laid down in

those dictums. Even if principle laid down in those dictums

are applied to the case on hand, title of the plaintiff cannot

be doubted. In order to ascertain the title of the plaintiff,
73 O.S.No.3741/2016
&
O.S.No.3118/2016
weakness of the defendant has not at all been considered by

this court. Further more, defendant-Sriram is not simply

defending in O.S.No.3741/2016. He has also filed suit in

O.S.No.3118/2016. Therefore, strictly speaking even if it is

held that, principles laid down in the above dictums are

applicable to the case on had, plaintiff cannot be non-

suited, since for recording my findings on the aspect of the

title, I have not consider the weakness of the defence.

52. In view of my above discussion and in the result,

plaintiff -Ramesh has successfully proved his title over the

suit property. On the other hand, though defendant tried to

disprove the title of the plaintiff, but finally failed to disprove

the case as put forth by plaintiff-Ramesh.

53. For the reasons stated above, I am of the

opinion that, plaintiff successfully proved issue No.1 in

O.S.3741/2016 and at the same time, plaintiff in
74 O.S.No.3741/2016
&
O.S.No.3118/2016
O.S.No.3118/2016 failed to prove Issue No.1. Accordingly, I

answer these issues.

54. ISSUES NO.2 IN BOTH SUITS:- In suit in

O.S.No.3741/2016 plaintiff sought relief of possession. On

the other hand, plaintiff in O.S.No.3118/2016 sought relief

of perpetual injunction order. But in view of my findings on

issue No.1 in both suits, it must necessarily be held that,

defendant-Sriram is in illegal possession. Therefore, he

cannot seek relief of perpetual injunction order against

Ramesh, since no injunction could be granted against the

true owner. Thus, question of obstruction by Ramesh in

possession of Sriram does not survive for consideration.

55. As already observed plaintiff -H.Ramesh filed

suit seeking relief of perpetual injunction order. But during

pendency of the suit, he got amended his plaint by seeking

relief of declaration of his title. In view of my findings on

Issue No.1 in both suits, plaintiff -Ramesh is entitle for
75 O.S.No.3741/2016
&
O.S.No.3118/2016
recovery of possession. Accordingly, I answer issue No.2 in

O.S.No.3741/2016 in Affirmative and Issue No.2 in

O.S.No.3118/2016 in Negative.

56. ISSUE NO.3 O.S.NO.3118/2016:- In view

of my findings on above issues in both suits, plaintiff in

O.S.No.3118/2016 is not entitled for the relief as sought.

Though it is held that, he is in possession of suit property,

but his possession cannot be protected, for the simple

reason that, he is in illegal possession over the suit property.

Sriram cannot continue his possession and he has to be

evicted only through due process of law. Hence, plaintiff in

O.S.No.3118/2016 is not entitled for any of the relief as

sought for. Accordingly, I answer Issue No.3 in

O.S.No.3118/2016 in Negative.

57. ISSUE NO.3 O.S.NO.3741/2016:- Since it is

held that, defendant-Sriram is in illegal possession of suit

property and it is also held that, plaintiff-Ramesh is the
76 O.S.No.3741/2016
&
O.S.No.3118/2016
owner of the suit property, he is entitle for mesne profits as

damages also.

58. On perusal of averments of para No.15(a) of

the plaint, plaintiff contending that, defendant forcibly took

possession of the shed constructed in the suit site and also

got electricity power connection, illegally. It is also

contended that, plaintiff -Ramesh came to know about

illegal occupation of suit site by Sriram on 2.4.2017. To

substantiate this, plaintiff -Ramesh in his examination-in-

chief clearly stated that, after filing of the suit, defendant -

Sriram took forcible possession of the shed constructed in

the suit site and also got electricity power connection,

illegally. On going through the contents of Ex.P.33 to

Ex.P.38, it appears that, during pendency of the suit,

Sriram, illegally occupied suit site. On perusal of Ex.D.26,

which is cash bill issued by M/s.Mayur Digital Photo. These

photos obtained after filing of the suit. More particularly,

on going through a photo marked at Ex.D.33, defendant -
77 O.S.No.3741/2016
&
O.S.No.3118/2016
Sriram constructed one premises with A.C.Sheet Roof with

the help of coolies, which clearly infers that, defendant -

Sriram constructed premises over the suit site, during

pendency of the suit. Further, on seeing photo marked at

Ex.D.37 and Ex.D.38, coupled with contents of Ex.D.30,

prior to 6.5.2016 defendant -Sriram applied for electricity

power connection to the newly built shed and thereafter,

obtained electricity power connection to the shed, which he

built on the suit site. Therefore, it is very much clear that,

defendant -Sriram illegally came in possession of suit site,

most probably during the month of May 2016. Therefore,

defendant -Sriram cannot continued his illegal possession.

He is liable for mesne profits from the month of May-2016 till

handing over possession of suit site to plaintiff -Ramesh.

59. But to ascertain the quantum of damages/mesne

profits from the date of illegal possession till handing over

the possession of suit property, plaintiff is required to initiate

separate proceedings under Order 20 Rule 12 of C.P.C. With
78 O.S.No.3741/2016
&
O.S.No.3118/2016
these observations, I answer Issue No.3 in

O.S.No.3741/2016 in affirmative.

60. ISSUE NO.4 IN O.S.NO.3118/2016 : In view

of my findings on the above issues in both suits, suit of

plaintiff is in O.S.No.3118/2016 is liable to be dismissed

with costs.

61. ISSUE NO.4 IN O.S.NO.3741/2016:- In view

of my findings on the above issues in both suits, suit of

plaintiff is deserves to be decreed with costs.

62. But before proceeding to pass orders, I feel it

necessary to record my findings on court fees.

63. Suit in O.S.No.3741/2016, initially filed seeking

relief of perpetual injunction order. During pendency of the

suit, plaintiff got amended his plaint, seeking declaratory

relief of title with consequential relief of possession. After

amendment of plaint, as a matter of fact, plaintiff is
79 O.S.No.3741/2016
&
O.S.No.3118/2016
required to pay court fees for the relief of declaration with

consequential relief of possession. Admittedly, suit property

is not agricultural land paying annual revenue to

Government. Therefore, provisions of Section 7 of

Karnataka Court Fees and Suit Valuation Act cannot be

invoked for determination of court fees. Considering the

relief sought, suit of the plaintiff in O.S.No.3741/2016 is for

seeking declaratory relief. Therefore, plaintiff is required to

pay court fee on market value of the property, as provided

U/s.24 (a) of Karnataka Court Fees and Suit Valuation Act.

After amendment of plaint, plaintiff -Ramesh has not

furnished valuation slip indicating actual market value of

the suit property. Even this court on the aspect of court fee

has not framed issue after amendment of plaint. To

ascertain the market value of the suit property, no material

on record and at the same time, court cannot dismiss the

suit, or reject the plaint on the ground that, plaintiff has not

paid proper court fee. At the time of presentation of the
80 O.S.No.3741/2016
&
O.S.No.3118/2016
plaint, plaintiff paid court fee of Rs.25/- for the relief of

perpetual injunction order, which is insufficient court fee for

the relief of declaration of title with consequential relief of

possession. Under this situation this court is of the opinion

that, deficit court fee can be recovered, even after passing

judgment, but before drawing decree. Hence, plaintiff -

Ramesh is required to pay deficit ad-valorum court fee on

actual market value of suit property. Thus, plaintiff -Ramesh

is required to furnish Valuation Slip indicating actual market

value of suit site as on the date of suit.

64. Further, it is made clear that, any observations

and findings recorded by this court, in both suits is not

binding on the plaintiff in O.S.5039/2015. With these

observations and being of that opinion, I proceed to pass the

following:-
81 O.S.No.3741/2016
&
O.S.No.3118/2016
ORDER

Suit of the plaintiff in O.S.No.3118/2016 is hereby dismissed with costs.

Office to draw decree accordingly.

Suit of the plaintiff in O.S.No.3741/2016 is hereby decreed with costs, as under;

It is ordered and declared that, plaintiff is absolute owner of suit property bearing site No.20 formed in Sy.No.15/3 of Mallathahalli village, Yashwanthpura Hobli, Bengaluru North Taluk, as indicated in schedule annexed to the plaint.

It is ordered that, plaintiff is entitle for possession of suit property.

Further, it is ordered that, defendant is hereby directed to deliver the vacant possession of suit property to the plaintiff, forthwith.

Plaintiff -Ramesh is entitle to initiate separate proceedings under Order 20 Rule 12 of C.P.C., to ascertain and to recover mesne profits/damages from the month of May-2016 till 82 O.S.No.3741/2016 & O.S.No.3118/2016 defendant -Sriram deliver the vacant possession of the suit property.

Office is directed to draw decree in O.S.No.3741/2016 only after securing deficit ad- valorum court fee, on market value of suit property.

Office is directed to draw separate decree in both suits.

Further office is directed to keep original judgment in file in O.S.No.3741/2016 and copy there of in file in O.S.No.3118/2016.

All exhibited documents shall be kept in file in O.S.No.3741/2016.

(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court on this 27th day of November 2017).

(MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE (CCH-65), BENGALURU CITY.

83 O.S.No.3741/2016

& O.S.No.3118/2016 ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:

Pw.1      H.Ramesh
Pw.2      Shivanna

DOCUMENTS MARKED FOR THE PLAINTIFF:

Ex.P.1 Certified copy of written statement filed in O.S.No.503/2015.

Ex.P.2 Certified copy of registered Sale Deed dated 17.10.2008.

Ex.P.3 Certified copy of registered Gift Deed dated 17.3.2009.

Ex.P.4 Acknowledgment issued by State Bank of India for having retained original documents.

Ex.P.5 Certified copy of Registered Sale Deed dated 5.12.2002.

Ex.P.6 Registered Rectification Deed dated 4.2.2015.

Ex.P.7 & Ex.P.8 Encumbrance Certificates.

Ex.P.9 Certified copy of registered Sale Deed dated 3.11.2004.

Ex.P.10 Certified copy of registered Rectification Deed dated 9.3.2011.

Ex.P.11 Encumbrance Certificate.

84 O.S.No.3741/2016

& O.S.No.3118/2016 Ex.P.12 Copy of complaint lodged with Jnanabharathi police station dated 2.4.2017.

Ex.P.13 General Power of Attorney dated 6.1.1996.

WITNESSES EXAMINED FOR THE DEFENDANT:

Dw.1      Sriram
Dw.2      G.Rangaswamy

DOCUMENTS MARKED FOR THE DEFENDANT:

Ex.D.1 Certified copy of plaint in O.S.No.5939/2015.

Ex.D.2 Original registered Gift Deed.

Ex.D.3 Certified copy of registered Rectification Deed( which is already marked as Ex.P.2 in O.S.No.3741/2016 prior to clubbing of suits).

Ex.D.4 Certified copy of registered Power of Attorney dated 10.5.2001 executed by Shivanna and others in favour of Shivalinga.

Ex.D.5 Original Ration Card (which is already marked as Ex.P.3 in O.S.No.3741/2016 prior to clubbing of suits).

Ex.D.6 Certified copy of Property Register Extract.

Ex.D.7 Certified coy of Encumbrance Certificate.

Ex.D.8 Certified copy of Record of Rights.

Ex.D.9 to Tax Paid Receipts.

85 O.S.No.3741/2016

& O.S.No.3118/2016 Ex.D.16 Ex.D.17 to K.E.B. Bills and paid receipts (which are already Ex.D.20 marked as Ex.P.4 to Ex.P.7 in O.S.No.3741/2016 prior to clubbing of suits).

Ex.D.21 to K.E.B. Electricity Bills. Ex.D.25 Ex.D.26 Receipt for having taken photo.

Ex.D.27 Tax paid challan (which is already marked as Ex.P.8 in O.S.No.3741/2016 prior to clubbing of suits).

Ex.D.28 Tax Paid Receipt (which is already marked as Ex.P.9 in O.S.No.3741/2016 prior to clubbing of suits).

Ex.D.29 Tax Invoice of Purchase of miter.

Ex.D.30 Copy of application filed Sanction of electricity power supply.

Ex.D.31 to 8 photos.

Ex.D.38 Ex.D.39 C.D.Containing photos.

Ex.D.40 & K.E.B.Bills.

Ex.D.41 Ex.D.42 Original Rectification Gift Deed.

(MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.

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H.Ramesh vs Sriram on 27 November, 2017