Bangalore District Court
M.G. Prabhavathi vs Jayamma on 3 September, 2019
IN THE COURT OF THE LIX ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY
(CCH-60)
Dated this the 3rd day of September 2019
: PRESENT :
Sri B.B.Jakati, B.A., LL.M.,
LIX Additional City Civil and Sessions Judge &
Bangalore City.
O.S.No.6250/2015
PLAINTIFF: M.G. PRABHAVATHI
Aged about 71 years
D/o Late M.L. Gangadhar
No. 113/66, 4th Floor,
Suryodaya Apartments
BBC Layout, Attigubbe,
Bangalore-560 040.
(By Sri Isaac J., Advocate)
V/s
DEFENDANT: 1. JAYAMMA
Aged about 93 years,
W/o Late M.L. Gangadhar
Attigubbe Village
Yeshwanthapura Hobli
Bangalore North Taluk
2. BHANUMATHI
Aged about 72 years,
D/o Late M.L. Gangadhar
Attigubbe Village
Yeshwanthapura Hobli
Bangalore North Taluk
3. M.C. MANJUNATH
Aged about 55 years
S/o M.C. Naidu
No. 1136, 30th Main Road,
Banashankari II Stage
Bangalore- 560 070.
4. GEETHA,
2 O.S.No. 6250/2015
Aged about 56 years
W/o Late M.C. Chandrashekar,
R/at No. 1068, 25th Main,
Banashankari II Stage
Bangalore- 560 070.
5. SAGAR C. MACHINI
Aged about 35 years
S/o Late M.C. Chandrashekar,
No. E-216, Raheda Residency
7th cross, 3rd Block,
Koramangala,
Bangalore- 560 034
(D1 & 2 - By Sri/Smt. R.G., D3 - by
Sri RPN, D4 by Sri - ABP.,
Advocates, D5 - Ex-parte )
:
Date of institution of the suit 17.07.2015
:
Nature of the suit Suit for partition
Date of commencement of : 21.07.2017
recording of the evidence
Date on which the Judgment : 03.09.2019
was pronounced.
: Year/s Month/s Day/s
Total duration
04 01 16
(B.B. Jakati)
LIX ACC&SJ : Bengaluru City.
JUDGMENT
The plaintiff has filed this suit for partition and separate possession of her 1/3rd share in the schedule properties and for 3 O.S.No. 6250/2015 declaration that the sale deed dated 20.08.1984 standing in the name of MC. Chandrashekar and the revenue records standing in the name of MC. Chandrashekar and defendant No.3 and 5 are null, void and not binding upon her.
2. The case of the plaintiff in brief is that, herself and defendant No.2 are the daughters and defendant No.1 is the wife of late M.L. Gangadhar. M.C. Linge Gowda is her grandfather. The schedule land bearing Sy.No.28 new Sy.No.41 measuring 4 Acres 11 Guntas was under the cultivation of great-grandfather, grandfather and father of the plaintiff. Such cultivation was continued from great-grandfather and along with M.L. Gangadhar, plaintiff and defendant No.1 and 2 were cultivating the schedule land. Such cultivation was unauthorized. The father of the plaintiff applied before the Government for regularization of cultivation. The Government of Karnataka granted schedule land in the name of M.L. Gangadhar by regularizing unauthorized cultivation for the benefit of himself and for the benefit of entire joint family consisting of plaintiff, defendant No.1 and 2. After the grant in the year 1956, the required charges paid by using the joint family nucleus. Therefore, even though the land was granted in the name of M.L. Gangadhar, it was joint family 4 O.S.No. 6250/2015 property. The plaintiff, defendant No.1 and 2 were having joint share in the schedule property. It has been contended that M.L. Gangadhar was not having absolute right to alienate the schedule property. However, M.L. Gangadhar sold the schedule property in favour of M.C. Chandrashekar through registered sale deed dated 20.08.1984. Such sale is null, void and not binding upon the plaintiff, defendant No.1 and 2. The defendant No.3 is the brother, defendant No.4 is the wife and defendant No.5 is the son of M.C. Chandrashekar. Earlier M.C. Chandrashekar got his name entered in the revenue records of the schedule property and after his death the defendant No.3 to 5 got entered their names. Such entry came to the knowledge of the plaintiff in the year 2015. The plaintiff is having right and share in the schedule property. The sale deed executed by her father is not binding on her. On these grounds, she prayed for partition and declaration.
3. After service of summons the defendant No.1 to 4 appeared through their counsel. The defendant No.5 did not appear and therefore, defendant No.5 was placed ex-parte. The defendant No.1 and 2 not filed the written-statement. The 5 O.S.No. 6250/2015 defendant No.3 and 4 filed separate written-statement and the defence taken by them is one and the same.
4. The defendant No.3 and 4 in their written-statement have denied the right, title and interest of the plaintiff, defendant No.1 and 2 in the schedule property. They have taken the defence that schedule land was granted in the name of M.L. Gangadhar in his individual capacity. Therefore, the schedule land was not the joint family property or coparcener property of M.L. Gangadhar, plaintiff and defendant No.1 and 2. M.L. Gangadhar was the absolute owner of the schedule land and for his necessities he sold the schedule land on 20.08.1984 in favour of M.C. Chandrashekar. M.L. Gangadhar handed over the possession of the schedule land to M.C. Chandrashekar on the date of sale deed. Accordingly, M.C. Chandrashekar was in possession of the schedule land from 1984. There was family partition in the family of M.C. Chandrashekar and in that family partition the schedule land has been divided and it was allotted to the share of defendant No.3 and 5. The defendant No.3 to 5 are in possession of the schedule property and not the plaintiff or defendant No.1 and 2. They have further contended that the defendant No.1 and 2 herein filed O.S.No.6731/2013 for partition of schedule property in which the present plaintiff was 6 O.S.No. 6250/2015 also party. That suit was dismissed on 04.04.2015 on merit and after dismissal of the suit and because of the increase in the price of the schedule property, the plaintiff in order to get unlawful benefit filed false suit. The defendants have also disputed the correctness of court fee. On these amongst other grounds the defendant defendant No.3 and 4 prayed to dismiss the suit with costs.
5. On the rival pleadings of the parties, the following issues have been framed:
1) Whether the plaintiff proves that suit land was granted in the name of her father for himself and on behalf of his joint family consisting of plaintiff, defendant No.1 and 2?
2) Whether the plaintiff further proves that her father had no absolute right to sell the schedule property?
3) Whether the plaintiff proves that sale deed dated:20.08.1984 said to be executed by her father in favour of M.C.Chandrashekar is null and void and not binding on her share?
4) Whether the Court fee paid by the plaintiff is not proper?7 O.S.No. 6250/2015
5) Whether suit is not maintainable in view of dismissal of O.S.No.6731/2013?
6) Whether the suit is barred by limitation?
7) Whether plaintiff is entitled for share in schedule property and declaration?
6. In order to establish the suit claim, the plaintiff examined herself as P.W.1 and got marked documents at Ex.P.1 to P.14. The defendants in order to substantiate their defence got examined the special power of attorney holder of defendant No.4 as DW.1, third defendant as DW.2 and Managing Director of Hopcoms, Lalbagh as DW.3 and got marked documents at Ex.D.1 to Ex.D.44.
7. The counsel for the plaintiff filed written argument. Heard the counsel for defendant No.3. The other defendants have not canvassed their argument inspite of sufficient opportunity. The learned counsel for defendant No.3 relied on the following decisions:
(1) ILR 2013 KAR 6202 {Nimbavva and Others V/s. Channaveerayya and Others}; (2) ILR 2015 KAR 5725 {lakshmi and Others V/s Neelamma and others} ; (3) ILR 2001 KAR 3988 {B.S Malleshappa V/s Koratagigere 8 O.S.No. 6250/2015 B. Shivalingappa and Others} ; (4) AIR 1964 SC 510 {Guramma Bharatar Chanbasappa Deshmukh and others Appellants V Mllappa chandbasappa and another}
8. Considering the evidence on record and the submissions, my findings to the above issues are as under:
Issue No.1 to 3 : In the Negative
Issue No.4 to 6 : In the Affirmative
Issue No.7 : In the Negative
for the following:
REASONS
9. ISSUE NOs.1 TO 3 : - Both parties have admitted that M.L. Gangadhar is the husband of defendant No.1, father of plaintiff and defendant No.2. It is also admitted that M.C. Chandrashekar is the brother of defendant No.3, husband of defendant No.4 and father of defendant No.5. The parties have admitted that the schedule land was granted in favour of M.L. Gangadhar on 26.06.1956. Such grant order is at Ex.P.2 The name of M.L. Gangadhar was entered in the revenue records of the schedule land through mutation produced at Ex.P.3 and the index of land is at Ex.P.4. It is further admitted by the parties that M.L. Gangadhar during his lifetime mortgaged the schedule land in favour of Bengaluru Grape Grovers Marketing 9 O.S.No. 6250/2015 Processing Co-operative Society on 01.04.1968 and the deed of mortgage is at Ex.P.6. Ex.P.11 is the RTC of the schedule land for the year 1967-68, which show that the name of M.L. Gangadhar was entered after the grant order at Ex.P.2 and he was the owner in possession of the schedule land.
10. The parties further admitted that M.L. Gangadhar executed sale deed at Ex.D.14 on 20.08.1984 in favour of M.C. Chandrashekar and thereby sold the entire schedule land. The name of M.C. Chandrashekar came to be entered in the revenue records on the basis of the sale deed and continued till deed of partition produced at Ex.D.3 dated 27.10.1999. There was partition between M.C. Chandrashekar and his brothers under Ex.D.31 and some of the land has been allotted to M.C. Chandrashekar and the defendant No.3. As per such family partition deed, the name of M.C. Chandrashekar and defendant No.3 came to be entered in the revenue records. Such revenue records are at Ex.D.33 to Ex.D.36. The records of right of the schedule land are at Ex.D.3 to Ex.D.13. The name of defendant No.3 entered for 2 acres and the name of defendant No.5 is entered for remaining 2 acres in Sy.No.41 and that is the present status which can be seen from the records of rights produced by the defendants. All these revenue entries are not 10 O.S.No. 6250/2015 in dispute. The defendants have produced land revenue receipts at Ex.D.34 to Ex.D.43 which show that the defendant No.3 to 5 paid land revenue of the schedule land.
11. The defendant No.3 and 4 produced the Notifications at Ex.D.15 and 16, which show that part of the schedule land was notified for acquisition in the year 1987 and such proceedings has been challenged by the defendant No.3 by filing W.P.No.25648/2014, which can be seen from Ex.D.17 and 18.
12. The defendant No.3 and 4 produced order sheet, plaint, judgment and decree passed in O.S.NO.6731/2013 in Ex.D.19, 20, 28 and 29. These records show that the defendant No.1 and 2 herein filed O.S.No.6731/2013 against the plaintiff, defendant No.3 and M.C. Chandrashekar for partition and separate possession in the present subject matter. Such suit was not contested by M.C. Chandrashekar and the present defendant No.3. The plaintiff herein appeared in previous suit and not filed the written-statement. The court heard the matter on merit and suit came to be dismissed holding that the defendant No.1 and 2 herein are not entitled for any share in the present subject matter. Such judgment and 11 O.S.No. 6250/2015 decree reached finality as none of the parties challenged such decree.
13. In the background of above said legal proceedings and the admitted facts, whether the schedule property was the absolute property of M.L. Gangadhar or it was joint family property of M.L. Gangadhar , plaintiff and defendant No.1 and 2 is to be ascertained. To decide this question, it is profitable to refer title deed of M.L. Gangadhar produced at Ex.P.2. Ex.P.2 is Grant Certificate under the land revenue regularization. This Grant Certificate has been issued by Amaldar on 26.06.1956. In this Certificate it has been noted that M.L. Gangadhar either paid the price fixed by the Government or he has purchased the schedule land in public auction. Therefore, the schedule land has been granted to M.L. Gangadhar. In this Certificate there is no reference that M.L. Gangadhar or his ancestors were in unauthorized cultivation of schedule land and because of such unauthorized cultivation, the regularization was made through Ex.P.2. So, in Ex.P.2 there is no indication of unauthorized occupation and its regularization by the Government. On the contrary Ex.P.2 recitals indicate that M.L. Gangadhar purchased the schedule property by paying the fixed price to the Government. Therefore, Ex.P.2 is not helpful to the case of 12 O.S.No. 6250/2015 the plaintiff to establish that land was granted for joint family property.
14. Under Ex.P.2 certain price was fixed and that has been paid by M.L. Gangadhar. That price was upset price and not equal to actual market value. What was the price paid by M.L. Gangadhar for grant of suit land has not been explained by the plaintiff, who is seeking the partition. Without disclosing the price paid by M.L. Gangadhar, plaintiff has contended that such price was paid from joint nucleus. The plaintiff not disclosed what was the joint nucleus for payment of price for grant of schedule land in the year 1956. No iota of evidence is brought on record to show that joint nucleus has been used for purchase of schedule land under Ex.P.2. So, the evidence of PW.1 that joint nucleus has been used for purchase of schedule property is not substantiated through any other evidence. Self testimony of plaintiff which has been denied by the defendants is not sufficient to prove the fact that M.L. Gangadhar and his ancestors were in unauthorized cultivation of schedule land and it was granted to M.L. Gangadhar for and on behalf of joint family and by using joint family nucleus the price was paid.
15. The learned counsel for the defendant No.3 placed reliance on the decision reported in ILR 2013 KAR 6202 13 O.S.No. 6250/2015 {Nimbavva and Others V/s. Channaveerayya and Others} to contend that the Grant Certificate at Ex.P.2 is sufficient to hold that land was granted in individual capacity of M.L. Gangadhar. In the said decision the effect of Section 24 of Karnataka Land Reforms Act, 1961 has been discussed. The Grant Order in Ex.P.2 is not passed under the provisions of Karnataka Land Reforms Act, 1961 and therefore, such decision cannot be pressed into service.
16. The plaintiff has asserted that grant was made in the name of M.L. Gangadhar for and on behalf of joint family. Such assertions has been denied by the defendant No.3 and 4. Therefore, the burden is on the plaintiff to prove the assertions. Excluding the oral evidence, the plaintiff has not produced any other evidence to establish the assertion. The recitals of Ex.P.2 support the claim of defendant No.3 and 4. The plaintiff has not examined any of the witnesses to prove the fact of unauthorized cultivation by her ancestors and its regularization. Even she has not produced any receipts for having used the joint family nucleus to pay the price of the schedule land while purchasing under Ex.P.2. Thus, I hold that the plaintiff has failed in proving that the schedule and was the joint family property granted in the name of her father.
14 O.S.No. 6250/2015
17. In O.S.No.6731/2013, the plaintiff, defendant No.1 to 3 herein and M.C. Chandrashekar were parties. That suit was filed for partition and separate possession of share in the schedule property. The sister and mother of plaintiff failed in previous suit to show that the schedule property was the joint family property. The plaintiff herein who was party in the previous suit not taken any steps to establish the fact that the schedule property was the joint family property. The judgment and decree in previous suit reached finality. There is verdict of the court in previous suit that the schedule property is not the joint family of plaintiff, defendant No.1 and 2. Therefore, the judgment and decree in Ex.D.28 and Ex.D.29 are also sufficient to hold that the schedule property is not the joint family property of plaintiff, defendant No.1 and 2.
18. The plaintiff has produced Certificate at Ex.P.9 and receipt at Ex.P.10 issued by Karnataka Horticulture Department, which shows that M.L. Gangadhar raised loan from Grape Grovers Marketing Processing Co-operative Society by mortgaging the schedule property under Ex.P.6 and that loan was repaid by the plaintiff on 18.12.2013 by depositing an amount of Rs.54,803/-. The defendant No.3 and 4 called the Officer of HOPCOMS, Lalbagh to ascertain the genuinity of 15 O.S.No. 6250/2015 Ex.P.9 and P.10. He has been examined as DW.3. The Managing Director of HOPCOMS has stated that M.L. Gangadhar raised loan of Rs.5,000/- from Grape Grovers Marketing Processing Co-operative Society on 01.04.1968 and the said loan was closed on 31.03.1983 itself. He was cross examined by the plaintiff and in the Cross-examination the DW.3 has admitted the receipt at Ex.P.10 and Certificate at Ex.P.9. He has admitted the amount shown in Ex.P.10 has been received by his Department. But prior to such receipt the loan of Gangadhar was closed. The evidence of DW.3, Ex.P.9, 10, Ex.15 and 16 together show that on 04.01.2013 the plaintiff herself approached HOPCOMS for repayment of loan of her father and accordingly, authority has received money under Ex.P.10 and issued the certificate at Ex.P.9. But the loan obtained by M.L. Gangadhar was closed prior to payment of money under Ex.P.10. Therefore, the repayment of loan of M.L. Gangadhar by the plaintiff in the year 2013 would not create any right in the schedule property in favour of the plaintiff or defendant No.1 and 2. Accordingly, I hold that these records are not helpful to the case of the plaintiff to show that the schedule property was the joint family property. 16 O.S.No. 6250/2015
19. The plaintiff has produced original Grant Order at Ex.P.2. Whether production of original Grant Order itself prove the fact that the schedule property is the joint family property is the question before the court. In my opinion the custody of original deed at Ex.P.2 and its production by the plaintiff ipso- facto would not prove the fact that the schedule property is joint family property. The defendant s have produced the original sale deed executed by M.L. Gangadhar in the year 1984 and M.L. Gangadhar lost ownership over the property shown in Ex.P.2. The name of purchaser has been entered in the year 1984. Therefore, the custody of original deed at Ex.P.2 would not create any right in favour of the plaintiff or defendant No1 or defendant No.2. For these reasons also I hold that the plaintiff failed to establish that the schedule property was the joint family property of M.L. Gangadhar, herself, defendant No.1 and 2.
20. Even if it is presumed for the sake of discussion that the schedule property was the joint family property, whether there was bar to M.L. Gangadhar for sale of property is the question to be decided. Admittedly M.L. Gangadhar was the sole co-parcener in the family of plaintiff, defendant No.1 and 2 in the year 1984 when the land was sold. The status of co- 17 O.S.No. 6250/2015 parcener had not been conferred on the daughters prior to 2005. Therefore, the plaintiff, defendant No.1 and 2 were not the co-parceners of the family of M.L. Gangadhar.
21. The Hon'ble Supreme Court in the decision reported in AIR 1964 SC 510 in Para No.13 held as under:
13. A Coparcener, whether he is natural born or adopted in to the family, acquires an interest by birth or adoption, as the case may be, in the ancestral property of the family. A managing members of the family has power to alienate for value joint family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family.
The sole surviving member of a coparcenary has an absolute power to alienate the family property, as at the time of alienation there is no other member who has joint interest in the family. If another member was in existence or in the womb of his mother at the time of the alienation the power of the manager was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member of the member who was in the womb but was subsequently born, as the case may be unless it was made for purposes binding on the members of the family or the 18 O.S.No. 6250/2015 existing members consented to it or the subsequently born member ratified it after he attained majority.
22. These principles clearly show that M.L. Gangadhar being the sole surviving members of the coparcenery family had absolute power to alienate the family property. The consent of other members of the family i.e. plaintiff, defendant No.1 and 2 was not necessary for the alienation of schedule property by the sole coparcener. Therefore, I hold that M.L. Gangadhar had absolute right to alienate the schedule property and the plaintiff, defendant No.1 and 2 had no right to challenge such alienation.
23. The right of coparcener had been conferred on the daughters under Hindu Succession (amendment) Act, 2005. Section 6(1) of the Act provides that the alienations of coparcenery property prior to 20.12.2004 cannot be challenged by the daughters after conferring the status of coparcener. Therefore, on this ground also the plaintiff being the daughter of M.L. Gangadhar cannot challenge the alienation made by M.L. Gangadhar as the alienation was in the year 1984 through registered sale deed. This principle has been laid down by the Hon'ble High Court of Karnataka in ILR 2015 Kar 5725. 19 O.S.No. 6250/2015
24. For the discussions made above, I hold that the schedule property was granted in the name of M.L. Gangadhar in his individual capacity and therefore, he was the absolute owner of the schedule property. He alienated the schedule property through registered sale deed in the year 1984. The consent of the plaintiff, defendant No.1 and 2 was not required for such alienation. The plaintiff being the daughter of M.L. Gangadhar has no right to challenge the alienation made by her father. Therefore, the sale deed dated 20.08.1984 executed by M.L. Gangadhar in favour of M.C. Chandrashekar is legal and valid and it bonds on the Lrs of M.L. Gangadhar. Accordingly, these issues are answered in the Negative.
25. ISSUE NO.4 :- The plaintiff has stated that she being the member of joint family sought relief of partition and separate possession of her share in the schedule property and she is in joint possession. Accordingly, she valued the suit under Section 35(2) of Karnataka Court Fee and Suit Valuation Act and paid the court fee thereon. Such valuation and payment of court fee has been disputed by the contesting defendants on the ground that the plaintiff is not in joint possession and therefore, she is required to pay court fee under Section 35(1) of Karnataka Court Fee and Suit Valuation Act. 20 O.S.No. 6250/2015
26. The sale deed at Ex.D.14 shows that M.L. Gangadhar sold the schedule property on 20 th August, 1984 in favour of M.C. Chandrashekar and handed over possession to the purchaser. The name of purchaser came to be entered in revenue records in the year 1984 itself. The name of M.C. Chandrashekar shown as possessor of the schedule land. Because of the partition, the name of M.C. Chandrashekar and defendant No.3 came to be entered in the revenue records. After the death of M.C. Chandrashekar the name of defendant No.5 has been entered in part of the schedule property. From 1984 till this date the name of the purchaser and his family members are appearing in record of rights as possessors of land. The DW.1 and 2 have deposed that M.C. Chandrashekar and themselves are in possession of the schedule land from 1984. Such evidence is corroborated with the original sale deed and the revenue entries. On the other hand, the plaintiff has not produced any evidence on record to show that she is in joint possession of the schedule property as on the date of the suit or prior to the suit. Therefore, the evidence on record shows that M.C. Chandrashekar and defendant No.3 to 5 are in possession of the schedule property from 1984 till this date. Such evidence is sufficient to 21 O.S.No. 6250/2015 hold that the plaintiff was not in joint possession of the schedule property when the suit was filed. Therefore, the plaintiff is required to pay the court fee under Section 35(1) of Karnataka Court Fee and Suit Valuation Act. The court fee paid by the plaintiff under Section 35(2) is not proper and correct.
27. The effect of non-payment of court fee under Section 35(1) of Karnataka Court Fee and Suit Valuation Act has been discussed by the Hon'ble High Court of Karnataka in the decision reported in ILR 2001 Kar 3988. In Para No.11 it is held as under:
11. We may now conveniently summarize the principles relating to court fee in regard to suits for partitions and appeals therefrom:
i) Payment of court fee will depend on plaint averment alone neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to court fee.
ii) The scope of investigation under section 11 is confined practically to determine two points: I) Under valuation of the subject matter of the suit and ii) category under which the suit falls, for the purpose of court fee, once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the written statement or on the basis of evidence and arguments. In short, if the suit is found to fall under section 35(2) of the Act on the plaint averments, the court 22 O.S.No. 6250/2015 has no power to convert the suit as one falling under section 35(1) of the act. At any point of time, much less while renderings judgment. The only exception is when the plaint is amended.
Iii) The plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a particular relief neither the defendant nor the court can alter the suit as one for a different relief or as a suit falling in a different category and require the plaintiff of pay court fee on such altered category of suit.
iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorizes the suit under section 35(2) of the Act. He is therefore liable to pay court fee only under section 35(2). If on evidence, it is found that he was not in joint possession, the consequences is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of curt treating the suit as one falling under section 35(1) of the Act. And directing the plaintiff to pay the court fee under section 35(1) of the Act does not arise. Even after written statement and evidence, (which may demonstrate absence of possession of joint possession) if the plaintiff chooses not to amend the plaint to bring the suit under section 35(1) and pay court fee applicable there to, he takes the chance of suit getting dismissed or relief being denied.
28. In the present suit after leading evidence the plaintiff kept silent and not amended the plaint to bring the suit under Section 35(1) of Karnataka Court Fee and Suit Valuation Act. Therefore, the plaintiff has taken the chance of suit getting 23 O.S.No. 6250/2015 dismissed or relief being denied. Now there is no necessity to give opportunity to the plaintiff to amend the plaint or to pay court fee under Section 35(1) of Karnataka Court Fee and Suit Valuation Act. For not payment of proper court fee suit has to be dismissed. Accordingly, I hold that the suit of the plaintiff is not maintainable in view of the principles laid down above for non payment of court fee under Section 35(1) of Karnataka Court Fee and Suits Valuation Act. Hence, I answer this Issue in the Affirmative.
29. ISSUE NO.5 :- Ex.D.20is the plaint, Ex.D.21 is the deposition of Bhanumathi, Ex.D.19 is the order sheet, Ex.28 is the judgment and Ex.D.29 is the decree in O.S.6731/2013. The proceedings in O.S.6731/2013 is not disputed by any of the parties to the suit. The earlier suit show that the defendant No.1 and 2 herein filed the suit for partition and separate possession of their share in the present subject matter of the suit. The plaintiff, defendant No.3 and M.C. Chandrashekar were the parties to the earlier suit. None of the defendants in the earlier suit contested the matter. However, the plaintiff herein who was the defendant No.1 therein appeared through her counsel but not filed the written-statement. On merit the suit was dismissed holding that the present subject matter of 24 O.S.No. 6250/2015 the suit is not the joint family property of plaintiff, defendant No.1 and 2 herein. Such judgment and decree reached finality as none of the parties challenged such judgment. The defendant No.4 and 5 in the present suit claiming their right under M.C. Chandrashekar, who was the party in the earlier suit. In the background of these facts whether the present suit is maintainable is to be decided.
30. Section 11 of C.P.C. provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been substantially raised and has been heard and finally decided by such court. In the present case, the matter directly and substantially in issue in former suit. That matter has been decided by the competent court of law on merit after hearing the parties. Therefore, the present suit is hit by the principles of res-judicata under Section 11 of C.P.C. Accordingly, I answer this issue in the Affirmative.
31. ISSUE NO.6 :- M.L. Gangadhar sold the schedule land on 20.08.1984 in favour of M.C. Chandrashekar through 25 O.S.No. 6250/2015 registered sale deed at Ex.D.14. Now the plaintiff being the daughter of M.L. Gangadhar claiming that schedule property was the joint family property or coparcenery property. She has challenged the alienation of her father in the year 2015. Article 109 of Limitation Act 1963 provides the period of twelve years to challenge the alienation of ancestral property by the father. Such right starts when the alienee takes possession of the properties. Therefore, the suit brought by the plaintiff challenging the alienation of her father squarely falls under Article 109 of Limitation Act.
32. Under Ex.D.14 the possession of the property was given to the purchaser. The delivery of possession to the purchaser has been demonstrated by the contesting defendants. Therefore, limitation to challenge the sale deed at Ex.D.14 started on 20.08.1984 and whereas the suit was filed in the year 2015. Therefore, the present suit is barred under Article 109 of Limitation Act. Thus, I hold that the suit of the plaintiff is hit by Article 109 of Limitation Act by answering this Issue in the Affirmative.
33. ISSUE NO.7 :- The plaintiff has failed in establishing her claim over the schedule property. The plaintiff is not entitled for relief of partition and declaration sought in the present suit. 26 O.S.No. 6250/2015 Hence, I answer this Issue in the Negative and proceed to pass the following:
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 3rd day of September, 2019].
(B.B. Jakati) LIX ACC&SJ And C/c of X ACC&SJ, Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the plaintiff/s:
P.W.1 Smt. M.G. Prabhavathi
2. List of witnesses examined on behalf of the Defendant/s:
D.W.1 Smt. Poornima Raghuram
D.W.2 Manjunatha.M.C
D.W.3 Nanjundaiah
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1 Affidavit dated 17.07.2015
Ex.P.2 Grant Certificate
Ex.P.3 Record of right
Ex.P.4 Index of Land
Ex.P.5 Certificate of Encumbrance
Certificates
Ex.P.6 Mortgage deed dated
01.04.1968
27 O.S.No. 6250/2015
Ex.P.7 Letter dated 29.05.1968 issued
by Grape Growers Marketing
Co-operative Society
Ex.P.8 Letter dated 25.05.1968
Ex.P.9 Letter dated 20.12.2013 issued
by Horticulture department
Ex.P.10 Receipt dated 18.12.2013
Ex.P.11 RTC
Ex.P.12 Certified copy of sale deed
dated 20.08.1984
Ex.P.13 & Ex.P.14 2 RTC
Ex.P.15 & 16 Letters
4.List of documents marked on behalf of the defendant/s:
Ex.D.1 Power of Attorney
Ex.D.2 Certified copy of the sale deed
dated 20.08.1984
Ex.D.3 to 11 RTC
Ex.D.13
Ex.D.14 Original Sale deed dated
20.08.1984
Ex.D.15 & Two gazette notifications dated
Ex.D.16 05.05.1987, 02.03.1985
Ex.D.17 Certified copy of the petition
Ex.D.18 Order sheet in W.P.No.
25648/2014
Ex.D.19 Certified copy of the order sheet
Ex.D.20 Plaint
Ex.D.21 Evidence of PW-1 in O.S. No.
6731/2013
Ex.D.22 RTC of Sy No. 28
Ex.D.23 Map of Sy. No. 28
Ex.D.24 Extract of revision settlement
Ex.D.25 Tax paid receipt
Ex.D.26 Mutation No.7/2010-11
Ex.D.27 H-2/2012-13
Ex.D.28 & Judgment and decree in O.S. No.
6731/2013
Ex.D.29
Ex.D.30 The information collected from
28 O.S.No. 6250/2015
Hopcoms dated 18.07.2018
Ex.D.31 Certified copy of the partition
deed dated 27.10.1999
Ex.D.32 Memo dated 03.11.2010 Issue by
Assistant Commissioner
Ex.D.33 Mutation No.3/1985-86
Ex.D.34 to 3 RTC of Sy No. 28
Ex.D.36
Ex.D.37 to 7 land revenue receipts
Ex.D.43
Ex.D.44 Certified copy of the affidavit of
Bhanumathi
(B.B. Jakati)
LIX ACC&SJ And C/c of X ACC&SJ,
Bengaluru City.
29 O.S.No. 6250/2015
Judgment pronounced in open court (vide separate detailed judgment) ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(B.B. Jakati) LIX ACC&SJ : Bengaluru City.
30 O.S.No. 6250/2015