Bangalore District Court
Smt.Lakshmi Munibudda vs Sri A.Lokanath on 20 March, 2020
IN THE COURT OF XLIV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-45)
Dated this the 20th day of March, 2020
PRESENT: Latha,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.3474/2010
Plaintiffs :1. Smt.Lakshmi Munibudda,
W/o late Munibudda,
Aged 58 years,
2. Sri M.Chandrashekar,
S/o late Munibudda,
Aged 40 years,
3. Dr.M.Jagadish Prasad,
S/o late Munibudda,
Aged 39 years,
All are R/at No.2/2,
Central Street,
Neelasandra, Bangalore - 47.
(By Sri B.N.Suresh Babu, Adv.,)
Vs
Defendant : Sri A.Lokanath,
S/o late Annayappa @ Papanna,
Aged 49 years,
R/at No.105/9, Central Street,
Neelasandra, Bangalore - 47.
(By Sri A.M.S. Adv.,)
Date of Institution of the suit: 26.5.2010
Nature of the suit : Declaration, permanent
Injunction,
Date of recording evidence: 21.9.2012
Date of Judgment : 20.3.2020
Total Duration : Day/s Month/s Year/s
24 09 09
2 O.S.No.3474/2010
J UD GM E N T
This is a suit filed by the plaintiffs against the defendant
for the relief of declaration of their title over the suit schedule
property, to declare that the Release deed dated 18.10.2006
as null and void and for the consequential relief of permanent
injunction restraining the defendant from interfering with
plaintiffs' peaceful possession and enjoyment of the suit
schedule property.
2. According to the plaintiff, Sri Erappa was the head of
the joint family. He had 3 sons by name E.Annayappa @
Papanna (father of defendant), E.Krishnarayana and
E.Munibudda, husband of first plaintiff and father of plaintiff
Nos.2 and 3. E.Annayappa had a son by name Lokanath
(defendant herein). E.Krishnarayana has two sons and 2
daughters. E.Munibudda had 2 sons-plaintiff Nos.2 and 3.
E.Annayappa being the elder son of Erappa was earning his
livelihood by selling milk in retail and also used to look after
the house hold works. E.Krishnarayana and E.Munibudda
were the government servants. During the life time of
Erappa, he acquired the immovable properties including the
suit schedule property namely the residential house property
3 O.S.No.3474/2010
bearing No.2/2, situated at Central Street, Neelasandra,
Bangalore -47. Erappa had acquired the suit schedule
property under the registered sale deed dated 5.2.1923. He
passed away about 60 years back from the date of the suit.
After his death, the revenue records pertaining to the
property owned by him including the suit schedule property
were changed in the name of Annayappa @ Papanna as he
was the eldest male member of the joint family.
The plaintiffs further contended that the suit schedule
property was a vacant site, that they intended to construct
the ground floor in the said property, that in order to put up
construction, they wanted to avail loan from erstwhile Mysore
Housing Board, that they approached the said Mysore
Housing Board for loan, that the said Board insisted them to
get Release Deed in the name of Annayappa, as he had less
income. Accordingly, on 6.11.1969 E.Krishnarayana and
Munibudda executed nominal Release Deed in favour of
Annayappa for Rs.500/-, that after the execution of the said
Release Deed they produced the same before Mysore Housing
Board for availing loan and availed loan of Rs.12,500/- and
constructed residential building in the suit schedule property,
4 O.S.No.3474/2010
The plaintiffs further contended that all the 3 brothers
intended to get partitioned the joint family properties
acquired by their father, they got partitioned the agricultural
properties and the house properties remained as it is, that on
12.4.1985 they entered into an arrangement of partition and
in the said partition the suit schedule property had been
allotted to the exclusive share of the husband of plaintiff No.1
and father of plaintiff Nos.2 and 3, that Annayappa died on
26.3.1990, that the defendant got executed the Release Deed
on 18.10.2006 by his mother, that the mother of defendant
had no right, title and interest over the suit schedule property
to execute the Release deed in his favour, that defendant got
executed Release deed only to deprive the right of the
plaintiffs over the suit schedule property, that the Release
deed dated 6.11.1969 was a nominal Release deed, that later
on, the father of defendant allotted the suit schedule property
in favour of the husband of plaintiff No.1 under the family
arrangement and which is reduced into writing on 12.4.1985,
that the cause of action to the suit arose on 18.10.2006,
when the defendant got executed Release deed in respect of
the suit schedule property in his favour and on 20.5.2009
5 O.S.No.3474/2010
when he got changed the khata of the suit schedule property
in his name and also the subsequent date, when the
defendant tried to interfere with the plaintiff's possession
and enjoyment of the suit schedule property. Accordingly,
the plaintiffs sought for declaration of their title over the suit
schedule property by holding that the Release deed dated
18.10.2006 as null and void and also sought for
consequential relief of permanent injunction.
3. On the other hand, the defendant appeared through his
counsel and filed his written statement by denying the plaint
averments which are traversed against her contention.
However, the defendant has admitted his relationship with
the plaintiffs and also admitted the Release deed executed by
Krishnanarayana and Munibudda in favour of his father on
3.12.1969. However, it is the specific contention of the
defendant that the said Release deed is not a nominal Release
deed by executing the said Release deed, the said
Krishnanarayana and Munibudda have lost their right, title
and interest over the said property, that after the death of his
father, his mother executed Release deed in respect of the
6 O.S.No.3474/2010
suit schedule property on 18.10.2006, that in view of the said
Release deed, he acquired absolute right, title and interest
over the suit schedule property, that the plaintiffs have no
manner of right, title and interest over the suit schedule
property, that the husband of plaintiff No.1 was allowed to
reside in the suit schedule property on permission, that a
dispute arose between him and the plaintiffs when the
defendants demanded the plaintiffs to vacate the suit
schedule property and deliver the vacant possession of the
suit schedule property, that the plaintiffs instead of vacating
the suit schedule property, have filed this suit seeking the
relief of declaration, that the suit of the plaintiffs is barred by
limitation, that the court fee paid by the plaintiffs is
insufficient. Accordingly, the defendant prayed to dismiss the
suit.
4. On the basis of the pleadings, the Predecessor-in-Office
of this court had framed the issues as under:
1. Whether plaintiffs prove that they are in
peaceful possession and enjoyment of the suit
schedule property as an absolute owner?
2. Whether plaintiffs prove that Release deed
dated 18.10.2006 executed by late Papamma in
7 O.S.No.3474/2010
favour of defendant is null and void?
3. Whether plaintiffs prove that the defendant is
illegally causing obstruction in their peaceful
possession and enjoyment of the suit schedule
property?
4. Whether the suit is barred by limitation?
5. Whether court fee paid is proper?
6. Whether plaintiffs are entitled for the relief
sought for?
7. What order or decree?
5. To substantiate the contention, the plaintiffs got
plaintiff No.2 examined as PW.1, they also examined two
more witnesses as PWs.2 & 3, got 56 documents marked as
Ex.P.1 to P.56 and closed their side of evidence. On the other
hand, the defendant got himself examined as DW.1, also
examined one more witness as DW.2, got 22 documents
marked as Ex.D.1 to D.22 and closed his side of evidence.
7. Heard the arguments of learned counsel for the plaintiff
and the defendants.
8. The findings of the Court on the above issues are:
Issue No.1 : In the Affirmative;
Issue No.2 : In the Affirmative;
8 O.S.No.3474/2010
Issue No.3 : In the Affirmative;
Issue No.4 : In the Negative;
Issue No.5 : In the Affirmative;
Issue No.6 : In the Affirmative
Issue No.7 : As per final order;
for the following:
REASONS
9. Issue No.1 to 3 : Since these issues require common
discussion, these issues are taken up together for discussion.
The plaintiff No.1 is the wife of late Munibudda who is the son
of lat Erappa. Plaintiff Nos.2 and 3 are the children of late
Munibudda. Late Munibudda had 2 elder brothers namely
E.Annayappa and E.krishna. Defendant is the son of brother
of Munibudda namely Annayappa @ Papanna. The suit
schedule property namely the property purchased by the
father of Munibudda Erappa under the registered sale deed
dated 5.2.1923.
The plaintiffs have also contended that Erappa had
owned non only the suit schedule property but also some
other properties including agricultural properties. Erappa
passed about 60 years from the date of suit, that after the
death of Erappa the revenue records of properties owned by
Erappa had been changed in the name of Annyappa as he
9 O.S.No.3474/2010
was the elder son of Erappa and eldest male member of the
joint family, that E.Annayappa being the elder son of Erappa
was earning his livelihood by selling milk in retail and also
used to look after the house hold works. E.Krishnarayana
and E.Munibudda were the government servants. During
the life time of Erappa, he acquired the immovable properties
including the suit schedule property namely the residential
house property bearing No.2/2, situated at Central Street,
Neelasandra, Bangalore -47. Erappa had acquired the suit
schedule property under the registered sale deed dated
5.2.1923, that he passed away about 60 years back as on the
date of the suit, that after his death, the revenue records
pertaining to the property owned by him including the suit
schedule property were changed in the name of Annayappa @
Papanna as he was the eldest male member of the joint
family.
The plaintiffs further contended that the suit schedule
property was a vacant site, that they intended to construct
the ground floor in the said property, that in order to put up
construction, they wanted to avail loan from erstwhile Mysore
Housing Board, that they approached the said Mysore
10 O.S.No.3474/2010
Housing Board for loan, that the said Board insisted them to
get Release Deed in the name of Annayappa, as he had less
income. Accordingly, on 6.11.1969 E.Krishnarayana and
Munibudda executed nominal Release Deed in favour of
Annayappa for Rs.500/-, that after the execution of the said
Release Deed they produced the same before Mysore Housing
Board for availing loan and availed loan of Rs.12,500/- and
constructed residential building in the suit schedule property,
The plaintiffs further contended that all the 3 brothers
intended to get partitioned the joint family properties and by
their father, they got partitioned the agricultural properties
and the house properties remained as it is, that on 12.4.1985
they entered into an arrangement of partition and in the
said partition the suit schedule property had been allotted to
the exclusive share of the husband of plaintiff No.1 and father
of plaintiff Nos.2 and 3, that Annayappa died on 26.3.1990,
that the defendant got executed the Release Deed on
18.10.2006 by his mother, that the mother of defendant had
no right, title and interest over the suit schedule property to
execute the Release deed in his favour, that defendant got
executed Release deed only to deprive the right of the
11 O.S.No.3474/2010
plaintiffs over the suit schedule property, that the Release
deed dated 6.11.1969 was a nominal Release deed, that later
on, the father of defendant allotted the suit schedule property
in favour of the husband of plaintiff No.1 under the family
arrangement and which is reduced into writing on 12.4.1985,
that the cause of action to the suit arose on 18.10.2006,
when the defendant got executed Release deed in respect of
the suit schedule property in his favour and on 20.5.2009
when he got changed the khata of the suit schedule property
in his name and also the subsequent date, when the
defendant tried to interfere with the plaintiff's possession
and enjoyment of the suit schedule property.
10. The plaintiffs in order to substantiate their case got
plaintiff No.2 examined as PW.1. In the examination-in-chief
the PW.1 has reiterated the paint averments. It is the
specific contention of the plaintiffs that the Release deed
dated 6.11.2019 is the nominal Release Deed executed by the
father of the defendant for obtaining loan from Mysore
Housing Board for construction of house in the suit schedule
property. On the other hand, the defendant has taken
12 O.S.No.3474/2010
specific defence that the said Release Deed is not the nominal
Release Deed, that it is a valid Release Deed, that the
brothers of his father released their right, title and interest
over the suit schedule property in favour of his father under
the said Release Deed for Rs.500/-, that on the basis of the
said Release Deed, his father Annayappa became the absolute
owner of the suit schedule property, that after the death of
Annyappa his mother got changed the khata of the suit
schedule property in her name and she executed Release
Deed in favour of defendant on 18.10.2006, that in view of the
execution of registered Release Deed in his favour, the
defendant has become the absolute owner of the suit
schedule property, that in the year 2009 he got changed the
khata of the suit schedule property in his name, that he is
the absolute owner of the suit schedule property and the
plaintiffs are in permissive possession of the suit schedule
property.
11. Now this court, on the basis of the documents produced
on behalf of the parties, has to examine and find out whether
the Release Deed dated 6.11.1969 is a nominal Release Deed
13 O.S.No.3474/2010
or valid Release Deed by releasing all the rights of brothers of
Annayappa in his favour in respect of the suit schedule
property. Ex.P.1 is the certified copy of the sale deed dated
5.2.1923 which shows that Erappa the father-in-law of
plaintiff No.1 purchased the suit schedule property under the
registered sale deed and this fact is not disputed by the
defendant also. The defendant has also contended that the
suit schedule property originally belonged to his grandfather
Erappa. Ex.P.2 is the letter issued by the office of Mysore
Housing Board in the name of E.Annayappa dated 11.4.1969,
to produce certain documents namely encumbrance
certificate and the original sale deed in respect of the property
which is intended to offer security for the loan that will be
obtained by him. Ex.P.3 is the also the letter issued by the
said Board in the name of Annayappa by stating that the
property is the ancestral property and the brothers of the
Annayappa shall furnish affidavit by consenting to offer the
suit schedule property as security for the loan. Ex.P.4 to P.7
are the letters dated 24.7.1969 addressed to E.Annayappa.
The bank has insisted to get Release Deed from the brothers
of Annayappa in his name. Therefore, it is clear that in view
14 O.S.No.3474/2010
of the said insistence, the Release Deed dated 6.11.1969
came to be executed. Ex.P.8 is the certified copy of the
Release Deed. The Board insisted the parties on 28.10.1969
to get Release Deed or Partition Deed in the name of
Annayappa as the property is the ancestral property. On
6.11.1969 this Release Deed came to be executed. Ex.P.9 is
a crucial document. Though the nomenclature of this
document is Partition Deed which is dated 12.4.1985, if the
recital of this deed is gone through in page 2 it is specifically
mentioned as under: "whereas an oral arrangement made
between the parties first to third party which is reduced into
writing under this Partition Deed as follows" this part of the
recital of Ex.P.9 clearly denote that the parties have already
orally got partitioned the properties mentioned in the deed and
on 12.4.1985 they got it reduced into writing in the form of
Partition Deed. In page No.5 of this deed, it is also recited that
the III party i.e. the last brother of Annayappa and
Krishnanarayana, namely Munibudda had been allotted with
schedule 'A' property as his exclusive share together with
liberties, rights, privileges and easements to have and to hold
the same as absolute owner by getting the revenue and other
15 O.S.No.3474/2010
documents transferred into his name, that the first and second
parties have given up their share right, title and interest in
favour of the 3rd party in respect of schedule 'A' property, that
the possession over the schedule 'A' property has been handed
over to the 3rd party exclusively. It is also recited in this Deed
that the loan borrowed for putting up a residential house on
schedule 'A' property from the Myosre Housing Board will be
cleared jointly by all the parties respectively. By entering into
the Partition in respect of house properties, the said 3
brothers have given up their right over the property allotted to
one another. However, as seen from the recital of this
document, since other property has already been allotted to
Krishnanarayana, for him, no share is given under this
Partition. However, the elder son Annayappa by retaining
other house properties has given the schedule 'A' property to
his last brother Munibudda. In view of the subsequent act
of the said 3 brothers, after the execution of Release deed
dated 6.11.1969 it is clear that though the other 2 brothers
have executed Release Deed in favour of Annayappa on
6.11.1969, by relinquishing their right in the property in
favour of Annayappa, he has not considered the said property
16 O.S.No.3474/2010
as his absolute individual property. The recital of Ex.P.9
clearly go to show that he considered the suit schedule
property also the joint family property and thrown the said
property to the joint hatch-pot of the family. This act of a
member of joint family has recognition under Hindu law. As
Annayappa had thrown the suit schedule property to joint
hatch-pot and considered the said property also joint family
property, now the defendant cannot contend that subsequent
to the execution of Partition Deed dated 12.4.1985 Ex.P.9, the
property was the absolute property of Annayappa.
12. The plaintiffs in the plaint have taken the specific
contention that the Release Deed dated 6.11.1969 is the
nominal Release Deed and the parties to the Release Deed
had not released the right over the said property in favour of
Annayappa, that the said document was came to be executed
only for the purpose of obtaining of loan for the construction
of house in the suit schedule property. Is true that the on
perusal of the letters addressed by the Mysore Housing Board
to Annayappa the bank itself insisted the parties to get
Release Deed or Partition Deed in respect of the property
17 O.S.No.3474/2010
which is intended to be pledged to the bank. For the sake of
arguments, even if the court cannot accept the contention of
the plaintiffs that it is a nominal Release Deed. The
subsequent act of all the 3 brothers clearly go to show that
even after the execution of Release Deed, all the 3 brothers
had considered the suit schedule property as the joint family
property and they have not considered it as the absolute
property of Annayappa and specifically the act of Annayappa
shows that he has not considered the the suit schedule
property as his absolute property. Therefore, even if the
Release Deed was executed in its letter and spirit by releasing
the rights of Krishnanarayana and Munibudda in favour of
Annayappa, Annayappa considered it as joint family property
and in the year 1985 while getting partitioned their house
properties, they considered the suit schedule property is also
the joint family property and allotted the suit schedule
property in favour of the husband of plaintiff NO.1. All the 3
brothers have signed this Ex.P.9 Partition Deed. The
defendant has also taken the contention that at the time of
execution of this deed, the defendant was aged about 21
years, that inspite of that, he has not been allowed to know
18 O.S.No.3474/2010
about the deed and his signatures are not obtained on the
document. It is true that in the deed itself the age of the
defendant is mentioned as 25 years. Likewise, the names of
sons and daughters of Krishnanarayana has also been
shown. In the deed the age of first son of Krishnanarayana
was 17 years and the age of plaintiff Nos.2 and 3 at the time
of execution of the said document 15 year sand 13 years
respectively. Since the property was belonging to the
brothers, their children would not have joined as party to the
document and as the property is purchased by the deceased
Erappa, the father of said 3 brothers, it was the self acquired
property of Ersppa and after his death, the said 3 brothers
have inherited to the said property and the said property
cannot be considered as ancestral property. Therefore, the
signatures of children of said brothers might not have been
taken. When all the 3 brothers have joined together and
decided to allot the suit schedule property in favour of
Munibudda, even if the defendant was there, he could not
have raised his voice in front of his father. Because, his
father had already been allotted some other property namely
schedule 'B' & 'C' properties in the said deed. The defendant
19 O.S.No.3474/2010
during the course of evidnece has also disputed that the
signatures forthcoming in the deed are created signatures.
But no evidence is placed to show that the signatures in
Ex.P.9 are created signatures. Moreover, the brother of
Annayappa, namely, Krishnanarayana had also been
examined on behalf of the plaintiffs in support of their case
as PW.2. This witness in examination-in-chief narrated about
the occasion on which the said Release Deed dated 6.11.1969
came to be executed and also narrated the circumstances
under which the Ex.P.9 Partition Deed came to be executed,
the learned counsel for the defendant cross-examined PW.2,
but nothing has been elicited form P.W.2 to disbelieve the
contents of Ex.P.9 document. It is suggested to PW.2 that in
Ex.P.8 Release Deed there is no recital that the deed is
executed only for the purpose of availing loan. It is true that
there are no recital in the Release Deed and such type of
recital cannot be recited in the document. The court has to
gather the intention of the parties from the other
circumstances of the case and decide whether the Release
Deed Ex.P.8 is a nominal Release Deed or not. As already
observed above, the subsequent act of the father of defendant
20 O.S.No.3474/2010
clearly established that all the 3 brothers had no intention to
treat the suit schedule property as the absolute property of
father of defendant. The plaintiffs have also examined one
more witness as PW.3. From him also nothing has been
elicited to disbelieve the contents of Ex.P.9.
13. The learned counsel for the defendant has also
contended that the Ex.P.9 document is an unregistered
Partition Deed which cannot be relied on. As contended by
the defendant, Ex.P.9 is not a Partition Deed, it is only a
family arrangement between the parties. During the course of
arguments, the learned counsel for the plaintiffs submitted
that a family arrangement need not be registered and in
support of his arguments he relied on the decision reported in
2019 6 S.C.C. 409 in the case of Tulasidhara and another vs
Narayanappa and others. Wherein it is held as under:-
Family and Personal Laws - Hindu Law -
Partition/Family arrangement/Settlement -
when amounts to transfer of property / Need
for Registration/ Requirements/ Validity/Oral
Partition.
Even unregistered document of family
settlement would operate as estoppel against to
such settlement - it can be used as
corroborative evidence as explaining
arrangement made thereunder and conduct of
21 O.S.No.3474/2010
parties - If partition of joint family properties
took place by oral family settlement,
unregistered document containing signature of
all members, containing list of properties
partitioned, can be used as corroborative
evidence - Registration Act 1908 Ss.17 and 49
14. By keeping in mind, the principles laid down in the
aforesaid decision, if the evidence of defendant is gone
through, the Ex.P.9 Partition Deed had already acted upon.
As per the terms of the said document, the father of
defendant had already taken the possession of the property
mentioned in 'B' & 'C' schedule property of the property and
got changed the khata of the said property in the name of
Annayappa. That shows that the parties to the Deed have
acted upon and the unregistered document namely Ex.P.9
has operated as estoppel against the parties to the said deed
and the defendant being the legal heir of deceased
Annayappa, Ex.P.9 also operate as estoppel on him also.
14. The learned counsel for the plaintiff has also relied on
the decision reported in AIR 1998 S.C. page 881 in the case of
Roshan Singh and others Vs Zile Singh & others wherein it
is specifically held as under:-
22 O.S.No.3474/2010
Registration Act S.17 (1)(b) S.49 - Transfer of
property Act S.5 -Family arrangement and
partition -Distinction - Partition of ancestral
properties - subsequent memorandum of
partition embodying factum of partition - Held
memorandum was only family arrangement
and its registration was not necessary.
15. In the present suit also the parties to the suit have
already got partitioned their agricultural property prior to the
execution of Ex.P.9 and this document is only a family
arrangement and since this document is got executed in the
year 1985, the parties to the suit, especially the Annayappa,
who got changed the khata of the property alloted to him
under the deed. Therefore, it is the considered view of this
court that under Ex.P.9 the husband of plaintiff No.1 and
father of plaintiff Nos.2 and 3 had acquired absolute right
over the suit schedule property and after his demise the
plaintiffs have inherited to the said property as the legal heirs
of deceased Munibudda.
16. The defendant has taken the defence that the plaintiffs
are in permissive possession of the suit schedule property.
But as seen from Ex.P.22, the last rituals of the deceased
Munibudda had been performed in the very same house and
23 O.S.No.3474/2010
Ex.P.23 to P.56 documents clearly establish that Munibudda
was in possession of the suit schedule property and after his
death, the plaintiffs continued the possession of the suit
schedule property. Though the defendant contented that the
plaintiffs are in permissive possession of the suit schedule
property, the defendant has not produced any document,
except the Release deed executed by his mother to show that
he had taken possession of the suit schedule property in a
particular period. Nothing is on record to show that the
defendant was in possession of the suit schedule property
and he permitted the plaintiffs to reside in the suit schedule
property. Whereas, the number of documents produced on
behalf of the plaintiffs clearly establish that continuously
they were in possession over the suit schedule property at the
time of construction of house in the suit schedule property. If
at all the defendant was in possession of the schedule
property, he would have produced certain documents to
establish his possession over the suit schedule property. In
the absence of relevant documents, the court cannot accept
the contention of the defendant that he was in possession of
the suit schedule property. It appears the defendant got
24 O.S.No.3474/2010
executed the so called Release Deed dated 18.10.2006 from
his mother only to deprive the right of the plaintiffs.
Moreover, the defendant has not explained before the court
that on which circumstances his mother had executed the
Release Deed, it is not executed to deprive the rights of the
plaintiffs over the suit schedule property. Because after the
demise of Annayappa his only legal heirs are the defendant
and his mother. There were no other children to Annayappa
except the defendant and after the demise of the mother of
defendant, automatically the property ought to have devolved
on the defendant and therefore, there was no necessity to the
defendant to get executed the Release Deed in his name and
the documents produced by the defendant which are marked
as Ex.P.5 to D.19 are the subsequent to the date of filing of
this suit. Ex.D.20 is the khata standing in the name of the
defendant which is dated 20.5.2009 and the plaintiffs have
specifically contended that they have objected this document
and filed this suit seeking the relief of declaration. On
analyzing the facts and circumstances of this suit. it is the
considered view of this court that man may lie, but not the
circumstances. The subsequent act of Annayappa clearly go
25 O.S.No.3474/2010
to show that he had the intention to allot the suit schedule
property in favour of Munibudda. Accordingly, the property
had been alloted to him and the possession of the suit
schedule property also was with also Munibudda. After his
demise, the plaintiffs continued to enjoy the said property as
his legal heirs by inheritance. Accordingly, this court is
unable to hold that the Release Deed dated 6.11.1969 is a
nominal Release Deed and the defendant has acquired the
right, title and interest over the suit schedule property on the
basis of the Release Deed dated 18.10.2006. Hence, issue
Nos.1 to 3 are answered in the Affirmative.
17. Issue No.4:- The defendant in his written statement
has taken the contention that the suit of the plaintiff is
barred by limitation. However, according to the plaintiffs,
they came to know about the interference of defendant in
their peaceful possession and enjoyment over suit schedule
property only the defendant got changed the khata of the suit
schedule property in his name on 20.5.2009. From that day
the plaintiffs have filed this suit within 3 years, i.e. in the
year 2010. Therefore, the suit of the plaintiff is not barred by
26 O.S.No.3474/2010
limitation as contended by the defendant. Hence, Issue No.4
is answered in the Negative.
18. Issue No.5:- The plaintiffs have paid court fee under
Section 24(b) of the Karnataka Court Fees and Suits
Valuation Act and valued the property on the date of suit is at
Rs.2,000/- per sq.ft. for 2025 sq.ft. and paid court fee of
Rs.1,10,000/- and also paid court fee of Rs.25/- under
Section 6(2) of Karnataka Court Fees and Suits Valuation Act
and also paid Rs.25/- under Section 26(c) of Karnataka Court
Fees and Suits Valuation Act. Accordingly, the plaintiffs have
paid proper court fee. The defendant has not produced any
documentary evidence or adduced oral evidence to show that
the court fee paid is insufficient. In the absence of acceptable
evidence, the court has to accept the valuation made by the
plaintiff. Hence, court fee paid is sufficient. Accordingly,
issue No.5 is answered in the Affirmative.
19. Issue No.6:- In view of the finding given on issue
Nos.1 to 3, it is the considered view of this court that the
property was allotted to the share of husband of plaintiff and
father of plaintiff Nos.2 and 3 and he was in continuous
27 O.S.No.3474/2010
possession and enjoyment of the suit schedule property till
his demise and, the plaintiffs continued to be in possession of
the suit schedule property after the death of Munibudda and
the defendant has no right, title and interest over the suit
schedule property. Inspite of that, he is interfering with the
plaintiffs' peaceful possession and enjoyment of the suit
schedule property. With legally acceptable evidence the the
plaintiffs could establish that they are the absolute owners of
the suit schedule property. Therefore, the defendant cannot
interfere with their peaceful possession and enjoyment of the
suit schedule property. Hence, the defendant has to be
restrained from interfering with the possession and
enjoyment of the property of the plaintiffs by granting an
order of prohibitory injunction. Since the defendant by getting
executed the Release Deed by his mother cast cloud on the
title of plaintiffs over the suit schedule property. Therefore,
the right, title and interest of the plaintiffs over the suit
schedule property has to be declared by this court. The
plaintiffs are entitled to the relief of declaration that they are
the absolute owners of the suit schedule property and the
plaintiffs are also entitled to the relief of permanent
28 O.S.No.3474/2010
injunction restraining the defendant from interfering with
their peaceful possession and enjoyment of the suit schedule
property. Accordingly, the suit of the plaintiffs shall be
decreed with costs. Hence, Issue No.6 are answered in the
Affirmative.
20. Issue No.7: In view of the discussions made above and
findings given on Issue Nos.1 to 6, this Court proceed to pass
the following:
ORDER
The suit filed by the plaintiffs is decreed with costs.
It is declared that the plaintiffs are the absolute owners of the suit schedule property. Consequently, the defendant and all persons claiming interest through him are hereby restrained from interfering with plaintiffs' peaceful possession and enjoyment of the suit schedule property, by way of an order of permanent injunction.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, corrected and then pronounced in the open court on this the 20th day of March, 2020).
(Latha) XLIV Addl. City Civil & Sessions Judge, Bengaluru.
29 O.S.No.3474/2010A N N E X U R E List of witnesses examined for Plaintiff:
P.W.1 M.Chandrashekar P.W.2 E.Krishna Narayana P.W.3 S.Ashwathanarayana
List of witnesses examined for Defendant:
D.W.1 Lokanath
List of documents marked for the Plaintiff :
Ex.P.1 Certified copy of the sale deed
Ex.P.2 to P.7 Letters issued by Mysore Housing
Board
Ex.P.8 Certified copy of Release deed
Ex.P.9 Partition Deed
Ex.P.10 Water connection sanctioned letter
Ex.P.11 Invitation card
Ex.P.12 & P.13 Two lease deeds
Ex.P.14 Letter issued by KHB
Ex.P.15 Loan details given by KHB
Ex.P.16 & P.17 Receipts
Ex.P.18 Clearance certificate issued by
Board
Ex.P.19 Letter issued by KHB
Ex.P.20 Marriage invitation card
Ex.P.21 Marriage invitation card of 3 rd
plaintiff
Ex.P.22 Funeral ceremony card
Ex.P.23 to P.33 Tax paid receipts Ex.P.34 to P.36 3 phone bills Ex.P.37 to P.44 Electricity bills and water bills Ex.P.45 Release Deed Ex.P.46 to P.49 Election I.D. Card Ex.P.50 to P.54 5 Passports Ex.P.55 Release Deed Ex.P.56 Passbook 30 O.S.No.3474/2010 List of documents marked for the Defendant :
Ex.D.1 Certified copy of the Release deed Ex.D.2 Certified copy of the Mortgage deed Ex.D.3 Release Deed Ex.D.4 Encumbrance certificate; Ex.D.5 to D.11 Electricity Bills Ex.D.12 to D.18 7 Official memorandum n connection with transfer of Power connection Ex.D.19 Tax paid receipt Ex.D.20 Copy of the khata extract Ex.D.21 Certified copy of sale deed XLIV Addl. City Civil & Sessions Judge, Bengaluru.