Bangalore District Court
Smt. Suman vs Smt. R.Manjula on 9 April, 2021
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BENGALURU [CCH.No.42]
PRESENT:
SRI. D. PUTTASWAMY. B.A., LL.B.
XLI Addl. City Civil & Sessions Judge
Dated 09th day of April, 2021
O.S.No.1318/2020
PLAINTIFF : Smt. Suman,
W/o. late Ashok Gumaste,
Aged about 55 years,
Occupation: House maker,
Residing at: Sambrani Building,
Chawani Oni, 2nd Cross,
Hosayallapur, Dharwad580 001.
(By Sri. V.B.Kulkarni, Advocate)
V/s.
DEFENDANTS : 1.Smt. R.Manjula,
W/o K.Shankar,
Aged about 52 years,
Occupation: House Maker,
Residing at: H2032, 1st Floor,
6th Block, Janapriya Heaven
Apartment, Alasandra,
Bengaluru560 065.
2 O.S.No.1318/2020
2. Sri. R.Nagendra,
S/o. Late. Ramarao,
Aged about 65 years,
Residing at: Nagashettihally,
Bengaluru560 094.
(Exparte)
Date of Institution of the Suit : 17.02.2020
Nature of the suit
(Suit on Pronote, suit for Declaration & Possession
declaration & possession, suit
for injunction)
Date of commencement of 09.03.2021
recording of evidence :
Date on which the Judgment 09.04.2021
was pronounced :
Total Duration : Year/s Month/s Day/s
01 01 22
JUDGMENT
The plaintiff has filed this suit against the defendants for declaration, to declare that she is the absolute owner of suit schedule property by virtue of registered sale deed dated 25.02.1999, to declare that judgment and decree 3 O.S.No.1318/2020 dated 15.04.2016 in O.S.No.336/1997 and final decree dated 28.03.2014 in FDP.No.76/2006 passed by the City Civil Court is not binding on her, to direct the defendants No.1 and 2 to hand over the possession of suit schedule property to her, to set aside of illegal khata made by the concerned authority and to direct the defendants to pay the damages.
2. The facts of the case are as under:
The plaintiff's husband one Ashok Babu Rao Gumaste having purchased the suit property from defendant No.2 through a registered sale deed dated 25.02.1999 has been in possession of the same. Khata of suit property entered in his name. Plaintiff's husband died on 25.02.2011, after his demise she succeeded the suit property and she has been in possession of the same since then. She has got electricity and water connection to the suit property. The plaintiff's husband developed the existing house by spending lot of 4 O.S.No.1318/2020 money. On 26.11.2014 since the defendant No.1 interfered with her possession, she had filed a suit in O.S.No.211/2015 on 05.01.2015 before this Court and the same was decreed on 10.02.2016. She had been in possession of suit property till 16.10.2019. On 16.10.2019 taking advantage of plaintiff's absence, the defendants colluding with each other took possession of suit property illegally. Even though the defendants No.1 and 2 are not siblings, defendant No.1 had filed a suit in O.S.No.336/1997 against the defendant No.2 and obtained a decree on 15.04.2006 and order in FDP.No.76/2006 on 28.03.2014 behind the back of plaintiff without making her as a party with an intention to defraud her. She came to know that the defendant No.1 got the khata of suit property in her name illegally. Therefore, the plaintiff has filed this suit for the above reliefs.5 O.S.No.1318/2020
3. The defendants No.1 and 2 have been placed exparte due to their non appearance despite substituted service of summons by way of paper publication. Then the matter was posted for evidence.
4. The plaintiff filed affidavit in lieu of her examinationinchief and she got examined as PW.1 and got marked the documents Exs.P.1 to Ex.P.12.
5. After having heard the learned counsel for the plaintiff, the following points arise for my consideration are: (1) Whether the plaintiff proves that she is the absolute owner in possession of suit schedule property by virtue of registered sale deed dated 25.02.1999?
(2) Whether the plaintiff further proves that the judgment and decree dated 15.04.2006 passed by this Court in O.S.No.336/1997 6 O.S.No.1318/2020 and order dated 28.03.2014 in FDP.No.76/2006 are not binding on her?
(3) Whether the plaintiff is entitle for possession of suit schedule property from the defendants?
(4) Whether the plaintiff is entitle to have set aside khata made in the name of defendant No.1 in respect of suit property?
(5) Whether the plaintiff is entitle for damages from the defendants?
(6) What decree or order?
6. My findings to the above points are as under:
POINT No.1 :: In the Negative
POINT No.2 :: In the Negative
POINT No.3 :: In the Negative
POINT No.4 :: In the Negative
POINT No.5 :: In the Negative
POINT No.6 :: As per the final
order for the following:
7 O.S.No.1318/2020
REASONS
7. POINTS No.1 TO 5: Since these points are
interconnected with each other, they are taken up together for common discussion in order to avoid repetition of facts and evidence.
8. In a case where defendants are exparte, heavy burden is on the plaintiff to prove her case beyond preponderance of probabilities. The plaintiff has reiterated the averments of plaint in her affidavit evidence and she has produced the documents Exs.P.1 to Ex.P.12 in support of her case. Ex.P.1 is certified copy of sale deed dated 25.02.1999 said to have been executed by one Sri. R.Nagendra in favour of plaintiff's husband Sri. Ashok Babu Rao Gumaste in respect of suit schedule property. Ex.P.2 and P.3 are the certified copies of khata certificate dated 18.12.2014 and khata extract dated 17.12.2014 standing in the name of Sri. Ashok Babu Rao Gumaste. 8 O.S.No.1318/2020 Ex.P.4 is the certified copy of tax paid receipt for the year 20082009 standing in the name of Sri. Ashok Babu Rao Gumaste. Exs.P.5 and P.6 are certified copies of electricity bill and water bill. Ex.P.7 is the certified copy of judgment in O.S.No.211/2015 dated 10.02.2016. Ex.P.8 is the certified copy of judgment and decree in O.S.No.336/1997 dated 15.04.2006. Exs.P.9 and P.10 are proceedings in FDP.No.76/2006. Ex.P.11 is the certified copy of order sheet in FDP.No.76/2006 and Ex.P.12 is the death certificate of Sri. Ashok Babu Rao Gumaste.
9. It is the fact that the suit schedule house property is the subject matter of O.S.No.336/1997 filed by one Smt. R.Manjula against Sri. R.Nagendra, who happens to be the vendor of plaintiff's husband, for partition of the same, which was decreed on 15.04.2006 declaring that Smt. R.Manjula is entitled for ½ share in the suit schedule 'A' property. In the said suit the relationship of the parties 9 O.S.No.1318/2020 has been established as sister and brother. Therefore, the evidence of PW.1 that the defendants are not siblings cannot be accepted.
10. It appears that during the pendency of the said suit the defendant No.2 herein has alienated the suit property in favour of the husband of plaintiff under Ex.P.1. It also appears that the husband of plaintiff did not make proper enquiry before purchasing suit schedule property as required in law. Moreover, PW.1 has not produced the original sale deed and khata certificate/khata extract standing in the name of her husband. It can be seen from Ex.P.11 the certified copy of order sheet in FDP.No.76/2006 that the defendant No.1 has taken possession of the property in question on 24.03.2014. As stated by PW.1 now the khata of suit property is standing in the name of defendant No.1. Thereafter, on 05.01.2015 the plaintiff herein had filed the suit in O.S.No.211/2015 10 O.S.No.1318/2020 against the defendant No.1 herein for bare injunction in respect of the suit schedule property and the said suit came to be decreed exparte on 10.02.2016. It shows that at the time of filing suit O.S.No.211/2015 on 05.01.2015 the PW.1 had knowledge about the defendant No.1 taken possession of schedule property on 24.03.2014 in FDP.No.76/2006 in pursuance of judgment and decree dated 15.04.2006 passed by this Court in O.S.No.336/1997. Even then PW.1 did not seek any declaratory relief in O.S.No.211/2015 for the reasons best known to her. As such the suit is barred by limitation under Article 59 of Limitation Act as it is filed beyond three years and also in view of the decision of the Hon'ble Apex Court reported in 1996 (7) SCC 767 (Mohammed Noorul Hoda Vs. Bibi Raifunnisa). Moreover, khata of suit property is not transfered in the name of PW.1, after the demise of her husband and no other documents are standing in the name of PW.1 to show that she had been in possession of 11 O.S.No.1318/2020 suit property as stated in her evidence. Except her self serving statement, no other independent evidence is available on record in this regard. So, the case of PW.1 that she had been in possession and enjoyment of suit schedule property as absolute owner by virtue of sale deed dated 25.02.1999 and the defendants No.1 and 2 took possession of suit property illegally on 16.10.2019 has not been established by cogent and corroborate evidence. For all these reasons, I am of the opinion that the plaintiff has not proved her case and consequently, she is not entitle for the reliefs as sought for in the plaint. Therefore, I answer Points No.1 to 5 in the negative.
11. POINT No.6: In view of my findings on Points No.1 to 5 in the negative, the suit filed by the plaintiff is liable to be dismissed. In the result, I proceed to pass the following :
12 O.S.No.1318/2020
ORDER The suit of the plaintiff is dismissed. No order as to cost.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her and the transcription corrected by me and pronounced in the open court, on this the 09th day of April 2021).
(D. PUTTASWAMY) XLI ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 : Smt. Suman
b) Defendants' side: NIL.
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Certified copy of Sale deed dated 25.02.1999 13 O.S.No.1318/2020 Exs.P.2 & 3 Certified copies of khatha certificate and khatha extract Ex.P.4 6 tax paid receipts Exs.P.5 & 6 Certified copies of Electricity bill and Water bill Ex.P.7 Certified copy of judgment and decree in O.S.No.211/2015 dated 10.02.2016 Ex.P.8 Certified copy of judgment and decree in O.S.No.336/1997 dated 15.04.2006 Ex.P.9 Certified copy of FDP.No.76/2006 Ex.P.10 Certified copy of objections filed in FDP.No.76/2006 Ex.P.11 Certified copy of order sheet in FDP.No.76/2006 Ex.P.12 Death certificate of Sri. Ashok Babu Rao Gumaste
b)Defendants' side : NIL (D. PUTTASWAMY) XLI ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.