Bangalore District Court
O.S./7528/2013 on 27 August, 2021
THE COURT OF XXXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, (CCH-40), BANGALORE CITY.
Dated on this the 27th day of August, 2021.
-: Present :-
Sri.Khadarsab, B.A, LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 7528/2013
Plaintiffs :-
1. Sri. Govindaraju,
Aged about 45 years,
S/o. Late Jayaramu,
R/a. No.326, 1st Road, Joy School,
Somanna Garden,
Vidyaranyapura Post,
Yelahanka Hobli,
Bengaluru North Taluk.
2. Sri. Harish J,
S/o. Late Jayaram,
Aged about 48 years,
R/a. No.400/2, 1st Cross,
Somanna Garden,
Vidyaranyapura,
Bengaluru North,
Bengaluru - 560 097.
3. Smt. Anitha J,
D/o. Late Jayaram,
W/o. H.G. Srinivasa Murthy,
/2/ O.S.No.7528/2013
Aged about 46 years,
R/a. N. Hosahallai,
Nagamangala, Sidhlaghatta Taluk,
Chikkaballapura District.
[By Sri. M. Venkatappa, Advocate]
/ VERSUS /
Defendants :-
1. Sri. S.N. Bachanna,
S/o. Late Chikkanarasappa,
Since dead by his LRs,
1(a) Smt. S.B. Preethi,
Aged about 40 years,
W/o. Jaishimha D.S.
R/a. No.886, 6th Main,
22nd Cross, Sector - 7,
HSR Layout,
Bengaluru - 560 102.
1(b) Sri. S.B. Hemanth Kumar,
Aged about 35 years,
S/o. Late Bachanna,
R/a. Jakkur Post, Yelahanka Hobli,
Sampigehalli Village,
Bengaluru North - 560 064.
1(c) Sri. S.B. Girish,
Aged about 32 years,
S/o. Late Bachanna,
R/a. Jakkur Post, Yelahanka Hobli,
Sampigehalli Village,
Bengaluru North - 560 064.
/3/ O.S.No.7528/2013
2. Sri. S.N. Ananda Murthy,
S/o. Late Chikkanarasappa,
Aged about 56 years.
3. Sri. Kushal Kumar,
S/o. Sri. S.N. Ananda Murthy,
Aged about 25 years.
4. Sri. Mahendara S.A.
S/o. S.N. Anand Kumar,
Aged about 23 years.
Defendants No.1 to 4 are residing
at Sampigehalli Village, Jakkur
Post, Yelahanka Hobli, Bengaluru
North Taluk - 560 064.
5. Smt. Kanthamma,
D/o. Late Chikkanarasappa,
Aged about 70 years,
R/a. Dasagondanahalli,
Rajgatta Post, Kasaba Hobli,
Doddaballapura Taluk.
6. Smt. Radhamma,
D/o. Late Ramaiah,
Aged about 58 years,
R/a. No.108, Sampigehalli,
Jakkur Post, Yelahanka Hobli,
Bengaluru North Taluk - 560 064.
7. Smt. K.M. Gundamma @
Varalakshmamma W/o. K.S. Sitaram,
Since dead by LR's.
/4/ O.S.No.7528/2013
7(a) Smt. Vanajakshi,
Aged about 60 years,
D/o. K. Gundamma @ Varalakshmamma,
R/a. No.2, 60 Feet Road,
Siddhi Vinayaka Layout,
Sanjayanagar (Boopasandra),
Bengaluru - 560 094.
8. Sri. Jaisimha D.S.
S/o. Sri. Somashekara Reddy,
Aged about 35 years,
R/a. No.886, 6th Main, 22nd Cross,
Sector - 7, HSR Layout,
Bengaluru - 560 102.
9. Gomathy Education Society,
Represented by it's Secretary,
W/o. P. Rajashekar,
Aged about 54 years,
R/a. No.16/1681, Ramamurthynagar,
Nellure, Andhrapradesh.
10. Sri. Raghunath B,
S/o. Byrappa D.H.
Aged about 54 years.
11. Sri. Narasimha Murthy B,
S/o. Byrappa D.H.
Aged about 52 years,
R/a. Dasgondahalli Village,
Rajaghatta Post,
Doddaballapura Taluk,
Bengaluru Rural District - 561 203.
/5/ O.S.No.7528/2013
12. Smt. Pushpa,
W/o. Byregowda,
Aged about 50 years,
R/a. Jangama Kote Hobli,
Shidlaghatta Taluk,
Chikkaballapura District.
13. Smt. Susheelamma,
W/o. Late Puttaiah,
Aged about 70 years.
14. Sri. Naresh Kumar,
S/o. Late Puttaiah,
Aged about 40 years,
Defendant No's.13 & 14 are residing at
Jakkur Village & Post, Yelahanka Hobli,
Sampigehalli Village,
Bengaluru North,
Bengaluru - 560 064.
(By M/s. HSD Associates, Advocates for
Defendant No's.1,2,4,6 & 8)
(By Sri. Y.N. Sathyanarayana Rao, Advocate
for Defendant No.7(a)}
(By Sri. MS, Advocate for Defendant No.3)
(By Sri. HSH, Advocate for Defendant No.4)
(By M/s. K.L. Prabhakar & Associates,
Advocates for Defendant No.10)
(Defendant No's.11 to 14 - Exparte)
Date of Institution of the
: 10.10.2013
suit
Nature of suit : Partition & separate
possession, declaration
/6/ O.S.No.7528/2013
& permanent injunction
Date of commencement of
: 28.05.2019
evidence
Date on which the
: 27.08.2021
judgment is pronounced
Years Months Days
Duration taken for disposal :
07 10 17
***
JUDGMENT
Plaintiffs filed the suit against the defendants for the relief of partition and separate possession of their ½ share in the suit schedule properties and for the relief of declaration that the Partition Deed dated 21.1.2010, Lease Deed dated 3.3.2010, Lease Agreement dated 29.9.2012, and Sale Deed dated 5.2.2003 are null and void and not binding on the plaintiffs' share, mesne profits and consequential relief of permanent injunction against defendants No.1 and 2 restraining them from alienating the suit schedule properties.
2. Initially plaintiff No.1 filed the present suit against defendants No.1 to 9. Subsequently he filed /7/ O.S.No.7528/2013 impleading applications, same were allowed and plaintiffs No.2 and 3 and defendants No.10 to 14 have been impleaded. During the pendency of suit defendants No.1 and 7 died. Their legal heirs have been brought on record.
3. The case of the plaintiffs in brief is as under:
One Doddaputtanna was the original propositus of plaintiffs and defendants No.1 to 6 and defendants No.10 to 14. The said Doddaputtanna owned several properties. Doddaputtanna died leaving behind his two sons viz., Doddabachappa and Chikkahanumaiah. The said Doddabachappa and Chikkahanumaiah have also died. During the lifetime of Doddabachappa and Chikkahanumaiah there was no partition between them. Said Doddabachappa had 4 sons viz., Doddanarasappa, Chikkanarasappa, Kambaiah and Puttanna. The said Doddanarasappa died leaving /8/ O.S.No.7528/2013 behind his only daughter Hanumakka. Said Hanumakka also died leaving behind defendants No.10 to 12 as her legal heirs. Chikkanarasappa had also died leaving behind his wife Radhamma (defendant No.6) and 3 children i.e., defendants No.1, 2 and 5. Defendant No.1 also died leaving behind his legal heirs defendants No.1
(a) to 1(c) and defendant No.6. Said Kambaiah had died as a bachelor. Another son of Doddaputtanna, namely Puttanna died leaving behind his wife - defendant No.13 and son - defendant No.14. Another son of Doddaputtanna viz., Chikkanahumaiah died in the year 1943 leaving behind his wife Kempamma. Said Kempamma also died on 10.7.1999 leaving behind her two daughters viz., Nanjamma and Jayamma. Said Nanjamma died leaving behind defendant No.6 as her legal heir. Jayamma died on 30.6.1996 leaving behind plaintiffs as her legal heirs. After the death of /9/ O.S.No.7528/2013 Doddaputtanna, Doddabachappa acted as 'Kartha' and after his death Chikkanarasappa managed the entire joint family affairs as 'kartha' of Hindu joint family. After his death, defendant No.1 - S.N.Bachchanna has become kartha of joint family. The plaintiffs and defendants No.1 to 6 and 10 to 14 are the coparceners and have got definite share in the suit schedule properties. The suit schedule properties are so far not yet partitioned between the joint family members. The suit schedule properties are in joint possession and enjoyment of plaintiffs, defendants No.1 to 6 and 10 to
14. Plaintiffs further averred that after the death of their mother Jayamma, they made request for effecting partition in respect of joint family properties. Defendant No.1 has prolonged to do so on one or the other pretext. Lastly on 1.8.2013 a panchayath was conveyed. In the said panchayath, defendant No.1 refused to effect / 10 / O.S.No.7528/2013 partition and contended that the plaintiffs have no right over the suit schedule properties and since already the partition has taken place between Chikkahanumaiah and Doddabachappa, the plaintiffs are not entitled for any share in the suit schedule properties. On refusal to effect partition, plaintiffs have verified the documents and they came to know that defendants No.1 and 2 had created a document styled as agreement for life maintenance of Smt. Kempamma i.e., the maternal grandmother of plaintiffs. It was only an agreement which was executed by Chikkanarasappa in favour of Kempamma. In the said document it is clearly mentioned that the suit schedule properties are the ancestral and joint family properties. Hence, there was no partition between plaintiffs and defendants No.1 to 6 and 10 to 14. During the pendency of the suit B.D.A. acquired Sy.No.14, 15 and 17/1 of Sampige Halli Village / 11 / O.S.No.7528/2013 for formation of Arkavathi Layout. Therefore, the plaintiffs have made representation for allotment of their share. The defendants have challenged the said acquisition proceedings by filing W.P.No.34065- 34066/2013. The said Writ Petitions came to be disposed off. As per directions of Hon'ble High Court of Karnataka defendants No.1 and 2 have deposited the amount before the B.D.A. and sought for 40% of the developed area. Therefore, the plaintiffs are also entitled to 20% of the developed area out of 40%.
4. The grandmother of plaintiffs viz., Kempamma had no right to bequeath any of the properties to anybody else, even then she has made Will on 31.10.1987 in favour of defendant No.6, thereby bequeathed Sy.No.4/1 of Sampigehalli Village, measuring 1 acre 37 guntas. Said Kempamma died on 10.7.1999. After the death of Kempamma, on the basis of Will, / 12 / O.S.No.7528/2013 defendant No.6 alienated portion of Sy.No.4/1 of Sampigehalli Village to defendant No.7 on 5.2.2003 and remaining portion of said Sy.No.4/1 of Sampigehalli Village has been let out to defendant No.8 by defendant No.6 under the registered lease agreement dated 29.9.2012. Defendant No.6 had no right to alienate the said property.
5. Plaintiffs further pleaded that, defendants No.1 and 2 by suppressing the material facts have entered into a partition deed dated 21.1.2010. In the said partition they have not allotted any share to the plaintiffs. Hence, the said partition deed is not binding upon the plaintiffs. Defendant No.5 being the sister of defendants No.1 and 2 has executed Release Deed on 11.12.2009 in respect of Sy.No.19/2 of Venkateshwara Village in favour of defendants No.1 and 2. On the basis of said partition deed, the defendant No.2 has let out / 13 / O.S.No.7528/2013 suit schedule properties to defendant No.9 under the registered Lease Deed dated 3.3.2010 and same has been confirmed by defendants No.3 and 4 by executing confirmation deed dated 28.1.2013. Defendants No.2 to 4 have let out an extent of 2 acres 21 guntas in Sy.Nos.39/5 and 39/6 of Sampigehalli Village i.e., suit schedule item Nos.5 and 15 in favour of defendant No.9
- School by executing registered lease deed dated 24.1.2015. The legal heirs of defendant No.1 i.e., defendants No.1(a) to (c) and defendant No.6 have also let out an extent of 2 acres 26 guntas in the said lands bearing Sy.Nos.39/5 and 39/6 of Sampigehalli Village i.e., suit schedule item Nos.5 and 15 and an extent of 0.09 guntas in Sy.No.1/6 of Sampigehalli Village in favour of defendant No.9 under Lease Deed dated 27.1.2015 i.e., Item No.6. The defendants No.2 to 4, 6 and LRs of defendant No.1 have let out ancestral joint family / 14 / O.S.No.7528/2013 properties. They have no right to let out the said properties. The plaintiffs and defendants No.1 to 6 and 10 to 14 have got definite share in the suit schedule properties. Hence, prayed for decreeing the suit.
6. After service of summons, defendants No's.1 to 4, 6 to 10 have appeared through their respective counsels. Though the suit summons duly served upon defendants No.5, 11 to 14, but they remained absent. Hence, the defendants No.11 to 14 placed exparte. The defendants No.1, 2 & 4, 6 to 8 have filed their written statement. The defendants No.3 & 9 have filed a memo stating that, they adopt the written statement filed by defendants No.1 & 2. Though the defendant No.10 appeared through his counsel but has failed to file his written statement. Hence, the written statement of defendant No.10 was taken as not filed.
/ 15 / O.S.No.7528/2013
7. During the pendency of the suit, the
defendant No's.1, & 7 died, their legal heirs have been brought on record.
8. The defendants have denied the plaintiffs' rights over the suit suit schedule property. The defendants admits the relationship of plaintiffs, defendants No.1 to 6 & 10 to 14. The defendants have specifically contended that, there are no joint family properties. The plaintiffs are not the joint family members. The suit schedule properties are not the joint family properties of plaintiffs, defendant No's.1 to 6 & 10 to 14. The plaintiffs have filed the present suit only with an intention to engulf the property. The defendants further contended that the suit schedule properties have lost agricultural character and no agricultural operation is going on. All the suit schedule properties have been converted. The total extent of suit schedule properties / 16 / O.S.No.7528/2013 is 20 acres and market value of converted property is Rs.3,37,50,000/- per acre, which would come to Rs.67,50,00,000/-. Therefore, the court fee has to be paid on actual market value of the properties. The court fee paid by plaintiffs is insufficient. The suit of the plaintiffs is bad for non-joinder of necessary parties and mis-joinder of parties The plaintiffs have no authority to file the suit on behalf of their brother and sisters and hence, the suit as brought is not maintainable. The suit schedule properties do not constitute joint family properties. The mother of plaintiffs Smt. Jayamma was born prior to 1956, when Hindu Succession Act came into force. Hence, the plaintiffs who are claiming share under Smt. Jayamma are not entitled to any share in the suit schedule properties in view of their mother Smt.Jayamma herself was not entitled to any share in the suit schedule properties. The defendants specifically / 17 / O.S.No.7528/2013 contended that there was a partition between Doddabachappa and Chikkahanumantha in the year 1948. Hence, there are no joint family properties as alleged by the plaintiffs.
9. Suit schedule item No.1 land bearing Sy.No.14/4 of Sampige village, has been purchased by Chikkanarasappa from Muninagappa, under the sale deed dated 17.01.1948. This had been subject-matter of maintenance agreement with Smt. Kempamma. Smt. Kempamma I.e., maternal grandmother of plaintiffs, had executed a Will dated 31.10.1987, bequeathing the properties to defendant No.6. The said property has been purchased by Chikkanarasappa from his own earnings. Neither the plaintiffs nor their mother has got rights over the said property. As per said Will, the defendant No.6 acquired title for the said property. The suit schedule item No.2 property bearing Sy.No.6/1, / 18 / O.S.No.7528/2013 measuring 3 acre 34 guntas was purchased by Chikkanarasappa under the sale deed dated 17.01.1948, from one P.C. Muniyappa. The suit schedule item No.3 property bearing Sy.No.9/4B measuring 1 acre 14 guntas had been purchased by the defendant No.1, under the sale deed dated 10.09.1984 from one K.P. Anjanappa. The defendant No.1 had purchased the said property out of his own earnings. The suit schedule item No.4 property bearing Sy.No.6/4 measuring 1 acre 9 guntas of Sampigehalli Village, 16 guntas of property was purchased by Chikkanarasappa under sale deed dated 17.04.1948 and another 17 guntas was purchased from Muninagappa under sale deed dated 17.01.1948 and another 17 guntas was allotted to Chinkkanarasappa by the Land Tribunal, under it's order No.LRF.423/1974-75, dated 17.10.1985. The said order is being passed against Kambaiah. The said property has been divided / 19 / O.S.No.7528/2013 among defendant No's.1 & 2, under partition deed dated 21.01.2010. The suit schedule item No.5 property bearing Sy.No.39/5, measuring 3 acre 34 guntas, 2 acre 12 guntas have been purchased by Chikkanarasappa from P.C. Muniyappa, under two sale deeds. 1 acre 22 guntas was allotted in LRF No.423/1974-75 by the Land Tribunal on 17.10.1981. The said Sy.No.39/5 along with Sy.No.39/6 measuring 1 acre 23 guntas were together have been the subject-matter of partition deed between defendant No's.1 & 2. Both defendant No's.1 & 2 got 2 acres 22 guntas in consolidated Sy.No's.39/5 & 39/6. The said property has been leased to defendant No.9 school. The suit item No.6 Sy.No.1/6 measuring 9 guntas was sold by one Smt. Jayamma in favour of S.N. Bacchanna, under the sale deed dated 10.04.1991. The suit schedule item No.7 property bearing Sy.No.44/1 has been purchased by Chikkanarasappa from it's erstwhile / 20 / O.S.No.7528/2013 owner Muninagappa, under the sale deed dated 17.01.1948. The suit schedule item No.8 property No.44/15 (new No.44/10) measuring 1 acre 16 guntas has been purchased by Chikkanarasappa from Muninagappa, under the sale deed dated 17.01.1948. The suit schedule item No.9 bearing Sy.No.45/2A (old Sy.No.45/2) measuring 3 acre 27 guntas. An extent of 1 acre 7 guntas has been purchased by Chikkanarasappa under sale deed dated 18.01.1948 from one Muniyappa and another extent of 1 acre 7 guntas has been purchased by Puttaiah and remaining 1 acre 7 guntas has been purchased by Kambaiah. Totally 2 acres 14 guntas was allotted to Chikkanarasappa by the Land Tribunal, under LRF No.423/1974-75, dated 17.10.1985. Out of 3 acre 21 guntas, 5 guntas was sold to Muralidhar. The suit schedule item No.10 property bearing Sy.No.45/2B measuring 9 guntas belongs to / 21 / O.S.No.7528/2013 Chikkanarasappa. The suit schedule item No.11 bearing Sy.No.17/1 has been purchased by Chikkanarasappa from Muninagappa, under the two sale deeds. In the said survey number, 22 guntas land has been alloted by Land Tribunal in favour of Chikkanarasappa. The suit schedule item No.12 property bearing Sy.No.4/1 measuring 1 acre 37 guntas has been purchased by maternal grandfather of plaintiffs, viz., Chikkahanumaiah, under the sale deed dated 15.05.1930 from Munivenkatappa. Subsequently, wife of Chikkahanumaiah, viz., Kempamma inherited the said property by exercising her proprietary rights, has bequeathed the said land in favour of defendant No.6. The suit schedule item No.13 bearing Sy.No.44/6 in reality it is Sy.No.44/2 measuring 5 guntas. The said property has been purchased by Chikkanarasappa from Muninagappa on 17.01.1948. The suit schedule item / 22 / O.S.No.7528/2013 No.14 and item No.1 are one and the same. The suit schdedule item No.15 bearing Sy.No.39/6 measuring 1 acre 39 guntas has been purchased by Chikkanarasappa, under two different sale deeds from Muninagappa. The suit schdule item No.16 property bearing No.19/2 measuring 2 acre 35 guntas, does not exist. Originally, the said land was 7 acre 35 guntas, same has been sold by Smt. Bayamma and others in favour of defendant No.1. Said Smt.Bayamma had acquired the said property under the Inam Abolition Act. There is a Release Deed dated 11.12.2001 executed by Smt. Kanthamma (defendant No.5) in favour of defendant No's.1 & 2, wherein she took 10 guntas and released rights in respect to other portions in the said land to the extent of 5 acres. There several roads have been formed. The said land has been got converted from agricultural to non-agricultural purpose. The said / 23 / O.S.No.7528/2013 land has been partitioned as per partition deed dated 21.01.2010, wherein 1 acre 23 guntas was allotted to defendant No.1 and 23 guntas was allotted to defendant No.2. The defendant No.2 has alienated said 23 guntas. Defendant No.1 also alienated 23 guntas and has retained one acre.
10. That, none of the suit schedule properties can ever be termed as joint family properties. It belongs to Doddaputtanna. They never belong to Daddabacchappa and Chikkahanumaiah. All the properties are purchased by Chikkanarasappa, defendant No's.1 & 2. The plaintiffs never had any semblance of rights over the suit schedule properties. The plaintiffs are not at all in joint possession of the suit schedule properties. The defendant No.7 is the bonafide purchaser for a valid consideration. The plaintiffs are not entitled to any mesne profits. The suit of the plaintiffs is barred by / 24 / O.S.No.7528/2013 limitation. The plaintiffs have filed the present suit on imaginary cause of action. The plaintiffs are unaware about the situation, measurement and nature of the suit schedule properties. The defendants further contended that, defendant No.6 has alienated the land in Sy.No.4/1 to the defendant No.7 on 05.02.2003. On the date of sale deed itself, possession of property has been delivered to defendant No.7. After purchase of the said land, defendant No.7 applied for conversion of land. Accordingly, the Dy. Commissioner, Bengaluru, passed an order of conversion on 04.03.2003. Subsequently, khatha has been changed in the name of defendant No.7 and after the death of defendant No.7 in the name of defendant No.7(a). The defendant No.7 died on 25.04.2008 and the present suit has been filed in the year 2013 I.e., 5 years after the death of defendant No.7. The plaintiffs are well aware about the fact that / 25 / O.S.No.7528/2013 they are not in possession of the suit properties and have no rights over the suit properties, even then they filed present suit only with an intention to harass the defendants and to engulf the properties. Hence, prayed for dismissal of the suit.
11. On the basis of the pleadings and documents produced by both the parties, my predecessor-in-office framed the issues on 03.09.2015 and this court framed the additional issues on 20.03.2019 & 16.09.2019, respectively, as under:
ISSUES (1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of plaintiffs and defendants?
(2) Whether the plaintiff proves that he along with his brothers and sisters having ½ share in the suit schedule properties?
/ 26 / O.S.No.7528/2013 (3) Whether the plaintiff proves that the registered partition deed dated 21.01.2010, registered lease deed dated 03.03.2010, registered lease agreement dated 29.09.2012, registered sale deed dated 05.02.2003 are not binding on the share of the plaintiff?
(4) Whether the LRs of defendant No.1 and defendant No.2 proves that suit schedule properties are purchased by Chikka-
narasappa, defendant No.1 & 2?
(5) Whether the suit is bad for non-joinder of necessary parties as stated in para-3 of the written statement of defendant No.1 & 2, and para-4 of written statement of defendants No.1(a) to 9(c)?
(6) Whether the Court fee paid insufficient? (7) Whether the plaintiff is entitled for the relief of partition as prayed for?
/ 27 / O.S.No.7528/2013 (8) Whether plaintiff is entitled for the relief of declaration as prayed in 19(b) of the plaint?
(9) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?
(10) What order or decree?
ADDL. ISSUES DATED 20.03.2019 (1) Whether the plaintiffs are entitled for the mesne profit as prayed for?
ADDL. ISSUES DATED 16.09.2019 (1) Whether the defendant No.7A proves that suit of the plaintiffs is barred by limitation?
(2) Whether the defendant No.7A proves that suit of the plaintiffs is bad for mis-joinder of party?
12. In order to prove their case, plaintiff No.1 himself examined as P.W.1 and got marked the / 28 / O.S.No.7528/2013 documents Exs.P.1 to P.37. In support of their case, plaintiffs have examined two witnesses I.e., J.R. Harish and Kempanna as PW.2 & PW.3. In order to establish their defence, defendant No.2 has been examined as D.W.1 and got marked Exs.D.1 to D.28 documents. One of the attesting witness, namely, E.Ramaiah has been examined as DW.2 and got marked documents Exs.D.29. Defendant No.7(a) has been examined as DW.3 and Exs.D.30 to D.41 marked.
13. Heard the arguments and perused the written arguments.
14. My findings to the above issues and additional issues are as follows:
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the affirmative.
/ 29 / O.S.No.7528/2013
Issue No.5 : In the affirmative.
Issue No.6 : In the affirmative.
Issue No.7 : In the negative.
Issue No.8 : In the negative.
Issue No.9 : In the negative.
Addl.Issue dated
20.3.2019 : In the negative.
Addl.Issue No.1
dated 16.9.19 : In the affirmative.
Addl.Issue No.2
dated 16.9.19 : In the negative.
Issue No.10 : As per final order, for the
following:
REASONS
15. Issues No.1, 3 & 4 :- These issues are
interlinked with each other. In order to avoid repetition of facts and evidence, they are taken up together for discussion.
16. Plaintiffs have filed the suit against the defendants for the relief of partition and separate possession of their 1/2 share in the suit schedule / 30 / O.S.No.7528/2013 properties and for the relief of declaration that partition deed dated 21.1.2010, lease deed dated 3.3.2010 and 29.9.2012 and Sale Deed dated 5.2.2003 are not binding upon plaintiff's share.
17. There is no dispute as regards to the relationship between plaintiffs and defendants No.1 to 6 and 10 to 14.
18. In order to establish their case, plaintiff No.1 examined himself as P.W.1 and produced the documents Exs.P.1 to P.37. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 in his examination-in-chief deposed that plaintiff No.2 is his brother and plaintiff No.3 is his sister. Defendant No.1 to 6 and 10 to 14 are his relatives. Himself, plaintiff No.2, 3 and defendant No's.1 to 6 and 10 to 14 constitute Hindu joint family and suit schedule properties are the joint / 31 / O.S.No.7528/2013 family properties. One Doddaputtanna was the original propositor. The said Doddaputtanna died leaving behind his two children, namely, Doddabacchappa and Chikkahanumaiah. The said Doddabacchappa died leaving behind his 4 children, namely, Doddanarasappa, Chikkanarasappa, Kambaiah and Puttanna. The other son of Doddaputtanna, viz., Chikkahanumaiah died leaving behind his wife Kempamma. The said Doddanarasappa died leaving behind his only daughter Hanumakka. The said Hanumakka had also died leaving behind defendants No.10 to 12, as her legal heirs. The said Chikkanarasappa had also died leaving behind his wife Radhamma - defendant No.6 and his children - defendants No.1, 2 & 5. Defendants No.3 and 4 are sons of defendant No.2. Defendant No.1 also died leaving behind defendants No.1(a) to (c) as his legal heirs. Kambaiah who is 3rd son of Doddaputtanna died as a / 32 / O.S.No.7528/2013 bachelor. Fourth son of Puttanna died leaving behind his wife Susheelamma-defendant No.13 and Naresh Kumar- defendant No.14. The daughter of Chikkahanumaiah had also died on 10.07.1999 leaving behind her two daughters, viz., Nanjamma and Jayamma. The said Nanjamma died leaving behind defendant No.6 as her sole legal heir. Jayamma had also died on 30.06.1996 leaving behind himself and plaintiff No.2 & 3 as the legal heirs. Ex.P.1 is the Family Tree Affidavit. The suit schedule properties are the joint family properties. Exs.P.5 to P.20 are the RTC in respect of suit schedule properties. There was no partition between Doddabacchappa and Chikkahanumaiah. Subsequent to the death of his mother Jayamma, himself and plaintiff No.2 & 3 made several requests to the defendant No's.1 to 6 and 10 to 14 to effect the partition by metes and bounds. The defendant No.1 prolonged to do so on one / 33 / O.S.No.7528/2013 or the other pretext. Lastly, on 01.08.2013 panchayat was conveyed and in the said panchayat defendant No.1 refused to effect partition on the plea that Chikkahanumaiah and his decedents have no rights over the suit schedule property and there was a partition between father of defendant No's.1, 2 & 5 and Kempamma. On verification of records, he came to know that there is no such partition ever taken place. On further verification, he came to know that father of defendant No's.1, 2 & 5 created a document styled as agreement of life maintenance of Kempamma on 18.01.1948. Same has been registered as per Ex.P.21. The said deed is only an agreement executed by Chikkanarasappa i.e., father of defendant No's.1, 2 & 5 in favour of Kempamma. In the said document, it is clearly said that the suit schedule properties are the ancestral properties. Even after executing the said / 34 / O.S.No.7528/2013 maintenance agreement as per Ex.P.21, no partition has been taken place by metes and bounds as alleged by defendant No.1. Even under Ex.P.21 no right, title or interest was transferred to Kempamma. In the said document, a condition was put that Kempamma has to only use and enjoy the proceeds of the properties. As per said Maintenance Deed, there are six landed properties viz., Sy.No.14/4 measuring 23 guntas, Sy.No.17/1 measuring 11 guntas, Sy.No.39/5 measuring 1 acre 21 guntas, Sy.No.44/1, 44/2 both measuring 10 guntas and Sy.No.44/10 measuring 1 acre 16 guntas. All are situated at Sampigehalli Village, Bangalore North Taluk and one house property situated in Sy.No.45/1 of Sampigehalli Village. As per said maintenance deed, name of Kempamma has been mutated in the records.
Said properties are the absolute properties of
Kempamma. Said properties held by Kempamma are
/ 35 / O.S.No.7528/2013
Stridhan properties. However, as per said maintenance deed, the said properties should be reverted to the family of the defendants No.1 to 6 and 10 to 14 after the demise of Kempamma. Himself, plaintiffs No.2, 3 and defendant No.6 are the legal representatives of Kempamma, are entitled to succeed the estate of Kempamma.
19. B.D.A. has acquired Sy.Nos.14, 15 and 17/1 of Sampigehalli Village for formation of Arkavathy Layout. The defendants No.1 and 2 have challenged the said acquisition proceedings by filing the Writ Petitions on the file of Hon'ble High Court of Karnataka. In the said Writ Petitions the Hon'ble High Court of Karnataka directed to the defendants No.1 and 2 to deposit the compensation already received by them and also directed B.D.A. to allot 40% of the developed area to the land owners. Accordingly, the defendants No.1 and 2 have deposited / 36 / O.S.No.7528/2013 the compensation amount received by them. B.D.A. allotted 40% of developed area to defendants i.e., suit schedule item Nos.17 to 26. Accordingly, B.D.A. has executed registered sale deed in respect of said properties as per Exs.P.28 to P.35 - sale deeds. Plaintiffs being the legal heirs of Chikkahanumaiah and Kempamma are entitled to 20% of the developed area out of 40%. Accordingly, they have made representation to B.D.A.
20. P.W.1 further deposed that his maternal grandmother Kempamma had no right to bequeath the properties, but she had bequeathed Sy.No.4/1 measuring 1 acre 37 guntas situated at Sampigehalli Village to defendant No.6 - Radhamma by executing Will dated 30.10.1987. In turn, defendant No.6 alienated portion of land bearing Sy.No.4/1 to defendant No.7 on 5.2.2003 under sale deed as per Ex.P.27 and remaining portion / 37 / O.S.No.7528/2013 has been let out to defendant No.8 under the Lease Deed dated 29.9.2012 as per Ex.P.26. Defendant No.6 has no right to sell or lease the suit schedule properties either to defendants No.7 and 8 or to anybody else. Defendants No.1 and 2 have no absolute right over the suit schedule properties, even then they have partitioned the suit schedule properties under the partition deed dated 21.2.2010 as per Ex.P.22. Plaintiffs are not party to the said partition deed. Hence, the said partition deed is not binding on the plaintiffs' share. Defendant No.5 being the sister of defendants No.1 and 2 has executed release deed dated 11.12.2009 as per Ex.P.23 in favour of defendants No.1 and 2 by taking portion of the land in Sy.No.19/2 of Venkateshwara Village. Defendant No.5 has no right to execute the release deed. Hence, the said release deed is also not binding upon the plaintiffs. Subsequent to the alleged / 38 / O.S.No.7528/2013 partition deed the defendants No.1 and 2 have let out one of the schedule property in favour of defendant No.9 under the lease deed dated 3.3.2010 as per Ex.P.24 and the same is confirmed by defendants No.3 and 4 by executing confirmation deed dated 21.1.2013 as per Ex.P.25. The defendants have no right to execute the said confirmation deed and release deed. During the pendency of the suit defendant No.1 died. After the death of defendant No.1, defendants No.1 (a) to (c) and defendants No.2 to 4 and 6 have let out land in Sy.No.39/5 i.e., suit schedule item No.5 and Sy.No.39/6 suit schedule item No.15 in favour of defendant No.9 by executing the registered lease deed 27.1.2015 as per Exs.P.36 and P.37. The said lease deeds are not binding upon the plaintiffs' share. Exs.P.2 to P.4 are the Mutation Registers in respect of suit schedule properties. Himself and plaintiffs 2 and 3 and defendants No.1 to 6 and 10 / 39 / O.S.No.7528/2013 to 14 are in joint possession of the suit schedule properties. Hence, the plaintiffs have got ½ share in the suit schedule properties. Accordingly, prayed for decreeing the suit.
21. Though P.W.1 deposed that the suit schedule properties were owned by original propositus Doddaputtanna and same have been succeeded by his maternal grandfather Chikkahanumaiah and Doddbachappa. But, in his cross-examination at page No.24 and 25 deposed that, "aPÀ̺À£ÀĪÀÄAiÀÄå ªÀÄvÀÄÛ zÉÆqÀاZÀÑ¥Àà gÀªÀgÀ vÀAzÉAiÀÄ ºÉ¸ÀgÀÄ zÉÆqÀØ¥ÀÅlÖtÚ. zÉÆqÀØ ¥ÀÅlÖtÚ gÀªÀgÀ fëvÀ CªÀ¢üAiÀÄ°è CªÀgÀ PÀÄlÄA§PÉÌ EzÀÝAvÀºÀ D¹ÛUÀ¼À §UÉÎ £À£ÀUÉ ªÀiÁ»w EgÀĪÀÅ¢®è. zÉÆqÀØ¥ÀÅlÖtÚ AiÀiÁªÁUÀ ªÀigÀt ºÉÆA¢zÀgÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. zÁªÁ¸ÀévÀÄÛUÀ¼À£ÀÄß AiÀiÁgÀÄ AiÀiÁªÁUÀ ªÀÄvÀÄÛ AiÀÄÁgÀ ºÉ¸ÀjUÉ Rjâ¹zÀgÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è." If the suit schedule properties are the joint family properties of plaintiffs and defendants No.1 to 6 and 10 to 14, there is / 40 / O.S.No.7528/2013 no hindrance to P.W.1 to depose regarding the same. Even the plaintiffs have failed to produce documents in order to show that the suit schedule properties are the joint family properties of plaintiffs and defendants No.1 to 6 and 10 to 14.
22. P.W.1 further deposed in his cross-examination at page No.29 that, he has no personal knowledge about the suit schedule properties. If at all the suit schedule properties have been purchased either by Dodda Puttanna or his son Doddabachappa and Chikka Hanumaiah there should be documents to that effect. The plaintiffs have failed to produce such documents.
23. Plaintiffs claim that themselves and defendants No.1 to 6 and 10 to 14 are in joint possession of suit schedule properties and there was no partition between Doddabachappa and Chikkahanumaiah even / 41 / O.S.No.7528/2013 after their death. But, P.W.1 in his cross-examination at page No.29 deposed that, since 1980 Chikkanarasappa and his brothers were residing separately. Evidence of P.W.1 clearly goes to show that there is no joint family and joint family properties.
24. As discussed supra, plaintiffs claim that suit schedule properties are the joint family properties and they are in joint possession of properties, but P.W.1 in his cross-examination at page No.30 deposed that, " ನನನನ ಚಕಕ ನರಸಪಪರವರ ಮನನಯಲಲ ಕನಲಸದವರ ತರ ಇದನದನನ." Evidence of P.W.1 clearly goes to show that they are not in possession of the suit schedule properties.
25. Plaintiffs claim that the suit schedule properties are the joint family properties and there was no partition, but the counsel for defendants made / 42 / O.S.No.7528/2013 specific suggestions to P.W.1 in his cross-examination at page No.32 that :
"¥Àæ±Éß B PÉA¥ÀªÀÄä vÀªÀÄä fëvÀ CªÀ¢üAiÀÄ°è AiÀiÁªÀvÀÄÛ ¥Á®Ä «¨sÁUÀªÀ£ÀÄß PÉýgÀ°®è?' GvÀÛg ÀB CzÀgÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¥Àæ±Éß B aPÀ̺À£ÀĪÀÄAiÀÄå ªÀÄvÀÄÛ zÉÆqÀاZÀÑ¥Àà£À gÀªÀgÀ ºÉ¸ÀgÀÄUÀ½UÉ MAzÉà MAzÁzÀgÀÆ ¸ÀévÀÄÛ EzÀÝ §UÉÎ ¤ªÀÄUÉ UÉÆvÁÛ? GvÀÛg ÀB ಆ UÀ £Á£ÀÄ ºÀÄnÖgÀ°®è."
P.W.1 in his cross-examination has also feigned his ignorance about properties and request for partition.
26. In support of their case, plaintiffs adduced evidence of J.R.Harish and Kempanna as P.Ws 2 and 3. P.Ws 2 and 3 deposed that plaintiffs, defendants No.1 to 6 and 10 to 14 are the joint family members and are in joint possession of the suit schedule properties. Though P.W.2 deposed that the suit schedule properties are the ancestral properties of plaintiffs, defendants No.1 to 6 and 10 to 14, but in his cross-examination at page No.4 / 43 / O.S.No.7528/2013 deposed that, "£Á£ÀÄ aPÀÌ£ÀgÀ¸À¥Àà£ÀªÀgÀ£ÀÄß £ÉÆÃrgÀĪÀÅ¢®è. aPÀÌ£ÀgÀ¸À¥Àà gÀªÀgÀ PÀÄlÄA§zÀ §UÉÎAiÀÆUÀ° CxÀªÁ CªÀgÀ PÀÄlÄA§zÀ D¹ÛUÀ¼À §UÉÎAiÀiÁUÀ° £À£ÀUÉ ªÀiÁ»w EgÀĪÀÅ¢®è. ..... §ZÀÑtÚ ºÁUÀÆ CvÀ£À ¸ÀºÉÆÃzÀgÀ£À D¹ÛUÀ¼À §UÉÎ £À£ÀUÉ UÉÆwÛ®è."
27. P.W.3 also deposed in his cross-examination that, he is not aware about the suit schedule properties. Admittedly, P.W.3 is the close relative of P.W.1. The evidence of P.Ws.2 and 3 are contrary to their own examination-in-chief and there are several contradictions, hence, the evidence of P.Ws 2 and 3 will not inspire truthfullness. Hence, their evidence is unbelievable.
28. It is the clear defence of defendants No.1 to 4 and 6 and 7 that, suit schedule properties are not ancestral properties and plaintiffs are not in joint possession, plaintiffs are no way concerned with their family and family properties. In order to establish their / 44 / O.S.No.7528/2013 defence, defendant No.2 has been examined as D.W.1 and defendant No.7(a) has been examined as D.W.3 and got marked the documents Exs.D.1 to D.41. D.W.1 clearly deposed that there was a partition between Doddabachappa and Chikkahanumaiah. Chikka Hanumaiah died in the year 1943. The sons and grandsons of Doddabachappa have purchased the suit schedule properties as per Exs.D.1, 3 to 10 and 13 and certain properties have been granted by the Land Tribunal under its Order dated 17.10.1981 as per Ex.D.12. They are in joint possession of the suit schedule properties. After the death of Chikka- hanumaiah, Chikkanarasappa allotted certain properties to Kempamma for her livelihood as per Ex.D.2 - Maintenance Agreement dated 18.1.1948. During the lifetime of Kempamma, she has executed a registered Will deed in favour of her granddaughter-defendant No.6 / 45 / O.S.No.7528/2013 as per Ex.D.29 - Will dated 31.10.1987. The mother of the plaintiffs viz., Jayamma was also one of the attesting witness to the Will. After the death of Kempamma, defendant No.6 acquired the property and has sold property to defendant No.7 on 5.2.2003. As per sale deed defendant No.7 is in possession of the property bearing Sy.No.4/1 of Sampigehalli i.e., portion of suit schedule item No.12. Defendant No.6 leased out one of the suit schedule properties to defendant No.8 under Lease Deed. B.D.A. has acquired land bearing Sy.No.29/2, 15, 14/1, 14/3, 29/2, 14/2A, 6/4 and 17/1 of Sampigehalli Village and has formed the Arkavathy layout. As per directions of Hon'ble High Court of Karnataka B.D.A. allotted 40% of developed land to defendants No.2 and 6 i.e., suit schedule item Nos.17 to
26. Defendants No.6, 1(a) to (c) by exercising their proprietary rights have executed lease deed as per / 46 / O.S.No.7528/2013 Ex.D.15 and defendants No.13 and 14 have executed leave and licence deed in favour of defendants No.2 to 4 as per Ex.D.16. Kanthamma i.e., defendant No.5 has executed release deed on 11.12.2009 in favour of defendant No.1 as per Ex.D.14. Defendants are in possession of the suit schedule properties, accordingly the defendants No.1, 2, 6, 7 have applied for conversion of land. By considering the request, the Special Deputy Commissioner, Bengaluru has granted permission as Exs.D.20, 21, 24 and 25. defendants have formed sites in the suit schedule properties and presently khathas are standing in the name of defendants and have paid the tax as per Ex.D.26. Defendants No.2 to 4 have executed lease deed in favour of defendant No.9 in respect of portion of land bearing Sy.No.39/5 and 39/6. Presently, defendant No.9 is in possession of the said properties. Exs.D.36 and 37 are the khatha certificates in respect of / 47 / O.S.No.7528/2013 the suit schedule properties. After the death of defendant No.7, defendant No.7(a) filed an application for rectification of N.A.Order. Accordingly, the Special Deputy Commissioner passed an order as per Ex.D.41. B.B.M.P. has issued notice to defendant No.7 as per Ex.D.38 and accordingly defendant No.7 (a) has paid betterment charges as per Ex.D.39. Ex.D.40 is the Endorsement along with sketch issued by B.D.A. Plaintiffs have no right or share in the suit schedule properties, hence, prayed for dismissal of suit.
29. In support of their defence, the defendants have examined one of the attesting witness to the Will i.e., V.Ramaiah. The said Ramaiah has been examined as D.W.2. D.W.2 deposed that Kempamma has executed Will as per Ex.D.29 in his presence. While executing the said Will, Kempamma was in a sound state of mind. At the time of execution of Will Jayamma was also present.
/ 48 / O.S.No.7528/2013
30. The counsel for plaintiffs cross-examined
D.Ws.1 to 3 in length. Witnesses adhered to their
original versions. The counsel for plaintiffs made a
specific suggestion to D.Ws 1 and 3 that the suit schedule properties are the joint family properties and plaintiffs, defendants No.1 to 6 and 10 to 14 are in joint possession. Witnesses denied the said suggestion. The counsel for plaintiffs further made a suggestion that suit schedule properties have been purchased out of the joint family nucleus derived from the joint family properties. Witnesses denied the said suggestion also. The counsel for plaintiffs made a suggestion to D.W.1 that the property mentioned in Ex.D.11 was the joint family property of Doddaputtanna. Witness admitted the said suggestion. D.W.1 further admitted that as per Exs.D.1, 3, 5 and 7 the properties have been purchased by Chikkanarasappa. The properties mentioned in / 49 / O.S.No.7528/2013 Exs.D.4 and 6 have been purchased by Kambaiah and property mentioned in Ex.D.8 has been purchased by Puttaiah. The counsel for plaintiffs further made a suggestion that the property mentioned in Exs.D.1 and 3 to 8 have been mortgaged to Muniyappa and Muninagappa. Witness denied the said suggestion. The counsel for plaintiffs further made a suggestion that the original documents pertains to Exs.D.4, 6 and 8 have been delivered to Chikkanarasappa. Witness denied the said suggestion. D.W.1 further admitted that as per Ex.D.13 property has been purchased on 27.8.1974. D.W.1 further admitted in his cross-examination that as per Ex.D.2 properties have been given to Kempamma. Except this, nothing worth has been elicited from the mouth of D.W.1. While cross-examining D.W.2 the counsel for plaintiffs made a suggestion that Kempamma had no right to execute the Will in favour of defendant / 50 / O.S.No.7528/2013 No.6, witness denied the said suggestion. The counsel for plaintiffs further made a suggestion that defendant No.6 has created the Will. The witness denied the said suggestion. D.W.2 unequivocally deposed that while executing Will mother of plaintiffs was also present and she put her signature on Ex.D.29 - Will. Though the counsel for plaintiffs has cross-examined D.W.2 in length, but has not denied the presence of Jayamma (mother of plaintiffs) and her signature on Ex.D.29 - Will.
31. The counsel for plaintiffs argued that the suit schedule properties are the joint family properties of plaintiffs and defendants No.1 to 6 & 10 to 14, and they have got definite share in the suit schedule properties and there was no partition in respect of suit schedule properties, Kempamma had no right bequeath the property through Will. The said Will is not binding on the plaintiffs' share and the sale deeds, lease deed are not / 51 / O.S.No.7528/2013 binding upon the plaintiffs' share. Hence, he prayed for decreeing the suit. Per contra, advocate for defendants argued that suit schedule properties are not joint family properties and plaintiffs are not in joint possession. Hence, prayed for dismissal of suit.
32. On perusal of entire material available on record it reveals, the plaintiffs have filed I.A.No.12 under Order VI Rule 17 C.P.C. for amendment of plaint in which they sought for deletion of Item Nos.1 and 11 and adding the property Nos.17 to 26 in the plaint schedule. Same was allowed on 4.1.2017. Accordingly, item Nos.1 and 11 have been deleted from the suit schedule properties. The claim of the plaintiffs is in respect of item Nos.2 to 10 and 12 to 31.
33. On perusal of Ex.D.1 Sale Deed dated 17.1.1948 in respect of land bearing Sy.No.6/1 of / 52 / O.S.No.7528/2013 Sampigehalli i.e., suit schedule item No.2, it reveals that Chikkanarasappa had purchased the said property from P.C.Muniyappa. On perusal of Ex.P.6 - R.T.C. in respect of said land, it reveals that after the death of Chikka- narasappa, the names of legal heirs of said Chikkanarasappa have been mutated. Accordingly, revenue records are standing in the name of defendants No.1 and 2. On perusal of Exs.D.21 to 23 - Conversion Order dated 30.1.2003 and Challan for having paid the Conversion Charges, the said land has been converted from agricultural to non-agricultural purpose and the defendant No.1 has paid the conversion charges.
34. On perusal of Ex.P.7 - RTC extract in respect of Sy.No.9/4B of Sampigehalli Village, Exs.D.21 to 23, Ex.D.28 - Conversion Order, Challan, Sale Deed dated 10.9.1984, it reveals that defendant No.1- S.N.Bachanna has purchased the said property from P.Anjanappa. After / 53 / O.S.No.7528/2013 purchase of the said property, defendant No.1 applied for conversion from agricultural to non-agricultural and has paid the conversion charges. By considering the request made by defendant No.1, the Special Deputy Commissioner, Bengaluru granted the permission. Accordingly, the said land has been converted from agricultural to non-agricultural. Plaintiffs claim that the said land is an agricultural land, but on perusal of Exs.D.21 to 23, it clearly goes to show that the said lands have been converted from agricultural to non- agricultural.
35. On perusal of Exs.D.7 and D.8 - Sale Deeds dated 17.1.1948 Chikkanarasappa and Puttanna have separately purchased the portions of the land bearing Sy.No.6/4 of Sampigehalli Village i.e., suit schedule item No.4. On perusal of Ex.D.12 - L.R.F. Order dated 17.10.1981 passed by the Land Tribunal it reveals that / 54 / O.S.No.7528/2013 17 guntas has been granted in favour of Chikkanarasappa.
36. On perusal of Ex.D.13 - Sale Deed dated 27.8.1974 in respect of Sy.No.6/5 of Sampigehalli, it reveals that defendants No.1 and 2 have purchased the said land from Narasappa S/o. Hanumantharayappa.
37. On perusal of Exs.D.1 and 3 - Sale Deeds and Ex.D.12 - Land Tribunal Order and Ex.D.24 - Conversion Order passed by the Deputy Commissioner, Bengaluru and Ex.P.9 - RTC in respect of Sy.No.39/5 i.e., suit schedule item No.5 property, it reveals that the said property has been purchased by father of defendants No.1, 2 and 5 i.e., Chikkanarasappa to an extent of 2 acres 12 guntas and as per Ex.D.12 - Land Tribunal Order, an extent of 1 acre 22 guntas has been granted to Chikkanarasappa. The said documents clearly goes to / 55 / O.S.No.7528/2013 show that, said Chikkanarasappa acquired 4 acres 4 guntas i.e., entire suit schedule item No.5 property. Subsequently the defendants have applied for conversion of land bearing Sy.No.39/5, 44/1, 46/1. Accordingly, the Special Deputy Commissioner granted the permission as per Exs.D.24 and 25. Subsequently the land bearing Sy.No.39/5 has been phoded as Sy.No.39/5A, 39/5B, 39/6. Sy.No.45 has been phoded as 45/2C.
38. On perusal of Ex.D.10 - Sale Deed dated 10.4.1991 it reveals that defendant No.1 has purchased land bearing Sy.No.1/6 measuring 9 guntas i.e., suit schedule item No.6 property. Ex.D.10 is standing in the name of S.N.Bachanna. On perusal of Ex.D.21 to 23, it reveals that the defendants No.1 and 2 have applied for conversion of said land, accordingly the Special Deputy Commissioner has granted the permission and the / 56 / O.S.No.7528/2013 defendants No.1 and 2 have deposited the conversion fees.
39. On perusal of Ex.D.7 - sale deed dated 17.1.1948, it reveals that Chikkanarasappa i.e., father of defendants No.1, 2 and 5 has purchased the land bearing Sy.No.44/1 i.e., item No.7 of the suit schedule property. On perusal of Ex.D.24 - Conversion Order, it reveals that the defendants No.1 and 2 have applied for conversion, accordingly the Special Deputy Commissioner has granted the permission.
40. On perusal of Ex.D.7 - Sale Deed dated 17.1.1948 in respect of Item No.8 of the suit schedule properties and Ex.P.12 - R.T.C. and Ex.D.24 - Conversion Order in respect of Sy.No.44/15 [Old Sy.No.44/10]of Sampigehalli Village, it reveals that father of defendants No.1, 2 and 5 has purchased the said land. After the / 57 / O.S.No.7528/2013 death of Chikkanarasappa, defendants No. 1, 2, 5 and 6 have inherited the said property and have applied for conversion of said land and Special Deputy Commissioner granted the permission.
41. On perusal of Ex.D.4 - sale deed dated 17.1.1948 in respect of item No.9 of the suit schedule properties, it reveals that Kambaiah has purchased 1 acre 7 guntas in the said Sy.No.45/2 and on perusal of Ex.D.12 Land Tribunal Order, 1 acre 7 guntas has been granted to Chikkanarasappa.
42. On perusal of Ex.P.14 - RTC extract in respect of land bearing Sy.No.45/2B measuring 5 guntas i.e., item No.10 of the suit schedule properties, the said land is standing jointly in the name of defendants No.1 and 2.
/ 58 / O.S.No.7528/2013
43. On perusal of Ex.D.11 - sale deed dated 15.5.1930 in respect of Sy.No.4/1 i.e., item No.12 measuring 1 acre 13 guntas situated at Sampigehalli Village, it reveals that the said property has been purchased by Chikkahanumaiah. After the death of Chikkahanumaiah, his wife Kempamma acquired the property. On perusal of Ex.P.29 - Will dated 31.10.1987 it reveals that the said Kempamma bequeathed the said land to her grand-daughter Radhamma i.e., defendant No.6. Though the plaintiffs are having knowledge about the said will, but have not challenged same. Even there is no prayer regarding the Will. On perusal of Ex.D.29 - Will, it reveals that the mother of the plaintiffs is also one of the attesting witness to the said Will. The plaintiffs have not denied the signature of their mother Jayamma on the Will. It is the consistent defence of the defendants that during the life time of Kempamma, she / 59 / O.S.No.7528/2013 has executed Will as per Ex.D.29 in favour of defendant No.6. As per Section 68 of Indian Evidence Act examination of one of the attesting witness is compulsory. In order to prove the Will, one of the attesting witness i.e., D.W.2 has been examined. D.W.2 clearly deposed that in his presence Kempamma executed Will as per Ex.D.29. The counsel for plaintiffs cross-examined D.W.2 in length, but has not denied the signature of Jayamma i.e., mother of plaintiffs on Ex.D.29. Even during the course of cross-examination the counsel for plaintiffs has not made any suggestion regarding the mental status of Kempamma. D.W.2 clearly deposed that while executing Will as per Ex.D.29 Kempamma was in a sound state of mind. There is no material to disbelieve the version of D.W.2. Even there is no suspicious circumstances regarding execution of Will. Defendants have proved the due execution of Will. If the / 60 / O.S.No.7528/2013 mother of plaintiffs had got any right over the said land, definitely she would resist for putting her signature on Will - Ex.D.29 or she can very well challenge the said Will during her lifetime. But, Jayamma during her lifetime has not challenged the said Will. Now the plaintiffs who are children of Jayamma cannot either say that the Will is not valid or Kempamma did not have title, because the person under whom the plaintiffs are claiming herself had agreed for such bequeath. Hence, after the death of Jayamma, the plaintiffs cannot deny the execution of said Will.
44. Another contention of the plaintiffs is that, item No.12 property has been acquired by Kempamma under the maintenance agreement Ex.P.21 and hence, she cannot bequeath the property to defendant No.6. But, on careful perusal of Ex.P.21 (Ex.D.2) - Maintenance Agreement dated 18.1.1948, there is no recital regarding / 61 / O.S.No.7528/2013 Sy.No.4/1 of Sampigehalli Village i.e., suit schedule item No.12 property.
45. On perusal of Ex.D.20 - Conversion Order, Ex.D.27 [Ex.P.37] Lease Deed dated 24.1.2015 it reveals that, as per Will, name of defendant No.6 has been mutated in the records and the said land has been converted from agricultural to non-agricultural, subsequently the defendants have leased out portion of land bearing Sy.No.4/1 to defendant No.9. The portion of said Sy.No.4/1 has been alienated to defendant No.7 by defendant No.6 as per Ex.P.27 - Sale Deed dated 5.2.2003. As per Sale Deed name of defendant No.7 has been entered in the revenue records. Subsequently, she applied for conversion from agricultural to non-
agricultural. Accordingly, revenue authorities granted
/ 62 / O.S.No.7528/2013
the permission. Subsequently, defendant No.7 died.
Her legal heirs defendant No.7 (a) has applied for modification of conversion order. The Special Deputy Commissioner, Bengaluru passed a modified conversion order as per Ex.D.41.
46. The suit schedule item No.13 property i.e., Sy.No.44/6 measuring 5 guntas has also been purchased by Chikkanarasappa i.e., father of defendants No. 1, 2 and 5. After his death, the defendants No.1, 2 and 5 have inherited the said property. On perusal of Ex.P.17 - RTC extract in respect of said land, which is presently standing in the name of defendants No.1 and 2. Subsequently, the defendants have filed an application for conversion from agricultural to non-agricultural and as per Ex.D.24 the Special Deputy Commissioner granted the permission for conversion of land.
/ 63 / O.S.No.7528/2013
47. Suit schedule item No.1 and 14 are one and the same. P.W.1 also in his cross-examination at page No.27 clearly admitted that suit schedule item Nos.1 and 14 are one and the same. As per Order dated 4.1.2017 the said property has been deleted. Besides, the said Sy.No.14/4 measuring 23 guntas has been acquired by the B.D.A. The said property is not at all in existence in its original form.
48. The land bearing Sy.No.39/6 i.e., suit schedule item No.15, the plaintiffs claim that the said property is also the joint family property of plaintiffs and defendants No.1 to 6 and 10 to 14, but on perusal of Ex.D.7 - sale deed, said property has also been purchased by Chikkanarasappa on 17.1.1948 to the extent of 38 guntas. On perusal of Ex.D.13 - sale deed dated 27.8.1974 it reveals that defendants No.1 and 2 have purchased 37 guntas in the said land. Hence, in all / 64 / O.S.No.7528/2013 defendants No.1 and 2 and their father had purchased entire land bearing Sy.No.39/6. After the death of Chikkanarasappa, the defendants No.1 and 2 applied for conversion, accordingly the Special D.C. granted the permission as per Ex.D.25. Accordingly, RTC is standing in the names of defendants No.1 and 2 as per Ex.P.19.
49. The land bearing Sy.No.19/2 i.e., suit schedule item No.16, plaintiffs claim that this property is also joint family property, but on perusal of Ex.D.9 sale deed dated 15.1.1981 it reveals that the said property has been purchased by defendant No.1 from Smt. Baiamma and her children. Accordingly, RTC in respect of said property is standing in the name of defendant No.1 as per Ex.P.20 to an extent of 2 acres 35 guntas.
50. Plaintiffs filed an application for amendment of plaint, same was allowed and accordingly suit schedule / 65 / O.S.No.7528/2013 item Nos.17 to 26 have been incorporated in the plaint schedule. Though said properties have been incorporated in the plaint schedule, but there is no pleadings as regards to the said properties. On perusal of Exs.P.28 to 35 - Sale Deeds, it reveals that B.D.A. has executed registered sale deed in the names of defendants No.2 and 6. Presently said properties are standing in the name of defendants No.2 and 6.
51. The plaintiffs claim that the land bearing Sy.No.6/4 measuring 17 guntas of Sampigehalli Village i.e., suit schedule item No.27 is also joint family property. But, on perusal of Ex.P.8 - RTC extract which is standing in the name of Susheelamma - defendant No.13 to an extent of 18 guntas, remaining land measuring 1 acre 9 guntas is standing in the name of defendants No.1 and 2.
/ 66 / O.S.No.7528/2013
52. The plaintiffs claim that the land bearing Sy.No.15 measuring 23 guntas of Sampigehalli Village i.e., suit schedule item No.28 is also joint family property. On perusal of Ex.D.4 - sale deed dated 17.1.1948, it reveals that said property has been purchased by Kambaiah from Muninagappa. Accordingly, his name has been mutated in the revenue records. On perusal of Ex.D.12 - Land Tribunal Order it reveals that the Land Tribunal granted the said 23 guntas of land in the name of Chikkanarasappa. Admittedly, the said land has been acquired by B.D.A. The said property is not in existence.
53. The plaintiffs claim that the land bearing Sy.No.17/1 measuring 11 guntas of Sampigehalli Village i.e., suit schedule item No.29 is also joint family property. On perusal of Ex.D.13 - sale deed dated 27.8.1974 it reveals that the said property has been / 67 / O.S.No.7528/2013 purchased by defendants No.1 and 2 from its erstwhie owner Narasappa. Accordingly, their names have been mutated in the revenue records, presently RTC in respect of said land is standing in the names of defendants No.1, 2 and 13 as per Ex.P.15.
54. The plaintiffs claim that the land bearing Sy.No.45/2 measuring 1 acre 7 guntas of Sampigehalli Village i.e., suit schedule item No.30 is also joint family property. On perusal of Ex.D.8 - C/c of sale deed dated 17.1.1948 it reveals that said property has been purchased by Puttaiah i.e., husband of defendant No.13.
55. The plaintiffs claim that the land bearing Sy.No.39/5 measuring 31 guntas of Sampigehalli Village i.e., suit schedule item No.31 is also joint family property. On perusal of sale deeds dated 17.1.1948, the said property has been purchased by Kambaiah and / 68 / O.S.No.7528/2013 Chikkanarasappa. On perusal of Ex.D.17 - sale deed dated 29.6.2017 it reveals that defendant No.6 alienated the said property to defendants No.13 and 14. On perusal of Ex.D.25 - Conversion Order, it reveals that the said land has been converted from agricultural to non- agricultural purpose.
56. On perusal of entire material available on record it reveals that there is no evidence to prove that there was a joint family of plaintiffs and defendants No.1 to 6 and 10 to 14 and joint family properties. Even there is no material on record to show that suit schedule properties have been purchased out of joint family nucleus. Except the oral testimony of P.W.1, there is no material on record.
57. Though the plaintiffs claim that the suit schedule properties are the joint family properties and / 69 / O.S.No.7528/2013 they are in joint possession, but plaintiffs have failed to prove that there was a joint family and joint family nucleus. Even the plaintiffs have failed to produce iota of documents to show that there were properties standing in the name of Doddaputtanna. The initial burden is upon the plaintiffs to prove the same.
58. Admittedly, no evidence has been led on behalf of plaintiffs to show income from joint family or value of the properties. At the same time no evidence has also been led by the plaintiffs to prove that their maternal grandfather or grandmother had any income so as to contribute for the purchase of suit schedule properties. In the absence of evidence, court cannot grant the relief. In a decision reported in (2003) 10 SCC 310 [D.S. Lakshmaiah and another Vs. L. Balasubramanyam and another] the Hon'ble Apex Court held in Paragraph-9 of it's judgment was pleased to / 70 / O.S.No.7528/2013 refer to a case in Appalaswami Vs. Suryanarayanamurti, reported in AIR 1947 PC 189, and pleased to observe that, "Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But, where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Further, in the same judgment at Paragraph-18, the Hon'ble Apex Court was pleased to observe as below:
"18. The legal principle, therefore, is that there is no presumption of a property being joint / 71 / O.S.No.7528/2013 family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available".
59. In another decision reported in 2007 (1) SCC 521 (Appasaheb Peerappa Chamdgade Vs. Devendra Peerappa Chamdgade and others), wherein at Paragraphs-16 & 17, the Hon'ble Apex Court was pleased to observe that, "There is no presumption of a joint Hindu family, but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if / 72 / O.S.No.7528/2013 the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence".
60. Above said decisions are applicable to the case in hand, the plaintiffs have utterly failed to establish joint family in nucleus. The plaintiffs have also failed to prove that source of fund for the purchase of suit schedule sites were from the nucleus of the joint family, the contention that the suit schedule properties were joint family properties has not been established.
61. That, one or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The / 73 / O.S.No.7528/2013 business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But, he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family. Each of them were having their own separate earnings and family and also later on, they were residing separately and acquired properties in their individual names, which they claim, that the same were from out of their own earnings, as such, they are their self-acquired properties. In this case also defendants No.1 & 2 clearly pleaded that the suit schedule properties are self-acquired properties of defendants / 74 / O.S.No.7528/2013 No.1 & 2. PW.2 in his cross-examination also at page No.26, he clearly admitted that defendants No.1 & 2 were running bricks industry. Evidence of PW.1 clearly goes to show defendant No.1 & 2 by their own earnings have purchased the properties. Neither Chikka- hanumaiah nor Kempamma have made contribution for the purchase of said properties.
62. It is the clear defence of defendants No.1 and 2 that there was oral partition during the lifetime of Doddabachachappa and Chikkahumaiah. After partition they were living separately. After partition, Chikkahumaiah purchased land bearing Sy.No.4/1 i.e., suit schedule item No.12 and after the death of Chikkahanumaiah, his wife inherited the said land. The remaining property has been purchased by sons of Doddabachchappa out of their own earnings. On perusal of Ex.P.12 - LRF Order it reveals that there was partition / 75 / O.S.No.7528/2013 in 1948. The said document came into existence in an undisputed point of time. This is a public document and is more than 30 years old document. It has got presumptive value.
63. On perusal of the evidence of Pws.1 to 3, as well DW.1, no where it goes to show that the parties to the suit had intention to reunite after their partition. There is neither any oral evidence nor any material even to draw an inference that the parties had intention to reunite and to constitute a joint family.
64. The plaintiffs have further contended that the source of fund for purchasing the suit schedule properties were the joint family income of the parties to the suit. Except taking such contention, they have nowhere stated as to what was the income of each of the joint family member and how that income was / 76 / O.S.No.7528/2013 pooled and utilized in purchasing the suit schedule properties.
65. Even the basic information about the income of each of them and how they were spending and saving it and also how they were treating it as a joint family fund has not been explained by PW.1 to PW.3. On the other hand, PW.1 himself in his cross-examination at page No.24 has stated that, the defendants are in possession and enjoying the suit schedule properties.
66. Though PW.1 in the very same cross-
examination has stated that he has got documents in order to show the joint family properties and nucleus with him, still, he has not produced a piece of such document. As such, his statement is only a self-serving statement. Had he really been in possession of such documents to show joint family income and also / 77 / O.S.No.7528/2013 contribution to the alleged joint family, then, he would have necessarily and definitely produced them. Since he has not produced the same and has withheld the alleged vital documents which were alleged to be in his possession and custody, it amounts that he has withheld a valid piece of evidence, as such, an adverse inference can be drawn that he does not possess any of such documents.
67. It is the argument of learned counsel for the plaintiffs that the defendants No.1 & 2 themselves admitted in Ex.P.21 maintenance deed that the suit schedule properties are joint family properties, Ex.P.21 itself would prove that there existed a joint family among the Kempamma, defendants No.1 to 6 & 10 to
14. That, on careful perusal of Ex.P.21, alleged maintenance deed in which the father of the defendant No.1, 2 & 5 nowhere admitted that the properties / 78 / O.S.No.7528/2013 mentioned in the said document are the joint family properties. Per contra, in Ex.P.21, it is clearly mentioned that "......... ಇದರಡ ಶನಡಡಡಲಲ ನಲಲ ನಮಮಮದನ ಕಕಡ ಸಸತನತಗಳನನನ ನಮಮ ಜಜವನನವಶಡ ಮತನತ ಹನಣನಣ ಮಕಕಳ ಶನಭಕನಯರಗಳಗನಡಜಸಕರ ಕನಡಡಬನಜಕನಕತಲಡ ತಜಮನನರಸದ ಪಪಕನರ ನಜವವ ಮತನತ ನನವವ ಸಹ ಒಪಪಕನಡಕಡರನತನತಜವನ ." Chikkanarasappa I.e., father of defendants No.1, 2 & 5 has allotted the suit schedule item No.1, 5, 11, 7 and house property to the Kempamma I.e., maternal grandmother of the plaintiffs for their livelihood. The said Chikkanarasappa has voluntarily given the said properties to the Kempamma by creating life interest. The said Kempamma admitted the said document and agreed to utilize the said property for their livelihood. Admittedly, the grandmother of plaintiffs or her two daughters, namely, Nanjamma and Jayamma have not challenged the said maintenance deed. If at all the suit schedule properties are the joint family properties, the / 79 / O.S.No.7528/2013 mother of plaintiffs could have challenged the said document or she can claim the partition. But, during the lifetime of Jayamma I.e., mother of the plaintiffs has not challenged the said deed. Hence, plaintiffs cannot challenge the said deed.
68. Plaintiffs claim that suit schedule properties are the joint family properties of plaintiffs and defendants No.1 to 6 & 10 14. On perusal of Exs.D.1, D.3 to D.10, D.13 sale deeds, Ex.D.12 Land Tribunal order dated 17.10.1981, it reveals that the suit schedule properties have been purchased by the father of defendants No.1, 2 & 5 and defendant No.1 . PW.1 also in his cross-examination admitted that the said properties have been purchased by Chikkanarasappa and defendant No.1. On perusal of Ex.D.1, D.3 to D.10 & D.13, there is no recital in the said sale deeds regarding the contribution made by the maternal grandfather or / 80 / O.S.No.7528/2013 maternal grandmother of the plaintiffs. It is well-settled law that documentary evidence prevails over the oral evidence. As per Sections 91 and 92 of the Evidence Act, the documentary evidence will prevail over oral evidence. In a decision reported in ILR 2020 KAR 3667 [Smt. Sarvamangalamma and others Vs., Smt. Anusuya Bai and others], wherein the Hon'ble High Court of Karnataka held that, "Documentary evidence prevails over the oral evidence." The said decision is aptly applicable to the case in hand.
69. Admittedly, Exs.D.1 to D.10 & D.13 - sale deeds are registered documents. It is well-settled law that registered document carries with it a presumption that it was validly executed. In the decisions reported in (2019) 2 SCC 727 [Jaleela Begum Vs. Shameem Mohammed] and (2006) 5 SCC 353 (Premsingh and others Vs. Beerbal and others), in both the cases the / 81 / O.S.No.7528/2013 Hon'ble Apex Court held that, "There is a presumption that a registered document is validly executed. A registered document, therefore, prima-facie would be valid in law. The onus of truth, thus, would be on a person who leads evidence to rebut the presumption." The above said decisions are aptly applicable to the case in hand. In this case also plaintiffs claim that their maternal grand-father and maternal grandmother have made contribution for purchase of suit schedule properties, but, have failed to produce the documents regarding contribution made by their maternal grandfather or grandmother for the same.
70. Though PW.1 in his examination-in-chief has deposed that suit schedule properties have been purchased out of joint family nucleus, but there is no document to show that the said properties have been purchased out of joint family nucleus. Besides there are / 82 / O.S.No.7528/2013 no pleadings in this regard. Without pleadings any amount of evidence is not acceptable.
71. By considering all these facts, it leads to conclusion that the said properties are not the joint family properties of plaintiffs and defendants No.1 to 6 and 10 to 14. It is for the plaintiffs to establish that the said properties were purchased by using joint family funds. Further, there is no document on record to show that the suit schedule properties have been purchased by utilizing the joint family nucleus. It is well settled law that, one who claims that the properties have been purchased in the name of any person by using joint family funds, he has to prove the existence of joint family and joint family nucleus. In a decision reported in (2003) 10 SCC 310 (D.S.Laxmaiah and another Vs. L.Balasubramanyam and another), wherein the Hon'ble Apex Court held that, "On failure to establish the / 83 / O.S.No.7528/2013 nucleus, held, burden of proof would remain on the person who asserts property to be joint." In this case the plaintiffs have utterly failed to prove that the said properties have been purchased by joint family nucleus.
72. Section 101 of Indian Evidence Act has clearly laid down that, burden of proving of fact always lies upon person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the presumption upon whom the burden lies has been able to discharge his burden. Until the Court arises at such conclusion the Court cannot proceed on the basis of weakness of other party. In this case also, the plaintiffs have to prove their case on their own, they cannot take the advantages of the weakness of the defendants. In a decision reported in (2011) 12 / 84 / O.S.No.7528/2013 Supreme Court Cases 220 (Rangammal Vs. Kuppuswami and another), it is clearly held that :
"S.101 - Burden lies on plaintiff to prove his case on basis of material available - He cannot rely on weakness or absence of defence of defendant to discharge the onus. If plaintiff claims title to property, he must prove his title."
In this case also the plaintiffs claim that the suit schedule properties are the joint family properties. They have to prove the same. Hence, the above said decision is aptly applicable to the case in hand.
73. That, the simple definition of partition is "a division of assets owned collectively by either family members or relatives so that each person gets a share and becomes the owner of the share allotted to him. The division is done as per the shares to which each of the / 85 / O.S.No.7528/2013 members is authorized according to law". But in this case plaintiffs have miserably failed to prove that suit schedule properties are the joint family properties and they have got equal share. Accordingly, I answer Issue No.1 and 3 in the negative and Issue No.4 in the affirmative.
74. Issue No.5 : - Defendants in their written statement contended that the suit of the plaintiffs is bad for non-joinder of necessary parties. Plaintiffs have filed the present suit for the relief of partition and separate possession. They ought to have arrayed all the necessary parties. P.W.1 in his examination-in-chief at para No.3 deposed that, "Smt. Nanjamma was married to Sri.Ramaiah and out of their wedlock 2 daughters, by name Radhamma was born to them i.e., defendant No.6." One of the daughter of Nanjamma i.e., defendant No.6 has been arrayed as party, but another daughter of / 86 / O.S.No.7528/2013 Nanjamma has not been arrayed as party to the present suit, who is also one of the necessary party. Further, P.W.1 in his cross-examination at page No.19 deposed that, Puttanna is the son of Doddabachappa and the said Puttanna has one son and 4 daughters. The son and wife of Puttanna i.e., defendants No.13 and 14 have been arrayed as parties to the suit, but four daughters of Puttanna have not been arrayed as a party to the suit.
75. Admittedly, defendant No.6 alienated the portion of suit schedule item No.12 property i.e., in Sy.No.4/1 of Sampigehalli to defendant No.7. During the pendency of suit defendant No.7 died. Daughter of defendant No.7 i.e., Vanajakshi [defendant No.7(a)] has been brought on record, but on perusal of Ex.D.41 modified N.A. order dated 1.9.2010 passed by the Special Deputy Commissioner, Bengaluru District, it reveals that the said Gundamma @ Varalaxmamma died / 87 / O.S.No.7528/2013 leaving behind her 3 daughters viz., N.S.Vanajaxi, N.S.Susheela and N.S.Savitri. Plaintiffs have not denied Ex.D.41. Though the plaintiffs are having knowledge about the legal heirs of defendant No.7, even then they have not brought all the legal heirs of defendant No.7 on record.
76. This Court has provided sufficient opportunities to the plaintiffs for arraying all the necessary parties. Even then plaintiffs have failed to bring all the necessary parties. Hence, the suit of the plaintiffs is bad for non-joinder of necessary parties. Accordingly, I answer Issue No.5 in the affirmative.
77. Issue No.6 : - Plaintiffs contended that they are in joint possession of the suit schedule properties, accordingly they have paid court fee under Section 35(2) of Karnataka Court Fee and Suit Valuation Act. Per / 88 / O.S.No.7528/2013 contra, the defendants in their written statement contended that plaintiffs are not in possession of the suit schedule properties and they have also sought for the relief of declaration and hence, they ought to have paid the court fee under Section 35(1) and 24 of Karnataka Court Fee and Suit Valuation Act.
78. In order to substantiate their case, plaintiffs have examined plaintiff No.1 as P.W.1. P.W.1 deposed that they are joint possession of the suit schedule properties. Though P.W.1 in his examination-in-chief deposed that they are in joint possession of the suit schedule properties, but in his cross-examination at page No.19 deposed that, "ದನವನ ಸಸತನತಗಳನ ಈಗ ಬಬಎಕಪ ವನಡಪತಯಲಲ ಬಕದರನತತವನ ಮತನತ ಅವವಗಳಲಲ ಯನವವದನಜ ರಜತಯ ಕಕಷ ಚಟನವಟಕನಗಳನ ನಡನಯನವವದಲಲ ಎಕಬನವವದನ ನಜ. ದನವನ ಸಸತನತಗಳನ ಭಡಪರವತರನನ ಆಗರನತತವನ ಎನನನವವದನ ನಜ. ದನವನ ಸಸತನತಗಳ ಮನರನಕಟನಟಯ ಬನಲನ ಪಪತಜ ಎಕನರನಗನ 3-4 ಕನಡಜಟ ಆಗನತತದನ ಎನನನವವದನ ನಜ." P.W.1 further / 89 / O.S.No.7528/2013 admitted in his cross-examination at page No.24 that, "¥ÀæwªÁ¢ £ÀA.1 ªÀÄvÀÄÛ 2 gÀªÀgÀÄ J¯Áè zÁªÁ¸ÀévÀÄÛUÀ¼À G¥À¨ÉÆÃUÀ ªÀiÁqÀÄwÛgÀÄvÁÛgÉ. £ÀªÀÄUÉ zÁªÁ¸ÀéwÛ¤AzÀ AiÀiÁªÀÅzÉà CzÁAiÀÄ EgÀĪÀÅ¢®è. £ÁªÀÅ zÁªÁ¸ÀéwÛ£À ¸Áé¢üãÀzÀ°è EgÀĪÀÅ¢®è J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀĪÀiÁgÀÄ 10 ªÀµÀðUÀ½AzÀ £ÁªÀÅ zÁªÁ¸ÀéwÛ£À ¸Áé¢üãÀzÀ°è EgÀĪÀÅ¢®è. 1999 gÀ°è PÉA¥ÀªÀÄä ªÀÄgÀt ºÉÆA¢gÀÄvÁÛgÉ CªÁV¤AzÀ £ÁªÀÅ zÁªÁ¸ÀéwÛ£À ¸Áé¢üãÀzÀ°è EgÀĪÀÅ¢®è." P.W.1 unequivocally admitted that himself and plaintiffs No.2 and 3 are not in joint possession of the suit schedule properties. Evidence of P.W.1 clearly goes to show that plaintiffs have been ousted from the suit schedule properties much prior to the filing of the suit. That, as per Section 58 of the Indian Evidence Act, admitted facts need not be proved.
/ 90 / O.S.No.7528/2013
79. The counsel for plaintiffs argued that plaintiffs are in joint possession and the court fee paid under Section 35(2) of Karnataka Court Fee and Suit Valuation Act is sufficient. Per contra, the counsel for defendants argued that P.W.1 unequivocally admitted that they are not in possession of the suit schedule properties, hence, they ought to have paid the court fee under Section 35(1) of Karnataka Court Fee and Suit Valuation Act and also relied upon a decision reported in ILR 2001 KAR 3988 [B.S.Malleshappa Vs., Korategere B.Shivalingappa and others] in which the Hon'ble High Court of Karnataka at para No.11 held thatಮ "If the plaintiff claims to be in joint possession (either constructive or actual) and files suit for partition and separate possession, he has to pay the court fee only under Section 35(2) of the Act. In such a suit, the plaintiff will be entitled to relief, / 91 / O.S.No.7528/2013 only if the Court accepts his contention that he is in joint possession (either constructive or actual). On the other hand, if the Court finds that he is not in possession or joint possession (either constructive or actual) or if the Court finds that he has been excluded or ousted from possession, the relief will be denied. But the plaintiff cannot be required to pay court fee in such a situation. If the Court finds that some of the properties in the plaint schedule are in the possession of joint possession of the plaintiff, and others are not, the Court will give relief only in regard to those properties which are found to be in possession or joint possession of the plaintiff and not in regard to those from which plaintiff had been excluded or ousted. The Court cannot, either at the instance of defendant, or suo motu, conver the suit as one under Section 35(1) on the basis of defendant's pleadings or evidence. We may illustrate by an example, when a suit is filed by a plaintiff for a bare injunction alleging / 92 / O.S.No.7528/2013 that he is in possession and pays court fee under Section 26(c) of the Act, and if defendant denies such possession and established that he (the defendant) has always been in possession, the Court will dismiss the suit for injunction. It will not and cannot hold that it is a suit for possession and consequential injunction and call upon plaintiff to pay court fee under Section 24(a) or 28 or 29 of the Act.
Further, at para No.12 (iv) held that :
(iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises 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 consequence is that the relief may be refused in regard to such / 93 / O.S.No.7528/2013 property or the suit may be dismissed. But the question of Court 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 or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied."
80. Admittedly, plaintiffs are not in joint possession over the suit schedule properties. As per decision cited above, plaintiffs ought to have paid the court fee on actual market value. Since the plaintiffs have claimed the relief of declaration that the sale deed dated 5.2.2003 executed by defendant No.6 in favour of / 94 / O.S.No.7528/2013 defendant No.7 and Lease Deeds dated 29.9.2012 and 3.3.2010 in respect of suit schedule properties are null and void to the extent of their share, hence, they ought to have paid court fee on actual market value under Section 24(b) of Karnataka Court Fees & Suits Valuation Act. Hence, the court fee paid by the plaintiffs on the plaint is insufficient. Admittedly, plaintiffs are not in possession of the suit schedule properties. They ought to have paid the court fee under Section 35(1) of Karnataka Court Fee and Suit Valuation Act. Hence, plaintiffs are liable to pay court fee on actual market value as provided under Section 35(1) of Karnataka Court Fee and Suit Valuation Act. Accordingly, I answer Issue No.6 in the affirmative.
81. Additional Issue framed on 20.3.2019 :
Plaintiffs claimed mesne profits. But, in support of their claim, plaintiffs have not adduced any evidence. In this / 95 / O.S.No.7528/2013 case plaintiffs cannot claim mesne profits. Besides, plaintiffs themselves filed I.A.No.18 under Order VI Rule 17 r/w/s 151 of C.P.C. for amendment of plaint. In the affidavit filed along with I.A.No.18 at para No.3 plaintiff No.1 himself sworn that, "Actually, it is well settled law that in a suit for partition the question of mesne profits does not arise at all." Plaintiffs themselves sworn that in a suit for partition mesne profits cannot be claimed, even then they have made prayer for mesne profits. The counsel for plaintiffs fairly submitted that in a suit for partition plaintiffs cannot claim the mesne profits. In order to claim mesne profits, further proceedings are required and also relied upon a decision reported ILR 1991 KAR 4506 [Thammedgowda Vs. Siddegowda] in which the Hon'ble High Court of Karnataka held that, "In a suit for partition and possession possession, the question of mesne profits does not arise. The co-
/ 96 / O.S.No.7528/2013 parcener who will be in possession of the joint family property will be liable to account for the profits derived from the joint family property in excess of his share. The possession of a coparcener of the joint family property is not unlawful because his right extends over the entire joint family property until it is divided by metes and bounds. The possession of a coparcener of the joint family property until it is divided by metes and bounds does not become unlawful so as to make him liable for mesne profits. Therefore, the question of mesne profits does not arise. Of course, he has to account for the income of the share of the plaintiff from the date of suit till the date of delivery of possession. Therefore, the Trial Court is not justified in directing that the plaintiff is entitled to future mesne profits from the date of suit. It ought to have directed that the plaintiff is entitled to accounts of the profits of his share from the date of suit / 97 / O.S.No.7528/2013 till the date of delivery of possession". The said decision is aptly applicable to the case in hand. Hence, plaintiffs are not entitled mesne profits. Accordingly, I answer the said issue in the negative.
82. Additional Issue No.1 dated 16.09.2019:-
Plaintiffs claim that they are in joint possession of the suit schedule properties, but defendants have denied the plaintiffs joint possession over the suit schedule properties.
83. The counsel for plaintiffs argued that there is no limitation for filing the suit for partition. The defendants have denied to effect the partition in respect of suit schedule properties on 1.8.2013. immediately the plaintiffs have filed the present suit. Hence, the suit of the plaintiffs is within limitation. Per contra, the counsel for defendants No.1, 2, 6 and 10 to 14 argued / 98 / O.S.No.7528/2013 that P.W.1 himself admitted in his cross-examination that they have been ousted from the suit schedule properties in the year 1999 itself. Hence, the suit of the plaintiffs is barred by limitation.
84. As seen from entry in column No.4 of schedule of Limitation Act 1963, no period of limitation is prescribed to file a suit for partition. But, as per Article 110 of Limitation Act, 1963, "Suit has to be filed within 12 years by a person excluded from the joint family property to enforce right therein which time commences when the exclusion becomes known to the plaintiff".
85. P.W.1 in his cross-examination at page No.24 deposed that Kempamma died in the year 1999, since then they are not in possession of the suit schedule properties. As per P.W.1 himself they have been outsted in the year 1999 itself. The present suit has been filed / 99 / O.S.No.7528/2013 on 10.10.2013. The plaintiffs have been ousted in the year 1999.
86. It is apparent that the plaintiffs are aware of the exclusion of the usufruct of the properties and are being excluded from receiving any nucleus from the suit schedule properties. P.W.1 himself unequivocally admitted that they have been ousted from the suit schedule properties in the year 1999, however, the plaintiffs have slept over their right for more than 12 years and have filed the suit on 10.10.2013, which is not maintainable and it is clearly time barred.
87. Plaintiffs have sought the relief of declaration that partition deed dated 21.1.2010, lease deed dated 3.3.2010 and sale deed dated 5.2.2003 in respect of suit schedule properties are null and void and not binding upon the plaintiffs' share. As per Article 58 of the / 100 / O.S.No.7528/2013 Limitation Act, the relief of declaration ought to have been filed within 3 years when the right to sue first accrues. The right to sue accrues to the plaintiffs on 5.2.2003, 21.1.2010 and 3.3.2010 itself whereas the present suit has been filed on 10.10.2013, which is barred by limitation.
88. In view of discussion made above, it is clear that, the plaintiffs must have brought this suit within period of 3 years from the date of sale deed and as per Ex.P.27/sale deed, the mother of defendant No.6 has obtained possession of portion of suit schedule item No.12 property as on date of execution of said Ex.P.27 itself. Thus, the plaintiffs must have filed this suit within 3 years from the date of execution of Ex.P.27, as the suit is filed beyond 3 years, the suit of plaintiffs is barred by limitation. Hence, the suit of the plaintiffs is barred by limitation. Hence, I answer said issue in the affirmative.
/ 101 / O.S.No.7528/2013
89. Additional Issue No.2 framed on
16.9.2019 : - The defendant No.7(a) in her written statement specifically contended that suit of the plaintiffs is bad for mis-joinder of parties. Though defendant No.7 pleaded regarding mis-joinder of parties, but has utterly failed to adduce evidence in order to prove that suit of the plaintiffs is bad for mis-joinder of parties. Even there is no material on record to show that the suit of the plaintiffs is bad for mis-joinder of parties. It is well settled law that without evidence Court cannot grant the relief. Defendant No.7(a) utterly failed to prove that suit of the plaintiffs is bad of mis-joinder of parties. Accordingly, I answer Additional Issue No.2 framed on 16.9.2019 is answered in the negative.
90. Issue No.2 and 7 to 9 : - As discussed on Issue Nos.1, 3 and 4, the plaintiffs have failed to prove that the suit schedule properties are the joint family / 102 / O.S.No.7528/2013 properties of plaintiffs, defendants No.1 to 6 and 10 to 14 and further failed to prove that they are in joint possession of suit schedule properties. Hence, they are not entitled for any reliefs. Accordingly, I answer Issue Nos.2 and 7 to 9 in the negative.
91. Issue No.10:- In view of my aforesaid discussion and findings, I proceed to pass the following Order:-
ORDER Suit of the plaintiffs is hereby dismissed with costs.
Plaintiffs are liable to pay court fee under Section 35(1) of the Karnataka Court Fees & Suits Valuation Act on the market value of the suit schedule properties, soon after the expiry of the appeal period. If plaintiffs fail to pay the same, office is hereby directed to calculate the requisite court fee on / 103 / O.S.No.7528/2013 guidelines value of the suit schedule properties and to intimate the concerned D.C. to recover the same from the plaintiffs as if it was the land revenue and remit the same to the Court account.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open Court on this the 27th day of August, 2021.) (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City. *** ANNEXURE
1. List of witnesses examined for plaintiffs:
P.W.1 : Govind Raju
PW.2 : J.R. Harish
PW.3 : Kempanna
2. List of documents exhibited for plaintiffs :
Ex.P.1 : Family tree affidavit dated 17.09.2013.
/ 104 / O.S.No.7528/2013 Ex.P.2 : C/c M.R.No.13 dated 28.11.2002. Ex.P.3 : C/c M.R.No.24 dated 05.02.2003. Ex.P.4 : C/c M.R.No.28 dated 04.02.2003. Ex.P.5 : C/c RTC in respect of Sy.No.14/4 of
Sampigehalli village, dated 07.10.2013. Ex.P.6 : C/c RTC in respect of Sy.No.6/1 of Sampigehalli village, dated 07.10.2013. Ex.P.7 : C/c RTC in respect of Sy.No.9/4B of Sampigehalli village, dated 13.07.2004. Ex.P.8 : C/c RTC in respect of Sy.No.6/4 of Sampigehalli village, dated 07.10.2013. Ex.P.9 : C/c RTC in respect of Sy.No.39/5 of Sampigehalli village, dated 24.08.2013. Ex.P.10 : C/c RTC in respect of Sy.No.1/6 of Sampigehalli village, dated 07.10.2013. Ex.P.11 : C/c RTC in respect of Sy.No.44/1 of Sampigehalli village, dated 24.08.2013. Ex.P.12 : C/c RTC in respect of Sy.No.44/15 of Sampigehalli village, dated 24.08.2013. Ex.P.13 : C/c RTC in respect of Sy.No.45/2A of Sampigehalli village, dated 07.10.2013. Ex.P.14 : C/c RTC in respect of Sy.No.45/2B of Sampigehalli village, dated 07.10.2013.
/ 105 / O.S.No.7528/2013 Ex.P.15 : C/c RTC in respect of Sy.No.17/1 of Sampigehalli village, dated 24.08.2013. Ex.P.16 : C/c RTC in respect of Sy.No.4/1 of Sampigehalli village, dated 24.08.2013. Ex.P.17 : C/c RTC in respect of Sy.No.44/6 of Sampigehalli village, dated 24.08.2013. Ex.P.18 : C/c RTC in respect of Sy.No.14/4 of Sampigehalli village, dated 24.08.2013. Ex.P.19 : C/c RTC in respect of Sy.No.39/6 of Sampigehalli village, dated 07.10.2013. Ex.P.20 : C/c RTC in respect of Sy.No.19/2 of Venkateshapura village, dated 07.10.2013.
Ex.P.21 : C/c maintenance agreement dated 18.01.1948.
Ex.P.21(a) : Translated copy of Ex.P.21. Ex.P.22 : C/c partition deed dated 21.01.2010. Ex.P.23 : C/c relinquishment dated 11.12.2009. Ex.P.24 : C/c lease deed dated 03.03.2010. Ex.P.25 : C/c conformation deed dated 21.01.2013.
Ex.P.26 : C/c lease agreement dated 29.09.2012.
/ 106 / O.S.No.7528/2013 Ex.P.27 : C/c sale deed dated 05.02.2003. Ex.P.28 : C/c sale deed dated 18.06.2015 in respect of site No.2183.
Ex.P.29 : C/c sale deed dated 25.07.2015 in respect of site No.1944.
Ex.P.30 : C/c sale deed dated 18.06.2015 in respect of site No.2184.
Ex.P.31 : C/c sale deed dated 25.07.2015 in respect of site No.1945.
Ex.P.32 : C/c sale deed dated 18.06.2015 in respect of site No.2186.
Ex.P.33 : C/c sale deed dated 18.06.2015 in respect of site No.2226.
Ex.P.34 : C/c sale deed dated 18.06.2015 in respect of site No.2187.
Ex.P.35 : C/c sale deed dated 18.06.2015 in respect of site No.2185.
Ex.P.36 : C/c lease agreement dated 24.01.2015. Ex.P.37 : C/c of lease agreement dated 24.01.2015.
/ 107 / O.S.No.7528/2013
3. List of witnesses examined for the
defendants:
D.W.1 : S.N. Ananda Murthy
D.W.2 : E. Ramaiah
D.W.3 : Smt. Vanajakshi
4. List of documents exhibited by the
defendants: -
Ex.D.1 : C/c sale deed dated 17.01.1948
registration No.3450/1997-98.
Ex.D.2 : C/c registered maintenance
agreement dated 18.01.1948
registration No.3454/1997-98.
Ex.D.3 : C/c sale deed dated 18.01.1948
registration No.3458/1997-98.
Ex.D.4 : C/c sale deed dated 17.01.1948
registration No.3456/1997-98.
Ex.D.5 : C/c sale deed dated 17.01.1948
registration No.3453/1997-98.
Ex.D.6 : C/c sale deed dated 17.01.1948
registration No.3451/1997-98.
Ex.D.7 : C/c sale deed dated 17.01.1948
registration No.3459/1997-98.
/ 108 / O.S.No.7528/2013
Ex.D.8 : C/c sale deed dated 17.01.1948
registration No.3457/1997-98.
Ex.D.9 : C./c sale deed dated 15.01.1981
registration No.14237/1980-81.
Ex.D.10 : C/c sale deed dated 10.04.1991
registration No.79/1991-92.
Ex.D.11 : C/c sale deed dated 15.05.1930
registration No.770/1930-31.
Ex.D.12 : C/c order passed by the Land Tribunal, Bengaluru North Taluk in LRF/423/74- 75, dated 17.10.1981.
Ex.D.13 : Original sale deed dated 27.08.1974. Ex.D.14 : C/c release deed 11.12.2009 executed by Kanthamma in favour of S.N. Bachanna and S.N. Anandamurthy.
Ex.D.15 : C/c lease deed dated 24.01.2015. Ex.D.16 : C/c leave and lease deed dated 18.09.2017.
Ex.D.17 : Original sale deed dated 29.06.2017. Ex.D.18 : C/c sale deed dated 18.06.2015. Ex.D.19 : C/c sale deed dated 18.06.2015.
/ 109 / O.S.No.7528/2013 Ex.D.20 : Conversion order passed by the
Special DC, Bengaluru District, dated 04.02.2003.
Ex.D.21 : Conversion order passed by the
Special DC, Bewngaluru District,
dated 30.01.2003.
Ex.D.22 : C/c chellan dated 27.01.2003. Ex.D.23 : Letter dated 18.01.2003 written by Tahsildar, Bengaluru North, to the Special DC, Bengaluru District.
Ex.D.24 : Conversion order passed by the
Special DC, Bewngaluru District,
dated 05.02.2003.
Ex.D.25 : Conversion order passed by the
Special DC, Bengaluru District, dated 30.01.2003.
Ex.D.26 : 9 Tax paid receipts (All together marked).
Ex.D.27 : C/c Lease deed dated 24.01.2015. Ex.D.28 : C/c sale deed dated 10.09.1984 executed by P. Anjanappa in favour of S.N. Bachanna.
/ 110 / O.S.No.7528/2013 Ex.D.29 : Original Will dated 31.10.1987.
Ex.D.30 : Death certificate of
K.M.Varalakshmamma @
K.M.Gundamma.
Ex.D.31 : C/c Encumbrance Certificate form No.15 in rjespect of Sy.No.4/1 measuring 10 guntas.
Ex.D.32 : Tax paid receipt dated 11.04.2021. Ex.D.33 : Acknowledgement dated 17.04.2013 issued by BBMP.
Ex.D.34 : Receipt dated 17.04.2013 issued by Bangalore One.
Ex.D.35 : Certificate dated 07.09.2010 issued by BBMP.
Ex.D.36 : C/c Houses and open site register for the year 2010-2011 issued by BBMP.
Ex.D.37 : Khatha registration certificate dated 07.09.2020 issued by BBMP.
Ex.D.38 : Notice dated 19.02.2011 issued by BBMP.
Ex.D.39 : Receipt for having paid betterment charges dated 02.10.2011.
/ 111 / O.S.No.7528/2013 Ex.D.40 : Endorsement dated 13.01.2011 along with sketch issued by BDA.
Ex.D.41 : Rectification of conversion order dated 01.09.2010.
(KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 112 / O.S.No.7528/2013
Judgment pronounced in the open Court (Vide separate Judgment) :
ORDER Suit of the plaintiffs is hereby dismissed with costs.
Plaintiffs are liable to pay court fee under Section 35(1) of the Karnataka Court Fees & Suits Valuation Act on the market value of the suit schedule properties, soon after the expiry of the appeal period. If plaintiffs fail to pay the same, office is hereby directed to calculate the requisite court fee on guidelines value of the suit schedule properties and to intimate the concerned D.C. to recover the same from the plaintiffs as if it was the land revenue and remit the same to the Court account. Draw decree accordingly.
(KHADARSAB) XXXIX A.C.C.& S. Judge, Bangalore City.