Bangalore District Court
Sri.Munegowda vs Sri.M.Venkatesh on 1 July, 2019
IN THE COURT OF THE LXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT:SRI. SHUBHAVEER B., B.Com.,LL.B.
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
DATED: THIS THE 1ST DAY OF JULY,2019
O.S.No.8725/2006
Plaintiffs- 1. Sri.Munegowda
s/o. Late Venkatappa @
Chikka Abbaiah,
aged about 45 years.
2. Sri.Nagaraju,
s/o. Late Venkatappa @
Chikka Abbaiah,
aged about 36 years.
3. Sri.Anand,
s/o. Late Venkatappa @
Chikka Abbaiah,
aged about 31 years.
All are residing at
Mahadevapura village,
White Field Road,
Bengaluru -48.
(By Sri. K.V.Ramachandra)
O.S.No.8725/2006
-VS-
Defendants: 1. Sri.M.Venkatesh,
s/o. late B.Ramaiah,
aged about 52 years.
2. Smt.Channamma
D/o. late B.Ramaiah,
aged about 48 years.
3. Sri.Venkatappa,
s/o. late B.Ramaiah,
aged about 40 years.
4. Sri.Narayanaswamy,
s/o. late B.Ramaiah,
aged about 36 years.
All are children of
late Venaktamma,
Residing at Mahadevapura
village, White Field Road,
Bengaluru -48.
5. Sri.Narayanappa,
s/o. Chikkonu,
aged about 58 years,
R/at. Mahadevapura
village, White Field Road,
Bengaluru -48.
6. Smt.Channamma,
d/o. Chikkonu,
w/o. Narayanappa,
O.S.No.8725/2006
aged about 55 years,
R/at. Nagareshwara
Nagenahalli, Kothanoor
Post, K.R.Puram Hobli,
Bengaluru -45.
7. Sri.Chandrashekar,
s/o. LateVenkatappa, @
Chikka Abbaiah,
aged about 48 years,
R/at. Muniraju's house,
Opp to Patel Narsimhaiah's
house, Mahadevapura
village, White Field Road,
Bengaluru -48.
8. Sri.Ramakrishna,
s/o. Late Venkatappa @
Chikka Abbaiah,
aged about 43 years,
r/at. Appannavara
Shamarju's house,
Mahadevapura village,
White Field Road,
Bengaluru -48.
9. Smt.Bhagyamma,
d/o. Late Venaktappa
Chikka Abbaiah,
aged about 40 years,
Mahadevapura village,
White Field Road,
Bengaluru -48.
O.S.No.8725/2006
10. Smt.sunanda,
D/o. LateVenkatappa, @
Chikka Abbaiah,
aged about 38 years,
R/at. Muniraju's house,
Opp to Patel Narsimhaiah's
house, Mahadevapura
village, White Field Road,
Bengaluru -48.
D-1 to D-4: Sri.M.M.
D-5- Sri.N.Devaraj,
D-6 Sri.B.M.S.P
D-7 to D-10: exparte)
Date of Institution of the suit : 29.09.2006
Nature of the suit : Partition & separate
possession
Date of commencement of
recording of the evidence : 11/03/2010
Date on which the Judgment was
pronounced : 01/07/2019
Total Duration Years Months Days
: 12 09 02
(SHUBHAVEER B.)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
O.S.No.8725/2006
J U D G M E N T
The above suit is filed for Partition and separate possession.
2. The defendants No.7 to 10 have been placed exparte
3. The brief facts of the case of the plaintiffs are that propositus/Narayanappa had three children, namely - (1) deceased Motappa, who died intestate, leaving behind him a daughter, deceased Venkatamma, who is the predecessor in title of defendants No.1, 2, 3 and 4; (2) deceased Chikkonu, who is the predecessor in title of defendants No.5 and 6; as well as (3) deceased Puttappa, who died, leaving behind him, deceased Narayanamma, who is the predecessor in title of plaintiffs and defendants No.7 to 10. After the death of propositus, his three deceased sons continued to be a members of joint family and three was no partition of joint family properties.
4. It is further alleged that Mahadevapura village was a Jodi Inam village. The propositus-Narayanappa was the holder of O.S.No.8725/2006 certain agricultural lands in the said village and he was cultivating the same. His 2nd son, Chikkonu, filed application, on behalf of joint family of the propositus-Narayanappa, seeking occupancy rights in respect of suit schedule properties and the occupancy in rights respect of suit schedule properties was granted in the name of said Chikkonu. After the death of said Chikkonu, the mutation/RTC in respect of suit schedule properties were transferred in the name of the 5th defendant. However the plaintiffs and defendants are in joint possession and enjoyment of suit schedule properties. The demand made to effect partition, even by convening the Panchayath, was of no use. Hence, the above suit
5. The defendants No.1 to 4, in their common written statement, have admitted plaint allegations and prayed to grant their share in the suit schedule properties .
6. The defendant No.5 in her written statement, except admitting that defendants No.5 and 6 are children of deceased O.S.No.8725/2006 Chikkonu, who died intestate; granting of occupancy patta in respect of suit schedule properties in the name of the defendant No.6 as well as transfer of khatha in respect of suit schedule properties in the name of the defendant No.6; denied all other allegations made in the plaint.
7. The defendant No.5 further contends that the properties in Sy.No. 1/2 measuring 2 acre 1 guntas; Sy.No. 1/5, measuring 1 guntas; Sy.No.22/1, measuring 21 guntas; Sy.No.205/2, measuring 8 guntas; Sy.No.205/10, measuring 7 guntas; Sy.No.131, measuring 15 guntas, and Sy.No. 115, measuring 15 guntas, were granted to Motappa, the first son of propositus- Narayanappa. Consequent to his death all the said properties came to his daughter, namely-deceased Venkatamma, the predecessor in title of defendants No.1 to 4. Sy.No. 28/1 measuring 4 acres 33 guntas belonged to Puttappa and Maramma, who are grand parents of father and mother of the plaintiffs. These properties are not included in the present suit for partition. Hence, the suit O.S.No.8725/2006 for partial is not maintainable. Hence, prayed for dismissal of the suit.
8. In the written statement as well as Additional written statement of defendant No.6, except admitting that propositus- Narayanappa had three children -, Motappa, Chikkonu and Puttappa; defendants No.5 and 6 are the children of deceased Chikkonu; propositus-Narayanappa cultivating suit schedule properties; granting of occupancy patta in respect of suit schedule properties in favor of Chikkonu and after death of Chikkonu transfer of khatha in respect of suit schedule properties in the name of the defendant No.5; denied all other allegations made in the plaint.
9. The defendant No.6 contends that Chikkonu filed application for grant of occupancy patta in respect of suit schedule properties in his personal capacity. Defendant No.6 has already filed O.S.No.6263/1995 against defendant No.5 and others. The said fact is suppressed by plaintiff. The suit schedule O.S.No.8725/2006 item No.1 property was the property purchased by Chikkonu from his brother, Puttappa and afterwards he was in possession of suit schedule item Nos. 2 and 3 properties as a tenant. The occupancy rights in respect of suit schedule properties are granted in favour of Chikonu. Hence, prayed for dismissal of the suit.
10. From the pleadings the following issues and Addl. issue are framed 1 to 7 Addl.No.1: -
ISSUES
1. Whether the plaintiffs prove the relationship pleaded by them?
2. Whether the plaintiffs prove that suit schedule properties are the undivided joint family properties of the plaintiffs and the defendants?
3. Whether the plaintiffs prove that the plaintiffs are entitled for a share in the suit properties?
4. Whether the defendants prove that the suit is not maintainable in view of pendency of O.S.No.6223/05?
5. Whether the court fee paid is insufficient?
O.S.No.8725/2006
6. Whether the suit is barred by limitation?
7. What decree, or order?
Addl. issue Whether suit for partial partition is not maintainable?
11 . On behalf of the plaintiffs, the 1st plaintiff himself got examined as P.W.1, who deposes in accordance with the allegations made in the plaint. Ex.P1 to Ex.P18 are marked. On behalf of the defendants, the 1st defendant got himself examined as D.W.1, who deposes in accordance with the admissions made by defendants No.1 to 4 in their written statement and prayed to allot shares of defendants No.1 to 4. The power of attorney holder of defendant No.5 is examined as D.W.2, who was aged 42 years as on 07.02.2014 (hence born in 1972), who almost deposes in accordance with the contentions taken by defendant No.5 in his written statement and power of attorney of defendant No.6 is examined as D.W.3, who was aged 43 years as on 20.11.2018 (hence born in 1975) who deposes in accordance with the O.S.No.8725/2006 contentions by taken by defendant No.6 in her written statement. Ex.D1 to Ex.D14 are marked. Arguments heard. Both the parties have filed their written arguments.
12. The answers to the above issues are-
Issue No.1 In the Positive
Issue No.2 In the Negative
Issue No.3 In the Negative
Issue No.4 In the Negative
Issue No.5 In the Negative
Issue No.6 In the Positive
Issue No.8 In the positive
Issue No.7 As per final order, for the following-
REASONS
13. Issue No.1- Even though the defendants No. 5 and 6 have denied in their written statement with regard with relationship of the plaintiffs and defendants, P.W.1 has specifically deposed to that effect. Absolutely there is no cross examination to that effect, or nothing is elicited in the cross examination of P.W.1 to discard his evidence in that regard. On behalf of plaintiff, Ex.P.1, Genealogy; on behalf of the defendants, Ex.D.3, Genealogy; are produced. They cannot be O.S.No.8725/2006 considered, because the same wwre issued by Village Accountant, who is not competitive to issue the same. Hence it appears to the court that plaintiffs have established relationship of plaintiffs and defendants. Hence issue No.1 is answered positively.
14. Issue No.2 and 3: Since these two issues are inter- related, same are considered together. It is contended by the plaintiffs that propositus - Narayanappa had three children, namely- (1) deceased Motappa, who had only one daughter, deceased Venkatamma, who is predecessor in title of defendants No.1, to 4; (2) deceased Chikkonu, who is the predecessor in title of defendants No.5 and 6 as well as (3) deceased Puttappa, who had only one daughter, deceased Narayanamma, who is the predecessor in title of plaintiffs and defendants No.7 to 10. Nowhere in the plaint it is alleged when the said Motappa, or Puttappa, died. It is also not alleged in the plaint when the only daughter of Motappa, Venkatamma, got married. It is also not alleged in the plaint when deceased Narayanamma, daughter of O.S.No.8725/2006 Puttappa, got married. In the cross examination of P.W.1, at page No.11, para Nos.27 and 28, he has admitted "I do not know when my late great grandfather died. I do not know that he died in the year 1922-23. ....... I do not when my great grandfather, Puttaiah, died. (In page No.15 para 1) I do not know when my grandfather/Puttappa died. For suggesting that the said Puttappa died prior to 1942-43, the witness answers that he does not know". Further in the cross examination of D.W.3 on behalf of the plaintiff, it is specifically suggested (in page No.8 para No.9) " it is true to suggest that Puttappa died in or about 1943". Further in the cross examinations of D.W.2 it is suggested by plaintiff (in page No.10 para No.20) "I do not know if Puttappa had died prior 1947". From these evidence it is clear that though the plaintiffs and defendants No.7 to 10 are claiming share, through deceased Puttappa, he died in 1943. That is before coming into force of the Hindu Succession Act 1956. There is no material to show that the mother of the plaintiffs as well as defendants No.7 O.S.No.8725/2006 to 10 was given possession of any of suit lands. In that event on the death of Puttappa, mother of plaintiffs and defendants No.7 to 10 did not succeed to the properties of deceased Puttappa, nor his daughter, deceased Narayanamma was the legal heir, of Puttappa. Hence, it cannot be said that the suit schedule properties are undivided joint family properties of plaintiffs and defendants.
15. At the cost of repetition, since nothing is alleged regarding death to Motappa and death of Venkatamma; it appears that both of them died prior to 1956. That is why, it appears to the court, the plaintiffs have suppressed the said materials fact of their death.
16. It is the specific allegation made in the plaint that the propositus, Narayanappa, was cultivating properties. The same is specifically denied by the defendants No.5 and 6. It is also alleged in the plaint and deposed by P.W.1 that Chikkonu, the father of the defendants No.5 and 6, filed application for grant O.S.No.8725/2006 of occupancy rights in respect of suit schedule properties, on behalf of joint family of plaintiffs and defendants. The same is also specifically denied by the defendants No.5 and 6. It is the contentions of defendants No.5 and 6 that the father of defendants No.5 and 6, namely - Chikkonu, filed application in his personal capacity.
17. With regard to cultivating the lands by propositus/Narayanappa, no document is produced by the plaintiffs. On the other hand, P.W. 1, in his cross examination, in page No.11, has specifically admitted that there is no documentary evidence to show that his great grandfather/Narayanappa had any property ----- (Page No.12 para No.30) it is also admitted by P.W.1 "I do know that Land Tribunal had granted lands separately to Motaiah and Chikkonu. It is true to suggest that Inam D.C. had granted the lands to those who are in cultivation of the lands". (Para No.31). "It is true to suggest that Motaiah is the eldest son of Narayanappa. It is true to O.S.No.8725/2006 suggest that Motaiah was also alive when the Inam D.C. had granted the lands. It is true to suggest that normally the eldest son of the family would be the manager of the family........ It is true to suggest that Motaiah, being the eldest son, was the manager of the family. (Page No.17 para No.11) "The re-grant of suit schedule items No.1 to 5 in favour of Chikkanna @ Chikkonu has not been challenged by Narayanamma, or Motappa's legal representatives, in any forum."
18. Further Ex.P.2/Ex.D.2, grant order, clearly shows that suit schedule properties were granted only in favour of Chikkonu, on 15.04.1958. Ex.P.3 is the notice to Chikkonu, dated 15.07.1958, requesting him to pay premium in respect of suit schedule properties No.1 to 3. Ex.P.9, application filed by the Chikkonu, for grant of suit schedule properties item No.1 to 3, dated 28.11.1956, shows no other person's name in the said application, nor it is stated in said application that the same was filed for and on behalf of the family.
O.S.No.8725/2006
19. Ex.P.12, notice issued to Chikkonu, dated 6.6.1958, directing him to pay premium in respect of suit schedule properties No.4 and 5. Ex.P.13 is revenue document, which is irrelevant. Ex.P.14 to 17, revenue documents, do not show the year. Hence, it could be considered that said documents were relating prior to 1959.
20. Further in Ex.P.11, deposition of Chikkonu, before Tribunal, dated 24.01.1958; it is specifically deposed by him, at an undisputed point of time that his father died 20 years ago and his brother, Puttappa, died 15 years ago. In that event the propositus died in 1938 and Puttappa died in 1943. Further it is deposed by him that except Chikkonu, no other person was their as legal representative, other than Chickkonu, with regard to said lands. Hence, viewed from any angle since suit schedule properties are also not the undivided joint family properties the plaintiffs are not entitled for a share in the suit schedule properties.
O.S.No.8725/2006
21. Before grant of the suit schedule properties in the name of Chikkonu, as per Sec.3 of Mysore (personal and miscellaneous) Inams Abolition Act, 1954, the suit schedule properties were vested absolutely in the state free from all encumbrances. In that event the burden of proving that the suit schedule properties were cultivated by the joint family, is on the plaintiffs. As discussed above, the plaintiffs have failed to discharge the said burden. Even though on behalf of the defendants No.5 and 6 their power of attornies/ D.W.2 & D.W.3 were examined, the evidence of D.W.2 is not helpful. Because, in almost all in his cross-examination he has answered that he does not know most of the facts. Once, as discussed above the plaintiffs have failed to discharge the burden of proving their case, even though on behalf of defendants No.5 and 6 their power of attornies are examined, the rulings relied by the plaintiffs, i.e.,
1.to 8-
1) ILR 2005 KAR 729
2) 2013 (3) ACRE 262 O.S.No.8725/2006
3) 2012(4) KCCR 2896 (DB)
4) AIR 1986 SC 79
5) 1990 (3) Kar.L.J (Supp) 286 (HC) (DB)
6) AIR 2007 SC 218
7) AIR 2006 MADRAS 304
8) 2009 (1) KCCR 328 are not helpful to the plaintiffs.
22. Even at an undisputed point of time, as per Ex.P.11, statement before Tribunal, Chikkonu has deposed, on 24.01.1958, that his father, Narayanappa, propositus, died 20 years ago and his elder brother, Puttappa, died 15 years ago. In that event the said two persons died in 1938 and 1948 respectively.
23. At the cost of repetition, it is not brought to the knowledge of the court when Motappa, his daughter Venkatamma as well as Narayanamma, daughter of Puttappa died. Even though on behalf of defendants, Ex.D14, will is produced, since the attestor of the said will has not been examined, the said will cannot be considered as an evidence. Hence, these two issues answered negatively.
O.S.No.8725/2006
24. Issue No.4 : With regard to pendency of O.S. No.6425/2005 no materials are produced by the defendants. There is no cross-examination to that effect. Hence, it cannot be said that the present suit is not maintainable. Hence, this issue is answered negatively.
25. Issue No.5 : With regard to valuation of suit, it is alleged in the plaint that suit schedule properties are in joint possession of the plaintiffs and defendants and accordingly, the court fee of Rs.200/- is paid, valuing suit u/s 35(2) of Karnataka suit valuation and court fee Act. Hence, it appears to the court that the court fee paid sufficient. Hence, issue.5 is answered accordingly.
26. Issue No.6: It is the contention of plaintiffs that suit schedule properties are in joint possession of plaintiffs and defendants, which is specifically denied by the plaintiff No.5 and
6. P.W. 1 in his cross examination, para 23, has admitted- "It is true to suggest that the plaintiffs are neither in possession of O.S.No.8725/2006 properties enjoyed by Venkatamma, nor enjoyed by Narayanamma. It is true to suggest that at no point of time we the plaintiffs were in possession of the suit properties.--- During the life time of my mother only, we had demanded for our share in the suit properties. The said demand was made about 15 years ago from now. My mother died in 19.09.1989 and even prior to that we demanded for our share". The above suit was filed in 2006, that is after lapse of 17 years from the date of death of the mother of the plaintiffs. Article 110 of Limitation Act, the period of limitation for filing the suit is 12 years, by a person excluded from a joint family property, to enforce a right to share therein, when the exclusion becomes known to the plaintiff. Hence, this suit is not filed within the period of limitation. Hence, the suit is barred by limitation . Hence, this issue is answered accordingly.
27. Issue No.8: For the sake of arguments, if suit schedule properties are considered to be the joint family properties and no partition took place, then as per Ex.P.11, order passed by O.S.No.8725/2006 Special D.C. for abolition of Inams, 5 properties were granted by Government, in favour of grand-father of defendant No.1 to 4/ Motappa. Those properties are not included in the above suit. Since the same are not included in the present suit, for the sake of argument, the suit is bad for seeking partial partition. Hence, this issue is answered positively.
28. Issue No.7: considering the special facts circumstances of the case there is no order as to costs. In view of the answers to issues No. 1 to 6 and 8, the following-
ORDER The suit is dismissed.
No order has to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 1st day of July, 2019) (SHUBHAVEER B.) XLIII Addl. City Civil & Sessions Judge, Bengaluru O.S.No.8725/2006 ANNEXURE I. List of witnesses examined on behalf of plaintiffs-
P.W.1 - Sri. Munegowda II. List of witnesses examined on behalf of defendants-
D.W.1- Sri.M.Venkatesh D.W.2- Sri N.Srinivas D.W.3- Sri.N.Krishna Murthy III. List of documents exhibited on behalf of plaintiffs-
Ex.P1 Family tree
Ex.P2 Copy of re-grant order
Ex.P3 Notice
Ex.P4 to P8 R.T.C. extracts
Ex.P9 Certified copy of application
filed before Spl. D.C.
Ex.P10 Certified copy of order sheet
Ex.P11 Certified copy of deposition
Ex.P12 Notice
Ex.P13 Revenue document
Ex.P14-P18 Certified copies of mutation
register of Mahadevapura village
IV. List of documents exhibited on behalf of defendants-
Ex.D1(a) Mutation register
Ex.D2(a) Mutation register
Ex.D3(a) RTC
(in order to avoid confusion,
these three documents which
O.S.No.8725/2006
are marked in the cross-
examination of P.W.1, are
marked accordingly.)
Ex.D1 Power of attorney
Ex.D2 Certified copy of grant
certificate dated 15.04.1958
Ex.D3 Genealogical tree
Ex.D4 to D8 RTC extracts
Ex.D9 Mutation register
Ex.D10 RTC extract
Ex.D11 Certified copy of order
Ex.D12 RTC extract
Ex.D13 Special power of attorney
Ex.D14 Certified copy of will, dated
26.05.1947
Ex.D14(a) Typed copy of Ex.D14
(SHUBHAVEER.B)
XLIII Addl.City Civil & Sessions Judge, Bengaluru O.S.No.8725/2006 (Judgment pronounced in open court) ORDER The suit is dismissed.
No order has to costs.
Draw decree accordingly.