Bangalore District Court
Sri. S. Nanjappa vs Sri. Honnaiah on 10 November, 2020
1 O.S.No.1461/2006 &
O.S.No.7061/2007
IN THE COURT OF XLIV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-45)
Dated this the 10th day of November, 2020
PRESENT: Smt.Latha,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.1461/2006 & O.S.No.7061/2007
PARTIES IN O.S.NO.1461/2006
PLAINTIFFS : Sri. S. Nanjappa
Since deceased by his Lrs.
1(a) Smt. Sujatha
W/o. Late. Nanjappa,
Aged about 37 years,
1(b) Kumari Uma
D/o. Late. Nanjappa,
Major,
1(c) Kumari Poornima
D/o. Late. Nanjappa,
Aged about 11 years,
All are R/of No.11,
First Floor, 9th Cross,
Pipe line, Malleshwaram,
Bangalore - 560 003.
(Plaintiff by G.R.R. Adv.,)
(P.1(b) by Sri.MM, Adv.,)
Vs
2 O.S.No.1461/2006 &
O.S.No.7061/2007
DEFENDANTS : 1. Sri. Honnaiah
S/o. Late. Honnaiah,
R/at. No.10th Cross,
Nagapur, West of Chord Road,
2nd Stage,
Bangalore - 560 010.
2. Sri. Boraiah
S/o. Late. Honnaiah,
3. Sri. Ramanna
S/o. Late. Honnaiah,
No.2 and 3 are
R/of. No.11, Ground and
Second Floor, Pipe line,
9th Cross,
Malleshwaram,
Bangalore - 560 003.
3a) Jayamma
W/o. Late. Ramanna
Aged about 48 years,
3b) Arun Kumar
S/o. Late. Ramanna,
Aged about 28 years,
3(a) & (b) are R/of.
R/at. No.15, 10th Cross,
Nagapur, West of Chord Road,
Bangalore - 560 010.
4. Sri. Nagesh
S/o. Late. Honnaiah,
R/at. No.15, 10th Cross,
Nagapur, West of Chord Road,
2nd Stage,
Bangalore - 560 003.
3 O.S.No.1461/2006 &
O.S.No.7061/2007
5. The Assistant Revenue Officer,
Bangalore City Corporation,
Malleshwaram Division,
Bangalore - 560 003.
6. Smt. Honnamma
D/o. Late. Honnaiah,
Aged about 57 years,
R/o. No.U11, 9th Cross,
Pipe line, Malleshwaram,
Bangalore - 560 003.
7. Smt. Puttalakshmamma
W/o. Krishnappa,
Aged Major,
R/o. Gangasamudra,
Honakere Hobli,
Nagamangala Taluk,
Mandya District.
(D.1, 2, 4, D.3(a) & D.3(b)
By T.N.A. Adv.)
(D.5 by BMT Advocate)
(D.6 by HVS Advocate)
(D.7 by IS Advocate)
PARTIES IN O.S.NO.7061/2007
PLAINTIFF : Sri. Boraiah
S/o. Late. Honnaiah,
Aged about 47 years,
No.11, II Floor,
9th Cross, Pipe line,
Malleswaram,
Bangalore - 560 003.
(By TNA Advocate)
Vs
4 O.S.No.1461/2006 &
O.S.No.7061/2007
DEFENDANTS : Sri. S. Nanjappa
Since deceased by his Lrs.
1(a) Smt. Sujatha
W/o. Late. Nanjappa,
Aged about 33 years,
1(b) Kumari Uma
D/o. Late. Nanjappa,
Aged about 16 years,
1(c) Kumari Poornima
D/o. Late. Nanjappa,
Aged about 11 years,
All are R/of No.11,
First Floor, 9th Cross,
Pipe line, Malleshwaram,
Bangalore - 560 003.
(Plaintiff by G.R.R. Adv.,)
(P.1(b) by Sri.MM, Adv.,)
Date of Institution of the suit:
(O.S.1461/2006) : 18.02.2006
Date of Institution of the suit: 04.09.2007
(O.S.7061/2007) :
Nature of the suit Suit for Partition and
(O.S.1461/2006) : separate possession.
Nature of suit Suit for Ejectment.
(O.S.7061/2007) :
Date of recording evidence : 26.07.2012
Date of Judgment : 10.11.2020
Total Duration : Day/s Month/s Year/s
5 O.S.No.1461/2006 &
O.S.No.7061/2007
(O.S.1461/2006) 22 08 14
(O.S.5614/2009) 06 02 13
COMMON JUDGMENT
The suit in O.S.No.1461/2006 is for the relief of
partition and separate possession of the share of plaintiff
after declaring that the partition deed dated 28.01.2006 as
null and void.
2. The suit in O.S.No.7061/2007 is filed by the
plaintiff for the relief of possession of the suit schedule
property and also for damages directing the defendant to
pay damages at the rate of Rs.3,500/- per month from
5.4.2006 till the possession of the property is delivered to
the plaintiff.
3. The plaintiff in O.S.No.1461/2006 is the
younger brother of defendant Nos.1, 2, 3, 4 and 6.
According to the plaintiff in O.S.No.1461/2006, their father
Late. Honnaiah acquired the suit schedule property, that
after his demise he and the defendants 1 to 4 and 6
6 O.S.No.1461/2006 &
O.S.No.7061/2007
constituted the Joint Hindu Family and he is entitled to
1/5th share in the suit schedule property.
4. The plaintiff further contended that he is
residing in the portion of plaint 'A' schedule property and
when he demanded for partition, the defendants started to
interfere with his peaceful possession and enjoyment of the
said property and threatened him to dispossess him from
the said property, that the second defendant Boraiah had
issued Legal Notice to him on 20.03.2006 calling upon him
to quit and deliver the vacant possession of the premises
under his occupation on the guise of alleged Partition Deed
dated 28.01.2006 for which, the plaintiff had issued
suitable reply dated 26.03.2006.
5. The plaintiff has also contended that he is
illiterate, ignorant and lack worldly knowledge, as such, he
is not aware of the recitals of the alleged partition which
was taken place between him and defendants 1 to 4, and 6
on 28.01.2006 and the said partition deed got executed by
mis-representation, that he has not received any amount
7 O.S.No.1461/2006 &
O.S.No.7061/2007
from the defendants more specifically Rs.12 lakhs, that
there was a partition between the parties on 10.11.2004
which refers to the joint family property, that the plaintiff
is not aware about the recitals of the partition deed dated
28.01.2006 and that the said document is a null and void
document. Accordingly, the plaintiff sought for his 1/5th
share in the suit schedule property after declaring that the
partition deed dated 28.01.2006 is null and void.
6. The defendant Nos.1 to 4 and 6 resisted the suit
of the plaintiff by filing written statement. In the written
statement they admit their relationship with the plaintiff
and denied the allegations which are traversed against
their contention.
7. The defendants 1 to 4 and 6 specifically contended
that though an unregistered Partition Deed dated
10.11.2004 was entered into between the parties to the
suit, the same was not acted upon as there was mis-
understanding between the parties to the suit including
8 O.S.No.1461/2006 &
O.S.No.7061/2007
the plaintiff, that finally, on 28.01.2006 registered Partition
Deed came to be executed between the parties in respect of
their joint family properties, that the Partition Deed dated
28.01.2006 is acted upon between the parties, that the
Khata of the respective properties got changed in their
respective names, that the plaintiff has deliberately
suppressed the material fact relating to the existence of the
said Partition Deed, that the plaintiff cannot maintain suit
for partition as there was an agreement to the registered
Partition Deed dated 28.01.2006, that the plaintiff has
already received Rs.12 lakhs from the defendants as his
share instead of getting immovable property. Therefore,
the defendants 1 to 4 prayed to dismiss the suit and also
sought for counter-claim to pass a decree of mandatory
injunction against defendant No.5 directing defendant No.5
to register the Khata of the suit schedule properties in the
name of respective parties as per the registered Partition
Deed dated 28.01.2006.
9 O.S.No.1461/2006 &
O.S.No.7061/2007
8. The defendants 1 to 4 and 6 have also filed
additional written statement on 17.04.2012. In the
additional written statement also, the defendants 1 to 4
and 6 categorically pleaded that the plaintiff has received
his share in cash of Rs.12 lakhs, that in view of receipt of
the said amount, he is estopped from saying that he has
not received the said amount, the defendants have also
filed additional written statement on 5.7.2012 after the
plaintiff got amended the plaint including certain
properties in the schedule of the plaint, the defendants in
the additional written statement dated 5.7.2012 have
specifically contended that the property described in
schedule 'D' to 'P' have already been settled in favour of
defendant No.2 though he has got changed the khata of the
said property in his name, that in the Partition Deed dated
28.01.2006 also those properties are allotted to the share
of defendant No.2, that other parties have not claimed any
right at all whatsoever on those properties.
10 O.S.No.1461/2006 &
O.S.No.7061/2007
9. The defendant No.7 who is said to be the
purchaser of item No.'N' and 'P' and plaint schedule, that
he is the bona-fide purchaser of those properties for
valuable consideration from defendant No.7, that prior to
purchase he had verified the title deeds pertaining to those
properties standing in the name of defendant No.1, that
after verification of the documents only he purchased those
properties and he is the absolute owner of those properties.
Accordingly, he denied all other plaint averments which are
traversed against his contention and he sought for
dismissal of the suit in respect of schedule 'N' and 'P' of the
plaint.
10. In O.S.No.7061/2007, the plaintiff is the
defendant No.2 in O.S.No.1461/2006 who is the brother of
Nanjappa, the plaintiff Sri.Boraiah in O.S.No.7061/2007
has specifically contended that the defendant is his
younger brother and by virtue of the registered Partition
Deed dated 28.01.2006 he has vacated the portion of the
properties which is described in the plaint schedule i.e.,
11 O.S.No.1461/2006 &
O.S.No.7061/2007
the premises bearing No.11, situated in the First Floor, 9 th
Cross, Pipeline, Malleswaram, Bangalore, that on
20.03.2006 he got issued Legal Notice to the defendant to
vacate and hand over the vacant possession of the said
property on the expiry of 15 days from the date of his
knowledge of receipt of registered notice. The defendant
instead of complying the notice had issued reply notice
with untenable contentions on 26.03.2006, that the
defendant is also liable to pay damages to him at the rate
of Rs.3,500/- per month from 20.03.2006 till handing over
the vacant possession of the suit schedule property.
Accordingly, the plaintiff sought for eviction of defendant
from the suit schedule property.
11. On the other hand, the defendant in his written
statement admitted his relationship with the plaintiff and
specifically denied that he is liable to vacate the suit
schedule property, that the defendant has also contended
that the plaintiff as well as the other brothers and sisters
filed suit in O.S.No.1461/2006 for the relief of partition,
12 O.S.No.1461/2006 &
O.S.No.7061/2007
that he is not liable to pay damages to the plaintiff as
claimed by him, that there is no cause of action to file the
suit. Accordingly, the defendant sought for dismissal of the
suit.
12. In view of the application filed for clubbing of
the suits, both suits are clubbed for recording common
evidence. Accordingly, in O.S.No.1461/2006, the evidence
of the parties is recorded.
13. On the basis of the pleadings, the Predecessor-
in Office of this court had framed the issues as under:
ISSUES IN O.S.No.1461/2006
1. Whether the plaintiff prove the
partition deed dt.10.11.2004 ?
2. Whether the plaintiff prove that
defendants have refused to give the
share to the plaintiff in terms of the
partition deed ?
3. Whether the plaintiff is entitled for
partition and separate possession of
his share as per the partition deed
dt.10.11.2004 ?
4. Whether the suit in the present form
is maintainable ?
13 O.S.No.1461/2006 &
O.S.No.7061/2007
5. Whether the defendants prove the
partition deed dt. 28.01.2006 ?
6. Whether the suit as a cause ?
7. Whether the court fee paid is in-
sufficient ?
8. Whether the defendants No.1 to 4 are
entitled for the counter claim ?
9. What order or decree?
Addl.Issues dated 21.05.2012:-
1. Whether the plaintiff proves the
circumstances pleaded in Para-5(a) of
the plaint to entitle him to file the
suit?
2. Whether the plaintiff proves that the
partition deed dated 28.1.2006 is not
binding on him?
3. Whether the plaintiff proves the
possession of portion of 'A' schedule
property as on the date of suit?
4. Whether the plaintiff proves the
interference by the defendants No.1
to 4?
5. Whether the plaintiff is entitled for
declaration as sought for?
6. Whether the plaintiff is entitled for
permanent injunction?
14 O.S.No.1461/2006 &
O.S.No.7061/2007
7. Whether the plaintiff is estopped from
filing the suit?
8. Whether the Court fee paid is not
sufficient?
9. Whether the suit has become
infructous?
10. Whether the suit has no cause?
ADDL. ISSUE DATED 9.7.2012
11. Whether plaintiff proves that the
defendants have obtained the
partition deed dt:28.01.2006 in
between himself and defendants 1 to
4 is null and void as it is obtained by
mis-representation and fraud ?
ADDL.ISSUES ARE FRAMED AS PER
ORDER DT:2/6/2014.
12. Whether the 7th defendant proves
that the plaintiff has not pleaded any
facts and sought any relief against
him and thereby, the suit is liable to
be dismissed against him?
13. Whether the 7th defendant proves
that majority of the suit properties
are situated within the jurisdiction of
Nagamangala Taluk of Mandya
15 O.S.No.1461/2006 &
O.S.No.7061/2007
District and thereby, this Court has
no territorial jurisdiction to try the
present suit?
14. Whether the 7th defendant proves
that suit items 'N' and 'P' were the
granted lands to the defendant No.1
by the Government and he is [7 th
defendant], the bonafide purchaser
of those two items of properties from
defendant No.1 for valuable
consideration and thereby, those two
properties do not form part and
parcel of alleged ancestral and joint
family properties of plaintiff and he
is not entitled for partition in them?
ADDL. ISSUE NO.15.DTD.22.9.20
15. Whether the plaintiffs prove that the
suit schedule properties are
belonging to their joint family
consisting of defendants 1 to 6 and
themselves ?
16 O.S.No.1461/2006 &
O.S.No.7061/2007
ISSUES IN O.S.No.7061/2007.
1. Whether the plaintiff prove that he
has been allotted the suit property
by registered partition deed dated
28.01.2006 ?
2. Whether the plaintiff prove that the
defendant has agreed to handover
the suit schedule property to the
plaintiff within 3 months from the
date of registration of the partition
deed ?
3. Whether the suit is bad for non-
joinder of necessary parties ?
4. Whether the court fee paid is
insufficient ?
5. Whether the plaintiff is entitled for
the reliefs claimed ?
6. What order or decree ?
14. The plaintiff, in order to substantiate his
contentions, got examined himself as PW.1 and two more
witnesses as PW.2 and PW.3 and got 20 documents
marked as Ex.P.1 to P.20 and closed their side of evidence.
The defendants in order to substantiate their contention
got defendant No.2 examined as DW.1 and one witness as
17 O.S.No.1461/2006 &
O.S.No.7061/2007
DW.2 and has also got 47 documents marked as Exs.D.1
to D.45 and closed their side of evidence.
15. The findings of the Court on the issues framed
in O.S.No.1461/2006 are ;
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Issue No.4 : In the Affirmative;
Issue No.5 : In the Affirmative;
Issue No.6 : In the Negative;
Issue No.7 : In the Negative;
Issue No.8 : In the Negative;
Addl.Issue No.1 : In the Negative;
Addl.Issue No.2 : In the Negative;
Addl.Issue No.3 : In the Affirmative;
Addl.Issue No.4 : In the Negative;
Addl.Issue No.5 : In the Negative;
Addl.Issue No.6 : In the Negative;
Addl.Issue No.7 : In the Negative;
Addl.Issue No.8 : In the Negative;
Addl.Issue No.9 : In the Negative;
Addl.Issue No.10 : In the Negative;
Addl.Issue No.11 : In the Negative;
Addl.Issue No.12 : In the Negative;
Addl.Issue No.13 : In the Negative;
Addl.Issue No.14 : In the Negative
Addl.Issue No.15 : In the Affirmative;
Issue No.9 : As per the final order for the
following ;
16. The findings of the Court on the issues framed
in O.S.No.7061/2007 are ;
18 O.S.No.1461/2006 &
O.S.No.7061/2007
Issue No.1 : In the Affirmative;
Issue No.2 : In the Affirmative;
Issue No.3 : In the Negative;
Issue No.4 : In the Negative;
Issue No.5 : In the Affirmative;
Issue No.6 : As per the order below for the
following;
REASONS
17. Addl. Issue No.15 in O.S.No.1461/2006:
Deceased plaintiff Nanjappa filed this suit seeking the relief
of partition in the properties mentioned in schedule 'A' to
'R' of the plaint. Defendant No.1 to 4 are the brothers of
deceased plaintiff and defendant No.6 is the elder sister of
plaintiff. The plaintiff specifically contended that the
schedule 'A' to 'R' properties are acquired by their parents,
that after the demise of their parents, all the brothers and
sister were living together and they entered into a Partition
Deed dated 10.11.2004 in the presence of well-wishers of
the family, that the plaintiff being an illiterate, ignorant
and having lack of worldly knowledge, the defendants 1 to
4 and 6 by mis-representation got registered the Partition
Deed on 28.01.2006 by mis-representing that they are
19 O.S.No.1461/2006 &
O.S.No.7061/2007
getting registered the Partition Deed dated 10.11.2004 on
that day i.e., on 28.01.2006. Therefore, the plaintiff has
also sought for the relief of declaration to declare that the
Partition Deed dated 28.01.2006 is not binding on him and
the same is null and void document.
18. It is undisputed fact that the plaintiff is the
youngest brother of defendants 1 to 4 and 6. It is also
undisputed fact that, the properties mentioned in schedule
'A' to 'R' are belonging to their family. The plaintiff has also
produced the documents relating to the suit schedule
properties to show that the said properties are belonging to
their family. The documents are at Ex.P.3 to Ex.P.13, the
computerized copies of the RTCs relating to agricultural
properties and Ex.P.16 to P.20 are also relating to the suit
schedule properties. Ex.P.16 is the certified copy of the
registered sale deed dated 16.06.1956. Ex.P.17 is the
registered sale deed dated 11.03.1968, Ex.P.18 is the
certified copy of the registered sale deed dated 11.03.1968
and Ex.P.19 and 20 are the computerised copies of RTCS.
20 O.S.No.1461/2006 &
O.S.No.7061/2007
From these documents and also in view of undisputed fact
that the suit schedule properties are the properties
belonging to the family of deceased plaintiff and defendants
1 to 4 and 6, this court has to hold that the suit schedule
properties are belonging to their family and they hold it
jointly. Accordingly, Additional Issue No.15 in O.S.
No.1461/2006 is answered in the Affirmative.
19. Issue No.1 , Issue No.3, Issue No.5, Addl.
Issue No.1, Addl. Issue No.2, Addl. Issue No.11 in
O.S.No.1461/2006: These are the crucial issues involved
in this suit. Absolutely there is no dispute regarding the
relationship between the parties and both parties contend
that the suit schedule properties are joint family properties
acquired by their parents Late.Honnaiah and
Smt.Ningamma. In the beginning, the plaintiff had sought
for partition in respect of plaint 'A' to 'C' schedule
properties. Thereafter, by way of amendment to the plaint
he had added some more schedules viz., schedule 'D' to
schedule 'R' and the plaintiff had also changed the prayer
21 O.S.No.1461/2006 &
O.S.No.7061/2007
column seeking to declare that the registered Partition
Deed dated 28.01.2006 entered between the plaintiff and
defendants 1 to 4 and defendant No.6 as null and void as it
is obtained by mis-representation and fraud. As seen from
the plaint averments, the plaintiff deceased Nanjappa is
the last brother of defendant Nos.1 to 4 and 6. According
to him, he is an illiterate, ignorant and having lack of
worldly knowledge, that he is not aware of the recitals of
the partition taken place between them on 28.01.2006.
The plaintiff has also contended that the defendant Nos.1
to 4 and 6 have obtained the said Partition Deed by mis-
representation and fraud, that there was already a
partition in the family on 10.11.2004, that in the said
partition, he had been given the house site situated at
Rajajinagara and Rs.500/- out of the joint family fund and
his brother Honnaiah had to pay Rs.2 lakhs to him on or
before 9.2.2005, that the said partition was a genuine
partition and the defendants by mis-representing that they
are going to register the very same Partition Deed on
28.1.2006 got registered a different Partition Deed on that
22 O.S.No.1461/2006 &
O.S.No.7061/2007
day without giving any immovable property to him by
allotting only Rs.12 lakhs to his share. The plaintiff
further contended that he has also not received Rs.12
lakhs from the defendants as they have not paid the said
amount. On the other hand, the defendants No.1 to 4 in
their written statement have specifically denied the
allegations made against them in the plaint and specifically
contended that though there was an unregistered Partition
Deed dated 10.11.2004, the said Partition Deed was not
acted upon as there was mis-understanding between the
parties including the plaintiff, that finally as per the
agreement between the plaintiff and defendants 1 to 4 and
defendant No.6 they entered into Partition Deed dated
28.01.2006 and same is registered in the office of the Sub-
Registrar, Rajajinagar, Bangalore. Since the plaintiff has
come before the court with definite allegations against the
defendants that they have registered the Partition Deed
dated 28.01.2006 by mis-representation and fraud, the
burden is heavy on him to establish those aspects in order
to get a decree in the suit. Under order 6 Rule 4 of Code
23 O.S.No.1461/2006 &
O.S.No.7061/2007
of Civil Procedure, a party pleading fraud and mis-
representation in respect of the transaction must give
material particulars of allegations and in the absence of
such particulars his plea must be rejected. The general
allegations without particulars are not sufficient. Each
mis-representation, its date and whether it was made in
writing or verbally, occasion thereof, must be stated.
Likewise, in the case of pleading fraud, the particulars of
alleged fraud which are required to be stated in the plaint
will depend on the facts of each particular case and no
abstract principle can be laid down in that regard. When
fraudulent mis-representation is pleaded, the nature of
fraudulent representation, person who made it and context
and time in which it was made must be pleaded in
pleadings. In the absence of such particulars the party
cannot succeed. On the background of this proposition of
law, if the pleadings in the plaint are examined, the
plaintiff pleaded that the defendants, by mis-
representation that they are going to register the Partition
Deed entered into between them on 10.11.2004 have got
24 O.S.No.1461/2006 &
O.S.No.7061/2007
registered the Partition Deed on 28.01.2006, that only after
the registration of the Partition Deed dated 28.01.2006 he
came to know about the fact that the Partition Deed
registered on 28.01.2006 is not the Partition Deed dated
10.11.2004, that in the Partition Deed dated 10.11.2004
he had been given immovable property situated in
Rajajinagar. Whereas in the Partition Deed dated
28.01.2006 he had been only alloted with cash of Rs.12
lakhs instead of immovable property, that said cash has
also not been paid to him. The plaintiff in order to
substantiate his contention, has filed affidavit in-lieu of
examination-in-chief and on perusal of the records after
filing the affidavit in-lieu of examination-in-chief and prior
to his cross-examination he passed away. Since he passed
away in the middle of the proceedings his wife and children
came on record and his wife plaintiff No.1(a) got herself
examined as PW.1 and her daughter plaintiff No.1(b)
Kumari Uma got examined herself as PW.3. In the
examination-in-chief, both plaintiffs reiterated the
averments made in the plaint. The learned counsel for
25 O.S.No.1461/2006 &
O.S.No.7061/2007
defendants cross-examined PW.2 in length. In the cross-
examination it has been elicited from PW.2 that she has
not enquired about the educational qualification of
deceased Nanjappa, that at the time of their marriage he
was residing at Bangalore in Malleswaram, that her
husband owned a goods luggage carrier autorickshaw, that
he was plying it for hire, that he had attached the services
of his goods rickshaw to an agency and plying it on
contractual hire business, that he was earning
Rs.10,000/- to Rs.12,000 p.m., from his goods
autorickshaw, that she was getting honorarium of Rs.9,000
as she was working as Homeguard, that her father-in-law
died in the year 1998. Ex.D.1 registered Partition Deed
dated 28.01.2006 was got marked through PW.2 and she
has also admitted the signatures of her husband
forthcoming in Ex.D.1. Ex.D.2 is an agreement said to be
entered into between Nanjappa and Boraiah who is
defendant No.2. PW.2 has also admitted the signatures of
her husband on Ex.D.2 and since PW.2 admitted the
signatures on the said document got marked through her.
26 O.S.No.1461/2006 &
O.S.No.7061/2007
It has also been elicited from PW.2 that as recited in
Ex.D.1 Partition Deed, the value of property is given to
each shares except her husband Nanjappa which is less
than Rs.12 lakhs. The evidence of PW.3 is no way helpful
to the case of the plaintiffs as she was minor at the time of
the alleged Partition Deeds. Admittedly, the plaintiffs have
not examined any independent witnesses to establish their
contention averred in the plaint.
20. On the other hand, the defendants in order to
substantiate their contentions got defendant No.2
examined as DW.1 and one witness as DW.2 who is said to
be the witness to Ex.D.2 agreement and said that he was
there at the time of talks were going on regarding the
partition of joint family property. Though learned counsel
for plaintiff cross-examined DW.1 and DW.2 in length,
except denial of the suggestions nothing more is elicited
from them. In this suit there is oath against oath. Both
parties placed their case by way of evidence. However,
since fraud and mis-representation is pleaded, the burden
27 O.S.No.1461/2006 &
O.S.No.7061/2007
is on the plaintiffs to establish those aspects. On
meticulous perusal of entire oral evidence, the court did
not find that the plaintiffs are able to establish the fraud
and mis-representation as pleaded. Even in the pleadings,
the words 'fraud' and 'mis-representation' are mentioned.
However, how the fraud is played and who has made
misrepresentation are not pleaded specifically. Absolutely
there is no specific pleading as to whether all the
defendants 1 to 4 and 6 made mis-representation to the
deceased plaintiff or whether the defendant No.2 alone
made mis-representation to the plaintiff. The plaintiffs
ought to have examined independent witness to establish
their contentions. At least, they would have examined the
witnesses who have signed Ex.D.1 or Ex.P.1 or at least any
elderly person who participated when the negotiations were
going on. But no witnesses are examined. Only on the
basis of self-serving statement of the parties, the court
cannot form opinion that the plaintiffs have proved the
contention taken by them in the pleadings. The learned
counsel for plaintiffs during the course of arguments
28 O.S.No.1461/2006 &
O.S.No.7061/2007
submitted that though in Ex.D.1 Partition Deed dated
28.01.2006 there is mention about the possession of joint
family fund of Rs.16 lakhs, actually there was no joint
family fund, that in the Partition Deed dated 10.11.2004
(Ex.P.1) the parties to the deed have stated that they
possessed joint family fund of Rs.3,600/- then, how come
in the year 2006 the joint family possessed Rs.16 lakhs.
The learned counsel for plaintiffs has also relied on the
deposition of PW.2 to that effect. But when a document
came into existence and certain recitals are included in the
document, the court has to rely on only the recitals of the
document. Under Section 91 of the Indian Evidence Act,
When the terms of a contract, or of a grant, or of any other
disposition of property, have been reduced to the form of a
document, and in all cases in which any matter is required
by law to be reduced to the form of a document, no
evidence shall be given in proof of the terms of such
contract, grant or other disposition of property, or of such
matter, except the document itself, or secondary evidence
of its contents in cases in which secondary evidence is
29 O.S.No.1461/2006 &
O.S.No.7061/2007
admissible under the provisions of the Indian Evidence Act.
Evidently here, a registered Partition Deed is there and as
per the mutual understandings of the parties to the
documents, the terms of partition were reduced into
writing and the recitals of the document now cannot be
disputed. As already discussed above, apart from the
Partition Deed dated 28.01.2006 there is also an
agreement between plaintiff and defendant No.2 regarding
payment of Rs.12 lakhs to the plaintiff instead of giving
immovable property which is at Ex.D.2. Therefore, this
court is of the considered view that unless and until
acceptable legal evidence is placed, the contention of
plaintiffs that the joint family did not possess Rs.16 lakhs
cannot be taken into consideration.
21. The learned counsel for plaintiffs also
submitted that, the deceased Nanjappa had no knowledge
about the recitals of Partition Deed dated 28.01.2006, that
he was made to sign the said document without explaining
the contents of the said documents but this court unable
30 O.S.No.1461/2006 &
O.S.No.7061/2007
to agree with the arguments advanced by learned counsel
for plaintiffs because the defendants produced Ex.D.2 the
agreement between Nanjappa and defendant No.2. The said
agreement is dated 12.11.2005. No doubt the plaintiffs do
not admit the execution of this document also. However,
DW.2 who is an independent witness and attestor to
Ex.D.2. He specifically deposed before the court about the
execution of the said document and the learned counsel for
plaintiffs during the course of arguments submitted that
there is no pleading in respect of the agreement dated
12.11.2005 and that this agreement is created after filing
written statement only to substantiate the defense taken
by the defendants. This court has meticulously examined
Ex.D.2 agreement. If at all this agreement is created after
filing of the written statement, in the signed blank stamp
papers, the contents of the document would not have typed
till the signature of deceased Nanjappa. In all the three
pages, the contents of the document is just above the
signature of Nanjappa. As seen from the recitals of this
agreement, on the date of agreement i.e., on 12.11.2005,
31 O.S.No.1461/2006 &
O.S.No.7061/2007
Nanjappa had received Rs.2 lakhs. If the recitals of this
agreement is examined, this agreement came into existence
after the unregistered Partition Deed dated 10.11.2004. In
the said Partition Deed Nanjappa had been given with a
house site at Malleswaram and defendant No.2 Boraiah
had been given with the agricultural properties situated at
Sankanahalli and as seen from the recitals of this
agreement, Nanjappa was not desirous to have immovable
property i.e., the house site situated at Malleswaram
instead of that he wanted cash of Rs.12 lakhs. Therefore,
as seen from Ex.D.2, there was understanding between
deceased Nanjappa and defendant No.2 that Nanjappa
should give his house site to defendant No.2 and also
agreed to receive Rs.12 lakhs in cash from defendant No.2.
Accordingly on the date of agreement as per the recitals of
agreement he received Rs.2 lakh from defendant No.2 and
agreed to receive the remaining amount of Rs.10 lakhs on
the date of registration of Partition Deed and in the very
same ageement there is also an endorsement dated
11.12.2005 regarding receipt of Rs.4 lakhs in presence of
32 O.S.No.1461/2006 &
O.S.No.7061/2007
witnesses from defendant No.2. Nanjappa had signed this
endorsement and PW.2 has admitted the signature of
Nanjappa. The sister of Nanjappa and defendant No.2 viz.,
Honnamma has also witnessed this document. If at all
this endorsement as well as the agreement are created
documents, the plaintiff would have examined Honnamma
who appears to be a neutral person in the suit. Mere
denial of the execution of the document itself is not suffice
to discard the document. Except the denial, the plaintiffs
have not placed any material before the court to discard
the agreement dated 12.11.2005. Evidently this agreement
came into existence after the execution of an un-registered
Partition Deed dated dated 10.11.2004. It has also come in
evidence that plaintiff and defendant No.2 were not happy
with the partition and there was mis-understanding
between the parties after the execution of the unregistered
Partition Deed dated 10.11.2004. It appears that after the
execution of un-registred Partition Deed, since there was
mis-understanding between Nanjappa and defendant No.2,
they entered into this agreement dated 12.11.2005 and as
33 O.S.No.1461/2006 &
O.S.No.7061/2007
seen from the proceedings of this suit, except Nanjappa
and defendant No.2, no other parties are interested in the
suit that shows that the mis-understanding regarding
partition was only with deceased Nanjappa and defendant
No.2 and it appears, to remove the said mis-
understandings they entered into this agreement dated
12.11.2005. One more circumstance which also
strengthens the mind of the court to accept this agreement
is that, after the execution of Ex.D.2 agreement, Nanjappa
purchased a property along with his wife on 29.11.2005
and it can be said that soon after the execution of this
agreement, they purchased a property for Rs.3,60,000/- at
Hegganahalli Village which is a site measuring 30 ft x 45 ft
with AC sheet roofed house. PW.1 in her evidence has
deposed that they have purchased this property by
receiving amount from her parental house. Except the
self-serving statement of PW.2, no documentary evidence is
produced to show that to purchase this property, PW.2 had
received amount from her parental house. In the absence
of sufficient material to that effect from the circumstances,
34 O.S.No.1461/2006 &
O.S.No.7061/2007
the court can gather that soon after the agreement dated
12.11.2005, deceased Nanjappa and his wife purchased
the property in Hegganahalli by receiving the amount from
defendant No.2. The certified copy of the sale deed is at
Ex.D.4. Likewise, Ex.D.31 is also a certified copy of the
sale deed standing in the name of deceased Nanjappa,
which is dated 20.02.2006 that means after the
registration of the Partition Deed dated 28.01.2006, the
plaintiff has purchased the property in Hegganahalli village
for Rs.3,22,000/- and there is no explanation from the
plaintiffs as to how they gained Rs.3,22,000/- to purchase
the property mentioned in Ex.D.31 if at all they have not
received amount from defendant No.2. If at all the
deceased plaintiff and his wife had any savings from their
earnings, they would have stated about the said fact at
least in the evidence. But no such evidence is available on
record and they have not whispered about the purchase of
those two sites on their behalf. There is evidence on record
to show that plaintiff has purchased two sites on his own,
however, there is no evidence on record to show that except
35 O.S.No.1461/2006 &
O.S.No.7061/2007
the deceased plaintiff his other brothers have also
purchased properties independently. Then how can the
court form an opinion that deceased Nanjappa is ignorant
and was lacking with worldly knowledge than the
defendant Nos.1 to 4. From the circumstances of the case,
one can gather that Nanjappa had every worldly
knowledge, he was running his luggage autorickshaw, he
was doing financial transactions independently, he had the
knowledge of how he can appropriate the money for his
future. It appears, for the said purpose, he demanded for
cash instead of immovable property during the time of
partition. Here, man may lie but not the circumstances.
22. PW.2 in her evidence has clearly deposed that
as recited in Ex.D.1, the values of properties given to each
sharer except the share of her husband Nanjappa was less
than Rs.12 lakhs and as seen from the recitals of Ex.D.1,
the value of the immovable property shown is less than
Rs.12 lakhs, which are allotted to the share of other
sharers. The plaintiffs have not placed any material before
36 O.S.No.1461/2006 &
O.S.No.7061/2007
the court showing the actual value of the property at the
time of execution of Ex.D.1 Partition Deed. Without
producing any document to show the actual value of the
property, the plaintiffs cannot contend that Rs.12 lakhs is
less valued than the immovable property alloted to the
other sharers. If at all the less valued property is allotted to
the other sharers except defendant No.2, the other sharers
viz., defendant No.1, 3, 4 and 6 would also have raised
objections, but they have not raised any objection and on
the other hand, defendant No.1, 3 and 4 have filed
common written statement. That means, the plaintiff alone
is unsatisfied with the partition for the reason known to
him. Actually, less share is allotted to defendant No.6
Honnamma, the only sister of plaintiff and defendants 1 to
4. But she has not come before the court and contested
the suit along with the plaintiffs. That itself show that the
plaintiff alone is raising objections without any reason. If
at all the deceased plaintiff was unaware of reading and
writing, admittedly his wife is literate, he would have taken
her for his assistance and there is no evidence showing his
37 O.S.No.1461/2006 &
O.S.No.7061/2007
wife had also accompanied him to the office of the Sub-
Registrar. The said conduct of plaintiff shows that he had
every knowledge about the contents of the Partition Deed
dated 28.01.2006. More over, under Section 114(2) of
Indian Evidence Act, there is a presumption that all official
acts have been regularly performed. Therefore, without
following the procedure while registering the document, the
Sub-Registrar would not have registered the document.
There is also one more reason i.e., the no objections given
by the plaintiff as per Ex.P.18 after execution of Partition
Deed for change of khata in the name of defendant No.2. If
at all the plaintiff had no knowledge about the contents of
Ex.D.1, he would not have said no objection to defendant
No.2 to change the khata in respect of property situated at
Malleswaram, which is the property allotted to the share of
deceased plaintiff in the unregistered Partition Deed dated
10.11.2004.
23. The learned counsel for plaintiffs has also
canvassed his arguments that in the draft of Partition Deed
38 O.S.No.1461/2006 &
O.S.No.7061/2007
dated 10.11.2004, the deceased plaintiff was given
immovable property and in the registered Partition Deed
dated 28.01.2006 no immovable property is given to the
deceased Nanjappa and that the defendants have played
fraud on him and made mis-representation to him to take
his signatures on Ex.D.1 Partition Deed. This argument do
not hold any water because in between i.e., after the
preparation of draft Partition Deed dated 10.11.2004 and
prior to the execution of the registered Partition Deed dated
28.01.2006, there was an agreement between the deceased
plaintiff and defendant No.2 as per Ex.D.2. As already
observed above, since the plaintiffs failed to disprove this
document and the circumstances presupposes that there
was actually an agreement between deceased plaintiff and
defendant No.2 as per Ex.D.2, in the registered Partition
Deed dated 28.01.2006, the deceased plaintiff was allotted
with cash of Rs.12 lakh only. The said amount is agreed to
be received by the plaintiff in the agreement dated
11.12.2005 and as seen from the draft Partition Deed
dated 10.11.2004 and the registered Partition Deed dated
39 O.S.No.1461/2006 &
O.S.No.7061/2007
28.01.2006, the only difference is that the defendant No.2
has taken the site allotted to the plaintiff and agreed to pay
Rs.12 lakh to the deceased plaintiff. Except this change,
no other change is forthcoming in both the documents.
Since this court is accepting the execution of Ex.D.2
agreement between deceased plaintiff and defendant No.2,
it cannot be said that mis-representation was made to the
plaintiff and defendants played fraud on him to take
signatures on Ex.D.1 Partition Deed. The terms to the
Partition Deed had already been agreed between plaintiff
and defendant No.2 at the time of execution of Ex.D.2
agreement and in the agreement, the plaintiff had also
undertaken that he is not going to dispute the terms of the
said agreement at the time of execution of registered
Partition Deed. It appears, in view of the execution of
agreement dated 11.12.2005, the plaintiff without thinking
much might have signed the registered Partition Deed
dated 28.01.2006.
40 O.S.No.1461/2006 &
O.S.No.7061/2007
24. The learned counsel for plaintiff has also
submitted much regarding unequal distribution of share to
defendant No.6 who is the sister of deceased plaintiff and
defendant Nos.1 to 4. This argument is not available to
the counsel for plaintiff because, the sister of deceased
plaintiff is already a party to the suit. If at all she thought
that she was given less share in the Partition Deed she
would have come before the court and challenged the
Partition Deed along with the deceased plaintiff. But, she
has not come before the court and disputed the Partition
Deed. That itself shows that she is satisfied with the share
given to her. It appears, except plaintiff all other sharers
are satisfied with the partition. Though the plaintiff
pleaded that the registered Partition Deed dated
28.01.2006 is the outcome of mis-representation and
fraud, same has not been substantiated by legally
acceptable evidence. Therefore, the contention of plaintiff
cannot be acceptable. From 2004 till the execution of the
said Partition Deed there were negotiations between the
parties and if the documents on record are scrutinized, it is
41 O.S.No.1461/2006 &
O.S.No.7061/2007
only the plaintiff who was unsatisfied with the share given
to him though major part of share is given to him. No
doubt the plaintiff has taken the contention that he has
not received any amount from his brothers, but the
documents on record clearly establish that he has received
the amount from his brothers as recited in the Partition
Deed. If at all he had not received the amount, it is the
duty of the plaintiffs to establish that they had sufficient
independent income to purchase the property as per
Ex.D.4 and Ex.D.31 and in the absence of any material on
record regarding the income which was available in the
family of plaintiffs, the court has to consider that they have
purchased the property from the amount received from the
brothers of deceased plaintiff. Learned counsel for the
plaintiffs also submitted that Ex.D.1 Partition Deed is of
the year 2006 which came to be executed after the
amended Hindu Succession Act, 2005 came into force, that
therefore the daughters of deceased plaintiff ought to have
made as the parties to the said Partition Deed as they have
also become the co-parceners along with the deceased
42 O.S.No.1461/2006 &
O.S.No.7061/2007
plaintiff and defendant Nos.1 to 4. However, this court
could not accept the arguments advanced by the learned
counsel for the plaintiffs. Because, it is not the case of
plaintiffs that the suit schedule properties are ancestral
properties. It is the specific contention of plaintiffs that the
suit schedule properties are their joint family properties.
Hence, Section 8 of Hindu Succession Act is applicable in
the case of parties to the suit and not Section 6 of Hindu
Succession Act. Therefore, the daughters of deceased
plaintiff were no way necessary parties to the Partition
Deed dated 28.01.2006. If the facts of this case are viewed
in any angle, the plaintiffs failed to establish the
allegations made against defendants that they played fraud
on him and made mis-representation at the time of
execution of Ex.D.1 Partition Deed dated 28.01.2006.
Therefore, this court is unable to accept the contention of
plaintiffs. It is the considered view of this court that with
the mutual understanding between the parties, they
entered into partition and got it registered on 28.01.2006
and the said Partition Deed is a genuine Partition Deed.
43 O.S.No.1461/2006 &
O.S.No.7061/2007
Accordingly, Issue Nos.1 and 3 are answered in the
negative, Issue No.5 is answered in the affirmative and
Addl. Issue No.1, 2 and 11 are answered in the negative.
25. Issue No.7, Addl. Issue No.8 in
O.S.No.1461/2006 : This court while passing orders on
I.A.No.XIII has elaborately discussed about valuation of
suit and payment of court fee and also came to the
conclusion that the plaintiffs have paid sufficient court fee
in a suit for partition. Therefore, the contention taken by
the defendants that the court fee paid is insufficient cannot
be accepted. Since the plaintiffs have paid sufficient court
fee, Issue No.7 and Addl.Issue No.8 is answered in the
Negative.
26. Issue No.6, Addl. Issue No.7, Addl. Issue
Nos.9 and 10 in O.S.No.1461/2006 : As seen from the
cause of action column, in para No.9 of the plaint, the
deceased plaintiff had pleaded that the cause of action
arose on 7.2.2006 when the plaintiff asked his brothers to
give his share for his peaceful possession and enjoyment of
44 O.S.No.1461/2006 &
O.S.No.7061/2007
suit schedule property. However, if the other plaint
averments are gone through, on the date of demanding the
partition, there was already a partition between the family
members and actually there was no cause of action to the
plaintiff to file the suit. However, the plaintiff after filing
the suit, got amended the plaint and also sought for the
cancellation of the registered Partition Deed dated
28.01.2006. Since, later on he challenged the said
Partition Deed, there was cause of action to the plaintiff to
file the suit and the defendants have also taken the
contention that the suit has become infructuous. Except
bald pleadings, no material is placed to hold that the suit
has become infructuous. The plaintiffs have got amended
the plaint seeking cancellation of the Partition Deed
28.01.2006. Therefore, it cannot be said that the suit of
the plaintiffs has become infructuous and plaintiffs are
estopped from seeking partition. Hence Issue No.6, Addl.
Issue No.7, Addl. Issue No.9 and Addl. Issue No.10 are
answered in the Negative.
45 O.S.No.1461/2006 &
O.S.No.7061/2007
26. Issue No.4 in O.S.No.1461/2006: The
defendants in their written statement have also taken their
contention that the suit in the present form is not
maintainable. In view of the contention taken by the
defendants in the written statement, the plaintiffs amended
the plaint and sought for cancellation of registered
Partition Deed by contending that the said deed is the
outcome of mis-representation and fraud. In view of the
amendment to the plaint, at present, the suit is
maintainable. Hence, issue No.4 is answered in the
affirmative.
27. Addl. Issue No.13 O.S.No.1461/2006 : The
defendant No.7 in his written statement has taken the
contention that he is the purchaser of item No. 'N' and 'P'
of plaint schedule properties from defendant No.1 for
valuable consideration, that most of the properties are
situated within the jurisdiction of Nagamangala Taluk of
Mandya Taluk and this court has no jurisdiction to try the
suit. But this court is not agreeing with the contention
taken by defendant No.7 in his written statement because,
46 O.S.No.1461/2006 &
O.S.No.7061/2007
Item Nos.'A' to 'C' properties are situated within the
jurisdiction of this court and it is the choice of the plaintiff
to file the suit either in Nagamangala or in Bangalore.
Since some of the properties are situated within the
jurisdiction of this court, this court has territorial
jurisdiction to try the suit. Accordingly, Addl. Issue No.13
is answered in the negative.
28. Addl. Issue Nos.12 and 14 in
O.S.No.1461/2006: Though the defendant No.7 filed
written statement by contending that he has purchased the
property described in 'N' and 'P' schedule of the plaint for
valuable consideration amount, in the later stage of
proceedings he has not appeared and substantiated his
contention either by oral evidence or by producing any
documentary evidence. Therefore, it cannot be said that
the defendant No.7 has substantiated his pleadings and for
lack of evidence his contentions cannot be accepted.
Therefore, Addl. Issue No.12 and Addl. Issue No. 14 are
answered in the Negative.
47 O.S.No.1461/2006 &
O.S.No.7061/2007
29. Issue No.1 and 2 in O.S.No.7061/2007: It is
admitted fact that the suit schedule property in
O.S.No.7061/2007 viz., the portion of the house property
measuring approximately 10 ft x 34 ft bearing No.11,
situated in 1st Floor, 9th Cross, Pipeline, Malleswaram,
Bangalore - 03 is the property allotted to the share of
defendant No.2 and in O.S.No.7061/2007, the defendant
No.2 is the plaintiff and he sought for eviction of plaintiff
from the said property. Now, this court is holding that the
registered Partition Deed dated 28.01.2006 is a valid and
genuine document. Since the said property is allotted to
the defendant No.2 in O.S.No.7061/2007 and it is also an
admitted fact that the deceased plaintiff was residing in the
said property and now his wife and children are residing
there with the permission of defendant No.2, that the
defendants have also pleaded that after partition the
defendant No.2 insisted the deceased plaintiff to vacate the
said premises and that the deceased plaintiff had asked
defendant No.2 for three months time as his children were
studying in the nearby school of the said premises. Even
48 O.S.No.1461/2006 &
O.S.No.7061/2007
otherwise, since defendant No.2 is the owner of the said
property, the plaintiffs are liable to vacate the said
premises. The plaintiffs in O.S.No.1461/2006 have not
denied that they sought for time to vacate the said
premises. The stand taken by the plaintiffs in
O.S.No.1461/2006 is that they must be allotted with the
property of Rajajinagara as per the unregistered Partition
Deed dated 10.11.2004, then only they are going to vacate
the said premises. Now the said property at Rajajinagar is
not available to the plaintiffs. As the schedule property in
O.S.No.7061/2007 is allotted to the share of Boraiah, the
plaintiffs are liable to vacate it. Accordingly, Issue No.1
and 2 are answered in the affirmative.
30. Issue No.3 in O.S.No.7061/2007: Though the
defendants in the said suit have taken up the contention
that the suit is bad for non-joinder of necessary parties, as
the plaintiff Boraiah is the sole owner of the suit property,
the suit filed by him is maintainable and no other parties
are necessary or proper parties and the contention taken
49 O.S.No.1461/2006 &
O.S.No.7061/2007
by the defendants is not sustainable and therefore, Issue
No.3 is answered in the negative.
31. Issue No.4 in O.S.No.7061/2007: The
plaintiff has paid sufficient court fee as required under law
under Section 29 of Karnataka Court Fees and Suits
Valuation Act. Hence, Issue No.4 is answered in the
Negative.
32. Issue No.5 in O.S.No.7061/2007: The
plaintiff Boraiah in O.S.No.7061/2007 being the owner of
the suit schedule property in the said suit is entitled to get
vacant possession of the said property within 60 days from
the date of judgment. The plaintiff has also sought for
damages from the defendants from 05.04.2006 after one
month from the date of issuance of legal notice. The
plaintiff has sought the damages of Rs.3,500/- per month.
At the time of cross-examination to PW.2, the learned
counsel for plaintiff in O.S.No.7061/2007 posed certain
questions regarding proof of damages. The learned counsel
has suggested PW.2 that if the rent is collected, monthly
50 O.S.No.1461/2006 &
O.S.No.7061/2007
rent to the said property may be Rs.7,000/- to Rs.8,000/-.
However, PW.2 had pleaded ignorance. The said premises
admittedly consists of two rooms, one kitchen, one hall,
one bath room and toilet. Since no material is placed to
show the actual rate of damages or mesne profits claimed
by the plaintiff, it will be convenient to both the parties if a
separate proceedings is initiated to determine the actual
damages that has to be paid to the plaintiff. The decision
of determination of quantum of damages has to be reserved
to decide in a separate proceedings. Accordingly, he is
entitled to the relief as sought for in the suit with the costs
of the suit and Issue No.5 is answered in the affirmative.
33. Addl. Issue No.3 in O.S.No.1461/2006 : It is
admitted fact that the plaintiffs are in possession of portion
of plaint 'A' Schedule property in O.S.No.1461/2006 and
accordingly, this issue is answered in the affirmative.
34. Addl. Issue No.4 in O.S.No.1461/2006: The
plaintiffs in the plaint have averred that the defendants are
51 O.S.No.1461/2006 &
O.S.No.7061/2007
interfering with their peaceful possession and enjoyment
of portion of plaint 'A' Schedule property in which they are
in possession. But no material is placed before the court
to show the interference by the defendants 1 to 4. On the
other hand, the defendant No.2 being the exclusive owner
of plaint 'A' Schedule property has taken legal action
against the plaintiffs to quit them from the said property. If
at all the defendants illegally tried to dispossess the
plaintiffs, the defendant No.2 would not have filed suit in
O.S.No.7061/2007 for eviction. No such interference is
established and the plaintiffs failed to prove the
interference by the defendants in their possession of
portion of plaint 'A' Schedule property. Hence Addl. Issue
No.4 is answered in the negative.
35. Issue No.2, Addl. Issue Nos.5 and 6 in
O.S.No.1461/2006 : In view of the answer to the findings
given on aforesaid issues, the plaintiffs in
O.S.No.1461/2006 are not entitled to any relief and the
suit of the plaintiffs is to be dismissed with costs.
52 O.S.No.1461/2006 &
O.S.No.7061/2007
Accordingly, Issue No.2 and Addl. Issue Nos.5 and 6 are
answered in the Negative.
36. Issue No.8 in O.S.No.1461/2006: The
defendants 1 to 4 have sought for issuing direction to the
defendant No.5 to change the khata of the property allotted
in the Partition Deed dated 28.01.2006 in their respective
names. However, if the document itself is placed before
defendant No.5, automatically he has to change the khata
of the property in the name of defendant Nos.1 to 4.
Therefore, it is the considered view of this court that no
specific direction is required to the defendant No.5 to
change the khata of the properties allotted to the respective
parties in the Partition Deed dated 28.01.2006 and the
defendant Nos.1 to 4 in O.S.No.1461/2006 are not entitled
to the relief as claimed in the counter-claim. Accordingly,
Issue No.8 is answered in the Negative.
37. Issue No.9 in O.S.No.1461/2006 and Issue
No.6 in O.S.No.7061/2007 : In view of the discussions
53 O.S.No.1461/2006 &
O.S.No.7061/2007
made herein above and the findings given on Issue Nos.1 to
8, Addl. Issue Nos.1 to 15 in O.S.No.1461/2006 and the
findings given on Issue Nos.1 to 5 in O.S.No.7061/2007
herein above, this Court proceed to pass the following ;
ORDER
1. The suit of the plaintiffs in O.S.No.1461/2006 is hereby dismissed with costs.
The counter-claim of defendants 1 to 4 in O.S.No.1461/2006 is also dismissed with costs.
Draw decree accordingly.
2. The suit of the plaintiff in O.S.No.7061/2007 is decreed with costs.
The defendants in O.S.No.7061/2007 are hereby directed to vacate and hand over the vacant possession of the suit schedule property to the plaintiff in the said suit within 60 days from the date of this judgment, failing which, the plaintiff is entitled to get vacated the defendants with due process of law.
54 O.S.No.1461/2006 &O.S.No.7061/2007 A separate proceedings for determination of mesne profits shall be initiated.
Draw preliminary decree accordingly.
The original of this common Judgment is ordered to be kept in O.S.No.1461/2006 and copy thereof in O.S.No.7061/2007.
(Dictated to the Judgment Writer directly on the computer, corrected and then pronounced in the open court on this the 10th day of November, 2020).
(Latha) XLIV Addl. City Civil & Sessions Judge, Bengaluru.
A NN E X U R E List of witnesses examined for Plaintiffs:
P.W.1 Sri. Nanjappa P.W.2 Smt. Sujatha P.W.3 Kumari. Uma.
List of witnesses examined for Defendants:
DW.1 Sri. Boraiah. DW.2 Sri. A. Channaiah
List of documents marked for the Plaintiff :
Ex.P.1 Partition Deed dated 10.11.2004. Ex.P.1(a)to(g) Signatures.55 O.S.No.1461/2006 &
O.S.No.7061/2007 Ex.P.2 Certified copy of Partition Deed dated 28.1.2006.
Ex.P.3 to 13 RTCs. Khatha extract Ex.P.14 House Warming Invitation Card. Ex.P.15 Partition Deed dated.10.11.2004 Ex.P.16 Certified copy of the registered sale deed dated 16.06.1956.
Ex.P.17 Certified copy of the registered sale deed dated 11.3.1968.
Ex.P.18 Certified copy of the sale deed dated 11.03.1968.
Ex.P.19,20 Certified copies of Two RTCs in respect of Sy.No.34/3 and 35/1.
List of documents marked for the Defendant:
Ex.D.1 Partition Deed dt.28.01.2006. Ex.D.1(a) Signature of Nanjappa. Ex.D.1(b) Photograph of Nanjappa. Ex.D.1(c) Signature of Honnamma. Ex.D.1(d) Signature of Boraiah. Ex.D.1(e) Signature of Nagesh. Ex.D.1(f) Signature of Ramanna. Ex.D.1(g) Signature of Honnaiah. Ex.D.2 Agreement dt.12.11.2005.
Ex.D.3 M.R. Extract.
Ex.D.4 Certified copy of sale deed dated 29.11.05.
Ex.D.5 to 11 Documents marked at Ex.P.1 to P.7 in
O.S.No.7061/2007.
Ex.D.12 Khata Extract
Ex.D.13 Khata Certificate
Ex.D.14 Electricity Bill
Ex.D.15 Water bill
Ex.D.16,17 Khata Certificate and Khata Extract
Ex.D.18 NOC letter submitted to BBMP.
Ex.D.19 2 Tax Paid Receipts
Ex.D.20 Electricity Bill
Ex.D.20(a) Relevant Receipt.
Ex.D.21 Water bill
56 O.S.No.1461/2006 &
O.S.No.7061/2007
Ex.D.22 Encumbrance Certificate
Ex.D.23 15 receipts issued by Mahila Co-Op. Bank.
Ex.D.24 Letter issued by Mahila Co-Op. Bank.
Ex.D.25 Notice issued by Co-operative Department.
Ex.D.26 Khata Extract dt.10.2.2014
Ex.D.27 Khata Certificate dt.10.2.2014.
Ex.D.28 Tax Paid Receipt.
Ex.D.29 Two water Bills.
Ex.D.30 Receipt issued by Malleswaram Co-Op. Bank.
Ex.D.31 Certified copy of sale deed.
Ex.D.32 Certified copy of Encumbrance Certificate.
Ex.D.33 Certified copy of gazette Notification.
Ex.D.34 Office copy of FIR.
Ex.D.34(a) Concerned endorsement issued by Police.
Ex.D.35 Two Electricity Bills.
Ex.D.36 Receipt issued by Malleswaram Co-op. Bank.
Ex.D.37 Certified copy of orders passed by Assistant
Commissioner, Pandavapura. Ex.D.38 Certified copy of valuation of land issued by Sub-Registrar.
Ex.D.39 Khata Certificate dt.14.2.2014. Ex.D.40 Khata Extract dt.14.2.2014.
Ex.D.41 Tax Paid Receipt. Ex.D.42 Khata Certificate dt.2/1/2007. Ex.D.43 Khata Extract dt.2.1.2007. Ex.D.44 Tax paid receipt. Ex.D.45 Two Electricity bills. Ex.D.46 Encumbrance Certificate. Ex.D.47 Sanctioned Plan.
XLIV Addl. City Civil & Sessions Judge, Bengaluru.