Bangalore District Court
Venkatarama Setty M.P vs Nagaraj Setty on 24 October, 2024
KABC010192822013
IN THE COURT OF THE III ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-25) AT BENGALURU.
DATED: THIS THE 24TH DAY OF OCTOBER, 2024.
PRESENT : Smt. Nisharani A.C., B.A., LL.B.,
III Addl. City Civil and Sessions
Judge, Bengaluru
O.S.NO.2291/2013
Plaintiffs : 1. Sri.M.P.Venkatarama Setty,
S/o Dodda papa Setty,
Residing at No.09,
Temple Road, 10th Cross,
Malleshwaram,
Bangalore-560 003
Since dead by his Legal Heir
2. Mr.Mohan @ Mohan Kumar,
Major,
S/o M.P.Venkatarama Setty,
Residing at No.9, Temple Street,
10th cross, Malleshwaram,
Bangalore -560 003
(Mr.Mohan, is Defendant No.3 in this
suit, transformed as plaintiff No.2)
(By Sri.R.A., Sri.CSR., Advocates)
V/S
2
O.S.No.2291/2013
Defendants : 1. Sri.Nagaraj, M.V.
S/o M.P.Venkatarama Setty,
R/at No.392, (Southern portion ),
1st floor,13th Cross, 6th main road,
13th Cross, 6th Main road,
Sadashivangar,
Bangalore-560 082.
2. Smt.Manjula,
Major,
D/o M.P.Venkatarama Setty,
3. Smt.Sheela,
Major,
D/o M.P.Venkatarama Setty,
4. Mr.Srinivas,
Major,
S/o M.P.Venkatarama Setty,
5. Smt.Rashmi,
Major,
D/o M.P.Venkatarama Setty,
6. Smt.Kaveramma,
W/o Late M.P.Venkataramasetty,
A/a 75 years,
Defendants No.2 to 6 are
residing at No.9, Temple Street,
10th Cross, Malleshwaram,
Bangalore-560 003
(By Sri.RPM., Advocate for D-1,
Sri.R.S.F., Adv., for D-2 to 5 )
Date of institution of Suit 22-03-2013
Nature of the Suit Recovery of possession and
such other consequential reliefs.
Date of commencement
3
O.S.No.2291/2013
of recording of evidence 07-02-2020
Date on which Judgment
was pronounced 24-10-2024
Total duration Year/s Month/s Day/s
11 07 02
(Nisharani A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU)
JUDGMENT
This instant suit is filed by the plaintiff against the defendants seeking the relief of possession of the suit schedule property, for permanent injunction, mesne profit and such other consequential reliefs.
Schedule:
All that piece and parcel of immovable property being the residential property bearing No.392 (Southern portion), 1st floor, 13th Cross, 6th Main Road, Sadashivanagar, Bangalore-560 080 and including all rights, privileges and appurtenances and measuring Appx.550 Sq. Ft, and bounded on; East by - Portion of the property bearing No.392, West by: Private property, North by; Private property, South by: Road.4
O.S.No.2291/2013
2. The brief facts of the Plaintiff's case is as under- 2(a). The immovable property more fully described in the suit schedule and same is owned and possessed by the plaintiff and acquired the right, title and interest, in respect of the larger extent of property by virtue of the registered Sale Deed, dt:
20.09.1966. Subsequent to the acquisition of the schedule property, the plaintiff is in peaceful possession and enjoyment of the larger extent of the property. The then Corporation City of Bangalore has issued katha certificate dated: 21.05.1966 infavour of plaintiff. The larger extent of the property has been assessed to the Annual Tax by BBMP and said authority has issued the tax paid receipt for having collected annual tax.
2(b). It is stated that plaintiff became the absolute owner in possession and enjoyment of the larger extent of the property, in which the schedule property being the southern portion of the same and the plaintiff is in peaceful possession and enjoyment of the same and exercising absolute right, title and interest in respect of the same. The defendant No.1 is the son born to the first wife of the plaintiff and the plaintiff after the marriage of defendant, has provided permissive possession of the ground floor (Eastern Portion of the larger extent of the property) during the year 1985. Plaintiff financially assisted the defendant to 5 O.S.No.2291/2013 establish the provision store at No.14, II Main, Vyalikaval, Bangalore-03 and also provided financial assistance to establish the business.
2(c). It is stated that as per the request of the defendant No.1 to provide the accommodation at the first floor of the same premises, plaintiff permitted to shift to the first floor (Southern portion) more fully described in the schedule property. The schedule property has given to the defendant No.1 temporarily as permissive possession, with the clear understanding that, as and when required by the plaintiff, defendant No.1 will deliver back the possession of the same to the plaintiff and same is agreed by the defendant.
2(d). It is stated that defendant has purchased the immovable property being the residential house bearing No.15, 2nd main, Vyalikaval, Bangalore, during the year 1995, at the time of purchase of said property which were in occupation of tenants, however the defendant No.1 has assured the plaintiff, that once he vacated the tenants in the said premises, he will vacate the schedule property and shift the residence to his own premises. Whenever the demand made by the plaintiff to defendant No.1 to vacate the schedule premises, he assuring the plaintiff that he is in process of vacating the tenant in the 6 O.S.No.2291/2013 said premises and he also obtained eviction order from the Court and has obtained vacant possession of the said premises. After obtaining the vacant possession of his own premises, the defendant, instead of shifting from the schedule property as assured is dilly-dallying in vacating and handing- over the schedule property, with the bonafide intention and oblique motive to harass the plaintiff, who is aged and in his evening of life. The defendant No.1 is continued to stay in the suit schedule property without any cause or reasons whatsoever. There is no rhyme or reasons whatsoever for the defendant No.1 to handover to vacant possession of the suit schedule property to the plaintiff.
2(e). It is stated that, the schedule property is his self acquired property, except plaintiff, no one has any right, title or interest in respect of the same. The defendant No.1 has continued to stay in the suit schedule property illegally and unlawfully. The 2nd plaintiff herein submits that, during the pendency of the suit, plaintiff No.1 died on 30.08.2018 leaving behind plaintiff No.2 and the defendants as the sole legal heirs. 1st plaintiff during his life time executed registered Will dt:
26.04.2012, in favour of 2nd plaintiff bequeathed the immovable property bearing Municipal No.392, 13th Cross, 6th Main Road, 7 O.S.No.2291/2013 Sadashivanagar, Bengaluru and also created life interest in favour of Smt.Kaveramma, the wife of late Venkatarama Setty and the mother of 2nd plaintiff and defendant No.2 to 5. As per the recitals of the said Will, the 2 nd plaintiff has become the absolute owner in possession and enjoyment of the aforesaid property, wherein the suit schedule property is being a portion of the said larger extent of the property. The 1st defendant has no manner of right, title, and interest in respect of the suit schedule property. The 2nd plaintiff being the absolute owner by way of testamentary succession has legal right to maintain the above suit stepping into the shoes of the deceased M.P. Venkatarama Setty, the 1st plaintiff and also 3rd defendant has been transposed as 2nd plaintiff herein above and a legatee under the said Will, hence he has right, title, and interest in respect of suit schedule property. The 1st defendant who is under permissive possession of the suit schedule property, since 1995 is squatting over the property without having any manner of right, title, and interest in respect of the suit schedule property. The 1st defendant is in illegal and unlawful possession of the suit schedule property. Hence, prayed to decree the suit.
3. The defendants have appeared before the court, however defendant No.3 filed his written statement to decree 8 O.S.No.2291/2013 the suit in favour of plaintiff , the same is adopted by Defendant No. 2, 4, 5 and 6 by filing memo, besides he is the only person transformed as plaintiff No.2 after the death of original plaintiff Venkatarama shetty, hence, only defendant No 1 is the contesting person appeared through their counsel and filed the written statement as well as counter claim as follows.
Counter Claim Schedule Property Schedule 'A' Property:
All that piece and parcel of immovable property being No.392,13th Cross, 6th Main Road, Sadashivanagar, Bangalore-560 082, measuring 50 feet + 75 feet with a residential building thereon consisting of Ground Floor and First flood and bounded on the East by : Road, West by: Private property, South by : Road, North by : Property No.93.
Schedule 'B' Property:
1250 Sq.ft undivided right, title and interest in the Schedule 'A' property mentioned above along with residential premises in the first floor ( southern portion ) measuring approximately about 1300 square feet of built up area.
Schedule 'C' Property:
Item No.1: The whole residential house consisting of Three floor of equal dimensions floor measuring East to West: 60 feet and North to South 25 ft, bearing Municipal No.18 and situated at 10th cross, 1st temple road, 9 O.S.No.2291/2013 Malleshwaram, Bangalore -560 003 and bounded as under.
East by: P.A.Kannappa's house No.18/1 West by: Conservancy lane, North by : S.Venkatachalaiah's house, South by : S.P.Puttiah's house.
Item No.2: All the piece and parcel of immovable property in site No.167, consisting of 5 floor building in Bank Officers Co-operative Society Limited Layout, Doresanipalya, Bangalore South 560076 and bounded as under.
East by: 30 ft road, West by: Private land, North by: Site No.168, South by : Site No.166 Item No.3: 2500 square feet undivided right, title and interest in the schedule 'A' property along with 2 residential units in the Ground Floor, 1 Commercial Unit (Shop) and 1 residential unit in the First Floor with a super built up area of approximately about 2600 square feet.
3(a). The defendant submits that, the suit is not maintainable either in law or on facts and same is liable to be dismissed in limine. This defendant is in exclusive, open, hostile, continuous, uninterrupted possession of the plaint schedule property and therefore without seeking for possession 10 O.S.No.2291/2013 of the same, the suit for possession is not maintainable. This defendant having perfected the title to the plaint schedule property by way of adverse possession and also raising a counter claim for partition of written statement schedule 'C' property.
3(b). It is stated that, defendant's grand-father, one Sri.Pap Shetty had four sons viz., Srinivas Shetty, Venkataram Shetty, plaintiff herein, Raju and Papanna. All of them lived in a Hindu Joint Family carrying on the joint family business of provision store and also selling butter. The plaintiff is studied only 2 nd or 3rd standard and he was solely dependent on the joint family business for all his needs. The plaintiff got married to Smt.Seetamma, in the year 1953 and defendant No.1 was born out of his wedlock in the year 1954. Soon after the birth of the defendant, plaintiff migrated to Bangalore to start the joint family business in the City of Bangalore. Unfortunately, defendant No.1 mother passed away in the year 1955 and thereafter defendants grand-father Shri.Pap Shetty also passed away. Defendants father, the plaintiff herein, after the demise of his 1st wife Seethamma, the father of defendant got married to Smt.Kaveramma and from out of this wedlock they have five children, i.e. Manjula, Mohan, Sheela, Srinivas and Rashmi. 11
O.S.No.2291/2013 The 5 children of plaintiff also necessary parties to this suit. The step mother Smt. Kaveramma started grossly neglecting the care and upkeep the defendant. From out of the funds generated from this joint family business, plaintiff along with his brothers had purchased several properties. This apart, from out of the joint family funds, plaintiff has also purchased several other properties. In the year 1982, plaintiff and his brothers due to various reasons could not continue their joint family business and agreed to severe the joint family status and partition amongst themselves several properties including the plaint schedule property which was allotted to the share of the plaintiff. And after the said partition, plaintiff has got his name entered in the revenue records of the said property, which is more-fully described in the schedule 'A' property and he was in possession of the same as the absolute owner thereof. Due to intolerable harassment at home defendant was constrained to forcibly occupy the ground floor unit in the schedule 'A' property. It is stated that schedule B property is same as the plaint schedule property, but the plaintiff has deliberately given a wrong description of the property as the super built up area of the plaint schedule property is 1300 Sq.ft and not 850 sq.ft as described in the plaint. Ever since taking possession of the 12 O.S.No.2291/2013 ground floor portion (eastern portion) of schedule 'A' property in the year 1984, and the schedule 'B' property (southern portion of the building in schedule A property) in the year 2000, as the defendant is in exclusive, open, hostile, uninterrupted possession of the schedule 'B' property for more than the prescriptive period, he has perfected his title to the suit property by adverse possession.
3(c). It is stated that, the deceased 1st plaintiff has no manner of right, title or interest over the same and to that extent the three Wills dated: 01-06-2005, 06-11-2008 and 26-04-2012 are invalid the deceased first plaintiff has alleged bequeathed the property which did not belong to him in the first place. The 2nd defendant choose to suppress the registered Will dated:
26-04-2012 left behind by his father the first plaintiff. The conduct on the part of the 2nd plaintiff to keep the copy of the Will away from the scrutiny of this Court clearly sheds light on the suspicious circumstances under which the Will was executed.
3(d). The Counter Claim of defendant is that, the plaintiff has received his share of the property from out of the joint family in the year 1982. Since, then, the plaintiff and the defendant are in joint possession of schedule 'C' property. As 13 O.S.No.2291/2013 the coparcener in the Hindu Joint Family consisting of defendant, plaintiff and plaintiff's children namely, Manjula, Mohan, Sheela Srinivas, and Rashmi, defendant No.1 is entitled to his 1/7th share in schedule 'C' property. The defendant is in peaceful, uninterrupted, open, hostile and continuous possession of the schedule 'B' property. The defendant is in joint possession with the plaintiff as regards the other units in the schedule 'A' property. This defendant has been in hostile, open, exclusive, continuous, uninterrupted possession and enjoyment of the schedule 'B' property and has thus perfected his title to the schedule 'B' property by adverse possession. Hence, prayed to dismiss the suit of plaintiff with exemplary costs and prayed to decree the counter-claim.
4. On the above rival contentions my predecessor in the office framed the following issues :-
ISSUES
1. Whether plaintiff proves suit property is his self acquired property?
2. Whether plaintiff proves that defendant No.1 is in permissive possession of suit property?
3. Whether defendant No.1 proves that he has perfected his title over schedule "A & "B" 14
O.S.No.2291/2013 counter claim properties by way of adverse possession?
4. Whether defendant No.1 proves that schedule "C" counter claim property is joint family property of himself and plaintiff?
5. Whether defendant No.1 proves that he has 1/7th share in the schedule "C" counterclaim property?
6. Whether plaintiff is entitled for the reliefs as prayed for?
7. What order or decree?
Addl.Issue framed on 10-01-2020
1. Whether the plaintiff No.2 proves that Sri.M.P.Venkataramana Setty has executed Registered Will, dt: 26-4-2012 in his favour?
5. In order to prove/substantiate their case, plaintiff No.1 and 2 examined as PW.1 and 2 and got marked 10 documents as per Ex.P1 to P-10 and closed their side. On the other hand 1st defendant himself examined as D.W.1 and got marked 14 documents as per Ex.D-1 to 14 and closed his side.
6. Heard arguments on both the sides. Perused the materials available on record.
15
O.S.No.2291/2013
7. The counsel for the plaintiffs relied the following list of citations.
1. Judgment of Hon'ble Supreme Court of India in Civil Appeal No.6191/2001 in the case of Anathulla Sudhakar v. P.Buchi Reddy ( Dead ) by Lrs & Ors.
2. Judgment of Hon'ble High Court of Karnataka in R.S.A. No.447/2007 in the case of Sri.Narayana & Ors v. Smt. Indira & Anr.
3. Judgment of Hon'ble Supreme Court of India in Civil Appeal No.4883/2022, in the case of Satyender & Ors vs Saroj & Ors.
4. Judgment of Hon'ble High Court of Karnataka in R.F.A.No.18470/2005 in the case of Chepudira Madaiah vs Mallengada Chengappa & Ors.
5. Judgment of Hon'ble Supreme Court of India in in Civil Appeal No.2968/2012, in the case of Maria Margadia Sequeria Fernandes & Ors v. Erasmo Jack De Sequeria ( D) Tr.Lrs. & Ors.
6. Judgment of Hon'ble High Court of Karnataka in R.S.A.No.864/2015 in the case of Noor Aftab Parvan & Ors vs H.N.Chandrashekar & Ors.
7. Judgment of Hon'ble High Court of Delhi, 2015 R.S.A.No.66/2014 in the Case of Ramesh Chander Gupta v. Kanta Gupta.
8. The Counsel for the defendant No.1 has relied the following citations.
1. (2003)8 SCC 752 R.Ve.Venkatachala Gounder v. Arulmigu Viswesarawami & V.P.Temple and anr.
16
O.S.No.2291/2013
2. (1996)4 SCC 69 Jag Mohan Chawla & Anr v. Dera Radha Swami Satsang and others.
3. (2970)1 MLJ 592 P.L.N.Paramashivam v. P.K.Rmaswami Gounder
4. AIR 1959 SC 443 H.Venkatachala Iyenger vs B.N.Thimmajamma & Ors.
5. 1972 SCC OnLine AP 173 Karri Nookaraju v. Putra Venkata Rao & Ors.
6.(2009)3 SCC 687 Bharpur Singh & Ors v. Shamsher Singh
6. AIR 2021 KAR 95 Abdul Wahab v. Rahamathunnisa
7. Hon'ble High Court of Madhya Pradesh Second Appeal No.1015/2004 in the case of Smt.Ramkali & Ors v. Murit Kumar & Ors.
8. (1977) 1 SCC 369 Smt.Jaswant Kaur vs Smt.Amrit Kaur & Ors.
9. My findings on the above issues are as under -
ISSUE NO.1 :- In the Negative, ISSUE NO.2 :- In the Negative, ISSUE NO.3 :- In the Affirmative, ISSUE NO.4 :- In the Negative, ISSUE NO.5 :- In the Negative, ISSUE NO.6 :- In the Negative ADDL.ISSUE:- In the Negative, 17 O.S.No.2291/2013 ISSUE NO.7 :- As per final order, for the following-
REASONS
10. This instant suit filed by the plaintiffs against the defendants for recovery of possession and such other consequential reliefs.
11. In the earliest stage, the original plaintiff No.1 the father of plaintiff No.2 and defendants No.1 to 5 filed the suit later on, after his death defendant No.3 transposed and proceeded the case as plaintiff No. 2. However, the relationship is not disputed by all the defendants.
12, On the other hand,defendant No.1 is the only contesting defendant and defendant No.1 sought for partition in counter claim schedule properties which also includes plaint schedule property.
13. Sri.Venkatarama Shetty has got two wives. Wherein the plaintiff No.2 and defendants No.2, 4 and 5 are the children of original plaintiff- Sri.Venkatarama Shetty and his 2 nd wife. The defendant No.1 is the son of Venkatarama Shetty original plaintiff and his first wife.
18
O.S.No.2291/2013
14. ISSUE No.1 & 2:- Since Issue No.1 & 2 are inter- related with each other, they being taken up together for discussion in order to avoid repetition of facts.
This Court casted burden on the plaintiff Sri.Venkatarama Shetty to prove plaint schedule property is his self acquired property and also he has given plaint schedule property in permissive possession to defendant No.1.
15. PW-1 the original plaintiff Venkatarama Shetty, examined in the first instance and subsequently Venkatarama Shetty died on 30-07-2018. However, the plaintiffs' counsel reported the death of original plaintiff Sri.Venkatarama Shetty to the Court on 8-8-2018 stating that original plaintiff Sri.Venkatarama Shetty died on 30-07-2018. Since the original plaintiff dead, then his legal heir defendant No.3 who is already on record proceeded the case as plaintiff No. 2. Besides, plaintiff No.2 examined as PW.2. However, PW-1/original plaintiff was chief examined by the counsel but subsequently the defendant counsel did not examined PW.1 because of his death.
16. According to plaintiff, he is the absolute owner of the suit schedule property and in para No.5 of his plaint the plaintiff stated that he has given the plaint schedule property to the 19 O.S.No.2291/2013 defendant No.1 on permissive possession with the condition that whenever required then defendant No.1 has to vacate and hand over the possession of plaint schedule property.
17. The plaintiff acquired the plaint schedule property in furtherance of registered Sale deed, dt: 29.09.1966. Hence, in support of his contention the plaintiff also filed Sale Deed of the year 1966 which is marked as Ex.P-1.
18. According to plaintiff presently the plaintiff himself with his own income purchased a house in Vyali Kaval in the name of defendant No.1. Then as per the condition the defendant No.1 has to shift to the house situated at Vyali Kaval and handover vacant possession of plaint schedule property to the plaintiff. The cause of action arose when the defendant did not vacate the possession of the plaint schedule property even after requesting by the plaintiff and also issuing a legal notice, dated: 19-02-2013. The plaintiff filed this suit against the defendant No.1 for possession.
19. In support of his evidence he also produced the documents marked as Ex.P-1 to P-10. Ex.P-1 is the certified copy of the Sale Deed, dt: 29-09-1966, Ex.P-2 is the katha certificate, Ex.P-3 is katha extract, Ex.P-4 is legal notice, Ex.P-5 is postal acknowledgment, Ex.P-6 is Certified copy of the Will, 20 O.S.No.2291/2013 dt; 26-4-2012, Ex.P-7 is Death Certificate of original plaintiff, Ex.P-8 is the certified copy of judgment passed in O.S.No.2077/2009, Ex.P-10 is the certified copy of the order passed in RFA.No.783/2012. Hence, to decree the suit.
20. On the other hand, the defendant denied the very title and acquisition of the property by the original plaintiff his father. However, the defendants take up contentions in para No.4 that defendant No.1 perfected his title by adverse possession and in para No.6 of his written statement he taken the contention that the plaint schedule property is the joint family property and after the death of her mother/the first wife of original plaintiff, the plaintiff joining hands with the 2nd wife of her children trying to throw out the defendant No.1 from the plaint schedule property and however the plaint schedule property is the joint family property. The partition was entered into the original plaintiff, his father and his brothers in the year 1983, wherein, in all the counter claim schedule properties are included in that partition deed. Hence, he has got co-parcenery right over the counter claim properties which also includes plaint schedule property forcefully acquired plaint schedule property and the father of the defendant No.1 is wrongly 21 O.S.No.2291/2013 alleging that he has given permissive possession for defendant No.1 to occupy the plaint schedule property. As the plaint schedule property is joint family property he cannot put defendant no.1 in permissive possession and has no locus- standi. Hence, he has got co-parcenery right over the suit schedule property. Therefore he forcefully acquired plaint schedule property. Hence, to dismiss the suit of the plaintiff and to decree the counterclaim of defendant No.1 by granting the order of 1/7th share between the plaintiff No.2 and defendant No.1 to 5.
21. In order to prove his contention original plaintiff examined as PW-1 and this Court has given the permission to cross examine the PW-1. However, as Pw-1 by that time was bedridden, commissioner was appointed by this Court to record the evidence of PW-1 has examined one or two question by the defendant counsel by that time the Commissioner who is appointed by the Court is of the opinion that plaintiff/PW-1 was not in a position of understanding the question and even he cannot answer for the question because of his health issues and as he is aged about 85 years. Hence, the Commissioner by that time not allowed the defendant No.1 counsel to further cross-examine PW-1. However, the Commissioner report and 22 O.S.No.2291/2013 also Commissioner was also placed the available evidence recorded in his presence on record ,after the death of PW.1, his son PW.2 examined as PW-2 in order to prove the case. PW-2 also produced some of the documents along with the other document placed by PW-1.
22. The defendant No.1 to show that the plaint schedule property is the ancestral property has filed one document which is marked as Ex.D-1 is Partition Deed of the year 1983. However, the same is denied by PW-2 and in his cross- examination PW-2 stating that I don't know whether his father ( PW-1) and his brothers entered into partition deed. However, by looking after Ex.P-1 and Ex.D-1, Ex.P-1 is the Sale Deed of the year 1966 and Ex.D-1 is the partition deed of the year 1983. On going through the recitals of Ex.P-1 there is mentioned of plaint schedule property in that document and Sadhashivanagar not mentioned but mentioned palace Upper Orchards extension which is the then called as Sadhashivnagar. Hence it is his self acquired property.
23. Then EX D1 in Partition Deed the plaint schedule and counter claim 'A' and 'B' schedule property is mentioned also mentioned as " ಒಟ್ಟು ಕುಟುಂಬದ ದ್ರವ್ಯ ದಿಂದ " the same is not objected by the plaintiff No.1. Even though he was so much 23 O.S.No.2291/2013 present at the time of preparing Ex.D-1 Partition Deed. If it is his self acquired property, then certainly plaintiff No.1/PW-1 would have objected the word " ಒಟ್ಟು ಕುಟುಂಬದ ದ್ರವ್ಯ ದಿಂದ " at- least mentioning to plaint schedule property in the partition deed which is marked as Ex.D-1. As per the Provision under Section 32 of Indian Evidence Act, any person stating in oral or documentary statement which are against to him is admissible. Hence, when we keep this position of law in mind and examine Ex.D-1 and Ex.P-1, EX P1 is the earlier document to Ex.D-1. Hence, knowing fully well plaintiff No.1 has not objected the word "ಒಟ್ಟು ಕುಟುಂಬದ ದ್ರವ್ಯ ದಿಂದ " then it can be presumed that even the plaint schedule property also acquired with joint family income. Hence, when the plaintiff No.1 knowing-fully well kept quite without saying anything at the time of Ex.D-1 Partition Deed, this Court as per the provision of Section 32 of Indian Evidence Act, can come to the conclusion that plaint schedule property which the plaintiff No.1 and 2 claiming as self acquired property of plaintiff No 1 is ancestral property as per the recitals of document Ex.D-1 which is a registered Partition Deed, dated:17-02-1983.
24
O.S.No.2291/2013
24. When this Court come to the conclusion that the plaint schedule property is a joint family property then every unit of the property is under the common interest of all the joint family members. Hence, it is far from the truth that plaintiff No.1 has given the possession of the plaint schedule property to defendant No.1 in a permissive possession. Moreover, plaintiff No.1 if presumed can only give his share of land the defendant No.1 in permissive possession not the entire plaint schedule property. Hence, as defendant No.1 also has common interest in the plaint schedule property, the plaintiff No.1 cannot give the plaint schedule property to defendant No.1 in permissive possession. As per Ex.D-1 the plaint schedule property is acquired by the source of joint family i.e. common hatch-spot. Hence, the plaintiff No.1 cannot give the plaint schedule property in permissive possession to defendant No.1. Hence, I answer issue No.1 and 2 in Negative.
25. ISSUE No.3: However, the identity of the property is not disputed by both the parties. Based on the discussion made in Issue No.1 and 2 this Court come to the conclusion that the schedule 'A' and 'B' properties are joint family properties which are mentioned in Partition Deed, dt:17-02-1983, which is marked as Ex.D-1.
25
O.S.No.2291/2013 The next question arise for consideration is whether the defendant No.1 is claiming the adverse possession on schedule 'A' and 'B' of Counter claim property.
26. Schedule 'A' & 'B' counter claim properties are plaint schedule property. Schedule 'A' counter claim property is earlier eastern portion situated in Sadashivanagar and 'B' schedule Counter claim property is a southern portion of house in which the defendant No.1 is residing and i.e. the plaint schedule property for which the plaintiff is claiming possession. Now, there are some principles for adverse possession that is nec vi- adequate in continuity, nee calm- adequate in publicity and nec precario- adverse as competitor , any person who is seeking for adverse possession must fulfill above said principles .
27. According to provision under Order 8 Rule 6A of C.P.C. the defendant should claim counter on the claim of the plaintiff. Here, the defendant No.1 claimed counter on the plaint schedule property, then in the adverse the possession the possession should in the knowledge of original owner and in continuity, Here, the plaintiff No.1 and 2 very well known that the defendant No.1 is in the forceful possession of suit schedule property. Even PW-2 also admits in his evidence that defendant No.1 was in forceful possession of plaint schedule 26 O.S.No.2291/2013 property. Then the person should claim adverse possession is to be in continuous possession. However, here, both the plaintiff No.1 and 2 admits that defendant No.1 was in continuous possession of the suit schedule property. Hence, the defendant No.1 has claimed and has perfected his title by way of adverse possession can be accepted by the admissions made by plaintiff No 1 and 2.
28. The plaintiff counsel vehemently argued that counterclaim cannot sought in blood relations in order to substantiate also produced some citation in support of his arguments. However, the first judgment is Hon'ble Supreme Court of India, in Civil Appeal No.6191/2001 in the case of Anathulla Sudhakar v. P.Buchi Reddy ( Dead ) by Lrs & Ors.
Wherein, there is no bar to file the suit for possession based on title and hence suit is filed by the plaintiff No.2 over possession.
The 2nd Judgment if of Hon'ble High Court of Karnataka, in R.S.A. No.447/2007, in the case of Sri.Narayana & Ors v. Smt. Indira & Anr, The 3rd judgment is Hon'ble Supreme Court of India in Civil Appeal No.4883/2022, in the case of Satyender & Ors vs Saroj & Ors.
27
O.S.No.2291/2013 The 4th judgment relied R.F.A.No.1840/2005 in the case of Chepudira Madaiah vs Mallengada Chengappa & Ors of Hon'ble High Court of Karnataka. Wherein Their Lordship held as under.
" The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity nee clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be considered".
29. However, in the above judgments no observation made to the extent that counter-claim cannot pleaded within blood relatives, no bar in provision under order 8 rule 6A of CPC. Hence this court not satisfied with the argument canvassed by plaintiff counsel on this point.
30. Another judgment also filed by plaintiff with respect to recovery of possession of immovable property protecting the 28 O.S.No.2291/2013 possession of absolute owner and the adverse possession is not maintainable on a original owner. Here, to prove this position of law it is the plaintiff to prove that he is the original and absolute owner of suit schedule property.
31. In the case of Ramesh Chander Gupta v. Kanta Gupta, reported in Judgment of Hon'ble High Court of Delhi, 2015 in R.S.A.No.66/2014, this is also with regard to adverse possession when the co-owners are close relations something more is to be proved, to prescribe title by adverse possession. Perused the citations.
With this discussions, I answer Issue No.3 in Affirmative.
32. ISSUE No.4 & 5: Since these issues are inter-related with each other, they being taken up together for discussion in order to avoid repetition of facts.
In the counter-claim the defendant No.1 sought for 'C' schedule property. Wherein the defendant No.1 has not produced any documents to show that 'C' schedule property is ancestral property nor it is self acquired of his father original plaintiff M.P.Venkatarama Setty. The counsel for defendant vehemently argued that he has filed three written statements and he took the contention that it is his father's self acquired 29 O.S.No.2291/2013 property and in the Will which is produced by the plaintiff No.2 the description of 'C' schedule property is mentioned. However, in the case on hand as per the observation of this Court the Will is not proved. Hence, the property mentioned in the Will cannot be considered as self acquired property of M.P.Venkatarama Setty i.e. plaintiff No.1, father of plaintiff No.2, defendant No.2 to 5 and defendant No.1. Hence merely saying that counter claim 'C' schedule property is defendant No.1's father's self property cannot be considered without any supportive evidence by defendant No.1 and on perusal of the records even in the partition deed which defendant No.1 relying on counter-claim 'C' schedule property is not mentioned in that partition deed. Hence, even the plaintiff No.1 and 2 also not produced any title document to show that counter-claim 'C' schedule property is the ancestral property nor the self acquired property of original plaintiff M.P.Venkatarama Setty. Hence, 'C' schedule counter- claim cannot be concluded as ancestral property as well as self acquired property. Hence, I answer issue No.4 and 5 in the Negative.
33. Additional Issue, dated: 10-01-2020: After the death of original plaintiff, plaintiff No.2 came on record. However, as per the provision the plaint was amended. The plaintiff No.2 did 30 O.S.No.2291/2013 not sought for any amendment in the prayer but the plaintiff No.2 has taken a new contention that in para No.16(a) to (c) stating that his father plaintiff No.1 executed a Registered Will during the life time on 26-04-2012, thereby bequeathed the immovable property bearing Municipal No.392, 13 th Cross, 6th Main road, Sadashivanagar, Bangalore. By virtue of the Will the plaintiff No.2 has got right over 'A' and 'B' counter claim properties. Hence, the defendant No.1 cannot claim any partition over the suit schedule property as there is a testamentary succession in view of the Will.
However, there are Three Wills and two Wills prior to 26-04-2012 are not disputed even by defendant No.1.
34. Besides, when this Court while answering Issue No.1 and 2 come to the conclusion that the suit schedule property is the ancestral property, now, whether the plaintiff No.1 can execute any Will in favour of any person, and if he wanted to execute Will to any person as per Section 30 of Indian succession act he can bequeath the property only with respect to the extent on which he has got absolute right. The plaintiff counsel argued that the recitals of the Will shows that the testator plaintiff No.1 dis-herited defendant No.1 and defendant No.5 in the Will and no reasons are stated in the Will 31 O.S.No.2291/2013 for disherition. Even physical and mental status of plaintiff No.1 at the time of executing the Will was also good and same also stated in the recitals of the Will. Hence, as per the Will executed by his father plaintiff No.2 is entitle for absolute ownership of the plaint schedule property.
35. On the other hand the counsel for the defendant argued that the Will cannot be relied as it comes under the suspicious circumstances that the Will did not see the light of the day for the long time which (vii) in the following citatition. Also produced citation of Hon'ble Apex Court (2009) 3 SCC 687 Bharpur Singh & Ors v. Shamsher Singh in para No.23 Suspicious circumstances are mentioned as follows.
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii .The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers. 32
O.S.No.2291/2013 vii . The Will did not see the light of the day. viii. Incorrect recitals of essential facts.
His case falls under-vii of the above said judgment.
36. Then also produced citation AIR 1959 SC 443 in case of H.Venkatachala Iyenger vs. B.N.Thimmajamma and others. In which para-18, 19 clearly explains that how a Will has to be proved with the citation he submitted his arguments that in the Will the reasons mentioned for disheriting the defendant No.1 and 5 is not correct and it is the duty of the propounder of the Will to prove a Will behind all the suspicious circumstances. He also furnished one Judgment of Hon'ble Apex Court (1977) 1 SCC 369, wherein it reads thus, "In cases where the execution of a Will is shroud in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversay proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence that the will was duly executed by the testator "
33
O.S.No.2291/2013
37. According to this para the burden is on the Court to decide the Will because the Will come to the light after the death of testator and the testator will not available for giving his evidence. Hence, the Court while appreciating Will it should satisfy whether the propounder has proved the Will beyond all suspicious circumstances to the satisfaction of the court .
38. Hence, according to defendant Will is not executed by his father because there is a lie that he/ his father with his income purchased Vyali kaval house, this lie cannot be stated by his father hence the testator is not my father he also argued that Vyalikaval property is acquired by defendant No.1 by his own income, in order to prove his source of income to purchase the property in Vyalikaval he has also placed some of the Income Tax documents which is marked as Ex.D-4 (P.Y.E.31.12.1986 -Asst.Year: 1987-88, P.Y.E.: 31.3.1990 Asst.Year:1990-91, P.Y.E.:31.03.1991 Asst.Year 1991-92, P.Y.E.31/03/1992, Assst.Year: 1992-93, P.Y.E.31/03/1993, Asst.Year: 1993-94, P.Y.E.31.03.1994, P.Y.E.31.03.1995, Asst.Year 1995-96, P.Y.E.31.03.1996, Asst.Year 1996-97, P.Y.E.31.03.1998, Asst.Year 1998-99, P.Y.E.31.03.1999 Asst.Year 1999-2000, P.Y.E.31.03.2001, P.Y.E.31.03.2005, P.Y.E.31.03.2006m 2008-2009) in which it clarifies to the Court 34 O.S.No.2291/2013 that by selling one property and also by obtaining the loan from bank and other private financial institutions defendant No.1 acquired the title in Vyalikaval property, which according to the plaintiff No.2 was purchased by his father plaintiff No1, in plaintiff No.1 source of income in the name of defendant No.1. However, the defendant No.1 also placed the bank statement which clearly shows that he has obtained the loan from the private financial institutions as well as he has also got source of income to purchase the Vyalikaval property. However defendant No 1 did not denied the documents produced by plaintiff marked as EXP-8, 9, 10 with respect to Vyalikaval property.
39. On perusal of the records the original Will is not produced by the plaintiff No.2 the Certified copy of the Will is produced as it is registered document. However, registration is not compulsory for a Will, which is marked as Ex.D-8. However, on perusal of records the original Will is not produced. The attestors are not examined and the Will is not proved in accordance with law i.e. under Section 68 of Indian Evidence Act.
40. However, the author who writes a Will should know the effect of that document. Here, in the case on hand as 35 O.S.No.2291/2013 observed by this Court it is well knowledge of the plaintiff No.1 partition deed was executed and he should know that he can execute a Will only to his share as per Section 30 of Indian Succession Act, and he cannot execute the Will for entire property. The author of the Will himself did know the effect of the document while executing the Will.
41. Then once this Court comes to the conclusion suit schedule property is the joint family property and plaintiff No.2 without seeking for title over the plaint schedule property by virtue of Will cannot seek possession over the plaint schedule property. Hence, I answer additional issue in the 'Negative'.
42. ISSUE NO.6: In view of my findings and reasoning to the above Issues, plaintiff failed to establish his case with cogent and convincing evidence. Hence, I answer this Issue in the Negative.
43. ISSUE No.7: In view of my findings on the above Issues, I proceed to pass the following -
ORDER The suit of the Plaintiff is hereby DISMISSED with cost.
36
O.S.No.2291/2013 Counter claim of defendant No.1 is hereby PARTLY DECREED with cost.
The defendant No.1 is entitled for 1/7th share in the counter-claim schedule 'A' and 'B' property.
Draw decree accordingly.
(Dictated to the Steno Gr.II transcribed, typed by him on computer, after correction pronounced by me in open Court on this day 24th day of October, 2024).
(NISHARANI A.C) III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU Witnesses examined on behalf of Plaintiff:
PW.1 : Sri.M.P.Venkatarama Setty PW.2 : Sri.Mohan @ Mohan Kumar, M.V.
Documents marked on behalf of Plaintiff:
Ex.P1 : Certified copy of the Sale Deed, dt.29-09-1966 Ex.P2 : Khatha Certificate Ex.P3 : Khatha Extract Ex.P4 : Legal Notice Ex.P5 : Postal Acknowledgment Ex.P6 : Certified copy of Will, dt: 26-04-2012 Ex.P7 : Death Certificate of M.P.Venkataram Shetty Ex.P8 : Certified copy of the order passed in HRP.No.102/98 37 O.S.No.2291/2013 Ex.P9 : Certified copy of Judgment passed in O.S.No.2077/2009 Ex.P10 : Certified copy of order passed in RFA No.783/2012.
Witnesses examined on behalf of Defendants:
DW.1 : Sri.Nagaraj.M.V. Documents Marked on behalf of Defendants:
Ex.D1 : Certified copy of the Partition Deed, dt.17-02-1983 Ex.D2 : Form "D"
Ex.D3 : Correction document (ತಿದ್ದು ಪಡಿ ದಾಖಲೆ )issued by Asst. Commercial tax officer.
Ex.D4 : Application for regn of VAT
Deed of Sale, dt:26-5-1990
Ex.D5 : Three Wills
to 8
Ex.D9 : Photos
to 13
Ex.D14 : C.D.
(NISHARANI A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
-
38
O.S.No.2291/2013
39
O.S.No.2291/2013