Bangalore District Court
Mary Elezibeth B vs Anthony Das B on 28 April, 2025
1
O.S.No.2859/2008
KABC010112492008
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-18)
::Present::
Smt. Gomati Raghavendra, LL.M., DIPR, DCL.,
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this the 28th day of April, 2025.
O S No. 2859/2008
PLAINTIFFS : 1. Smt. B. Mary Elezibeth,
Since deceased, by LRs
1(a). P. Selva Rani,
D/o Late B. Mary Elezabeth
Aged about 36 years,
No.73. 21st Cross, 16th Main,
Judicial Layout,
Yelahanka New Town,
Bangalore-560064.
1(b). P. Francis Gunashekar,
2
O.S.No.2859/2008
S/o Late B. Mary Elezabeth,
Aged about 33 years,
No.70/G, 27th Cross, 3rd Main,
First Floor, Raghavendra layout,
Hulimavu, Bannerghata Road,
Bangalore-560064.
1(c). P. Francis Chandrashekar,
S/o Late B. Mary Elizabeth,
Aged about 27 years,
No.70/G, 27th Cross, 3rd Main,
First Floor, Raghavendra layout,
Hulimavu, Bannerghata Road,
Bangalore-560064.
1(d) Smt. Pracilla Joyee,
W/o Late Francis Rajshekar
Aged about 36 years
1(e) Kum Franklina Jancy
D/o Late Francis Rajshekar
Aged about 11 years
Being minor represented by her
natural Mother Smt. Pracilla Joyce.
Both are R/o No.86,
1st Main, India Priyadharshini Layout,
Arekere, Bangalore-76.
2. Smt. B. Jayasheela,
D/o Late Benny,
Puttenahalli Main Road,
6th Phase, J.P.Nagar,
Bangalore-78
3
O.S.No.2859/2008
3. Smt. B. Jenova, D/o late Binny,
27th Cross,Kempamma Devi Layout,
Hulimavu. BG Road, Bangalore-76.
(By Sri. S.S., Adv., for Plaintiff
No.1(a), (b), (c), 2 & 3, Sri N.R., Adv.,
for plaintiff No.1(d) & (e))
V/s.
DEFENDANTS : 1. Sri. B. Anthony Das,
S/o late Binny,
Aged about 55 years,
R/at No.118, 31st B Cross,
Thilaknagar, Jayanagar, Bangalore-76
2. Sri. B. Shanthraj, S/o Late Binny,
Aged about 50 years,
R/at No.118, 31st B Cross,
Thilaknagar, Jayanagar, Bangalore-41
3. Sri B. Immanuel, S/o Late Binny,
Aged about 47 years,
R/at No.118, 31st B Cross,
Thilaknagar, Jayanagar, Bangalore-41
4. Sri. Dominic, S/o Late Binny,
Aged about 43 years,
No.62, 31st A Cross,
Thilaknagar, Jayanagar, Bangalore-41
5. Smt. Palani Mari, W/o Masilamani
Aged about 64 years,
4
O.S.No.2859/2008
No.328/49/2, 32nd 'E' Cross,
26th Main Road, Thilak Nagar,
Bangalore-41
6. Sri Yesudas @ Yesuraj,
S/o. Palanimari
Aged about 30 years,
26th Main Road, Thilak Nagar,
Bangalore-41.
7. Smt. B. Sujatha
D/o. Palanimari,
Aged about 35 years,
No.328/49/2, 32nd 'E' Cross,
26th Main Road, Thilak Nagar,
Bangalore-41
8. Smt Elezabeth Kavitha
D/o. Palanimari,
Aged about 27 years,
No.328/49/2, 32nd 'E' Cross,
26th Main Road, Thilak Nagar,
Bangalore-41
9. Smt B. Jayamary, D/o. Palanimari
R/at No.62/72/1,
Doddakammanahalli,
Bannerghatta Road,
SOS Post, Bangalore-76.
10. Smt. B. Parimala @ Pramila,
D/o. Palanimari,
Aged about 33 years,
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O.S.No.2859/2008
R/at Gopasandra Village,
Dankanikote Taluk,
Dharmapuri District,
Tamil Nadu State.
11. Sri. Mariya Louis,
S/o. Palanimari
Aged about 50 years,
No.16, III Main,
Kodichikkanahalli,
Aleem Layout (Near SBI Colony)
Bangalore.
12. Sri. Yeshwanth Shenoy,
S/o. Late Sri. H.V. Shenoy,
Aged about 40 years,
No.43, Basaveshwarana Nilaya,
2nd Cross Nehrunagara,
Bangalore-560020.
13. Sri. M.M Prasanna Kumar,
Aged about 45 years,
S/o. of Late Sri. Muddappa,
No.337, 4th Main Road,
Sadashivanagar, Bangalore.
14. Sri. B. Krishnappa,
Aged about 45 years,
S/o. Late Karigowda @ Boregowda,
No.1728, 18th Main, 9th Cross,
2nd Phase, JP Nagar, Bangalore-7.
15. M/s. Aishwarya Shelters Pvt.Ltd.,
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O.S.No.2859/2008
Having its registered office at
No.221, 1st Floor, 9th Main,
5th Block, Jayanagar,, Bangalore-41.
Rep. By its Directors
G. Shekar & P. Harshvardhan Reddy
16. Smt. M. Anusuyamma
Aged about 45 years,
D/o. Sri. Munivenkatappa,
No.2, Pushpa layout,
NS Palya, BTM Layout, II Stage,
Bangalore- 560076.
17. Smt. Lakshmi,
Aged about 51 years,
D/o. Late S. Ramasastry,
No.883, 19th Main Road,
39th Cross, 4th 'T' Block,
Jayanagar, Bangalore-76.
18. G.V. Srihari,
Aged about 28 years,
S/o. Viswanatha Sastry,
No. 1105, 18th Main Road,
5th Cross, BTM II stage
1st Phase, Bangalore-76
19. S.R. ChengamaRaju,
S/o. Late SN Ramaswamy Raju,
Aged about 49 years,
No.57, 39th 'A' Cross, 4th 'T' Block,
Jayanagara, Bangalore-41.
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O.S.No.2859/2008
20. S. Sulochana,
W/o. S.R. Chengama Raju,
S/o. Late S. N. Ramaswamy Raju,
Aged about 49 years,
No.57, 39th 'A' Cross, 4th 'T' Block,
Jayanagara, Bangalore-41.
21. Vanisri. S.R.
Aged about 31 years,
No.24/3, Police Station Road,
Basavanagudi, Bangalore-4
22. Sabria Hussain
Aged about 41 years,
W/o. M. Umood Hussain,
No.331, 36th 'A' Cross,
9th Main, 5th Block,
Jayanagara, Bangalore-41.
23. Prakash C.S.
Aged about 41 years,
S/o. Late S.Chandrashekaraiah,
No.659, 6th Main Road,
Vijayanagar, Bangalore-40.
24. M Umood Hussain
Aged about 46 years,
S/o. Late S. Mohammad Hussain,
No.331, 36th A Cross,
9th Main, 5th Block,
Jayanagara, Bangalore-41.
25. Mrs. Reena M Pinto
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O.S.No.2859/2008
Aged about 33 years,
W/o. Late Dennzil Pinto,
No.405, 1st Floor,
17th Cross, 33rd A Main Road,
6th Phase, J.P. Nagar, Bangalore- 78.
26. Subramanya, B.K.
Aged about 35 years,
S/o. Keshava Murthy,
No.106/17, 4th Model House Street,
N.R.Colony, Bangalore.
27. Deepak Rai,
S/o. DevannaRai,
Aged about 34 years,
No.177, 5th Main, 3rd Phase.
J.P.Nagar, Bangalore
28. Aparna Srinivas K
W/o. Mr. Srinivas Kondimalla
Aged about 31 years,
No.472, I Floor, 12th Main,
17th Cross, 5th Phase,
JP Nagar, Bangalore-78.
29. Mr.Srinivas Rao Kandimalla
S/o. K Koteshwra Rao
Aged about 34 years,
No.472, I Floor, 12th Main,
17th B Cross, 5th Phase,
JP Nagar, Bangalore-78.
30. Uma Moram,
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O.S.No.2859/2008
W/o. VRP Prasad Moram,
Aged about 31 years,
No.05, 26th Main, 38th Cross,
9th Block Jayanagara, Bangalore.
31. Raghunandan Mishra,
S/o. Mahendra Kumar Mishra,
Aged about 31 years,
No.53, SBI Officers Coloney,
Basaveswaranagar, Bangalore-79
32. A. Gopinathan, S/o. T. Adimoolan,
Aged about 37 years,
No. 61, 19th Cross, 19th Main,
5th Phase, JP Nagar, Bangalore-78.
33. Smt.S.Padmavathi,
W/o. Rajarathnam,
No.313, Vidyapeeta,
Channammanakere Achukattu
Banashankari 3rd Stage, Bangalore
34. C.P. Ashok Kumar,
S/o. Sri. C.P. Ramana Reddy,
Aged about 32 years,
No.32, 2nd Cross, CholurPalya,
Magadi Road, Bangalore.
35. P.Rama Prasad, S/o P. Kondappa,
Aged about 32 years,
No.32, 2nd Cross, Cholur Palya,
Magadi Road, Bangalore.
10
O.S.No.2859/2008
36. G. R. Suryanarayana Iyer
S/o. Late. G. Ramachandra Iyer
Aged about 62 years,
No.812/18, 19th A Main, RPC Layout,
Vijayanagar, II Stage, Bangalore-40.
37. Sudhir Vijendra,
S/o. VS Vijendra,
Aged about 32 years,
No.164, 20th Main,
15th Cross, 2nd Phase, JP Nagar,
Bangalore-78
38. K.V. Chandrakala,
W/o. A.N. Thyagaraja,
Aged about 42 years,
403, 13th Cross,
Sadashivanagar, Bangalore-10
39. Renuka Aradhya B.V,
S/o. B.N. Veerabadraiah,
No.471/43, 3rd Block, 55th Cross,
Rajajinagar, Bangalore-10
40. N.J.Jayakumar Gowda
S/o. N. Lingaiah,
Aged about 43 years
No.P-36, 25th Main, LIC Colony,
1st Phase, J.P.Nagar, Bangalore-78
41. Shivashankar B.S
S/o. B. Sadashivappa,
Aged about 33 years,
11
O.S.No.2859/2008
No.60, 8th Main Road,
8th Cross, 3rd Phase, JP Nagar,
Bangalore-78
42. K. Umamaheshwar Reddy
S/o. K.V. Subbareddy,
Aged about 37 years,
787, 13th Cross, 16th Main,
BTM 2nd Stage, Bangalore-78
43. Indumathy G, W/o Neeraj S
No.75, 16th Cross, 4th Main,
4th Phase JP Nagar, Bangalore-78
44. R.Balachandra,
S/o. G.P Raghunathan
Aged about 32 years,
167, Bhuvan, 2nd Main, 3rd C Cross,
Domlur Layout, Bangalore-71
45. G.P. Raghunathan
S/o. Late GV Panchapakeshya Iyer
Aged about 66 years,
167, Bhuvana, 2nd Main, 3rd C Cross
Domlur Layout, Bangalore-71.
46. S.Jagadish, S/o. Shivamurthy H.S
Aged about 34 years,
167, Bhuvana, 2nd Main, 3rd C Cross
Domlur Layout, Bangalore-71.
47. Nirmal Rajendran,
S/o. Shivamurthy H.S
12
O.S.No.2859/2008
Aged about 34 years,
No.11, 3rd 'A' Cross,
Sultanpalya Main Road,
RT Nagar, Bangalore-32
48. V. Satheesan
S/o. TM Govindan Nair,
Aged about 35 years,
No.25, Chowdappa block,
Hanumanthappa layout,
Sulthanpalya, Bangalore-32
49. Pradeep Kumar N.S
S/o. N.S. Shankar Rao
No.53, Eshwari, 5th Main
Brindavana Extension,
Opp. Manjunath School
Arakere Gate, Bannerghatta Road,
Bangalore-76
50. Priyadarshini Mishra
W/o. Puran C Mishra
Aged about 50 years
No.634-B, Rank Colony Apartment
Bannerghatta Main Road,
Bilekahalli, Bangalore-76
51. Puran C Mishra,
S/o. Bhagabana Mishra,
Aged about 41 years,
No.634-B, Ranka Colony Apartment
Bannerghatta Main Road,
Bilekahalli, Bangalore-76
13
O.S.No.2859/2008
52. K.S. Ravi,
S/o. K.S. Srinivasa Murthy,
Aged about 45 years,
No.64, 1st Floor, 2nd Main,
Nataraja Layout, 7th Phase,
JP Nagar, Bangalore-78
53. Amit Kumar Chandawani,
S/o. Suresh Kumar Chandani
Aged about 31 years,
No.-3, 608, Malaprabha,
National Games Village,
Koramangala, Bangalore
54. Shridhara Padala
S/o. Late P.S.S. Rao
Aged about 32 years,
No.31, 8th B Main,
BTM, 1st Stage, Bangalore
55. Rajiv S Banchhu
S/o. B Santh Kumar Gupta
Aged about 35 years
No.132, BEML Layout,
Basaveshwaranagar, Bangalore
56. Valerian Marits
S/o. Joseph Peter Marits
Aged about 54 years,
No.87, RoopaSadan
15th Main, 17th Cross, 5th Phase,
JP Nagar, Bangalore-78
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O.S.No.2859/2008
57. Deepak Wilfred
S/o John Rego
Aged about 31 years,
No.405, 1st Floor, 17th Cross,
33rd 'A' Main, 6th Phase,
JP Nagar, Bangalore-78
58. M.G. Keshava Murthy
S/o. M.R.V. Guru Rao,
Aged about 66 years
No.65-A, Rasama Rao Layout,
BSK III Stage, Bangalore-85
59. M.P.Roshan
S/o. Late M.K. Poovaiah,
Aged about 39 years,
348, Ground Floor, 6th Main,
18th Cross, BEML Layout,
Basaveshwaranagar, Bangalore.
60. Mrs. Roopa. N.G
W/o. M.P.Roshan
Aged about 43 years
248, Ground Floor, 6th Main,
18th Cross, BEML Layout,
Basaveshwaranagar, Bangalore.
61. Kannabran S Vishwannthan
S/o. Subramanya Vishwanathan
Aged about 36 years,
No.47, 3rd Cross, Cauvery Layout,
Nagarbhavi Road,
15
O.S.No.2859/2008
Vijayanagar, Bangalore-40
62. KavithaKannabran
W/o. Kannabran S Vishwanathan
No.47, 3rd Cross, Cauvery Layout,
Nagarbhavi Road,
Vijayanagar, Bangalore-40
63. M. Selvaraj
S/o. P.M. Munirathnam
Aged about 34 years
No.24,F/9, 17th Main Road,
Banashankari 3rd Stage,
Muneshwara Block, Bangalore-26
64. Annapurna Sulladmath
W/o. V.V. Sulladmath
Aged about 57 years
No.205, 15th Main, 19th Cross,
P.O. Subramanyapura,
Padmanabhanagar, Bangalore-70
65. ChethanSulladamath
S/o. V.V.Sulladmath
Aged about 35 years
No.205, 15th Main, 19th Cross,
P.O. Subramanyapura,
Padmanabhanagar, Bangalore-70
66. Ravi Krishna Kallepalli
S/o. K. VenkataRaju
Aged about 31 years
83/A, 2nd Floor, Srinath Nilayam
16
O.S.No.2859/2008
4th Cross, 3rd Main, Bilekahalli
Dollars Colony, BTM 2nd Stage,
Bangalore.
67. P. Gopikrishna
S/o. P. Kota Nageshwara Rao
Aged about 33 years
412, 2nd Floor, 11th Cross,
30th Main Road, 1st Phase,
JP Nagar, Bangalore-78
68. P. Radhakrishna
S/o. Late V.C. Balakrishna Nair
Aged about 59 years
No.45, 8th Main, New
Gurrappanapalya,
Bannerghatta Road, Bangalore-29
69. Lancelot Richard Fernandes
S/o. Robert Fernandes
Aged about 47 years
MELENS View Colony
Morili Kulashekar Post, Mangalore
70. Prashanth B.K.
S/o. Keshava Murthy
Aged about 31 years
No.106, Sheshkamal Apartments
Matadakani Cross Road,
Gandhinagar, Mangalore-575003
71. T.M. Raghavendra Rao
S/o. Late T. Madhavarao
17
O.S.No.2859/2008
Aged about 68 years
1492, Sharadavilas Road
Krishnamurthypuram, Mysore-04
72. Naveen Kumar Patha
S/o. Late BhaskarPatha
Aged about 29 years
No.10-2-79, Md. Kasim Basthi,
BellamPalli 504 251,
Adilabad Dist.A.P
73. U. Latha, W/o. R. Ulagasnathan
Aged about 41 years
No.T-18, GnanaOlivu Street,
Jafferkhanpet, Chennai-600083
74. Peravali Radha
W/o. Peravali Subba Rao
Aged about 44 years
Plot No.3, Karthana
Secunderabad A.P. 500015
75. Ashok Irappa Magadum
S/o Irappa Adiveppa Magadum
Aged about 29 years
No.2331, Bangar Galli
Sankeshwar 591313
Belgaum District.
76. R.Rajesh Shenoy
S/o. P.N. Ramanathan
Aged about 30 years,
Plot No.4, Shenoy Sadan
18
O.S.No.2859/2008
Kumaran Colony,
Sridevi Garden Road,
Valasarawakkam, Chennai-87
77. Veereshappa C.A
S/o. Chandrashekarappa C.A
Aged about 43 years
TevarachatnaHalli
Ward No.8, Shimoga 577216
78. Rajesh V. Desai
S/o. V.L. Desai
Aged about 41 years
No.2/22, Appavu Nagar,
Near S.D.A. School,
Hosur 623109 T.N
79. Parameshwarappa C.A
S/o. Chandrashekarappa. C.A
Aged about 46 years
R/at MIG, 246, KHB Colony
Periyapathna, Mysore Dist-571107
80. Navin Toms, S/o. S.T.Thoms
Aged about 32 years
Srampical House,
Kumarakom South Post,
Kottayasam, Kerala-63
81. John Prakash Arantha
S/o. Dominic Arana,
Aged about 31 years,
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O.S.No.2859/2008
Hale Hithlu House, Shirva Post
Udupi Taluk Karnataka-16
82. Smt. A. Kanthamma
W/o Sri. A. Doreswamy Reddy,
Aged about 56 years,
No.11/12, 3rd Cross, Sarakki,
26th Main, 6th Phase, JP. Nagar,
Bangalore-78.
83. Prakash Babu
S/o. Sri. A. Doreswamy Reddy,
Aged about 35 years,
No.11/12, 3rd Cross, Sarakki, 26th
Main, 6th Phase, J.P. Nagar,
Bangalore 560 078
84. D. Gopikumar, S/o. A. Doreswamy
Reddy, Aged about 32 years,
No.11/12, 3rd Cross, Sarakki, 26th
Main, 6th Phase, J.P. Nagar,
Bangalore 560078
85. D. Vijayan Kumar, S/o. A.
Doreswamy Reddy, Aged about 28
years, No.11/12, 3rd Cross, Sarakki,
26th Main, 6th Phase, J.P. Nagar,
Bangalore 560078
(By Sri. D.C.P., Adv., for D-1, Sri H.G.,
Adv., for D-56, Sri. N.R., Adv., for D-
67, Sri. S.G.H., Adv., for D-34, 44, 46,
47, & 48, Sri. N.S., Adv., for D-14 to
20
O.S.No.2859/2008
16, 18 to 21, D-12, D-23 & 24, D-82 to
85, Sri. K.A.H., Adv., for D-76, Sri
D.R.P., Adv., for D-7 to 11, Sri P.M.S.,
Adv., for D-13, Sri. S.K.M., Adv., for D-
69 and Sri H.R.S., Adv., for D-17 )
Date of Institution of the Suit :: 15-04-2008
Nature of the Suit :: Partition
Date of commencement of
recording of evidence :: 20-11-2019
Date on which the Judgment
was pronounced. :: 28-04-2025
:: Year/s Month/s Day/s
Total Duration 17 -- 12
(Smt. Gomati Raghavendra),
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
JUDGEMENT
This is a suit filed by the plaintiffs against the defendants for the relief of partition by metes and bounds, plaintiffs are in exclusive possession of their 21 O.S.No.2859/2008 1/7th share each (3/7th in all) of the suit schedule properties;
b) Declaration that the decree passed by the Principal II Munsiff Judge at Bangalore in OS.349/95 dated 26.7.1995 is null, void ab-intio and not binding on the plaintiffs;
b1) Declare that the decree passed by the court of civil judge (Jr.Dn), Bangalore District, Bangalore in OS.286/2000 dated 30.11.2011 is null and void and not binding on the plaintiffs.
c) Declare that the alienations alleged or purported to have been done by defendants 1 to 4 in favour of defendants 12 to 85 as stated in para-12 of the plaint or anybody else are void and not binding on the plaintiffs;
d) To grant injunction restraining the defendants, their agents, servants or anybody claiming under or through them from in any manner alienating the suit schedule property in favour of third parties or creating charge over the suit schedule property;
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O.S.No.2859/2008
e) To grant injunction restraining the defendants, their agents, servants or anybody claiming under or through them from in any manner interfering with the peaceful possession and enjoyment of the suit schedule property;
f) Directing for an enquiry for mesne profit under order XX Rule 12 of the civil procedure;
g) To grant cost of the proceedings and
h) For such other relief's as this Hon'ble court deems fit to grant under circumstances of the case.
2. The brief case of the plaintiffs is as under :-
It is asserted that the plaintiffs and defendants 1 to 4 are all Christians and are governed by Indian Succession Act. The plaintiffs filed the suit for partition of properties belonging to father Late Binny known as Benny referred to as Binny son of Moses. The said Binny was married to one Jaya Mary who predeceased 23 O.S.No.2859/2008 him. He had 7 children, the plaintiffs are his daughters and the defendants 1 to 4 are his sons. Binny died intestate on 11.6.1995. His wife Jaya Mary predeceased him on 08.01.1992. The defendants 1 to 4 are in joint possession and enjoyment of the suit schedule properties ever since the demise of Binny and he had acquired two properties bearing Municipal No.120, 31 st B Cross, Jayanagar Hutting Colony, Bangalore, which is "A" schedule property. Binny also acquired the property bearing Sy.No.96/3 renumbered as Sy.No.145/2 measuring 14 acres 14 guntas situated at Kammanahalli Village, Bangalore South Taluk, which is B schedule property taken on 22.7.79. Suit was filed in OS.325/2004 by defendant No.5 claiming to be Binny's 2nd wife and defendant No.6 to 10 claimed to be the children of Binny through 2nd wife, 5th defendant herein, 11th defendant claims to be the adopted son of late 24 O.S.No.2859/2008 Binny. The defendants 5 to 11 claimed one-half share in suit B schedule property.3. It is asserted that the defendants No.1 to 4
assured the plaintiffs that they would safeguard the interests of the plaintiffs and convinced to engage a counsel and filed common written statement, the plaintiffs were getting information from several others, the plaintiffs came to know that the defendants 1 to 4 had filed a suit in OS.349/1995 in which 1st defendant was the plaintiff and defendants 2 to 4 herein were defendants. Despite, the plaintiffs had a share in the suit schedule properties, 1st defendant was allocated 5 acres 33 guntas of the B schedule property, 2nd defendant was allotted 3 acres 20 guntas in the "B" schedule property and 1 acre 27 guntas of the "B" schedule property each was allotted to defendants No.3 & 4.
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O.S.No.2859/2008
4. Thereafter plaintiffs and the defendants 1 to 4 had executed a registered sale deed dated 18.03.1997 in favour of 12th defendant. The 12th defendant sold the land in favour of 13th defendant, the 14th defendant filed a suit in OS.286/2000 before Civil Court for specific performance of the agreement dated 02.07.1997. The said sale deed executed by the defendants 1 to 4 in favour of 14th defendant is void and not binding on the plaintiffs. Thereafter, 13th and 14th defendants have alienated portion of B schedule property to defendants 25 to 81 through separate sale deeds. The 2 nd defendant sold the portion of B schedule property to defendants 16 to 24 and 82 to 85.
5. The plaintiffs issued notice to the defendants seeking a partition of their 1/7th share each in suit B schedule property. The plaintiffs have also demanded 26 O.S.No.2859/2008 their partition orally from the defendants in respect of schedule properties on 16.03.2008. The defendants have denied the plaintiffs legitimate share of the suit schedule properties.
6. The cause of action arose on 03.03.2007, when O.S.325/2004 came to be dismissed and on 16 th March 2008 when the plaintiff demanded partition of the suit schedule properties from the defendants. The plaintiffs are in joint possession of the suit schedule properties along with defendants. Thus the plaintiffs requested for decretal of suit.
7. Despite service of suit summons, defendants No.2, 12, 14, 15, 21 to 25, 28 to 33, 35 to 43, 45, 49 to 53, 55 to 66, 68, 71 to 74, 76, 80 & 81 failed to appear before the Court and placed ex-parte.
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8. Defendants No.1, 3, 4, 5 to 11, 13, 16 to 20, 26, 27, 34, 44, 46 to 48, 54, 67, 69, 70, 75, 77, 78, 79, 82 to 85 have contested the suit by filing written statement.
9. The 1st defendant filed his written statement stating that his father died intestate on 11.6.1995 and his mother died on 08.01.1992. "A" schedule property was bequeathed by the deceased M.Binny in favour of 3rd defendant who is paying taxes as absolute owner. He has denied that the plaintiffs and defendants 1 to 4 are in joint possession of the B schedule property as on the date of this suit. The plaintiffs and defendants have entered in to a partition in respect of B schedule property under partition deed dated 23.01.2004. There are number of buildings constructed which are in possession of different persons. Hence, the question of joint possession does not arise at all. 28
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10. The defendant No.1 has also filed his additional written statement stating that the suit of the plaintiff is not at all maintainable either in law or on facts and the same is liable to be dismissed with exemplary cost. The present suit is belated and barred by limitation. The plaintiff is very much aware that earlier partition was affected in the family of defendants. Therefore, the suit is filed by the plaintiff without explaining the delay. The suit schedule A property bearing municipal No.120 and suit schedule B property bearing Sy. No.96/3, New Sy. No.145/2 are not existing in the joint family of plaintiffs and defendants No.1 to 4. the plaintiffs have no manner of right to seek partition in respect of said properties.
11. It is further stated by the defendant No.1 that out of the suit schedule 'B' property, during the lifetime 29 O.S.No.2859/2008 of Mr.Binny, who is the father of the plaintiffs and defendant No.1 to 4 have sold 3 acres 30 guntas of land in favour of one Mr.Shenoy and subsequent to his death, as per his will and wish, the property was partitioned as per the judgment and decree passed in O.S No.349/1995 and the entire properties were partitioned amongst the defendants No.1 to 4 together along with the plaintiffs separately under a registered partition deed dated 23.01.2004 and earlier to that deed these plaintiff were entered into family agreement for the said deed, the plaintiffs are the parties and signatories. Therefore, the registered partition deed dated 23.01.2004 is binding on the plaintiffs also. When once the partition is effected among the family members, the question of seeking partition again in respect of the same property does not arise at all. In fact, the plaintiffs have accepted their share as per the unregistered 30 O.S.No.2859/2008 partition deed dated 22.11.2002. The partition deed at document No.1 demonstrates that the plaintiffs have accepted their share in the property under the said registered partition deed. Even after the said partition deed, this defendant has given sites to the plaintiffs No.2 and 3 at J.P Nagar which is a valuable property, valued more than the schedule 'B' property. Apart from that the plaintiffs have taken movables by way of cash from the defendant No.1 to 4. by suppressing all these facts, the plaintiffs have approached this court after lapse of 10 years as an after thought, only with a malafide intention to threaten, blackmail and extract illegal money from this defendant and other defendants. Therefore, the suit itself is hit by the doctrine of supprecio facts .
12. The plaintiffs have sought for cancellation of number of sale deeds numbering more than 80 which 31 O.S.No.2859/2008 were also executed for valuable sale consideration. Whenever the sale consideration was received by this defendant, some portion of it was parted with the plaintiffs at the time of execution of the registered sale deeds. At the time of execution of each sale deed, the consent of the plaintiffs was taken. Therefore, it can be presumed and it is crystal clear that the plaintiffs are not in joint possession of the schedule 'B' property and the defendants No.1 to 4 are not in possession of the same as the same were sold in favour of the other defendants. Therefore, the plaintiffs have to pay the court fee as contemplated under section 35(2) of the Karnatata Court fees and suits valuation Act, 1958 and the plaintiffs have to value the suit on the basis of the Market value of the schedule properties as on the date of filing the suit. The plaintiffs have not paid the proper court fees on the suit. Therefore, the suit itself is liable to 32 O.S.No.2859/2008 be dismissed on the ground of non payment of proper court fee.
13. It is further stated by the defendant No.1 that as the plaintiffs have executed agreement on 22.1.2002 itself, wherein the plaintiffs are the parties to the said agreement and they are the signatories to the same. These agreement clearly show that as on 22.1.2002, the plaintiffs are very much aware of the sale of the properties out of schedule 'B' properties in favour of various other defendants and other persons in the year 2002 itself, they were keeping quiet all these days and filed the present suit only in the year 2008 after a lapse of more than 7 years.
14. It is further stated that one Smt.Palani Mari Claiming as if she is the step mother of this defendant had filed a suit before this court in O.S No.325/2004 and 33 O.S.No.2859/2008 the same came to be dismissed on the ground that the said Smt.PALANI Mari and others are not entitled for share out of the suit schedule properties. Apart from that it is clearly observed by the court that since the said Smt.Palani Mari belongs to Christian community, Hindu Law will not be applicable to the parties. Therefore, the provisions of Indian Succession Act does not give any right to the plaintiffs in respect of the suit schedule properties.
15. It is further stated by the defendant No.1 that against dismissal of the suit in O.S No.325/2004, Smt.Palani Mari and others filed R.A.No.94/2008 before the appellate court. The said R.A. came to be dismissed on 20.01.2011 with clear observation that according to the plaintiffs, Smt.Palani Mary was a Hindu by birth and her name was Smt.Palaniyamma and that it is their 34 O.S.No.2859/2008 case that she got converted into Christianity and later on married Binny and therefore, plaintiffs are entitled for a share. It is argued before the Appellate court that even if the children born out of legal wedlock of Binny with Palani Mary are considered to be illegitimate, they are entailed for a legitimate share in the self acquired property of Binny.
16. It is further stated by the defendant No.1 that out of the properties fallen to the share of the second plaintiff Smt.B.Jayasheela she has sold the property out of her share to the third party Smt.Kanthamma and the said Smt.Kanthamma has filed a civil suit for enforcement of the sale agreement and in the said suit also, the plaintiffs are unnecessarily dragging the said Smt.Kanthamma and others who have paid money for purchase of the property. The plaintiffs are habitual 35 O.S.No.2859/2008 litigants. Knowing fully well that they have accepted the partition and execution of agreement, on acceptance of the agreement and partition deed, the plaintiffs have no right to claim independent claim. But, simply, the plaintiffs are dragging this defendant to the court to extract illegal money from this defendant. The suit is totally vague and not maintainable either in law or on facts and the same is liable to be dismissed with exemplary cost.
17. In their written statement defendants No.3 and 4 have stated that the defendants 1 to 4 and the plaintiffs are the only legal representatives of the propositer late Binny son of Moses. Binny died on 11.06.1995 Smt.Jaya Mary who is the mother of plaintiffs and defendants 1 to 4 deceased on 08.01.1992. Binny left behind him self acquired 36 O.S.No.2859/2008 properties. During the life time of Binny he executed last WILL dated 08.02.1995, by way of this will he bequeathed A schedule property in favour of 3rd defendant. Therefore, these defendants also be allotted their portion of 1/7th share in the B schedule property.
18. The defendant No.4 has filed his additional written statement stating that the plaintiff and Defendants No.1 to 4 are the legal representatives of one Binny and they are each entitled to 1/7 share in the 'B' Schedule property. The partition deed is not in respect of the entire estate of late Binny but is restricted to only a part of the estate viz. 5 acres 33 guntas. The entire 'B' Schedule property measuring 14 acres 14 guntas. Only 5 members out of the entire family consisting of 7 members have executed the registered partition deed. Since it does not have the signatures of 37 O.S.No.2859/2008 all the family members, the partition is void. There is an inequitable distribution in the partition deed dated 23.1.2004 by way of which the Plaintiffs have been given a particular share of 6 ½ guntas each and Defendants No.1 and 3 have taken a lion's share of 33 ½ guntas and 30 guntas respectively. This Defendant and also Defendant No.2 have not been allotted any share under the registered partition deed dated 23.1.2004. This is high inequitable and results in an unequal sharing of the estate.
19. The defendants No.5 to 11 have jointly filed their written statement stating that the plaintiffs have suppressed the fact regarding the relationship and not furnished the correct genealogical tree of late Binny. The relationship of Smt.Palanimary as wife of Masilamani though she is not connected with the said Masilamani 38 O.S.No.2859/2008 and she is the wife of Late.Binny. During the life time of Late Binny they were all staying in one shelter. The defendants 6 to 10 are children of late. Binny and 5 th defendant, and 11th defendant is their adopted son. During the life time of late Binny he had divided portion of the property and allotted 10 guntas each to these defendants before his demise and also executed a will dated 19.7.1988 in favour of these defendants in possession of 'B' schedule property as joint owners along with plaintiffs and defendants 1 to 4. The 11 th defendant is the adopted son of late Binny and he is not born to 5th defendant. These defendants who are rightly entitled for share were also not made as parties to the said collusive proceedings between the defendant No. 1 to 4. The relationship of 5th and 11th defendants has been wrongly shown in the cause title and all the other defendants have not been shown the relationship with 39 O.S.No.2859/2008 the father and they left the name of father of these defendants though they were very well aware that they are all children of late Binny and thus intended a character assassination of the defendants 5 to 11. The suit in O.S.No.325/2004 came to be dismissed on technical ground and these defendants have already preferred an appeal against the said judgment in RA.94/2008 on the file of District Judge, Bengaluru Rural District on 15.4.2008 in which plaintiffs are also parties to the said appeal and the court was pleased to grant an interim injunction restraining the defendants including the plaintiffs from alienating the suit schedule property. The suit of the plaintiff is not maintainable. The plaintiffs have filed the above suit in order to harass these defendants.
20. There is no cause of action for the suit. The 5th defendant is the wife of late Binny and all other 40 O.S.No.2859/2008 defendants 6 to 10 are the sons and daughters of late Binny and defendant No. 11 is the adopted son of late Binny and they have filed a suit in O.S.No.325/2004 claiming partition and other reliefs. The plaintiffs are not entitled for the relief the extent of 1/7th share and on this ground itself the plaint has to be rejected.
21. In his written statement defendant No.13 has contended that the suit of the plaintiffs is not maintainable either in law or on facts of the case against this defendant and same is liable to be dismissed. This defendant has denied the all the allegations made by the plaintiff. There is no cause of action for the suit and the alleged cause of action is concocted for the purpose of this suit. The plaintiffs at any point of time having no physical possession of the suit schedule property. The suit is bad for non-joinder of necessary parties and mis 41 O.S.No.2859/2008 joinder of unnecessary parties. The land bearing Sy.No.145/2, old Sy.No.96/3 situated at Kammanahalli Village, Begur Hobli, Bengaluru South Taluk, measuring 3 acres 20 guntas bounded on the east by Sy.No.133, 134 and remaining portion of Sy.No.145/2 retained by the vendors, west by Sy.No.132 and private property, north by Sy.No.145/1 and south by Brahmakumari's Om Shanthi Road is the property which is purchased by the defendant for valuable consideration under a registered sale deed dt 3.2.2003 and he is in actual physical possession and enjoyment of the same as an absolute owner. B.Shantharaj along with his three minor children Kum.S.Sheebha, Master S.Paul and Master S.Nelson Edwin, out of 5 acres 7 guntas allotted to them, a portion of 20 guntas were sold in favour of H.Yeshwantha Shenoy under a registered sale deed dated 18.3.1997 who is the vendor of this defendant No. 42 O.S.No.2859/2008
13. The terms and conditions under which the partition decree recorded in O.S.No.349/1995 dated 26.7.1995 is very much within the knowledge of the plaintiffs. The suit of the plaintiffs is hopelessly barred by law of limitation particularly with respect to transaction taken place in favour of this defendant. With these contentions, defendant No. 13 prayed to dismiss the suit with cost.
22. The defendants No.16 to 20 and 82 to 85 have jointly filed their written statement contending that the suit filed by the plaintiffs is null and void and not binding on them. The suit is not maintainable either in law or on facts.
23. The plaintiffs and the Defendants 1 to 4 in concurrence to each other have filed O.S. No. 349/1995 for partition and separate possession. Earlier to filing of 43 O.S.No.2859/2008 the said O.S. No. 349/1995, the father of the plaintiffs and Defendants 1 to 4 by name Binny, sold 3 acres 20 guntas in favour of one Sri. Kumar and executed an Agreement to Sell dated 12.01.1995 by receiving the sale consideration from him. Out of the sale consideration and other deeds executed by him he got properties in the name of the some of the plaintiffs. The Defendants No. 1 to 4 have also got properties in the name of plaintiffs out of sale proceeds from the 'B' Schedule Property. During subsistence of the agreement the said Binny died. The Plaintiffs and Defendants 1 to 4 are fully aware of the said Agreement. After the death of Binny, the plaintiffs and the defendants decided to divide their properties. In view of the family arrangement they have filed the above suit O.S. No. 349/1995 only in respect of 'B' Schedule Property herein. Thereafter the plaintiffs and the 44 O.S.No.2859/2008 defendants mutually decided to divide the 'B' Schedule Property. As such, in the compromise decree, he was allotted two portions i.e., 1 acre 27 guntas and 3 acres 20 guntas. In the said two portions 1 acre 27 guntas is his entitlement in the 'B' Schedule Property and another portion measuring 3 acres 20 guntas was allotted in favour of the Sri. Kumar or his nominee as agreed by his father Binny in the above said agreement to sell dated 12.01.1995. In view of the above agreement, the Defendant No.2, executed a Sale Deed dated 18.3.1997 in favour of Sri. H. Yeshwanth Shenoy, the defendant No.12, in respect of 3 acres 20 guntas in the 'B' schedule Property in order to complete the Agreement of Sale dated 12.01.1995, executed by his father.
24. The Defendant 1 got 5 acre 33 guntas in the 'B' Schedule Property. It is further submitted that 45 O.S.No.2859/2008 defendant No.1, got more share in the compromise deed which was allotted with an understanding that he will allot share to the plaintiffs. After compromise in O.S. No. 349/1995, the plaintiffs, Defendants-1 and the 3, in view of their earlier understanding, have entered into a registered partition Deed dated 23.01.2004, dividing the properties in the B' Schedule. They further admitted in the said registered partition deed regarding filing of O.S. No. 349/1995 and the compromise decree drawn. They further submitted in the said deed that the Plaintiffs and Defendants 1 and 3 have alienated 3 acre 30 guntas out of 5 acres 33 guntas and retained 2 acre 3 guntas in the 'B' Schedule Property and in the available extent that is 2 acre 3 guntas, they have divided their shares in the said registered Partition Deed dated 23.01.2004. The Defendant No.4 was allotted 1 acre 27 guntas in the 'B' Schedule Property under the compromise decree in 46 O.S.No.2859/2008 O.S. No. 349/1995. Thus the suit schedule properties are divided between the members of the family. The Plaintiffs are having full knowledge of the above said facts. They deliberately suppressed the said averments and filed the mischievous suit to make wrongful gain.
25. The plaintiffs are aware of decree in the O.S.No.349/1995 and the same has been incorporated in the registered partition deed dt 23.1.2004. The plaintiffs have been put in possession of their respective shares. They have sold the portion of the property having fallen to their share. Thus it is clearly evident that the decree in O.S. No. 349/1995 is executed and acted upon and the same has been given effect. The act of the plaintiffs clearly demonstrates their malafide, dishonest and illegal motive. They are estopped from pleading ignorance of the compromise decree in 47 O.S.No.2859/2008 O.S.No.349/1995. The Plaintiffs and Defendants are not the members of the joint family. The First Plaintiff got married in the year 1977, the plaintiff No.2, got married in the year 1988 and the plaintiff No.3 got married in the year 1993. There is no existence of joint status between the plaintiffs and the Defendants. The Plaintiffs have no legal right over the properties purchased by these defendants. As claimed by the Plaintiffs, the suit schedule properties are not the joint family properties. As such the claim is without any legal basis and they are not entitled any of the reliefs claimed in the suit.
26. The present suit is a collusive suit at the instigation of Defendants 1 to 4. In the earlier suit O.S. No. 325/2004, filed by defendants 5 to 11, the plaintiffs and defendants 1 to 4 have filed the common written statement and prosecuted the case. The Defendants 1 48 O.S.No.2859/2008 to 4 influenced the plaintiffs to file this suit by suppressing material facts. They have not only suppressed the, agreement for sale executed by their father and subsequent sale deeds and the registered Partition Deed between them, but also suppressed properties held and purchased themselves and so also by Defendants No. 1 to 4. Further the plaintiffs suppressed the that their brothers have gifted the properties out of the sale proceeds from the 'B' Schedule Property.
27. Thus the 'B' Schedule Property was divided between the plaintiffs and the Defendants 1 to 4. After compromise decree the Defendants 1 to 4 in order to discharge the encumbrance created by his father and to allot share to the plaintiffs and further improve the Schedule Property have got converted the 'B' Schedule 49 O.S.No.2859/2008 Property under different conversion orders and sold the same in favour of various prospective purchasers including the these defendants and put them in physical possession of the their respective portions. Besides all these the plaintiffs have got gold ornaments and cash from the plaintiffs. The plaintiffs are owning valuable properties in posh areas of Bangalore worth more than several cores and as stated above, the said fact was suppressed.
28. The plaintiff without having possession over the suit Schedule Properties either individually or joint status are not suppose to assess the suit so made by the plaintiffs and paid a court fee under Section 35 (2) instead of Section 35 (1) of Karnataka Court Fee and Suit Valuation Act and for the said latches also the suit is bad and liable to be dismissed.
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29. The Defendant 16, Smt. Anasuyamma has purchased a part the 'B' Schedule Property, measuring 1 acre 2 guntas, under registered Sale Deed dated 28.01.2004 from the Defendant 4 for valuable sale consideration which is converted by her for residential purpose, vide Conversion Order No. ALN.SR.(S 1997- 98, dated 31.12.1997. The then Basavanapura Gram Panchayath within whose administrative jurisdiction, the property purchased by the Defendant-16 is situated and recognition of the absolute ownership and exclusive- possession and enjoyment of 1 acre 2 guntas of land in- Schedule Property, has transferred the Katha and collect taxes from her. After urbanization now the 'B' Schedule property comes within the limits of Bruhat Bangalore Mahanagara Palike and the Defendant No.16, is paying taxes to the BBMP. The defendant No. 4 has fully transferred 1 acre 02 guntas of the 'B' 51 O.S.No.2859/2008 Schedule property in favour of the Defendant-16.
30. Defendant No.17, Smt. Lakshmi, has purchased a part of B schedule property measuring 12 guntas under a registered sale deed dt 28.1.2003 from defendant No. 1 to 4 through their GPA holders, out of the share fallen to the Defendant-2, Sri. Shantharaju in compromise decree for valuable sale consideration. As on the date of purchase the property purchased by her is converted for residential purpose, After urbanization now the 'B' Schedule Property comes within the limits of Bruhath Bangalore Mahanagara Palike and the Defendant No.17, is paying taxes to the BBMP. The Defendant No.17 has acquired ownership and possession in respect of the said 12 guntas of land out of the 'B' Schedule Property.
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31. The Defendant-18, Sri. G.V. Srihari, has purchased a plot bearing No.1 craved out of 'B' Schedule Property, measuring East to West 40 feet and North to South 60 feet, under registered Sale Deed dated 27.01.2000, from the Defendant-1. The Defendant-1, in concurrence with the plaintiffs was allotted share in the compromise decree and as such he executed the registered Sale Deed in favour of Partition Deed dated 23.01.2004, Thus this defendant is the absolute owner of the said portion and he is in exclusive physical possession and enjoyment of the same. After urbanization now Schedule Property comes within the limits of Bangalore Mahanagara Palike and the Defendant No.18 is paying taxes to the BBMP who has acquired ownership and possession in respect of the said 2400 Sq. ft. of land out of the 'B' Schedule Property. 53
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32. The Defendants No.19 and 20, Sri. S.R. Chengama Raju and Smt.Sulochana, have purchased property measuring 26.65 guntas out of 'B' Schedule Property, under a registered sale deed 6.03.2003, from the Defendant No.1. The Defendant -1, in concurrence with the plaintiffs was allotted share in the compromise decree and as such he executed the registered sale deed in favour of the Defendants No.19 and 20. After urbanization now the 'B' schedule Property comes within the limits of Bruhath Bangalore Mahanagara Palike and the Defendants-19 and 20 are paying taxes to the BBMP. The Defendants-19 and 20 have acquired ownership and possession in respect of the said 26.6 guntas of land out of the 'B' Schedule Property.
33. The Defendants No.82 to 85, Smt. A.Kanthamma, Prakash Babu, Gopikumar and D. Vijay 54 O.S.No.2859/2008 Kumar, have purchased property measuring 20 guntas, out of 'B' Schedule Property, under registered sale deed dated 20.07.2005, from Defendant No.2. The said property was fallen to the share of Defendant No.2, Sri. Shantharaju in compromise decree. After urbanization now the 'B' Schedule property comes within the limits of Bruhath Bangalore Mahanagara Palike and the Defendants No.82 to 85, are paying taxes to BBMP. The Defendants No.82 to 85 have acquired ownership and possession in respect of the said 20 guntas of land out of the 'B' schedule Property.
34. Beside the above said property the Defendants-83, purchased a site bearing No. 14 craved out of schedule Property, measuring East to West 30 feet and North 30 feet, under a registered sale deed dated 30.06.200 from Defendants No.1, his wife and 55 O.S.No.2859/2008 children through their PA holder. Defendant No.1, in concurrence with the plaintiffs allotted share in the compromise decree. The then Basavanapura Gram Panchayat within whose administrative jurisdiction, the property purchased by defendant No. 83 is situated has transferred khatha and collected taxes from him and defendant No. 83 is paying taxes to the BBMP. The Defendants-83 has acquired ownership and possession in respect of the said 2400 Sq.ft. of land out of the 'B' Property.
35. This court lacks jurisdiction since 'B' schedule property is situated within the jurisdiction of Bangalore Rural District.
36. The defendant No.26 and 70 have filed their written statement jointly contending the suit is not maintainable either in law or on facts of the case and 56 O.S.No.2859/2008 same is liable to be dismissed. The defendants No.1 to 4 had filed suit in OS.349/1995 for partition and separate possession. The father of the plaintiff and defendants 1 to 4 by name Binny, sold 3 acres 20 guntas in favour of one Sri.Kumar by an agreement of sale dated 12.01.1995. Out of sale consideration, he got properties in the name of some of the plaintiffs. The plaintiffs and defendants 1 to 4 have got properties in the names of plaintiffs from B schedule property, they filed the suit in OS.349/95 in respect of B schedule property. The Defendant No.2 executed a sale deed dated 18.03.1997 in favour of Yeshwanth Shenoy the defendant No.12. In pursuance of the shares some plaintiffs have alienated the portion of the properties got under the registered partition deed dated 23.01.2004. At this juncture, the plaintiffs cannot dishonestly contend and plead ignorance of the decree in OS.349/95 as 57 O.S.No.2859/2008 same is not binding on them. The plaintiffs and defendants are not the members of the joint family. The plaintiffs have no legal right over the properties purchased by these defendants. Further the plaintiffs suppressed the fact that their brothers have gifted the properties out of the sale proceeds from B schedule properties.
37. The plaintiff without having possession over the suit schedule properties either individually or jointly the 1st defendant and his children have sold portion of it in favour of one CSS Prakash, S.R.Vanisri and M.Umood Hussain under the registered sale deed dated 23.12.2002. The 1st and 2nd defendant and his children through their GPA holder have sold a portion of the suit property in favour of S.R.Vanisri and Sabira Hussain. These defendants are the bonafide purchasers of the 58 O.S.No.2859/2008 sites they have purchased the property from 1st defendant for valuable sale consideration through registered sale deeds.
38. Defendant No.70 has purchased the site bearing No.1, has borrowed the loan from the bank and invested the huge sum of money on this site and paying huge interest to the bank and transferred the katha and is paying taxes to the BBMP. All the defendants have purchased the sites in the layout called "IBBANI RESIDENCY'. EC is standing in their names having khatha and tax paid receipts, the defendants have also obtained approved plan for the construction of the residential building, they have already finished their construction and they are in possession and enjoyment of the respective sites. The plaintiffs only with an intention to knock off the valuable property belonging to 59 O.S.No.2859/2008 defendants with an intention to harass these defendants have filed this false suit.
39. The defendant No.70 has pleaded that the property purchased by this defendant is fully developed area the schedule property is converted land and the plaintiffs never in possession of the property and filed this false and frivolous suit. The plaintiffs are very well aware that the layouts are formed the sites were sold in favour of this defendant and other defendants.
40. The defendants No.27, 47, 48 and 54 in their written statement contended that the Plaintiffs and the Defendant 1 to 4 in concurrence to each other had filed O.S.No.349/1995 for partition and separate possession. Earlier to filing of the said O.S. No.349/1995, the father of the Plaintiffs and Defendants 1 to 4 by name Binny, sold 3 acres 20 guntas in favour of one Sri. Kumar, and 60 O.S.No.2859/2008 executed an Agreement to sell dated 12.1.1995 by receiving the sale consideration from him. Out of the sale consideration and other deeds executed by him he got properties in the name of the some of the Plaintiffs. During substance of the agreement the said Binny died. The Plaintiffs and defendant No.1 to 4 have also got properties in the name of the plaintiffs. The Defendants No.1 to 4 have also got properties in the name of Plaintiffs out of sale proceeds from the B schedule property. During subsistence of the agreement said Binny died. According to the settlement reached the burden of executing the sale deed to the agreement holder Sri. Kumar was shouldered on the defendant No.
2. As such in the compromise decree he was allotted two portions i.e., 1 acre 2 guntas is his entitlement in the schedule property and another portion measuring 3 acres 20 guntas was allotted in order to execute the 61 O.S.No.2859/2008 Sale Deed in favour of Sri. Kumar as agreed by his father Binny in the said Agreement to sell dated:
12.1.95.
41. In token of the above settlement, the Defendant 2 executed a Sale Deed dated: 18.3.1997 in favour of Sri. H. Yeshwanth Shenoy, the Defendant No.12, in respect of 3 acres 20 guntas in the B schedule property in order to complete the agreement of Sale Deed dated: 12.1.1995 executed by his father. The agreement holder Sri. Kumar concurred the said Sale Deed and he is one of the witnesses in the said Sale Deed executed in favour of the Defendant No.12.
42. Further in token of settlement between the Plaintiffs and Defendants No.1 to 14, the Defendant 1 herein got 5 acre 3 guntas in the B schedule property.
After compromise in O.S.No.349/95, the plaintiffs, 62 O.S.No.2859/2008 defendant No. 1 and 3, in view of their earlier understanding, have entered into a registered partition deed dated 23.1.04, dividing the properties in the B schedule. In O.S. No.349/95, the compromise decree drawn. The Plaintiffs and Defendants No. 1 and 3 have alienated 3 acres 30 guntas out of 5 acres guntas and retained 2 acres 3 guntas in the B schedule property and in the available extent that is 2 acre 3 guntas they have divided their shares in the said registered partition deed dated:23.1.2004. In pursuance of the shares some Plaintiffs have alienated the portion of the properties got under the registered partition deed dated: 23.1.2004. The Defendant No.4 herein was allotted 1 acre 27 guntas in the B schedule property under compromise decree in O.S. No.349/1995. Thus the suit schedule properties are divided between the members of the family. The Plaintiffs are aware of decree in the 63 O.S.No.2859/2008 O.S.No.349/1995 so also, the same has been incorporated in the partition deed dated: 23.1.2004. Pursuant to the partition, the Plaintiffs have been put in possession of their respective shares. Thus it is clearly evident that the O.S. No.349/95 is executed and acted upon and the been given effected to. Plaintiffs are estopped from pleading ignorance of the compromise decree in O.S. No.349/95. As such the suit is liable to be dismissed.
43. Thus the 'B' Schedule Property was divided between the plaintiffs and the Defendants 1 to 4. After compromise decree the Defendants 1 to 4 in order to discharge the encumbrance created by his father and to allot share to the plaintiffs and further improve the Schedule Property have got converted the 'B' Schedule Property under different conversion orders and sold the 64 O.S.No.2859/2008 sale in favour of various prospective purchasers including the these defendants and put them in physical possession of the their respective portions. Besides all these the plaintiffs have got gold ornaments and cash from the plaintiffs. The plaintiffs are owning valuable properties in posh areas of Bangalore worth more than several cores and as stated above, the said fact was suppressed.
44. It is further stated by these defendants that the property purchased by these defendants is fully developed area wherein the drainage was constructed, roads were formed and even asphalted, water connections were also provided and this 3 acres of land along with another 1 acre 10 guntas purchased by vendor of these defendants in Sy. No.133 is surrounded with a compound wall put up by this defendants. The 65 O.S.No.2859/2008 schedule property is converted land and the plaintiffs were never in possession of the property. As the schedule property was worth about crores of rupees as on the date of filing of this suit and the plaintiffs were not at all in possession of the property at any point of time much less on the date of the suit, not entitled to maintain the suit without paying the proper court fee. The transactions were taken place long prior to the date of the suit even the sale deed of 12th defendants is of the year 1997.
45. Defendants No.47 - Nirmala Rajendran stated that she has purchased the site bearing No.3 measuring in all 2410 sq. ft under a registered sale deed dated 24.01.2004 and is in possession and enjoyment of the same and constructed the residential house and residing therein with his family. The khatha transferred in her name, and she is paying taxes to the BBMP. 66
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46. Defendant No.48, V. Satheesan has purchased the site bearing No.2/Khata No.3630 measuring 2270 sq. ft from Defendants No.14 and 15 under a registered sale deed dated 31.01.2004 and he is in peaceful possession and enjoyment of the same, he has constructed the residential house and residing therein with his family. The Khatha transferred in his name . He is paying taxes to the BBMP.
47. The defendant No.54 Sridhar Padala has purchased the site bearing No.50, measuring 1414 sq. ft and he is in possession and enjoyment of the same and he has constructed the residential house and residing therein with his family. The khatha is transferred in his name. This defendants is paying taxes to the BBMP.
48. The defendants 5 to 11 have filed the suit in O.S.No.325/2004 in respect of B schedule property and 67 O.S.No.2859/2008 the same came to be dismissed. To avoid the jurisdiction of the said court, the plaintiffs have intentionally included the A schedule property and filed the present suit. Thus the above suit lacks jurisdiction as such the same is liable to be dismissed. The plaintiffs are not entitled for 1/7th share int eh suit schedule properties.
49. It is stated by these defendants that the compromise decree in O.S. No.349/1995 is valid and binding on the plaintiffs. Even they had recognized the allotment of share in O.S. No.349/1995, by suppressing all these facts they are falsely claiming that the said decree in O.S. No.349/1995 is not binding on them.
50. Defendant No.34 filed written statement stating that the suit filed by the Plaintiff against this defendant No.34 is not maintainable. It is stated that this Defendant No.34 purchased the House site No.22, 68 O.S.No.2859/2008 khatha No.3630 in the layout named as Ibbani Residency formed in old Sy No.96/3, New Sy.No.145/12, situated at Kammanahalli Village, Beguru hobli, Bengaluru south taluk, measuring east to west 40 feet and north to south 60 feet in all 2400 Sq.feet for valuable consideration from the defendant No.14 and 15 under a registered sale deed dated in respect of purchasing of the site has been registered in the office of the Sub-Registrar Bengaluru South Taluk, Bengaluru vide BNG(U)-BLR(S)15443 of 2003-04.
51. It is stated that the vendor of this defendant No.34, having a good and marketable title of the above said house site property and hence the defendant No. 34 has purchased the said site and constructed a residential house on the said house site, who resided along with his family since the date of construction of 69 O.S.No.2859/2008 the residential house thereon. This Defendant is regularly paying the property tax to the concerned revenue/tax department of the B.B.M Palike.
52. Defendant No.44 filed written statement stating that the suit is liable to be dismissed/rejected against him.
53. It is stated that this defendant No.44 along with his father purchased the house site No.5, khatha No.3630 in the layout named as Ibbani residency formed in old sy no.96/3, new sy no.145/12, situated at kammanahalli village, Beguru Hobli, Bengaluru south taluk, measuring east to west 40 feet and north to south towards eastern side 68.6 feet, towards western site 65.3 feet, in all 2675.0 Sq.feet for valuable consideration from the defendant No.15. The sale deed in respect of purchasing of the site has been registered in the office 70 O.S.No.2859/2008 of the Sub-Registrar Bengaluru South Taluk, Bengaluru vide BNG(U)-BLR(S) 121135 of 2003-04. From the date of such acquisition of the property the Defendant No.44 and his family are in lawful possession and enjoyment of the house site property.
54. It is stated that the vendor of this defendant No.44, having a good and marketable title of the said house site property bearing No.5 Khatha No.3630 of the Kammanahalli Village and hence defendant No.44 has purchased the house site No.5, khatha No.3630 and thereafter, this defendant constructed a residential house on the said house site, who resided along with his family since the date of construction of the residential house thereon. This defendant is regularly paying the property tax and other fees to the concerned revenue/tax department of the B.B.M Palike, who is in 71 O.S.No.2859/2008 peaceful residing in the said his house from the date of acquisition of the property.
55. Defendant No.46 filed written statement stating that he has purchased the house site No.4, khatha No.3630 in the layout named as Ibbani residency formed in old Sy.No.96/3, new Sy.No.145/12, measuring east to west 40 feet and north to south towards eastern site 65.6 feet towards western site 62.0 feet, in all 2445.0 Sq.feet for valuable consideration from the defendant No.15. The sale deed in respect of purchasing of the site has been registered in the office of the sub-registrar Bengaluru south Taluk, Bangalore. From the date of such acquisition of the property the defendant No.46 and his family are in lawful possessing and enjoyment of the house site property 72 O.S.No.2859/2008
56. It is stated that the vendor of this defendant No.46, having a good and marketable title of the house site property bearing No.4, khatha No.3630 of the Kammanahalli village and hence the defendant No. 46 purchased the said house site, constructed a residential house on the said house site, who resided along with his family since the date of construction of the residential house thereon in this regard. This defendant is regularly paid the property tax and other fees to the concerned revenue/tax department of the B.B.M Palike, who is peaceful residing in the said his house from the date of acquisition of the property.
57. It is submitted that as already stated this defendant is the legal owner, lawful possession and enjoyment of the house property since the date of purchase of the site property bearing No.4, who having 73 O.S.No.2859/2008 absolute right in his property, enjoyed the same in this respective. It is further submitted that after the lapse of 4 years from the date of purchase of the house site by the defendant No.46 the above said suit has been fled i.e., during the year 2008, and hence the said suit filed by the plaintiffs is absolutely not maintainable which is liable to be dismissed under the law in this respect.
58. The defendants No.67 has filed his written statement stating that he has no manner of interest of any kind in the property involved in the suit i.e. in O.S.No.325/2004 as well as in the present suit. The plaintiffs in both suits had impleaded this defendant with the sole intention to harass him, to make illegal gain for themselves. The site No.45, Khatha No.3630 lies in Sy. No.133 in the layout Ibbani Residency which Sy. No.133 does not belong to the plaintiffs, but belongs to 74 O.S.No.2859/2008 Thimmappa and family which was purchased by defendants under a separate sale deed. However the layout was developed clubbing both survey number 145/2 and 133 which are adjacent to each other as could be seen from the layout plan produced. This defendant is in no way concerned with the demands made by the plaintiff regarding the partition of the property Sy. No.145/2 because this defendant's property comes in Sy. No.133, which is situated at the extreme southern end of layout plan.
59. This defendants further submits that since the land at present is a converted land and the plaintiffs have to pay the court fee as per the valuation of converted lands court fee. Since, the plaintiffs have paid the insufficient court fee, the suit is liable to be dismissed on this ground itself. The property owned by 75 O.S.No.2859/2008 this defendants comes in Sy. No.133, which measures in all 2450 sq. ft bearing site No.45, katha No.3630 in the layout named as Ibbani Residency, because in the schedule the Sy.No.145/2, old No.96/3 and Sy.No.133 because the lands were converted under a single conversion order. In the sale deed executed by the vendor of this defendant, both Sy.No.145/2 and 133 are mentioned. The plaintiffs by taking advantage of the Sy.No.133, mentioned in the sale deed executed and registered, have deliberately impleaded this defendants as a party to the suit to harass this defendants. Ever since the date of purchase this defendants is in peaceful possession and enjoyment of this property and has been paying the property tax in his name and all the revenue documents made out in his name. Hence, on these ground this defendants prays to dismiss the suit. 76
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60. The defendant No.69 has filed his written statement stating that he is the bonafide purchaser for valid consideration of the property bearing site No.56, Khatha No.3630 measuring 1500 sq. ft in the layout named as Ibbani Residency carved out of Old Sy. No.96/3 (New Sy. No.145/2 and Sy. No.133 vide registered sale deed dated 09.01.2004. By virtue of the same all the revenue records with respect to the said site, reflect the name of this defendant as the absolute and sole owner, in peaceful possession and enjoyment of the same. This defendants purchased the said site No.56 on the express assurance of defendants No.14 and 15 regarding their clear and marketable title with respect to the said residential site. Based on these assurances and the documents pertaining to O.S. No.349/1995 and 286/2000 and the eventual compromise decrees passed in the said suits and 77 O.S.No.2859/2008 registered sale deed dated 25.07.2002 executed in favour of 14th defendant this defendant was led to believe that defendants No.14 and 15 were the owner and developer respectively of the converted land situated in B schedule property an defendant surrounding lands wherein Ibbani Layout came to be formed. Under the said facts and circumstances, the sale transaction in favour of this defendant under the sale deed dated 09.01.2004 is valid and binding even on the plaintiffs as well as the other defendants.
61. The defendant No.70 has filed written statement stating that the property purchased by this defendant is fully developed area the schedule property is converted land and the plaintiffs never in possession of the property and filed this false and frivolous suit. The plaintiffs are very well aware that the layouts are formed 78 O.S.No.2859/2008 the sites were sold in favour of this defendant and other defendants.
62. The defendant No.75 has filed written statement stating that the defendants 1 to 4 have sold certain properties in favour of remaining defendants and except small piece of land they have sold most of the land out of the land left over their father and in turn respective purchasers have sold the property in favour of third persons including this defendant who have put up construction and residing therein. Since from the date of death of Mr. Binny father of defendants 1 to 4, nobody have questioned their entitlement and their title to suit schedule property till filing of the present suit. The plaintiffs kept mum for all these years and filed the present suit recently for partition. The plaintiffs also not disputed nor claimed any right over the property in O.S. 79 O.S.No.2859/2008 No.325/2004. It is stated that the property purchased by this defendants is developed as residential sites and this defendants is in possession of the property. Hence, interest of this defendant is to be protected. The property purchased by this defendants is fully developed area wherein the drainage was constructed, roads were formed and even asphalted, water and power connection were also provided and this property along with other property formed in Sy. No.133 surrounded with a common compound put up therein. The schedule property is converted land and the plaintiffs never in possession of the property and filed this false and frivolous suit.
63. It is further stated by this defendant that he is a bonafide purchaser of the site bearing No.19, Khata No.3630 in the layout named as "Ibbani Residency" 80
O.S.No.2859/2008 formed in converted old Sy. No.96/3, new Sy. No.145/2, and Sy. No.133 converted vide conversion order dated 09.03.1998 and 28.06.2022 by the Special Deputy Commissioner Bengaluru situated at Kammanahalli Village, Bengaluru measuring East to West 50 feet and North to South 80 feet in all measuring 4000 sq. ft bounded by East by 30 feet, West by site No.18, North by site No.8 and South by 30 feet Road. Ever since the date of purchase of the said site by this defendant, he became the absolute owner in possession and enjoyment of the same and he has invested hard earned money apart from sale consideration he has paid huge interest to the Bank.
64. It is further submitted by this defendants that ever since the date of purchase he is in peaceful possession and enjoyment of the above mentioned 81 O.S.No.2859/2008 property. The Encumbrance Certificate and other revenue documents also standing in the name of this defendant. If the plaintiff have any right, title over the suit schedule property they would not have kept quite for all these years, particularly the land has been converted for non-agricultural purposes roads, drainage and the layout are formed and developed. The plaintiffs are very well aware that the layouts are formed and the sites were sold in favour of this defendant and other defendants. Hence, on these grounds the defendant No.75 prays to dismiss the plaint.
65. The defendant No.77 and 79 jointly filed written statement stating that the plaintiffs have suppressed the material facts, have no title and right over the suit schedule property. The suit is liable to be dismissed in limine. The plaintiffs were aware of the 82 O.S.No.2859/2008 factum of OS.No.349/95 in the year 2004 itself, they have not taken any steps to challenge the said order. The plaintiffs have questioned the same in OS.325/2004 several purchasers have appeared in the suit and thereafter the matter was compromised. The properties were sold long back in favour of the defendants 12 to 85 and others. The suit is not valued properly. The vendor of these defendants has purchased another land bearing Sy.No.133 which was also liable to be valued U/s 35(1) of Karnataka Court Fee and valuation Act, 1958. After purchase of the property these defendants are in possession and enjoyment of the properties and paid taxes to the concerned authority. The suit is liable to be dismissed for non joinder of necessary parties and this suit is filed to harass the defendants.
66. In his written statement Defendant No.78 has stated that he is a genuine purchaser of property 83 O.S.No.2859/2008 bearing site No.60, old Sy. No.96/3, new Sy.No.145/2 and Sy.No. 133 measuring east to west 50 feet and north to south 30 feet, in all measuring 1500 Sq. feet conveyed by defendant No.14 and 15 by virtue of Sale Deed dated 31.01.2004 in his favour.
67. This defendant No.78 is only concerned with defendant No.14 herein, Sri.B.Krishnappa who has sold and conveyed the property bearing site No.60, old Sy No.96/3, New Sy No.145/2 and Sy. No.133 measuring east to west 50 feet and north to south 30 feet in all measuring 1500 Sq.feet situated at Kammanahalli Village, Beguru Hobli, Bengaluru south Taluk in favour of this defendant and that M/s. Aishwarya Shelters Pvt Ltd Rep. By its directors: 1)Sri.G.Shankar and 2) Sri.P.Harsha vardhan reddy were given developmental rights to develop the property. The said sale was duly 84 O.S.No.2859/2008 executed in favour of this defendant and registered as document No.21895/2003-04 bearing CD No.BASD4 in Book-I vide sale deed dated 31.01.2004.
68. Plaintiffs have filed rejoinder to written statement of defendant No.1 stating that there was no partition as pleaded in the written statement of defendant No.1.
69. Based on the rival pleadings and materials on records, following issues have been framed;
1. Whether plaintiffs prove that they themselves and defendant No.1 to 4 are in joint possession and enjoyment of suit schedule property ever since the times of Sri Binny and Smt. Jaya Mary ?
2. Whether plaintiffs further prove that the decree in O.S.No.349/1995 dated 26-06-1995 passed by the Principal Munsiff Judge at 85 O.S.No.2859/2008 Bangalore is null and void and not binding on them ?
3. Whether plaintiffs further prove that decree in O.S.No.286/2000 dated 30-11-2011 passed by the Civil Judge (Jr.Dn.), Bengaluru District is null and void and not binding on them ?
4. Whether plaintiffs further prove that alienation made by the defendants No.1 to 4 in respect of schedule properties in favour of defendant No.12 to 84 are void and not binding on them ?
5. Wether defendants prove that plaintiffs are very well aware about alienation of the properties by the defendants No.1 to 4 and have taken their share out of the sale proceedings ?
6. Whether first defendant proves that he himself and plaintiffs and defendants No.2 to 4 have entered into registered partition deed 86 O.S.No.2859/2008 dated 23-01-2004 in respect of plaint 'B' schedule property which is acted upon ?
7. Whether first defendant proves that plaintiffs are estopped from questioning the decrees as alleged ?
8. Whether first defendant further proves that the schedule properties are not in joint possession of plaintiffs and defendants No.1 to 4 as the same are already sold or partitioned as urged ?
9. Whether defendants No.3 & 4 are entitled for the share as sought ?
10. Whether plaintiffs are entitled for the share in suit schedule property as sought for ?
11. Whether defendants No.12 to 85 prove that they are the bonafide purchasers for valuable consideration ?
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12. Whether plaintiffs are entitle for the relief of partition as sought for ?
13. Whether plaintiffs are entitle for the relief of declaration as sought for ?
14. Whether plaintiffs are entitle for the injunction as sought for ?
15. Whether plaintiffs are entitle for the relief as sought for ?
16. What order or decree ?
ADDL. ISSUES ::
1. Whether the suit is barred by limitation as contended in para No.1a and 4 of the written statement of defendant No.1 ?
2. Whether the Court Fee calculated and paid by the plaintiffs is not proper and correct as contended in para No.4 of the written statement of defendant No.1 ?88
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70. In support of plaint averments, plaintiff No.3 led evidence as PW-1 and examined one more witness plaintiff No.1(d) Smt. Pracilla Joyce as PW-2. They got marked documents at Ex.P-1 to P-77.
71. The defendants No.1, GPA holder of defendant No.17, defendant No. 6, 67, 44 and 46 respectively are examined as DW-1 to DW-6. They got marked documents at Ex.D-1 to D-23.
72. Heard both learned counsel. Perused the pleadings, evidence and materials on records.
73. Learned counsel for the plaintiffs relied upon the rulings reported in (2010) 11 Supreme Court Cases 159 in between Maharshi Dayanand University Vs. Surjeet Kaur, 2015 (2) KCCR 1437 (DB) in between Smt. Nanjamma V\s. Smt. Akkayamma since dead by 89 O.S.No.2859/2008 her LRs and Others and ILR 2018 KAR 5095 in between Venkatesh R Desai Vs. Smt. Pushpa Hosmani and Others.
74. Learned counsel for defendant No.17 has relied upon a ruling reported in (2003) 2 Supreme Court Cases 355 in between B.L.Sreedhar and Others Vs. K.M., Munireddy (Dead) and Others.
This Court has gone through the ratio laid down in the above said Judgments.
75. For the reasons assigned below, I answer aforesaid issues as under:
ISSUE No.1 :: In the Negative
ISSUE No.2 :: In the Negative
ISSUE No.3 :: In the Negative
ISSUE No.4 :: In the Negative
ISSUE No.5 :: In the Affirmative
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ISSUE No.6 :: In the Affirmative
ISSUE No.7 :: In the Affirmative
ISSUE No.8 :: In the Affirmative
ISSUE No.9 :: In the Negative
ISSUE No.10 :: In the Negative
ISSUE No.11 :: In the Affirmative
ISSUE No.12 :: In the Negative
ISSUE No.13 :: In the Negative
ISSUE No.14 :: In the Negative
ISSUE No.15 :: In the Negative
ISSUE No.16 :: As per final order for the
following;
Addl. ISSUE No.1 :: In the Affirmative
Addl. ISSUE No.2 :: In the Affirmative
REASONS
76. ISSUE NO.6, 2, 3 & 5 :: As these issues have bearing on rest of the issues, as they are inter related to each other, they have been taken up together for 91 O.S.No.2859/2008 common consideration to avoid repetition of facts and evidence.
Present suit is filed by the plaintiffs against defendants for partition and separate possession of their alleged 1/7th share in the suit schedule properties, to declare the Decree dated 26-07-1995 in O.S.No.349/1995 is null and void & not binding on them, to declare the alienation made by defendants No.1 to 4 in favour of defendants No.12 to 85 are void and not binding on them and for permanent injunction.
77. It is not in dispute that plaintiffs and defendants No.1 to 4 are Christians, governed by Indian Succession Act. This suit is filed by plaintiffs for partition of properties belong to their father late Benny S/o. Moses. Said Benny was married to one Jaya Mary, who predeceased him on 08-01-1992. He had seven children 92 O.S.No.2859/2008 the plaintiffs and defendants No.1 to 4, who according to the plaintiffs are only legal heirs of late Benny. Defendant No.5 is alleged to be the second wife and defendants No.6 to 11 are her children. Defendants No.11 was taken in adoption by defendant No.5. Since said parties are Christian they are governed by provisions of Indian Succession Act.
78. It is an undisputed fact that Mr. Benny had acquired two immovable properties. The first property bearing Municipal No.120, 31st B Cross, 4th E Jayanagar Hutting Colony, Bangalore which is 'A' schedule property. The allotment letter issued by Bangalore Development Authority dated 01-08-1992 in favour of Benny and possession certificate was issued by B.D.A. on 24-09-1993. according to the plaintiffs, defendants No.1 to 4 and themselves are in joint 93 O.S.No.2859/2008 possession and enjoyment of suit schedule properties ever since the demise of their father Benny.
79. So far as 'B' schedule property is concerned, Mr. Benny acquired Sy.No.96/3 now renumbered as Sy.No.145/2 measuring 14 acres 20 guntas situated at Kammanahalli Village, Begur Hobli, which was granted to him by the Land Tribunal, Bangalore South Taluk and as such occupancy rights in respect of 'B' schedule property was granted in LRF No.3990/76-77 dated 08-11-1979 and as such Mr. Benny was put in possession of 'B' schedule property as evident in Ex.P-1 & P-2.
80. Mr. Benny was died on 11-06-1995. After the death of Mr. Benny, defendant No.1 had filed O.S.No.349/1995 in the Court of Prl. II Munsiff Judge at Bangalore against his brothers defendants No.2 to 4 94 O.S.No.2859/2008 seeking the relief of partition with respect to 'B' schedule property.
81. The plaint in O.S.No.349/1995 is marked at Ex.P-68. The order sheet in the said suit is marked at Ex.P-67. In the said suit compromise petition came to be filed by the parties to the suit which is evident in Ex.P-69 with respect to the suit schedule properties which is 'B' schedule property herein measuring 14 guntas. The order sheet at Ex.P-67 dated 26-07-1995 shows that the parties have filed compromise petition and compromise came to be accepted and Final Decree was ordered to be drawn in terms of compromise petition. Pursuant to the compromise between the parties to the suit, Final Decree in O.S.No.349/1995 was drawn and duly registered as evident in Ex.D-5. Accordingly said suit came to be disposed in terms of 95 O.S.No.2859/2008 compromise entered between parties to the suit. In the said compromise / decree, out of the 'B' schedule property herein defendant No.1 Anthony Das was allotted his share of 5 acres 33 gunts, defendant No.2 herein B.Shanthraju was allotted 5 acres 7 guntas, defendants No.3 B. Immanuel & defendant No.4 Dominic were allotted 1 acre 27 guntas each.
82. Out of 5 acres 33 guntas allotted to the share of Anthony Das i.e., defendant No.1 herein. Defendants No.1 to 4 sold 3 acres of land to defendant No.14 B.Krishnappa by virtue of Sale Deed dated 25-07-2002 as evident in Ex.D-6. Said B.Krishnappa/defendant No.14 had filed O.S.No.286/2000 against defendants No.1 to 4 to enforce Sale Agreement dated 02-07-1997 with respect to 3 acres before the Principal Civil Judge, Bangalore Rural District and said suit came to be ended 96 O.S.No.2859/2008 in compromise. The compromise petition in O.S.No.286/2000 is marked at Ex.P-58, order sheet in O.S.No.286/2000 is marked at Ex.P-5 and decree in the said suit is marked at Ex.P-59. Pursuant to entering into compromise between the parties as per Ex.P-58 the decree was drawn in the suit as per Ex.P-59 and this document reveal that the defendants i.e., defendants No.1 to 4 herein have conceded that they have executed an agreement in favour of defendant No.14 on 02-07-1997 agreeing to sell the suit schedule property for total sale consideration of Rs.20,00,000/- and have received the amount and agreed to execute sale deed within six months. Defendants had agreed to sell only 3 acres of land out of suit schedule properties have reduced sale consideration of Rs.18,00,000/- instead of original extent and amount agreed. Ex.D-6 Sale Deed came to be executed by defendants No.1 to 4 in favour 97 O.S.No.2859/2008 of defendant No.14 pursuant to the decree drawn in O.S.No.286/2000. Thereafter defendant No.14 executed Sale Deed dated 31-10-2003 in favour of Aishwarya Shelters Pvt. Ltd., i.e., defendant No.15 who formed sites in the layout called Ibbani Residency.
83. Records reveal that from out of 5 acres 07 guntas allotted to the share of defendant No.2 Shanthraju, he conveyed 3 acres 20 guntas to defendant No.12 by virtue of registered Sale Deed dated 18-03-1997 as evident in Ex.P-6. Said defendant No.2 along with his three minor children namely Kumari S. Sheebha, Master S. Paul and Master S.Nelson Edwin jointly sold portion measuring 3 acres 20 guntas in favour of defendant No.12 as per sale deed dated 18-03-1997 as per Ex.P-6. Defendant No.12 in turn sold said portion in favour of defendant No.13 under 98 O.S.No.2859/2008 registered Sale Deed dated 03-02-2003 as evident in Ex.P-7 and thus defendant No.13 was put in physical possession of the property.
84. Defendant No.14 pursuant to drawing up of compromise decree in his favour in O.S. No.286/2000 made several conveyance in favour of different purchasers. He has executed Sale Deed dated 31-10-2003 in favour of defendant No.15 and defendant No.15 in turn formed sites in the layout called Ibbani Residency and that the purchasers of sites are various defendants from defendants No.25 to 85 that is to say Ex.P-9 to P-56 are sale deeds executed by defendant No.14 B.Krishnappa as a vendor to the said defendants.
85. In the present suit it is pleaded and deposed by PW-2 that after demise of their father Benny, plaintiffs, defendants No.1 to 4 are in joint possession 99 O.S.No.2859/2008 and enjoyment of 'B' schedule property. It is deposed by PW-1 & 2 that defendants No.1 to 4 assured these plaintiffs that they would safeguard the interest of plaintiffs in O.S.No.325/2004 and convinced the plaintiffs to engage a common Advocate. Believing that their interest would be safeguarded by defendants No.1 to 4 engaged common counsel and filed common written statement and in March-2007, when plaintiffs made thorough enquiry through their counsel they were informed from several others that an attempt was made to compromise the suit in O.S.No.325/2004 and thought it they engage separate counsel to safeguard the plaintiffs.
86. Defendants have contended that plaintiffs are very well aware about the alienation of the properties by defendants No.1 to 4 and have taken their share out of sale proceeds.
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87. It is also pleaded and deposed by these plaintiffs that there was no leave granted by the Court and even the Court is not aware of the fact that plaintiffs in O.S.No.349/1995 filed suit claiming only 1/4th shares between themselves and hence the said suit is void ab- initio and thus the 'B' schedule property till to day remained undivided and in the joint possession of plaintiffs and defendants No.1 to 4.
88. It is material to note here itself that the daughters of late Benny i.e., plaintiffs herein had been given land measuring 6½ guntas each in 'B' schedule property under the registered deed of partition dated 23-01-2004 as evident in Ex.D-1, which is mentioned as schedule B, C in Ex.D-1. It means to say that these plaintiffs have been together allotted 19½ guntas. But plaintiffs have not whispered anything about allotment of 101 O.S.No.2859/2008 share to them in the partition deed at Ex.D-1. Upon perusal of Ex.D-1 it is registered Deed of Partition dated 23-01-2004 vide document No.121082/02-04 which clearly reflects the orders passed in O.S.No.349/1995 and the property that has been allotted in the names of sons of Benny. It is also cited in Ex.D-1 that land measuring 3 acres 30 guntas has already been sold and that the plaintiffs herein who are also parties in Ex.D-1 and the other parties including defendant No.1 have clearly agreed that they are entitled to the portion of the properties partitioned in their favour and have no right, title and interest over the portion allotted to other sharers and whatever relation they have thereafter is only the blood relation, but no financial relation.
89. It is also relevant to mention here about the suit filed by the alleged second wife of Benny i.e., 102 O.S.No.2859/2008 defendant No.5 herein, who had filed O.S.No.325/2004 on the basis of alleged Will dated 19-07-1988 which is marked at Ex.D-17 said to have been left behind by late Benny. In the said suit it was prayed for declaration to declare that the decree in O.S.No.349/1995 and O.S.No.286/2000 as null and void, to set aside the Sale Deeds dated 18-03-1997 as per Ex.P-6, Sale Deed dated 03-02-2003 as per Ex.P-7. Ex.P-3 is amended plaint in O.S.No.325/2004 which reflects that defendants No.5 to 11 herein have filed suit against defendants No.1 to 4 and plaintiffs herein and also against defendants No.12, 13, 14, & 15 and subsequent purchasers. Defendants No.1 to 7 therein i.e., defendants No.1 to 4 and the plaintiffs in this suit have filed common written statement as per Ex.P-4 in which para No.12 which reveals as under;
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O.S.No.2859/2008 With regard to Para 12 - It is false that after the death of Mr. Binny, the plaintiffs came to know through some reliable sources that the defendants 1 to 4 are acting detrimental to the interest of the plaintiffs and trying to alienate the suit schedule property. When there is any relationship of plaintiffs either with these defendants or with their father late Binny, there was no need to bother about the plaintiffs. Further, it is every right of the defendants 1 to 4 to deal with their property or the property left by their father. The plaintiffs are nothing to do with the same. Therefore, the act of these defendants no way detrimental to the interest of the plaintiffs. If at all the plaintiffs have applied for the documents and obtained the same, it is nothing surprise as the plaintiffs are making hectic efforts to grab the property of these defendants. The defendants 1 to 4 have rightly divided the property among themselves and disposed of the same in accordance with their whims and fancies."
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90. The plaintiffs herein along with defendants No.1 to 4 herein have clearly denied the theory of joint possession of the suit schedule property which is 'B' schedule property herein in O.S.No.325/2004.
91. After contest, the suit in O.S. No.325/2004 came to be dismissed as evident in Ex.P-71, which was passed on 15-03-2008. The plaintiffs therein have preferred an appeal in RA No.94/208 as evident in Ex.P-73 and said appeal came to be dismissed confirming the decree. Aggrieved by the said order, RSA 652/2011 is filed before the Hon'ble High Court of Karnataka and same is pending.
92. If at all the grievance of these plaintiffs that defendants No.1 to 4 had clandestinely filed suit in O.S.No.349/1995 is presumed to be true, there was absolutely no occasion for these plaintiffs to file common 105 O.S.No.2859/2008 written statement with defendants No.1 to 4 in O.S.No.325/2004. Rather they have clearly supported the version of defendants No.1 to 4 herein with respect to decree passed in O.S.No.349/1995 and so also the allegations/disposition taken place between defendants with the purchasers of portion of 'B' schedule property and so also disposition by defendant No.1 & 2 in favour of defendants No.12 to 14.
93. PW-1 has been subjected to cross-
examination in this suit. In her cross-examination dated 14-09-2021 conducted by counsel for defendant No.17, she has stated that she was the party in O.S.No.325/2004 in which 'B' schedule property herein was the subject matter. Ex.D-1 the Deed of Partition reflects the photograph of these plaintiffs with their thumb impressions recorded by the Sub-Registrar. PW- 106
O.S.No.2859/2008 1 has admitted that 'A' schedule property belong to defendant No.3 B.Immanuel which was given to him by his father during his lifetime. PW-1 has admitted that photograph and signature in Ex.D-1 marked at Ex.D- 1(a) and her deceased sister plaintiff No.1 as Ex.D-1(b). She has admitted the photograph and signature of plaintiff No.2 in Ex.D-1 marked at Ex.D-1(c), photograph and signature of defendant No.1 in Ex.D-1 marked at Ex.D-1(d), photograph and signature of defendant No.3 in Ex.D-1 marked at Ex.D-1(e).
94. Even though plaintiffs and PW-1 have pleaded and deposed that document in Ex.D-1 was executed at the instance of defendant No.1, who took them to the Sub-Registrar Office and obtained their signatures, but however, absolutely there is no piece of material produced before the Court to show that Ex.D-1 107 O.S.No.2859/2008 was an outcome of fraud, coercion, threat, undue influence by defendant No.1. If at all Ex.D-1 was obtained by defendant No.1 by playing fraud, coercion etc., nothing prevented these plaintiffs to initiate legal action against defendant No.1. On the other hand, on the strength of Ex.D-1 plaintiff No.2 Jayasheela entered into an agreement dated 27-09-2004 with one Kanthamma and Prakash i.e., defendants No.82 & 83 with respect to site measuring 35 x 100 feet as evident in Ex.D-2 & D-3.
95. Record also reveal that Kanthamma the agreement holder from plaintiff No.2 filed suit for specific performance in O.S.No.507/2006 and this suit came to be dismissed on 13-09-2011. Feeling aggrieved by the said Order/Judgment, RA 287/2011 was filed by said Kanthamma against defendant No.2 herein which is 108 O.S.No.2859/2008 evident in Ex.D-4. Learned Prl. District Court, Bengaluru Rural District by its order dated 10-03-2016 has allowed the appeal by setting aside the Judgment and Decree of the trial Court and the said suit is decreed and thereby directed the defendant Jayasheela to execute sale deed in favour of plaintiffs Kanthamma and Prakash.
96. It is worth to mention here that an extent of 5 acres 33 guntas of land in 'B' schedule property was allotted to defendant No.1 under the decree in O.S.No.349/1999. From out of said extent of land, an extent of 6½ guntas each was allotted to all three plaintiffs under Ex.D-1 the registered Deed of Partition dated 23-01-2004. This aspect has also been admitted by PW-1 as referred supra. Except bald contention that defendant No.1 had played fraud, coercion, undue 109 O.S.No.2859/2008 influence against plaintiffs no piece of material is produced to strengthen this version. Above all Ex.D-1 has also been acted upon by these plaintiffs by executing an Agreement of Sale by plaintiff No.2 in favour of Kanthamma as evident in Ex.D-2, D-3 and Ex.P-5. So also the suit filed by Kanthamma against plaintiff No.2 in O.S.No.507/2006 and also RA 287/2011 as per Ex.D-4 which are against to the plaint averments as well as evidence of these plaintiffs.
97. As stated above, on the strength of the decree dated 25-07-2002 as per Ex.D-6 in O.S.No.286/2000 the Sale Deed was executed in favour of defendant No.14, who in turn executed sale Deed in favour of defendant No.15 on 31-10-2003 and defendant No.14 & defendant No.15 by forming sites in the layout called Ibbani Residency, sold sites to various defendants i.e., 110 O.S.No.2859/2008 defendants No.25 to defendants No.81 as evident in Ex.P-9 to P-56.
98. All these aspects have also been deposed by DW-1 to 6, who have deposed in accordance with the written statement filed by them. DW-1 is defendant No.1, DW-2 is the Power of Attorney holder of defendant No.17, who has deposed by supporting testimony of DW-1. He has also deposed that plaintiffs and defendants are not members of the joint family and has further deposed that defendant No.17 purchased part of 'B' schedule property measuring 12 guntas under
registered Sale Deed dated 28-11-2003 from defendants No.1 to 4 out of the share fallen to defendant No.2 Shantharaju in compromise decree.
The khatha is transferred to his name and tax is collected from her which now comes within the limits of 111 O.S.No.2859/2008 BBMP and he has acquired ownership and possession with respect to 12 guntas of land out of 'B' schedule property. DW-3 is defendant No.6 Yesudas @ Yesuraj S/o. Late. Benny who has stated that defendant No.5 is wife of late Benny and defendants No.6 to 10 are her sons and daughters and defendant No.11 is adopted son of late Benny. Although DW-1 in his evidence has stated that plaintiffs and defendants No.1 to 11 are in joint possession and enjoyment of 'B' schedule property, but absolutely no cogent materials are produced in this regard. However, DW-3 during the course of his cross-
examination has clearly admitted that they have not initiated any probate proceedings in relation to the Will dated 19-07-1988 and that they are entitled for 7 acre 07 guntas in 'B' schedule property, but not seeking share as per Will dated 19-07-1998, but seeking share to the extent of 7 acres 7 guntas. Although defendant 112 O.S.No.2859/2008 No.3 has stated so, but there is no piece of paper produced by these defendants No.5 to 11 including DW-3 to show that they are entitled to said extent.
99. DW-4 is defendant No.67 who has clearly stated that he is noway concerned with the transactions between parties to the suit and that site No.45 lies in Sy.No.133 which belong to one Thimmappa which was purchased by defendant No.14 under separate Sale Deed and layout was developed by defendant No.15 clubbing both survey numbers 145/2 and 133 which are adjacent to each other.
100. DW-5 is defendant No.44, who has deposed that he along with his father purchased house site from defendant No.14 & defendant No.15 M/s. Aishwarya Shelters Pvt. Ltd., by virtue of Sale Deed dated 113 O.S.No.2859/2008 23-01-2004 marked at Ex.D-20 and tax paid receipt is marked at Ex.D-21.
101. DW-6 is defendant No.46 and has stated that he has purchased house site bearing No.4 in the layout named Ibbani Residency from defendant No.14 and defendant No.15 by virtue of Sale Deed dated 23-01-2004 marked at Ex.D-22 and tax paid receipt marked at Ex.D-23.
102. PW-1 Smt. B. Jenova the plaintiff No.3 and PW-2 the daughter-in-law of deceased plaintiff No.1 although deposed in accordance with plaint averments by stating that they have equal share in the suit schedule properties, but failed to substantiate these averments with convincing materials. The evidence referred supra relied by both plaintiffs and defendants both oral and documentary, reveal the fact that the 114 O.S.No.2859/2008 plaintiffs are the parties to the registered deed of partition at Ex.D-1, which had taken place way back in the year 2004 and on the basis of which plaintiffs themselves have entered into certain conveyance/deeds and have disposed the property that were allotted to them i.e., plaintiff No.2 in particular and as such same is acted upon and now the plaintiffs are estopped from agitating against defendants that same was obtained fraudulently against them.
103. More than around 50 Sale Deeds have taken place between defendants No.1 to 4 with other defendants who are defendants No.12 to 85 and as such all the transactions are all acted upon by concerned parties to the suit. Under these circumstances, the contention of the plaintiffs that defendants have played fraud on these plaintiffs by 115 O.S.No.2859/2008 colluding with each other and that these plaintiffs are also entitled for the equal share over the suit schedule properties does not hold any water. When such being the case, it has to be held that plaintiffs have failed to prove that the decree in O.S.No.349/1995 and decree in O.S.No.286/2000 are null and void and not binding on them and so also by relying upon relevant materials, defendant No.1 as DW-1 has established before the Court that himself and plaintiffs and defendants No.2 to 4 have entered into Ex.D-1 with respect to 'B' schedule property and same is acted upon by them subsequently. Hence Issue No.2 & 3 are answered in the Negative and Issue No.5 & 6 are answered in the Affirmative.
104. ISSUE NO.1 & 8 :: As these issues are inter connected to each other, they have been taken up together for common discussion to avoid repetition of 116 O.S.No.2859/2008 facts and evidence.
The burden of proving alleged joint possession and enjoyment of the suit schedule properties ever since the demise of Benny and Smt. Jaya Mary is on plaintiffs. Defendants have pleaded that suit schedule properties are not in joint possession of plaintiffs and defendants No.1 to 4 and father of plaintiffs and defendants Mr. Benny died on 11-06-1995. His wife i.e., mother of the plaintiffs and defendants No.1 to 4 predeceased him on 08-01-1992.
105. By virtue of the decree passed in O.S.No.349/1995, O.S.No.286/2000 and O.S. No.325/2004 the Sale Deeds came to be executed from 1997 onwards and later on defendant No.15 formed layout called Ibbani Residency and sales were made by them in favour of site purchasers between 2002 and 117 O.S.No.2859/2008 2005 and that many purchasers have put up construction and khatha and tax paid receipts are standing in their names and as such the joint possession pleaded by plaintiffs does not survive.
106. As referred supra, under Ex.D-1 plaintiffs have been allotted 6½ guntas each in the portion of 'B' schedule property and accordingly, they have also filed common written statement along with defendants No.1 to 4 in O.S.No.325/2004 filed by defendant No.5, which is evident in Ex.P-4 and they have affixed their signatures in the common written statement. No complaint has been filed by the plaintiffs against their brothers in this regard and that the benefits received by plaintiffs under Ex.D-1 has been acted upon, who have made sales to third parties as evident in Ex.D-2, 3 & 4. Plaintiffs have not challenged Ex.D-1 on any grounds. 118
O.S.No.2859/2008 Having received benefit under Ex.D-1, now the plaintiffs are estopped from pleading or taking the shelter under the joint possession and enjoyment over the suit schedule properties. Hence, Issue No.1 is answered in the Negative & Issue No.8 is answered in the Affirmative.
107. ISSUE NO.4, 7 & 11 :: As these issues are inter connected to each other, they have been taken up together for common discussion to avoid repetition of facts and evidence.
Plaintiffs have specifically pleaded and have also deposed through PW-1 & 2 that alienation made by defendants No.1 to 4 in respect of schedule properties in favour of defendants No.12 to 84 are void and not binding on them. The 1st defendant has also pleaded and deposed as DW-1 that plaintiffs are estopped from 119 O.S.No.2859/2008 questioning the decrees as alleged. When plaintiffs have not challenged either the decree passed in O.S.No.349/1995 nor challenged the decree in O.S.No.286/2000 and have also not challenged Ex.D-1 the partition deed entered between defendant No.1 and plaintiffs, now the plaintiffs are estopped from questioning the legality of these documents. Based on the orders / decree passed in the said suits and on the strength of Ex.D-1 and so also the Judgment in O.S.No.325/2004 in which these plaintiffs had filed common written statement along with defendants No.1 to 4, the alienations / dispositions have taken place between defendants No.1 to 4 with defendants No.12 to 14, who in turn have sold the portion of 'B' schedule property in favour of defendants No.16 to 85 who appears to be bonafide purchasers. Hence plaintiffs are estopped from questioning the validity of sale deeds 120 O.S.No.2859/2008 executed in favour of subsequent purchasers as stated supra. Hence Issue No.4 is answered in the Negative, Issue No.7 & 11 are answered in the Affirmative.
108. ISSUE NO.9 :: Defendants No.3 & 4 have taken up contention that they are entitled for the share as sought. However, upon perusal of Ex.P-68 plaint in O.S.No.349/1995, the compromise petition filed in the said suit marked at Ex.P-69, the Final Decree came to be passed in O.S.No.349/1995. Consequently, suit came to be decreed in terms of compromise allotting 1 acre 27 guntas came to be allotted to defendant No.3 and 1 acre 27 guntas came to be allotted to defendant No.4. Said decree has not been challenged. When such being the case, the contention of these defendants that they are entitled for share does not survive for consideration. Moreover, no evidence is adduced by 121 O.S.No.2859/2008 these defendants to substantiate such contentions. Hence this Issue is answered in the Negative.
109. ADDL. ISSUE NO.1 :: This issue is relating to the point of limitation as contended by defendant No.1 in his written statement. Ex.P-68 is plaint in O.S.No.349/1995, Ex.D-5 is Final Decree in O.S.No.349/1995 and suit came to be decreed in terms of compromise allotting shares to defendants, 1 to 4 based on which defendant No.1 sold 3 acres of land to defendant No.14 by virtue of Sale Deed dated 25-07-2002 which was pursuant to the decree in O.S.No.286/2000. The record further reveal that out of the property allotted to defendant No.2 Shantharaj in the decree in O.S.No.349/1995 he conveyed 3 acres 20 guntas to defendant No.12 under registered Sale Deed dated 18-03-1997 as per Ex.P-6 and defendant No.12 in 122 O.S.No.2859/2008 turn conveyed said extent to defendant No.13 under Sale Deed dated 03-02-2003 as per Ex.P-7.
110. Present suit is filed by the plaintiff against defendants seeking the relief of declaration to declare the decree passed in O.S.No.459/1995, O.S.No.286/2000 dated 26-07-1995 and 30-11-2011 as null and void and not binding on the plaintiffs.
101. It appears relevant to recite the provision under section 3 of Transfer of Property Act, which refers to principle of constructive notice. It says that the person is said to have notice of fact that whether he actually knows the fact through their own negligence or willful abstention from enquiry or search which he ought to have made or gross negligence he would have known it.
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112. The aforesaid dispositions made by defendants No.1 & 2 are way back in the year 1997 and 2002 itself, which are registered documents having evidentiary and presumptive value in the eyes of law giving notice to the general public at large.
113. Under article 58 of the Limitation Act, it provides 3 years period from the respective dates within which the suit requires to be instituted.
114. Article 58 of the Limitation Act, prescribed 3 years limitation period for obtaining declaration when right to sue accrues. Admittedly, the decrees in both O.S.No.349/1995 as well as O.S.No.286/2000 are not challenged by these plaintiffs or anybody else for that matter, which means to say that the finding in the said judgments have reached finality. Non filing or non challenging the said decrees as well as the sale deeds 124 O.S.No.2859/2008 of the year 1997 to 2002 by these plaintiffs within a prescribed period of time provided by the Limitation Act leads to presumption and adverse inference against these plaintiffs that they had no objection against compromise entered and decree passed in said suits. Hence it has to be held that the present suit is barred by law of limitation. Hence this Issue is answered in the Affirmative.
115. ADDL. ISSUE NO.2 :: According to the defendant No.1, the Court Fee calculated and paid by plaintiffs is not proper and correct. It is discussed and found above that no iota of evidence is produced by the plaintiffs to show that they are in joint and constructive possession of suit schedule properties. It has been observed above that defendants No.12 to 14 have alienated portion of 'B' schedule property in favour of 125 O.S.No.2859/2008 subsequent purchasers i.e., defendants No.18 to 85 by way of different sale deeds, which shows that plaintiffs are not in joint or in constructive possession of suit schedule properties. It has also come on record and proved by the defendants that the layout has been formed and sites have been sold to the subsequent purchasers and also the buildings have come up in the schedule property. But however, record reveal that the plaintiffs have valued the suit schedule property under Section 35(2) of the Act and paid Court Fee for the reliefs sought.
116. Having regard to the nature of the suit claim and so also the property having come within the limits of BBMP, the market value of suit schedule properties has to be paid as on the date of filing of the suit. The record further reveal that the defendants i.e., subsequent 126 O.S.No.2859/2008 purchasers have constructed houses and also have paid property tax and property standing in their names. Hence plaintiffs should have valued the suit under Section 35(2) instead of 35(1) and should have paid Court Fee on the market value but they have not done so. The record reveal that the plaintiffs have paid Rs.200/- Court Fee not based on market value of the suit schedule properties. The suit filed by the plaintiffs does not maintain on this ground as well. Hence plaintiffs have also failed to prove before the Court that they have paid proper court fee. Hence this Issue is answered in the Affirmative holding that the plaintiffs have not paid proper court fee and not made suit valuation properly as per law.
117. ISSUE NO.10, 12, 13, 14, 15 :: As these issues are interconnected to each other, they have been 127 O.S.No.2859/2008 taken up together for discussion to avoid repetition of facts and evidence.
While answering previous issues this Court has reached to the conclusion that plaintiffs have failed to establish before the Court that they along with defendants No.1 to 4 are in joint possession and enjoyment of suit schedule properties ever since demise of Mr. Benny and Smt. Jaya Mary. Plaintiffs have also failed to prove that decree in O.S.No.349/1995 dated 26-06-1995 and decree in O.S.No.286/2000 dated 30-11-2011 are null and void and not binding on them. They have failed to prove the alienation made by defendants No.1 to 4 in respect of suit schedule properties in favour of defendants No.12 to 85. On the other hand, it has been established by the defendants about alienation of the schedule properties by defendants No.1 to 4 and so also the shares being 128 O.S.No.2859/2008 allotted to these plaintiffs in the partition that had taken place as per Ex.D-1 allotting certain properties in favour of plaintiffs. When such being the case, plaintiffs are estopped from questioning the decrees in O.S.No.349/1995 and O.S.No.286/2000 and so also the alienations that has taken place between defendants No.1 to 4 with other defendants No.12 to 85. When things stood thus, plaintiffs are not entitled for the relief as sought.
118. Plaintiffs have also prayed for the relief of permanent injunction restraining the defendants and their men from interfering with peaceful possession and enjoyment of suit schedule properties. It is pertinent to note that, such relief can be granted only on establishing the peaceful possession and enjoyment over the suit schedule properties by the plaintiffs. But 129 O.S.No.2859/2008 this case, no iota of evidence is produced to show that the plaintiffs are in joint and constructive possession of suit properties with defendants No.1 o 4. Under these circumstances, plaintiffs are not entitled for any relief sought. Hence, these issues are answered in the Negative.
119. ISSUE NO.16 :: In the light of foregoing discussion, I proceed to pass the following;
ORDER
Suit filed by the plaintiffs is
dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this the 28th day of April, 2025.) (Smt. Gomati Raghavendra), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY (CCH-18) 130 O.S.No.2859/2008 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(A) PLAINTIFFS SIDE ::
PW.1 :: Mrs. B. Jenova
PW.2 :: Smt. Pracilla Joyce
(B) DEFENDANTS SIDE ::
DW.1 :: Anthony Das
DW.2 :: A. Yoganarasimha
DW.3 :: Yesudas @ Yesuraj
DW.4 :: Gopikrishna.P
DW.5 :: R. Balachandar
DW.6 :: N. Jagadish
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF:
(A) PLAINTIFFS SIDE :
Ex.P-1 :: Certified copy of order in LRF No.3990/76-77 Ex.P-2 :: Certified copy of Form-10 Ex.P-3 :: Certified copy of plaint in O.S.No.325/2004 Ex.P-4 :: Certified copy of written statement in 131 O.S.No.2859/2008 O.S.No.325/2004 Ex.P-5 :: Certified copy of order sheet in O.S.No.286/2000 Ex.P-6 :: True copy of registered Sale Deed dated 18-03-1997 Ex.P-7 :: True copy of registered Sale Deed dated 03-02-2003 Ex.P-8 :: True copy of registered Sale Deed dated 31-10-2003 Ex.P-9 :: True copy of registered Sale Deed dated 23-01-2004 Ex.P-10 :: True copy of registered Sale Deed dated 09-01-2004 Ex.P-11 :: True copy of registered Sale Deed dated 09-01-2004 Ex.P-12 :: True copy of registered Sale Deed dated 09-01-2004 Ex.P-13 :: True copy of registered Sale Deed dated 09-01-2004 Ex.P-14 :: True copy of registered Sale Deed dated 24-01-2004 Ex.P-15 :: True copy of registered Sale Deed dated 28-11-2003 Ex.P-16 :: True copy of registered Sale 132 O.S.No.2859/2008 Deed dated 24-01-2004 Ex.P-17 :: True copy of registered Sale Deed dated 07-11-2003 Ex.P-18 :: True copy of registered Sale Deed dated 17-12-2003 Ex.P-19 :: True copy of registered Sale Deed dated 23-01-2004 Ex.P-20 :: True copy of registered Sale Deed dated 24-01-2004 Ex.P-21 :: True copy of registered Sale Deed dated 28-11-2003 Ex.P-22 :: True copy of registered Sale Deed dated 10-03-2004 Ex.P-23 :: True copy of registered Sale Deed dated 15-11-2003 Ex.P-24 :: True copy of registered Sale Deed dated 02-01-2004 Ex.P-25 :: True copy of registered Sale Deed dated 02-01-2004 Ex.P-26 :: True copy of registered Sale Deed dated 23-01-2004 Ex.P-27 :: True copy of registered Sale Deed dated 24-01-2004 Ex.P-28 :: True copy of registered Sale Deed dated 31-01-2004 Ex.P-29 :: True copy of registered Sale Deed dated 31-01-2004 133 O.S.No.2859/2008 Ex.P-30 :: True copy of registered Sale Deed dated 28-11-2003 Ex.P-31 :: True copy of registered Sale Deed dated 17-12-2003 Ex.P-32 :: True copy of registered Sale Deed dated 24-01-2004 Ex.P-33 :: True copy of registered Sale Deed dated 31-10-2003 Ex.P-34 :: True copy of registered Sale Deed dated 31-10-2003 Ex.P-35 :: True copy of registered Sale Deed dated 31-10-2003 Ex.P-36 :: True copy of registered Sale Deed dated 09-01-2004 Ex.P-37 :: True copy of registered Sale Deed dated 24-09-2004 Ex.P-38 :: True copy of registered Sale Deed dated 21-01-2004 Ex.P-39 :: True copy of registered Sale Deed dated 31-01-2004 Ex.P-40 :: True copy of registered Sale Deed dated 24-09-2004 Ex.P-41 :: True copy of registered Sale Deed dated 30-07-2004 Ex.P-42 :: True copy of registered Sale Deed dated 17-12-2003 Ex.P-43 :: True copy of registered Sale 134 O.S.No.2859/2008 Deed dated 28-11-2003 Ex.P-44 :: True copy of registered Sale Deed dated 24-01-2004 Ex.P-45 :: True copy of registered Sale Deed dated 09-01-2004 Ex.P-46 :: True copy of registered Sale Deed dated 23-01-2004 Ex.P-47 :: True copy of registered Sale Deed dated 24-01-2004 Ex.P-48 :: True copy of registered Sale Deed dated 28-11-2003 Ex.P-49 :: True copy of registered Sale Deed dated 02-01-2004 Ex.P-50 :: True copy of registered Sale Deed dated 15-11-2003 Ex.P-51 :: True copy of registered Sale Deed dated 24-01-2004 Ex.P-52 :: True copy of registered Sale Deed dated 31-01-2004 Ex.P-53 :: True copy of registered Sale Deed dated 31-01-2004 Ex.P-54 :: True copy of registered Sale Deed dated 31-01-2004 Ex.P-55 :: True copy of registered Sale Deed dated 31-01-2004 Ex.P-56 :: True copy of registered Sale Deed dated 17-12-2003 135 O.S.No.2859/2008 Ex.P-57 :: True copy of registered Sale Deed dated 20-07-2005 Ex.P-58 :: Certified copy of Compromise Petition in O.S.No.286/2000 Ex.P-59 :: Certified copy of decree in O.S.No.325/2004 Ex.P-60 :: Certified copy of copy application Ex.P-61 to Ex.P-63 :: Three Copies of registered Sale Deeds dated 31-01-2004 Ex.P-64 :: Copy of registered Sale Deed dated 17-08-2002 Ex.P-65 :: Copy of registered Sale Deed dated 16-04-2009 Ex.P-66 :: Copy of registered Sale Deed dated 23-01-2004 Ex.P-67 to Ex.P-69 :: Certified copies of order sheet, plaint and joint compromise petition in O.S.No.349/1995 Ex.P-70 :: Certified copy of entire examination in chief affidavit and cross- examination DW-3 in O.S. No. 325/2004 Ex.P-71 :: Certified copy of Judgment in O.S.No.325/2004 dated 15-03-2008 136 O.S.No.2859/2008 Ex.P-72 :: Certified copy of Decree in O.S.No.325/2004 dated 15-03-2008 Ex.P-73 :: Certified copy of Judgment in R.A.No.94/2008 Ex.P-74 :: Certified copy of Decree in R.A.No.94/2008 Ex.P-75 :: Death Certificate of Francis Rajashekhar Ex.P-76 :: Notarised copy of Adhaar Card of PW-2 Ex.P-77 :: Notarised copy of Transfer Certificate of Francis Rajashekhar (B) DEFENDANTS SIDE :
Ex.D-1 :: Copy of Partition Deed dated 23-01-2004 Ex.D-1(a) :: Photo and signature part on Ex.D-1 Ex.D-1(b) :: Photo and signature part of deceased plaintiff No.1 on Ex.D-1 Ex.D-1(c) :: Photo and signature part of deceased plaintiff No.2 on Ex.D-1 Ex.D-1(d) :: Photo and Signature part of Defendant No.1 on Ex.D-1 Ex.D-1(e) :: Photo and signature part of 3rd defendant on Ex.D-1 137 O.S.No.2859/2008 Ex.D-2 :: Sale Agreement dated 27-09-2004 Ex.D-3 :: Shara dated 21-10-2004 Ex.D-4 :: Certified copy of Judgment in R.A.No.287/2011 Ex.D-5 :: Certified copy of Decree in O.S.No.349/1995 Ex.D-6 :: True copy of Sale Deed dated 25-07-2002 Ex.D-7 :: True copy of registered Sale Deed dated 06-03-2003 Ex.D-8 :: Certified copy of Sale Deed dated 28-01-2003 Ex.D-9 & Ex.D-10 :: Tax paid receipts Ex.D-11 & Ex.D-12 :: Tax Assessment Demand Registers Ex.D-13 :: Special Power of Attorney dated 21-06-2023 Ex.D-14 :: Certified copy of RTC extract of Sy.No.145/2 Ex.D-15 :: Certified copy of M.R.No.5/1992-93 Ex.D-16 :: Certified copy of Hall Ticket of defendant No.6 Ex.D-17 :: Certified copy of Will dtd. 19-07-1988 Ex.D-18 :: Certified copy of Sale Deed dated 28-11-2003 138 O.S.No.2859/2008 Ex.D-19 :: 11 On-line copies of property tax receipts Ex.D-20 :: On-line certified copy of digitally Signed Sale Deed dated 23-01-2004 Ex.D-21 :: Tax paid receipt Ex.D-22 :: On-line certified copy of digitally Signed Sale Deed dated 23-01-2004 Ex.D-23 :: Tax paid receipt (Smt. Gomati Raghavendra), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY (CCH-18)