Bangalore District Court
C. Jagadish Rao vs Sri. Kishnoji Rao on 29 January, 2021
1
O.S No. 8802/2012
IN THE COURT OF THE LXXV ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BENGALURU CITY (CCH76)
: Present:
Sri. N. Sunil Kumar Singh, B.com., LL.B.,
LXXV Addl.City Civil & Session Judge,
Bengaluru
Dated on this the 29th day of January 2021
O.S No.8802/2012
Plaintiff/s C. Jagadish Rao
S/o. Chandroji Rao
Aged about 20 years
R/at No.5/1, Girimaji Compound,
Nagawara Main Road,
Nagawara,
Bengaluru - 560045.
[By Sri. M.R Advocate]
/V e r s u s/
Defendant/s 1.Sri. Kishnoji Rao
Aged about 74 years
S/o late. Girimaji Rao
2. Sri. Raja Rao
Aged about 72 years
S/o late. Girimaji Rao
3. Saraswathi Rao
Aged about 60 years
W/o late. Hunnoji Rao
4. Narayanaji Rao
Aged about 60 years
S/o late. Girimaji Rao
No.1 to 4 are Residing at
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O.S No. 8802/2012
Girimaji Rao Compound,
Kadugondanahalli,
Arabic College Post,
Bengaluru - 560045.
5. Chandroji Rao
S/o. Girimaji Rao
Aged about 60 years
R/at No.5/1, Girimaji Compound,
Nagawara Main Road,
Nagawara, Bengaluru - 560045.
6. Santhosh Thampi
Aged about 35 years
S/o P.C Thampi
7. Sosamma Thampi
Aged about 60 years
8. Kiran Kumar
Aged about 30 years
S/o Jagannathdar
6 to 8 are R/at Siddaramaiah Garden,
St. Thamos Tows Post,
Bengaluru 560045.
9. P.C Thampi
S/o late Chandy
Aged about 71 years
R/at No.203, Faba Home,
Near Michael School,
Geddalahalli, BBMP limits,
Bengaluru East Taluk,
Bengaluru 56077.
[D.1 to 5 & 8 Exparte, D.6 & 7 by Sri.D.R
and D.9 by T.C.H Advocate]
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O.S No. 8802/2012
Date of the institution of suit: 12.12.2012
Nature of the suit: Partition Suit
Date of the commencement of 11.08.2015
recording of the evidence:
Date on which the judgment was 29.01.2021
pronounced:
Total duration: Year/s Month/s Day/s
08 01 17
JUDGMENT
This suit is filed by the plaintiff against the defendants for partition and separate possession of his legitimate 1/5th share in the suit property and such other reliefs.
2. The fact in brief and averments made in the suit of the plaintiff is that, land bearing Sy.No.47 total measuring 8 acres, of Kothanur Village, Kasaba Hobli, Bengaluru North Taluk belong to joint owneers namely Kishnoji Rao, Raja Rao, Honnoji Rao, Chanadroji Rao and Narayanaji Rao. The suit property was purchased in the name of Krishnoji Rao who was the Kartha of the family under Registered sale deed dated: 09.05.1963 and 4 O.S No. 8802/2012 16.01.1964. The consideration for purchase of the said property was paid out of joint family nucleolus. After purchase of the property the revenue records were changed into name of 1 st defendant and his name was entered in coloum No.9 & 12(2) of RTC. The land in Sy.No. 47 measuring 8 acres continued to be in possession of 1st defendant and his four brothers and all the five brothers were carrying on Tannery business having meat shop and they have income out of their business.
3. The plaintiff and defendant No.1 to 5 not only holding the suit property jointly and they were in joint and constructive possession of Sy.No.57, 63, 65, 66, 67 & 69 of Kadugondanahalli village and Sy.No.82/2, Sy.No,99/1 and Sy.No.5/1 of Nagawara Village to an extent of 4 acres in Sy.No. 112 of Byrathi Village. The 2nd defendant herein has filed suit for partition and division of family properties in O.S No.5452/1991 and obtained order of Temporary injunction restraining the defendants from alienating the family properties which was subsisting in the said suit from 09.09.1991 till 12.11.2002. During the pendency of said suit the 5 O.S No. 8802/2012 1st defendant without the consent of other brothers sold 6 acres of land in Sy.No.47 which was not for family necessity and 1 st defendant being the kartha of the family misutilized the status and misused the funds of joint family. The said alienation is hit by "Lispendence" as provided U/S 52 of Transfer of Property Act.
4. The 1st defendant has sold the suit property to one P.C Thambi and Susamma which was succeeded by their son Santosh under the Registered sale deed dated: 07.08.1995, 11.08.1995 and 17.08.1995 respectively. The 1st defendant without having any manner of right over the suit property alienated the same in favour of defendant No.6 to 8 during pendency of the suit in O.S No.5452/1991. Thus, said alienation is not binding on the plaintiff and plaintiff is entitled for 1/5th share in the suit property and prayed to decree the suit with cost.
5. The brief averments of written statement filed by defendant No.9 is that, present suit is filed by the plaintiff seeking relief of partition and separate possession and allotment of legitimate 1/5th share in the suit property is not maintainable 6 O.S No. 8802/2012 and it is liable to be dismissed. Plaintiff has suppressed the material facts and misrepresented before this court and claimed relief of partition which is not sustainable. The suit property was self acquisition of defendant No.1 who has purchased the same under Registered sale deed dated: 09.05.1963 and 16.01.1964. Thus, revenue records were changed into the name of 1st defendant who has alienated the same through his GPA holder under Registered sale deed dated: 07.08.1995 & 11.08.1995 respectively and remaining 2 acres of land was alienated in favour of 7th defendant through GPA holder under Registered sale deed dated: 17.08.1995. Thus, defendant No.7 & 9 are in lawful possession of the suit property as absolute owners. Plaintiff or defendant No.1 to 5 having no manner of right, title possession over the suit properties. The 1st defendant being the absolute owner of suit property executed GPA on 28.07.1995 in favour of 6th defendant to execute sale deeds which was acted upon and sale deeds were executed in favour of defendant No.7 & 9. Thus, suit property is not partable and plaintiff has no right to claim partition with respect to the suit property. Since, there is no 7 O.S No. 8802/2012 cause of action for the suit, suit of the plaintiff is liable to be dismissed. Hence, prayed to dismiss the suit of the plaintiff with cost.
6. The other defendants have not filed any written statement on their behalf in the present suit.
7. On the above pleadings following issues have been framed by my learned predecessor.
1) Whether the plaintiff proves that the 1 st defendant was the karta of the joint family and the suit property acquired out of joint family fund ?
2) Whether the defendant No.6, 7 & 9 prove that the suit property is self acquired property of 1st defendant?
3) Whether the plaintiff proves that alienation of suit property by the 1st defendant in favour of defendant No.6, 7 & 9 is hit by the principle of lis pendency ?
4) Whether the defendants proves that the suit is barred by limitation ?
5) Whether the suit is the present form is maintainable?8
O.S No. 8802/2012
6) Whether the plaintiff is entitled for the relief sought ?
7) What order?
8. In order to prove the case of the plaintiff, the plaintiff got examined himself as PW.1 by filing his affidavit evidence and got marked documents Ex.P.1 to P.37. On behalf of defendants even though 9th defendant has adduced evidence by filing his affidavit as DW.2, he has not marked any documents on his behalf and not appeared before the court for crossexamination. Hence, evidence of DW.1 was discarded.
9. Heard arguments of learned counsel for plaintiff and despite of providing several opportunities no argument submitted on behalf of defendants.
10. My findings to the above issues are as under :
POINT No.1, 3, 4, 5 & 6 : In the Negative
POINT No.2 : In the Affirmative
POINT No.7 : As per final order for the
following:
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O.S No. 8802/2012
REASONS
11. ISSUE No.1 to 6: Since, these six issues are
interconnected to each other, they have been taken together for discussion in order to avoid repetition of the facts and findings to be given there under.
10. The case of plaintiff is that, land bearing Sy.No.47 total measuring 8 acres, of Kothanur Village, Kasaba Hobli, Bengaluru North Taluk belong to joint owners namely Kishnoji Rao, Raja Rao, Honnoji Rao, Chanadroji Rao and Narayanaji Rao. The suit property was purchased in the name of Krishnoji Rao who was the Kartha of the family under Registered sale deed dated: 09.05.1963 and 16.01.1964. The consideration for purchase of the said property was paid out of joint family nucleolus. After purchase of suit property the revenue records were changed into name of 1st defendant and his name was entered in coloum No.9 & 12(2) of RTC. The land in Sy.No. 47 measuring 8 acres continued to be in possession of 1 st defendant and his four brothers and all the five brothers were carrying on 10 O.S No. 8802/2012 Tannery business having meat shop and they have income out of their business.
11. The plaintiff and defendant No.1 to 5 not only holding the suit property jointly and they were in joint and constructive possession of Sy.No.57, 63, 65, 66, 67 & 69 of Kadugondanahalli village and Sy.No.82/2, Sy.No,99/1 and Sy.No.5/1 of Nagawara Village to an extent of 4 acres in Sy.No. 112 of Byrathi Village. The 2nd defendant herein has filed suit for partition and division of family properties in O.S No.5452/1991 and obtained order of Temporary injunction restraining the defendants from alienating the family properties which was subsisting in the said suit from 09.09.1991 till 12.11.2002. During the pendency of said suit 1st defendant without the consent of other brothers sold 6 acres of land in Sy.No.47 which was not for family necessity and 1 st defendant being the kartha of the family misutilized the status and misused the funds of joint family. The said alienation is hit by "Lispendence" as provided U/S 52 of Transfer of Property Act. 11
O.S No. 8802/2012
12. The 1st defendant has sold the suit property to one P.C Thambi and Susamma which was succeeded by their son Santosh under the Registered sale deed dated: 07.08.1995, 11.08.1995 and 17.08.1995 respectively. The 1 st defendant without having any manner of right over the suit property alienated the same in favour of defendant No.6 to 8 during pendency of the suit in O.S No.5452/1991. Thus, said alienation is not binding on the plaintiff and plaintiff is entitled for 1/5th share in the suit property.
13. In order to prove the case of the plaintiff, plaintiff got examined himself as PW.1 by filing his affidavit evidence reiterated the plaint averments and deposed that, suit Sy.No.47 total measuring 8 acres of Kothanur Village, Kasaba Hobli, Bengaluru North Taluk belong to joint family of 1 st defendant and his five brothers who are Kishnoji Rao, Raja Rao, Honnoji Rao, Chanadroji Rao and Narayanaji Rao and suit property was purchased out of joint family nucleolus in the name of 1 st defendant who was the kartha of joint family under Registered 12 O.S No. 8802/2012 sale deed dated: 09.05.1963 and 16.01.1964 for valuable consideration. In order to substantiate the same certified copy of sale deeds are marked as Ex.P.1 & 2 and typed copy of sale deeds are marked as Ex.P.1(a) & P.2(a). On going through recitals Ex.P.1 & 2 it is pertinent to note that, the suit property was purchased by the 1st defendant for valuable consideration under the said registered sale deeds and there is no recitals in Ex.P.1 & 2 with regard to payment of consideration amount out of joint family nucleolus as contended by the plaintiff. In order to prove that, consideration amount was paid from joint family funds for having purchased the property bearing Sy.No. 47 total measuring 8 acres of Kothanur Village, Kasaba Hobli, Bengaluru North Taluk there is no such documentary evidence produced by the plaintiff. The recitals Ex.P.1 & 2 clearly shows that, said property was purchased in the name of 1st defendant and consideration amount was paid by the 1st defendant to the vendors. It is further deposed by PW.1 that, after purchase of said property the revenue records have been changed into the name of 1 st defendant and name of 1st was incorporated in coloum No. 9 & 12(2) of RTC. 13
O.S No. 8802/2012 In order to substantiate the same revenue sketch of Sy.No.47 is marked as Ex.P.3, statement of Akarband of Sy.No.47 is marked as Ex.P.4 and mutation registered extract is marked as Ex.P.5 and records of right is marked as Ex.P.6 and RTC extracts are marked as Ex.P.7 to 10 which clearly discloses that, name of 1 st defendant was incorporated as kathedar in coloum No.9 & 12(2) of RTC which substantiate that, Ex.P.1 & 2 were acted upon and name of 1st defendant was incorporated as kathedar with respect to Sy.No.47 measuring 8 acres in the year 1963 1964 itself.
14. It is further deposed by PW.1 that, apart from Sy.No.47 measuring 8 acres the joint family has owned other properties bearing Sy.No.57, 63, 65, 66, 67 & 69 of Kadugondanahalli Village and Sy.No. 82, 99 and Sy.No.5/1 of Nagavara village and Sy.No.112 measuring 4 acres of Baiyathihalli Village and 2 nd defendant had filed O.S No. 5452/1991 for partition and separate possession of family properties is in which Temporary injunction was granted restraining alienation of properties by the defendants which was in force from 09.09.1991 to 12.11.2002. And despite of 14 O.S No. 8802/2012 such interim injunction granted restraining 1 st defendant from alienating the suit property the 1 st defendant sold 6 acres of land in Sy.No.47 under Registered sale deed dated: 07.08.1995, 11.08.1995 and 17.08.1995 in favour of defendant No.6 which is not binding on the plaintiff herein. In order to substantiate the same the copy of plaint of the said suit is marked as Ex.P.29 and copy of interim application is marked as Ex.P.30 and copy of order sheet of the said suit is marked as Ex.P.31 and another interim application is marked as Ex.P.32 and orders passed on I.As in the said suit is marked as Ex.P.33 and the said suit is ended in compromise and compromise petition is marked as Ex.P.34 and sale deeds executed with respect to 6 acres of land in the name of defendant No.7 & 9 are marked as Ex.P.35 to 37.
15. On going through recitals of Ex.P.34 it is pertinent to note that, alienation made by the 1 st defendant to defendant No.7 & 9 under Ex.P.35 to 37 was not questioned in the said suit in O.S No.5452/1991. But all the family members have compromised the matter and separate shares were alloted as 15 O.S No. 8802/2012 mentioned in compromise petition Ex.P.34. Admittedly 6 acres of land was sold out of total extent of 8 acres in Sy.No.47 and remaining 2 acres which was left out was alloted to the share of Narayana G Rao who is 5th defendant in the said suit and admittedly Ex.P.34 was acted upon and revenue records have been accepted in the name of all the five brothers of 1 st defendant and they were in separate possession of the same. Admittedly, after purchase of suit property by defendant No.7 & 9 under Ex.P.35 to 37 the revenue records have been accepted as per mutation register extract and RTC extract which are marked as Ex.P.14 to 26 and name of defendant No.7 & 9 herein are incorporated as kathedar with respect to the suit property and the alienation made by defendant No.1, 7 & 9 under Ex.P.35 to 37 is reflected in encumbrance certificate Ex.P.27 & 28. The revenue records were made in of defendant No.7 & 9 as per Ex.P.14 to 26 is not questioned before revenue authorities by PW.1 herein.
16. In crossexamination of defence counsel PW.1 has specifically admitted that, the names of other brothers of 1st defendant herein was not mentioned in the sale deed Ex.P.1 & 2 16 O.S No. 8802/2012 and recitals of Ex.P.1 & 2 do not disclose the consideration amount was paid out of joint family nucleolus. It is also admitted by PW.1 in the crossexamination of defence counsel that, his father was 10 years old when 1st defendant has purchased the property bearing Sy.No.47 measuring 8 acres under Ex.P.1 & 2. It is also admitted by PW.1 that, 'D' schedule property mentioned in comprise petition Ex.P.34 was alloted to the share of his father. The compromise petition which was allowed as per Ex.P.34 is not questioned by PW.1 or his father at any point of time. It is not the case of PW.1 that, there was unequal partition in the family and he has filed a suit for reopening the partition deed. DW.1 has questioned the alienation made by 1st defendant to defendant No.7 & 9 under Ex.P.35 to 37. But as already discussed above PW.1 has not produced any such documents to prove that, the suit property was purchased in the name of 1 st defendant out of joint family nucleolus. If really the suit property was purchased in the name of 1st defendant out of joint family nucleolus the same would have been questioned by five brothers of 1s t defendant in 17 O.S No. 8802/2012 earlier suit filed in O.S No.5452/1991 and they would have not compromised the matter as per Ex.P.34.
17. Admittedly 'D' schedule property which is alloted under compromise petition Ex.P.34 was accepted by father of PW.1 herein and it was acted upon. There is no convincing evidence or material documents produced by PW.1 to prove that, suit property was not self acquisition of 1st defendant herein. Contrary to the evidence of PW.1 his documents Ex.P.1 & 2 clearly disclosed that, sale deed was executed in the name of 1 st defendant and consideration amount was paid by 1st defendant to his vendors. Admittedly Ex.P.1 & 2 was acted upon and revenue records with respect to the said property was accepted in the name of 1 st defendant as per Ex.P.4 to 10 and right from the year 1963 till alienation of the suit property by 1st defendant the revenue records stood in the name of 1st defendant herein. If really the suit property would have purchased out of joint family nucleolus the revenue entries would have been made in the name of 1 st defendant and his four brothers. Hence suit property cannot be 18 O.S No. 8802/2012 considered as property acquired out of joint family nucleolus in the absence of convincing evidence and documents produced by the plaintiff.
18. Even though, there is no rebuttal evidence on behalf of the defendant the documents produced on behalf of the plaintiff itself shows that, suit property was self acquisition of 1 st defendant as per Ex.P.1 & Ex.P.2 and 1 st defendant being the absolute owner has alloted the suit property to defendant No.7 & 9 under Ex.P.35 to 37. Admittedly the alienation made by 1 st defendant as per Ex.P.35 to 37 was not questioned by any of the brothers and they have not questioned the validity of the such sale made by 1st defendant in favour of defendant No.7 & 9 under Ex.P.35 to 37 in earlier suit for partition filed in O.S No.5452/1991. Admittedly the earlier partition suit filed between plaintiff and defendants and his four brothers was compromised under Ex.P.34 and after alienation of suit property remaining extent in Sy.No.47 was alloted to one of brother of 1 st defendant in Ex.P.34. Thus, the plaintiff not proved by his evidence and 19 O.S No. 8802/2012 documents that, suit property is joint family property acquired in the name of 1st defendant out of joint family nucleolus. But Ex.P.35 to 37 and revenue documents Ex.P.24 to 26 clearly disclosed that, defendant No.6, 7 & 9 have acquired the said property from 1st defendant for valuable consideration. As per recitals of Ex.P.35 to 37 the alienation was made by 1st defendant on 07.08.1995 and immediately after attaining the age of majority within 3 years the plaintiff has filed the present suit questioning the validity of the sale executed by 1st defendant in favour of defendant No.6, 7 & 9 with respect to the suit property. Thus, the present suit is not barred by limitation. But plaintiff by his evidence and documents was not able to prove that, the suit property is not self acquisition of 1st defendant and was acquired out of joint family nucleolus. Hence, plaintiff is not entitled for partition and separate possession of his legitimate 1/5th share in the suit property and now the suit property is not partable and it is absolute property of defendant No.6, 7& 9 and plaintiff is not entitled for any reliefs as claimed in the suit much less the partition with respect to the suit property.
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O.S No. 8802/2012 Accordingly, I hold Issue No.1, 3, 4, 5 & 6 as Negative and Issue No.2 as Affirmative.
19. ISSUE No.7 : For my discussion to point No. 1 to 6 above, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed. Under the circumstances the parties are directed to bare their own cost.
[Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in the Open Court on this the 29th day of January 2021] [N.Sunil Kumar Singh] LXXV Additional City Civl and Session Judge Bengaluru.
ANNEXUERE List of witnesses examined for plaintiff: PW.1 C. Jagadish Rao List of documents exhibited for plaintiff: Ex.P.1 Certified copy of sale deed dated: 09.05.1963 21 O.S No. 8802/2012 Ex.P.1(a) Typed copy of Ex.P.1 Ex.P.2 Certified copy of sale deed dated: 16.01.1964 Ex.P.2(a) Typed copy of Ex.P.2 Ex.P.3 Certified copy of survey sketch Ex.P.4 Certified copy of Karnataka Revision Settlement Akarabandh (Uttar) Ex.P.5 Certified copy of mutation extract Ex.P.6 Certified copy of village form II Ex.P.7 to 10 Records of Rights pertaining to Sy.No.47 Ex.P.11 Certified copy of M.R No.1 of 200405 Ex.P.12 Certified copy of M.R No.H13201112 Ex.P.13 Certified copy of M.R No.H/13201213 Ex.P.14 to 26 Records of Rights pertaining to Sy.No.47/P1 Ex.P.27 & 28 Encumbrance certificates Ex.P.29 Certified copy of plaint in O.S No.5452/1991 Ex.P.30 Certified copy of I.A No.1 in O.S No.5452/1991 Ex.P.31 Certified copy of Order sheet in O.S No.5452/91 Ex.P.32 Certified copy of I.A No.2 in O.S No.5452/1991 Ex.P.33 Certified copy of order of I.A No.2 in O.S No.5452/1991 22 O.S No. 8802/2012 Ex.P.34 Certified copy of Compromise petition in O.S No.5452/1991 Ex.P.35 Certified copy of sale deed dated: 07.08.1995 Ex.P.36 Certified copy of sale deed dated: 07.08.1995 Ex.P.37 Certified copy of sale deed dated: 11.08.1995.
List of witnesses examined for defendant DW.1 P.C Thampi List of documents exhibited for plaintiff: ...Nil...
[N.Sunil Kumar Singh] LXXV Additional City Civil and Session Judge Bengaluru