Bangalore District Court
Smt. Rathnamma vs Smt. Sudharani on 2 February, 2023
KABC010289242016
IN THE COURT OF THE III ADDL.CITY CIVIL and
SESSIONS JUDGE, BENGALURU CITY (CCH No.25).
Dated: This the 02nd day of February, 2023.
PRESENT: Smt. SUNITHA S.G. B.Sc.LL.B.,
VII Addl. City Civil and Sessions
Judge, Bengaluru.
(C/c. III Addl. City Civil and
Sessions Judge, Bengaluru)
O.S.No.8399/2016
Plaintiffs: 1. Smt. Rathnamma
D/o late. Chinnappa
W/o late. Ugrappa
Aged about 55 years
2. Ranjith
S/o late. Rajanna
Aged about 19 years
All are residing at A.K Colony,
Konanakunte Village,
Uttarahalli Village,
Doddakallasandra Post,
Anjanapura Main Road,
Bengaluru - 560062.
By Sri. Janardhana. B., Advocate.
vs.
2
O.S.No.8399/2016
Defendants 1. Smt. Sudharani
D/o late. Rajanna
W/o. Basavaraju
Aged about 23 years
R/at Kutla Hulimangala Village,
Bale Thotanahalli Post,
Denkanikote Taluk,
Dharmapuri Dist,
Tamilnadu State.
2. M/s. Gouthami
D/o late. Rajanna
Aged about 21 years
R/at A.K Colony, Konanakunte Villege,
Uttarahalli Village,
Doddakallasandra Post,
Anjanapura Main Road,
Bengaluru - 560062.
3. D. Ramaswamy
S/o late. Doreswamy Pillai,
4. Sridhar
S/o D.Ramaswamy
Aged about 51 years
Both are residing at No.581,
Sanjayarayara Road,
Vishwarpuram, Bengaluru-04.
5. M/s. Dhondusa Gold Thread Factory
Represented by its
Partner Sri. Dhaktappa
R/at No.167, Subedar Chatram Road,
Bengaluru - 09.
6. S.D.Narayansa
S/o late. Dhondusa
Aged about 94 years
3
O.S.No.8399/2016
7. S.D.Shivaji
S/o late. Dhondusa
Aged about 84 years
8. S.D.M.Swamy
S/o late. Dhondusa
Aged about 76 years
9. S.D.Eshwarrsa
S/o late. Dhondusa
Aged about 73 years
10. S.N.Srinivasa Murthy
S/o S.D.Narayansa
Aged about 75 years
11. S.N.Shivashankar
S/o. S.D.Narayansa
Aged about 71 years
12. S.D.Ashwathnarayana
S/o late. S.D.Dhaktappa
Aged about 67 years
13. S.D.Nageshwar
S/o late. S.D.Dhaktappa
Aged about 65 years
14. S.D.Shivaram
S/o late.S.D.Dhaktappa
Aged about 63 years
15. S.D.Krishnamurthy
S/o late. S.D.Dhaktappa
Aged about 61 years
16. S.S.Vishwanath
S/o Sri.S.D.Shivaji
Aged about 64 years
4
O.S.No.8399/2016
17. S.S.Govardhan
S/o Sri.S.D.Shivaji
Aged about 63 years
18. S.S.Somanath
S/o Sri.S.D.Shivaji
Aged about 61 years
19. S.S.Janardhan
S/o Sri.S.D.Shivaji
Aged about 59 years
SL.No.5 to 18 are
Residing at No.10, 2nd Cross,
6th Main, Gandhinagar,
Bengaluru-560009.
20. K.L.Swamy
S/o late.K.Lakshmansa
Aged about 69 years
R/at No. 9, Sheshadri Road,
Bengaluru-09.
21. M/s. Khoday Brewing and Distilling
Industries Ltd.,
Represented by its Managing Director
Sri. K.L.Srihari
S/o late. K.Lakshansa
Aged about 77 years
R/at No. 9, Sheshadri Road,
Bengaluru-09.
D.1 by Sri. C.S., Advocate
D.2, 3, 8, 9, 11 to 19 by Exparte
D.4 by Sri.N.R.N., Advocate
D.5, 10 and 21 by V.H.B., Advocate
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O.S.No.8399/2016
Date of Institution 09-12-2016
Nature of Suit Partition Suit
Date of commencement of 27-08-2019
Evidence
Date of pronouncement of 02-02-2023
Judgment
Total Duration: Years Months Days
06 01 21
JUDGMENT
The Plaintiffs have filed this Suit for Partition and separate possession of 1/3rd share over the suit schedule property by meets and bounds and put the plaintiffs in separate possession of the same and to declare the sale deed executed by Sri.Maddura @ Dumka @ Dumakappa and his second son Chikkamuniya vide sale deed dated: 16.09.1965 in favour of the defendant No.3, same the defendant No.3 and 4 are sold under registered sale deed dated:
13.06.1968 in favour of defendant No.5 and defendant No.6 to 19 were jointly sold under sale deed dated:
12.11.2010, said sale deed registered on 02.12.2010 in favour of the defendant No.21 through alleged General Power of Attorney the defendant No.20 in respect of the suit schedule property are binding on the plaintiffs and to restrain the defendant No.21 and its servants, 6 O.S.No.8399/2016 agents, henchmen or any person claiming under them by way of permanent injunction.
SCHEDULE Land measuring 1 acres 07 guntas in Sy.No.25/2, situated at Konanakunte Village, Uttarahalli Hobli, Bengaluru and bounded on the:
East by : The property if Vajrappa's family;
West by : Survey No.25/1;
North by : Property of Elluru Jewelers;
South by : The property of Vajrappa's family;
2) The Plaintiffs submitted that, one Sri.
Maddura @ Dumka @ Dumakappa was the
Moolapurush of the family of the plaintiffs and
defendant No.1 and 2 herein. The said Maddura @
Dumka @ Dumakappa married Smt. Thimmakka out of their wedlock got two sons by name Chinnappa and Chikkamuniya, the said Chinnappa married Smt. Sannamma out of their wedlock got two children by name Smt. Rathnamma i.e., plaintiff No.1 and Sri. Rajanna, the said Rajanna married Smt. Lakshmi out of their wedlock got three children by name Sudharani, Gowthami who are defendants No.1 and 2 herein and Ranjith who is plaintiff No.2 here in. Plaintiff No.1 is grand daughter of Maddura @ Dumka @ Dumakappa and plaintiff No.2 is great grandsons of Maddura @ Dumka @ Dumakappa.7
O.S.No.8399/2016 Plaintiffs further submitted that, during the life time of Maddura @ Dumka @ Dumakappa was in possession of 1 acres 07 guntas in Sy.No.25/2 of Konankunte Village, Uttarahalli Hobli, Bengaluru, more fully described in schedule property. The plaintiffs and defendant No.1 and 2 and their predecessors Maddura @ Dumka @ Dumakappa and his two sons constituted Hindu undivided joint family and the suit property is the undivided joint property of Sri.Maddura @ Dumka @ Dumakappa, the suit schedule property earned out of joint family funds. Thereafter, plaintiffs and defendant No.1 and 2 are continued joint possession, enjoyment in the suit schedule property. On 02.01.2016, at about 10.00 a.m defendant No.21 and its in charge member are threatened the plaintiffs to dispossess from suit property, at that time plaintiff known that defendant No.21 claiming the suit property on the basis of alleged sale deed dated: 12.11.2010, after obtaining relevant deeds then found that defendant 6 to 19, through defendant No.20 who is GPA holder of the defendant No.6 to 19. During the life time of Sri.Maddura @ Dumka @ Dumakappa and his son Chikkamuniya were jointly sold the suit schedule property under sale deed dated: 16.09.1965 in favour of defendant No.3 without the consent of the plaintiffs and their family and they were not party in the above alleged sale deed.8
O.S.No.8399/2016 Thereafter, the defendant No.3 and 4 are sold said property under registered sale deed dated: 13.06.1968 in favour of defendant No.5 without the consent of the plaintiffs also. Subsequently, defendant No.6 to 19 were jointly sold the suit property under sale deed dated: 21.11.2010, said sale deed registered on 02.12.2010 in favour of defendant No.21 through alleged General Power of Attorney of defendant No.20, the father of the plaintiff No.1 did not alienate the suit schedule property, the plaintiff No.1 is co-owner of the suit schedule property, same the plaintiffs are become joint owners of the suit schedule property and have been continued possession since their birth.
The Plaintiffs further submitted that, their father did not executed any right, title, interest, possession over the suit schedule property in favour of defendants nor anybody. On 10.06.2016, the plaintiffs demanded defendant No.1 and 2 for partition and separate possession of the suit schedule property, they refused the plaintiffs demand and not co-operated with plaintiffs to resist illegal acts of defendant No.21, the plaintiffs immediately obtained alleged sale deeds and other documents he came to know about alleged transactions in respect of suit schedule property and the sale deeds are not valid transactions and the vendor of the defendant No.3 had not absolute title nor 9 O.S.No.8399/2016 exclusive possession of said property, therefore subsequent purchaser has no right, interest, possession in the suit schedule property. The plaintiffs have been equally interested in the aforesaid piece and parcel of the suit schedule property. Hence, plaintiffs are constrained to file this suit for partition and permanent injunction.
3) After service of suit summons, the defendants appeared before the Court through their respective counsels and filed their separate written statements. The defendant No.4 and defendants No.20 and 21 filed their written statements. However, in the written statement the defendants No.1 has contended that, the suit filed by the plaintiffs hopelessly barred by limitation. The family members are set up the plaintiffs to file a false and frivolous suit over the suit property through partition. The 1st plaintiff aged about 55 years on the date of filing of the suit and she is very much aware about the developments taken place in the suit schedule property. As on the date of filing of the suit, there is no any agricultural land is available as claimed in the suit schedule property, at the same time entire area fully developed comes within the jurisdiction of BBMP. The purchasers are not made as party to the proceedings and for want of non-joinder and mis- joinder of parties, the suit is liable to be dismissed. The 10 O.S.No.8399/2016 allegation made against him and 3rd defendant purchased the property in the year 1965 and subsequently, they have sold the property in favour of 5th defendant. For the legal necessity incurred during about 51 years ago for the predecessor of the plaintiff and at this stage the question does not arise still the plaintiffs and defendants were entitled to claim partition against the suit schedule property.
Further submitted that the revenue layout was formed and BBMP authorities are recognized the layout which is fully developed and formed the roads and providing all the amenities by the authorities. This defendant is not a necessary and proper parties to the proceedings and as per averments the 3rd and 4th defendants have sold the property in favour of 5 th defendant in the year 1958 and subsequently, 6 to 19 th were jointly sold property in favour of defendant No.21in the year 2010-11, such being the case the suit is not maintainable and liable to be dismissed. The 4th defendant not a party to the sale deed dated:
16.09.1995. Defendant No.4 is not having any right, title as on the date of filing of the suit, since along with 3rd defendant sold the property in the year 1968 itself immediately after purchase in the year 1965 and subsequent events is not known to 4 th defendant. As on the date sold the property by the predecessor of 1 st 11 O.S.No.8399/2016 plaintiff is aged about 4 years and now she is aged about 55 years kept quite for long time and claiming right over suit schedule property. Further, the suit schedule property is not existing as agricultural land as on the date of filing of the suit and since, the layout was formed were sold to several purchasers. Even this defendant is not aware about the existing of suit property after lapse of 51 years neither having possession nor having right, title over property. All the other averment made in the plaint are false and denied. Hence, suit of the plaintiff is liable to be dismissed with exemplary cost.
4) Further, the defendants No.20 and 21 have filed written statement contending that the plaintiffs have filed this suit for partition and to allot 1/3rd share to the plaintiffs in the suit schedule property and to declare the sale deeds dated: 16.09.1965, 13.06,1968 and 12.11.2010 are not binding on the plaintiffs. The plaintiffs have virtually seeking the declaration for cancellation of 3 sale deeds, first of which has been executed about 51 years back. The plaintiffs are not in joint possession of the suit schedule property. The suit property is non-agricultural converted land and plaintiffs are liable to pay the proper court fee on the market value of the suit schedule property. The suit is 12 O.S.No.8399/2016 not maintainable, frivilous, mischievous and filed only with an intention to harass the defendants. The plaintiffs have no manner of right, title or interest over the suit schedule property which absolutely belongs to the defendant No.21. The averments that one Maddura @ Dumka @ Dumakappa was the moola purusha of the family of plaintiffs and defendant No.1 and 2 is denied as false. The averments during the life time of Maddura @ Dumka @ Dumakappa and his son has jointly sold the suit schedule property in favour of 3rd defendant under registered sale deed dated:
16.09.1965, is true. However, the allegation that the said sale deed was without the consent of the plaintiffs are their family is denied as false. Further the averments that defendant No.3 and 4 sold the suit schedule property in favour of defendant No.5 by way of registered sale deed dated: 13.06.1968, is true and subsequently, defendants No. 6 to 19 jointly sold the schedule property in favour of defendant No.21 by sale deed dated: 12.11.2021, is true and remaining all the averments made in the plaint are denied as false.
Further submitted that the real fact of the suit schedule property are the Maddura @ Dumka @ Dumakappa had only one son by name Muniya and his son sold the suit property to defendant No.2 and 4 by 13 O.S.No.8399/2016 sale deed dated: 16.08.2015, further the defendant No.3 and 4 have sold the said property to defendant No.5 by the sale deed dated: 13.06.1968. The defendant No.5 applied for conversion of the said land and other lands before The Deputy Commissioner, by its order dated: 29.04.1972 ordered for conversion of lands of 5th defendant including the land bearing sy.No.25/2 of Konananakunte Village. Further the defendant No.5 has sold the said property to defendant No.21 vide sale deed dated: 12.11.2010, and defendant No.21 and its predecessors of in title had purchased the suit schedule property for valuable consideration. Plaintiffs claim that they are the grand-daughter and great-son of Maddura @ Dumka @ Dumakappa and he has purchased the suit schedule property from his own earnings and he has sold the said property about 51 years back. The plaintiffs and defendant No.1 and 2 do not have any right or interest over the suit schedule property. The plaintiffs have not challenged the validity of the sale deed executed by Maddura @ Dumka @ Dumakappa within the period of the limitation. On this ground the suit is hopelessly barred by limitation and the same is liable to be dismissed. The defendant No.21 and his predecessor have been in possession and enjoyment of the suit schedule property from the date of purchase i.e., for more than 40 years. The plaintiffs 14 O.S.No.8399/2016 have not produced any documents to show their title, co-ownership over the suit schedule property. The plaintiffs have filed this suit only to harass the defendants and for extortion of money. Hence, prays to dismiss the suit with exemplary cost.
5) The Court has framed following Issues:
1. Whether the plaintiffs prove that suit property is joint family property of themselves and defendants No.1 and 2?
2. Whether the plaintiffs further prove that sale deed dated 16.9.1965 is a nominal sale deed and it was not acted upon?
3. Whether the defendant No.4 proves that suit is barred by limitation?
4. Whether the defendants 5, 10, 20 and 21 prove that court fee paid on the plaint is insufficient?
5. Whether the plaintiffs prove that their lawful possession and enjoyment upon suit property as on the date of suit?
6. Whether the plaintiffs prove the unlawful interference?
7. Whether the plaintiffs are entitled for the reliefs as prayed for?
8. What order or decree?15
O.S.No.8399/2016
10) In order to prove the case of the plaintiffs, the plaintiff No.1 herself got examined as PW.1 and from her side 8 documents were marked as per Exs.P.1 to Ex.P.8 and closed her side of evidence.
After closure of the Plaintiff's side evidence, Defendant No.21 got examined himself as DW.1 and from his side 5 documents were marked as per Exs.D.1 to Ex.D.5
11) Heard Learned Counsels of both sides, and perused all documents. Written arguments were filed by defendant No. 5 to 10, 7, 20 and 21/Counsel.
12) The answers to the above Issues are:
Issue No.3 - In the Affirmative;
Issue No.1, 2, 4 to 7 - Do not arises for consideration;
Issue No.8- As per Final Order, for the following:
REASONS
13) Issue No.3: Being vital issue taken first. This suit is filed for partition, declaration and injunction claiming suit schedule property Sy No.25/2 to an extent of 1 acre 07 guntas as the joint family 16 O.S.No.8399/2016 properties. From Ex.P1 Genealogical tree it is seen that Dumakappa @ Madurappa is the grand father of plaintiff No.1 and great grand father of plaintiff No.2. It is not in dispute that the suit schedule property originally belonged to Dumakappa. The death certificate of Chinnappa is marked as Ex.P.2 who is the father of plaintiff No.1 and Death certificate of Lakshmi is marked as Ex.P.3 is mother of plaintiff No.2. Upon amendment to Section 6 of Hindu Succession Amendment Act 2005, daughter is also a coparcenar as that of the son. To be noted, Ex.P5 (also Ex.D2) Certified copies of sale deeds dated: 16.09.1965 in favour of defendant No.3 and 4 by Dumakappa and Chikkamuniyappa as to suit schedule property Sy No.25/2 to an extent of 1 acre 07 guntas evidences the sale of suit schedule property way back in 1965 and possession thereby. Further, subsequent sale deeds Ex.P6 and Ex.P7 (Ex.D3 and D4) are Certified copies of sale deeds dated: 16.09.1965, 13.06.1968 in favour of defendant No.5 by defendant No.3 and 4 and Ex.P7- certified copy of sale deed 12.11.2010 in favour of defendant No.21 through alleged GPA holder of defendant No.6 to 19 evidences the sale of suit schedule property and possession thereby respectively. Further, Ex.D5 and Ex.P8 -
Records of right of 2016-2017 of Sy.No.25/2 of 17 O.S.No.8399/2016 Konanakunte Village evidences that suit schedule property is converted land and in the name of defendant No.21 at the time of filing this suit and Ex.D6
- Official memorandum of conversion order of suit schedule property dated 29.4.1970 evidences the conversion of suit schedule property. Hence, as the above documents makes clear that suit schedule property was sold way back in 1965 and subsequently and alinee have taken possession of suit schedule property in 1965 and subsequently, the contention of plaintiff's that they are entitled for partition in suit schedule property and filing this suit after lapse of after almost 51 years of the sale of suit schedule property, on contention that her father was not a party to Ex.P5 and suit schedule property is an unconverted land holds no water and clearly barred under Article 109 of Limitation Act, where 12 years is the limitation period prescribed when the alinee has taken possession of property.
14) The PW.1 in her cross examination deposed that she do not know what is written in her chief affidavit and she do not know who is in possession of suit schedule property and has also in contrary has deposed that she has filed this suit after her uncle Muniyappa who is in possession and admits she do not 18 O.S.No.8399/2016 know who are Defendant's No. 3 to 21 and admits that she has filed this suit to extract money from the Defendant No.21 which shows her conduct. Hence, as her claim to suit schedule property is beyond the prescribed period of limitation of 12 years, it is clearly barred. To be noted, PW.1 in her cross examination has also deposed that she was of 6 years when Ex.P5 was executed. Hence, her contention that she came to know about sale on 02.01.2016 when defendant's tried to interfere with her possession and cause of action arose from then on is just a clever drafting.
15) In the authorities relied by Defendant No.5 to 10, 20 and 21 in (1) AIR 1982 Allahabad 218 in Sudarshan Prasad and Others Vs Radha Kishun Ram in para 22 and 23 it is held that 'expression father used in Article 109 of Limitation Act include even the grand father, great grand father, paternal uncle or grand uncle on the theory that a son includes a grandson and great son'. The Plaintiff's must be deemed to have had knowledge, on the date on which sale deed was executed and possession was delivered to the vendee or on date when sale deed was duly registered, for if the Plaintiff's had made proper enquires in the nature of the alinee's possession they would have come to know of existence of the saled eed 19 O.S.No.8399/2016 or but for the willful abstention from an enquiry or search which they ought to have made, or gross negligence on their part they would have known it. It was held possession of alinee becomes adverse against the coparcenary from the date on which he enters into possession under the alleged sale deed to be invalid. held suit is barred by limitation (2) AIR 1996 SC 2127 in Gangadharan v/s Janardhan Mallan - held that alienation by father after 12 years from the date of alienation is not maintainable.
(3) AIR 1993 Bombay in Smt. Anjana Bai v/s Smt. Jaswanthi Bai held that alinees have been in possession for more than 12 years and claim for partition is not maintainable against such alinees and is barred by limitation. Further that very fact that strangers have been inducted into possession is a notice to other co-owners.
(4) AIR 2019 SC 1430 in Raghavendra Sharan Singh v/s Ram Prasanna Singh - held that when suit is barred by any law, Plaintiff cannot be allowed to circumvent that provision by means of clever drafting. Hence, from the above discussion and relying on principles laid in the above authorities it is concluded that Defendant4 proves that this suit is barred by 20 O.S.No.8399/2016 limitation. Accordingly, Issue No.3 is held in the Affirmative.
16) Issues No. 1, 2 , 4 to 7: For my findings on issue No3 , these issues donot arise for consideration.
17) Issue No.8 : For the aforesaid reasons, this Court proceeds to pass the following:
ORDER The Suit of the Plaintiffs is hereby dismissed with cost.
(Dictated to the stenographer directly on computer, computerized, then corrected and pronounced by me in Open Court on this the 02nd day of February, 2023) (SUNITHA S.G.) VII Addl. City Civil and Sessions Judge, Bengaluru, (C/C.III Addl. City Civil and Sessions Judge, Bengaluru) ANNEXURE List of witnesses examined for the Plaintiffs:
P.W.1 - Smt. Rathnamma 21 O.S.No.8399/2016 List of witnesses examined for the Defendants: DW.1 - K.S.Brij Mohan List of documents exhibited for the Plaintiffs:
Ex.P1 - Genealogical tree Ex.P2 - Death certificate of Chinnappa Ex.P3 - Death certificate of Lakshmi Ex.P4 - Hissa survey tippani Ex.P5 - Certified copy of sale deed dated:
16.09.1965 Ex.P6 - Certified copy of sale deed dated:
13.06.1968 Ex.P7 - Certified copy of sale deed dated:
12.11.2010 Ex.P8 - Record of rights of Sy.No.25/2 List of documents exhibited for the Defendants:
Ex.D1 - Special Power of Attorney dated: 16-8- 1965 Ex.D2 - Certified copy of sale deed dated:
16.09.1965 Ex.D3 - Certified copy of sale deed dated:
13.06.1968 Ex.D4 - Certified copy of absolute sale deed dated:
12.11.2010 Ex.D5 - Record of rights of Sy.No.25/2 (SUNITHA S.G.) VII Addl. City Civil and Sessions Judge, Bengaluru, (C/C.III Addl. City Civil and Sessions Judge, Bengaluru) 22 O.S.No.8399/2016