Bangalore District Court
Sri.Jayaram @ Jayaram Reddy vs Smt.K.Jyothi @ Jyothamma on 16 January, 2017
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BENGALURU CITY
Dated on this the 16th day of January, 2017
-: Present :-
Smt. Hemavathi, BBM, LL.B,
XXXIX Additional City Civil & Sessions Judge,
Bengaluru City.
Original Suit No.5137/2013
Plaintiff:
Sri.Jayaram @ Jayaram Reddy,
S/o.Venkatarakma Reddy,
50 Years, R/o.No.179, New No.179/84,
13th Cross, Somasundarapalya,
Bengaluru-560102.
[By Sri.S.N., Advocate.]
/ VERSUS /
Defendant:
Smt.K.Jyothi @ Jyothamma,
W/o.Sri.Jayaram @ Jayaram Reddy,
45 Years, R/o.No.88, Ground floor,
4th Cross, Behind Pavithra Kalyana
Mantapa, Puttenahalli, 7th Phase,
J.P.Nagar, Bengaluru - 78
[By Sri.H.V.R Advocate.]
:
Date of Institution of the suit 16.07.2013
Nature of suit : Partition
Date of commencement of
: 13.01.2015
evidence
Date on which the judgment is
: 16.01.2017
pronounced
Years Months Days
Duration taken for disposal :
03 06 -
JUDGMENT
This is a suit filed by the plaintiff against the defendant praying to divide the suit property by metes and bounds and allot his ½ share in the suit schedule property and put him in exclusive possession of the same, in the event of failure on the part of the defendant, to partition the suit property by appointing the Court Commissioner, and to restrain the defendant, her henchmen, agents, servants or anybody claiming under him from alienating the suit property or creating any charge on the schedule property and such other reliefs with costs.
2. The brief facts of the plaintiff's case are that, the plaintiff and defendant are husband and wife. The plaintiff is the resident of Palamaner, Andhra Pradesh. He came to Bengaluru for work and started working in painting of the houses and buildings and thereafter he started earning out of painting work and various other works. In the year 1991, he had applied for allotment of site under Ashraya Scheme in the name of defendant and after due verification and coming to conclusion that the plaintiff and defendant are not in possession of any house or shelter in their names in Bengaluru, the Government had allotted a site bearing No.179, which is formed in the Governemnt land bearing Sy.No.34 of Haralukunte village, Begur Hobli, Bengaluru South Taluk, measuring 40X40 feet, which is the suit property and Tahsildar had issued a Hakku Patra in the name of the defendant in the year 1992. Thereafter, plaintiff had constructed a house by investing his hard earned money and out of the savings and also by borrowing money from his friends and well wishers. After constructing the said house, they were living happily till 14/01/2010. From June 2009, the defendant started to quarrel with him without any reason. On enquiry with the defendant, she adamantly gave answer to the plaintiff and thereafter without informing the plaintiff, she left the house of the plaintiff abruptly on 14/01/2010 and while leaving the house, she has carried out all the jewelleries along with cash of Rs.4,00,000/-, which was the savings of the plaintiff since 10 to 15 years, which was kept in the house of the plaintiff with an intention to give education donation for his children and also for their future needs. Thereafter, the defendant is adamantly living separately, and on several occasions though he persuaded the defendant to bring her back to his house, but all the efforts made by the plaintiff was went in vain, and the defendant shouted at the plaintiff that she would not return to his house and that she is not at all interested to live with him. Even on the enquiry made by the plaintiff, she accepted that she had taken the jewelleries and cash which was kept in the house of the plaintiff. The plaintiff had paid the entire amount for the development and construction, as he was under the impression that the defendant will not cheat for ever and he reposed trust and confidence on her. Though the Hakku Patra was issued in the name of the defendant, the entire amount was spent by him, and even the correspondences were made by the Tahasildar, and other authorities since beginning, and he has spent money for development and construction and also paid taxes to the concerned authorities. He had also taken the power connection and also water connection and the authorities have also issued voter cards in their favour. His wife who is the defendant is totally a house wife and she is not having any sources of income and she has not at all contributed any money for the purpose of construction or maintenance of the house and family, only with a malafide intention to harass the plaintiff, she has left the house of the plaintiff on her own. The suit schedule property is jointly in the names of the plaintiff and defendant, the name of defendant is shown in all the records. The plaintiff has spent his hard earned money for the purpose of development and construction of houses on the suit property. Both plaintiff and defendant are having equal right, title, interest over the same. By taking undue advantage of the suit property standing in her name, the defendant is attempting to take revenge against the plaintiff, and dispossess the plaintiff from the suit property. The defendant also lodged a police complaint before the HSR Layout police station, alleging as if the plaintiff has been occupying the suit property unauthorisedly and after returning from the police station, she along with her henchmen evicted the plaintiff from the suit property and alienated the suit property. Hence, he approached the defendant to partition the schedule property by metes and bounds and to allot of his ½ share, for which she refused. Hence, filed the suit.
3. The defendant filed written statement along with the counter claim contending that the suit is not maintainable either in law or on facts. Except admitted that the plaintiff is her husband and plaintiff is in possession of the suit property. She has denied all other averments of the plaint. Further, she contended that the suit property is acquired by her under the grant and in pursuant to the grant the Government of Karnataka had executed a registered sale deed dated 28/04/2010 in her name and imposing a condition of non alienation for the property for the period of 15 years from the date of the sale deed, since from the grant she with aid and assistance of her parents has constructed 08 ACC sheet houses in the suit property in the year 2004, out of the said houses this plaintiff, defendant and children were residing in the south western corner sheet house, and this plaintiff has not contributed any amount or support to the defendant in construction of the said houses, and he is illegally taking away the rents from the tenants and he used to threat the defendant and her children when they question and he is having all bad habits and he never taken care of the family. She alone brought up the children by working as labour and house maid jobs and this plaintiff has thrown out the defendant and her children in the month of June 2010 from the house and now this defendant and her children were residing in rented house. This defendant has lodged a police complaint before the HSR Layout police station, but they have failed to give protection. The occupation of the plaintiff in the suit property is illegal and he has no right to continue the possession. Hence, there is no cause of action of suit. Hence, prayed to dismiss the suit and direct the plaintiff to quit deliver vacant possession of the suit property to the defendant and the rents collected by him from the tenants during the pendency of the suit and to render accounts. Hence, prayed to dismiss the suit with costs.
4. On the basis of the pleadings of the parties, the following issues are framed :-
i. Whether the plaintiff proves that the suit schedule property has been allotted by the Government jointly in the names of plaintiff and defendant and the plaintiff has invested huge amount in constructing the suit schedule building and hence he is having ½ share in the suit schedule property ? ii. Whether the CF paid by plaintiff on plaint is proper and correct ?
iii. Whether the present form of the suit filed by the plaintiff is maintainable ? iv. Whether the counter claim claimed by the defendant regarding mandatory injunction against her husband is maintainable ? v. Whether the defendant proves that she is entitled for arrears of rent as claimed ? vi. Whether the CF paid by the defendant on counter claim is proper and correct ? vii. Whether the plaintiff is entitled for relief of partition and for separate possession of ½ share in the suit schedule properties as claimed ?
viii. What Order or decree ?
5. The plaintiff examined him as P.W.1 got marked 17 documents Ex.P.1 to 17. The defendant examined her as D.W.1 got marked 12 documents as Ex.D1 to 12.
6. Heard both sides.
7. My findings on the above issues are as follows:
Issue No.1 : In the partly in the affirmative. Issue No.2 : In the Negative.
Issue No.3 : In the negative.
Issue No.4 : In the negative.
Issue No.5 : In the negative.
Issue No.6 : In the negative.
Issue No.7 : In the negative.
Issue No.8 : As per final order, for the following:
REASONS
8. Issue No.1: Herein the relationship of the parties and till 14/1/2010 plaintiff and defendant were residing together in the suit schedule property are admitted fact.
9. It is the case of the plaintiff that, he came to Bengaluru in search of employment and he has started painting jobs, out of that he had earnings. The defendant though denied this fact in her chief examination, in the course of cross-examination she admitted that, at the time of her marriage plaintiff was doing painting work and he came to Bengaluru in search of livelihood. So it proves that, at the time of marriage of defendant with the plaintiff, he was doing painting work.
10. It is the further case of the plaintiff that in the year 1991 he was applied for sites under Asraya Scheme in the name of his wife who is the defendant and after due verification and coming to conclusion that the plaintiff and defendant were not in possession of any house or shelter in Bengaluru, the government has allotted suit schedule site in the name of the plaintiff. Thereafter, Tahasildar had issued a Hakkupatra in respect of the suit schedule property in the year 1992 as per Hakhupatra dated 21/5/92 in the name of defendant. This fact has been denied by the defendant in the written statement contending that, she acquired the suit schedule property under grant and pursuant to the grant government of Karnataka had executed the sale deed on 24/1/10 in her favour, and plaintiff has no right over the suit property.
11. P.W.1 in his cross-examination admitted that, all the records pertaining to the suit property is in the name of defendant and government has executed sale deed in her favour.
12. D.W.1 in her cross-examination deposed that brother of her employer told that there was a site which belonged to the government and she can reside their by putting a shed, and it may be allotted to her by the government in future, and she was accompanied by the other persons who have been to the office of Tahasildar to apply for grant. She further deposed that she does not know in which year she gave application and she denied that in the year 1995, her husband gave application for allotment of site in her name and based on that application site was allotted.
13. The plaintiff produced Ex.P.1 which is the Hakkupatra dt215/92 in respect of site No.197 measuring 40X40 feet, in Sy.No.34, of Begur Holbi Aralugunte village bounded by east site no.180, west 178, north road site No.182. Wherein, name of Jyotamma Jayaram found place, as an allottee. No documents were produced by the plaintiff to show that it was allotted to his name. The defendant produce Ex.D.1 which is the sale deed dated 28/04/10 executed by Tahsildar Bengaluru north taluk, in favour of defendant, in respect of site No.179/84, measuring 40X40 feet, bounded by east site No.83, west site No.85, north road, south site No.89. She has also produced Ex.D.3, khatha registration letter dated 8/11/10 issued by ARO of BBMP fixing the tax and also calling upon her to pay the tax. Ex.D.4 is the house and vacant property registered book extract which stands in the name of defendant Ex.D.5 is the khatha certificate dated 8/11/10. Ex.D.6 to 11 are the tax paid receipts in the name of the defendant. Ex.D.12 is the encumbrance certificate. The plaintiff has also produced Ex.P.2 is the electricity bill. Ex.P.4 and P.6 are the chalans for payment of tax under self declare property tax dated 22/2/2007, which stands in the name of the plaintiff. Ex.P.5 and 7 are the self declared property tax list for the period 2002 to 2004 in the name of the plaintiff. Ex.P.8, 10 and 12 are the challans for the payment of tax under self declared property tax for the period 2004 to 2007 dated 22/2/2007. Ex.P.9, 11 and 13 are the self declared property tax lists for the period 2004 to 2007 in the name of the plaintiff. Ex.P.14 is the tax paid receipt dated 17/3/2009. Ex.P.15 to 17 are the acknowledgments issued by the BBMP dated 19/2/2009, 13/10/2010 for payment of tax by the plaintiff. These are all the documents have not been disputed by either the plaintiff or the defendant. None of the document reveals that, the plaintiff had applied for site, and he got allotted the same in favour of defendant, but one thing is clear that, this property was allotted in favour of defendant after their marriage, and when they were residing and lived in this house along with their two children till 2010. But they do not help the plaintiff to say that, it was allotted jointly in his name and also in the name of the defendant. As per Section 14 of Hindu Succession Act, any property purchased by female Hindu whether acquired before or after commencement of the Act shall be persuaded by her as full owner, not limited owner. Therefore, I hold that, the plaintiff has failed to prove the suit schedule property was allotted jointly by government in their names.
14. It is the further case of the plaintiff that, the defendant was a house wife, she was not having any source of income and after Hakku Patra was granted in favour of the defendant, he has constructed a house by investing his hard earned money, out of the savings and also by borrowing money from his friends and well wishers. But the defendant contended that, the plaintiff has not contributed any amount or supported the defendant in construction of house, but she with the aid and assistance of her parents constructed 08 ACC sheet houses in the suit property before getting the sale deed in her name and this sheet house is constructed in the year 2004, and plaintiff is having all bad habits he never taken care of them. In the course of cross-examination, PW.1 voluntarily deposed that, he had constructed the house on the suit schedule property stage by stage, and made some alternation in the year 2002, 2004 to 2006. He further deposed that, he has no document to show that he had constructed a house stage by stage. He denied that, the house situated to the suit property are got constructed by defendant with the help of her brothers. In the course of cross-examination D.W.1 deposed that, she was getting Rs.1,000/- per month by house maid work and she was also tethering the cattle out of that income, and with the financial assistance of her mother she constructed house on the suit property. But she admitted that her brothers were not financially sound and they were maintaining their lives with great difficulties. Though she deposed that her mother owned sufficient property at Bommarajapalli, which is a dry area, she has not produced any documents to show that out of that either mother or parents were getting financial income and they were financially sound. She has not examined any person to show that either she was having sufficient income from her house maid work or by tethering the cattle and her parents have financially supported her to build 8 sheet houses on the suit schedule property. She deposed that she does not know the name of owner of house where she was working as house maid servant. This itself is sufficient to falsify her contention that she was doing house maid work and she was having sufficient income. But she admitted that, her husband was doing painting work though she deposed that he was irregular in doing work and till 14/1/2010 they were residing along with their children in the suit schedule property. If really the plaintiff was not taking care of the defendant and her two children, the differences might have been arose between them prior to 14/1/2010, and this defendant would have taken action her husband who is the plaintiff. Admittedly, till 14/1/2010, she has not filed any complaint against her husband. So these are all sufficient to say that, though the property was allotted in her name in the year 1992, the plaintiff had invested money for ACC sheet roofed house situated on the suit schedule property by investing his hard earned money and the defendant has not spent any amount for constructing the said house.
15. Merely because the plaintiff has spent amount for construction of the house on the suit schedule property is not entitled to claim share over the suit schedule property as it is an absolute property of the defendant. Hence, plaintiff is not entitled for share in the property. Hence, I answer this issue partly in the affirmative.
16. Issue No.2:- It is the contention of the defendant that, the court fee paid by plaintiff on the plaint is not proper and correct. But it is not explained how it is not proper and correct. The plaintiff has sought for partition and separate possession on the plaint schedule property and also for relief of permanent injunction to restrain the defendant from alienating the suit schedule property and valued the suit claim by determining the market value as Rs.5,00,000/- and paid court fee of Rs.200/- Section 35(1) of Karnataka Court Fees and Suits Valuation Act.
17. Section 35(1) of Karnataka Court Fees and Suits Valuation Act relates to the payment of court fee in a suit for partition and separate possession of share of the joint family property or of the property owned jointly or common by the plaintiff whose title to such properties are divide or who has been excluded from the property fee shall be computed on the market value of the plaintiff share. Herein, the case of the plaintiff that, the suit schedule property allotted in the joint names of plaintiff and defendant and he is having 1/5th share. Herein, his title to property has been denied. Though the provision invoked is correct, but court fee calculated and paid is not correct. Hence, I answer this issue in the negative.
18. Issue No.3:- It is the case of the defendant that the suit filed in the present form is not maintainable. But it is not stated how it is not maintainable. In the absence of specific pleading, the contention of the defendant cannot be considered. Hence, I answer this issue in the negative.
19. Issue No.6:- The Defendant has sought for counter claim to direct the plaintiff to quit and deliver vacant possession of the schedule property, and direct the plaintiff to deposit the rents collected from the tenants. She valued the counter claim for relief of mandatory injunction under Section 24(c) of Karnataka Court Fees and Suits Valuation Act by valuing the counter claim property on Rs.1,000/- and paid court fee of Rs.25/- and also valued the relief of deposit of rent u/Section.24(D) of Karnataka Court Fees and Suits Valuation Act by valuing the said claim on Rs.1,000/- and paid court fee of Rs.25/-.
20. As the defendant sought for counter claim for relief of possession of the suit property in the form of directions to the plaintiff to deliver the possession, it is nothing but relief of the possession. Section 24(A) relates to the suit for declaration and possession. Section 28 relates to the suit for possession of immoveable property under Section 9 of the specific relief Act, Section 29 relates to the suit for possession of immoveable property not otherwise provided for. When the defendant sought for possession of the property based on her title over the suit property, it does not come under Section 24(A) of the said Act, but it comes under Section 29 of the Karnataka Court Fees and Suits Valuation Act. As per this Section, fee shall be computed on the market value of the property, or on Rs.1,000/- which is higher. Admittedly there are 8 ACC sheet houses on the suit property. So the suit property has market value. So, the computation of court fee on Rs.1,000/- for the relief of possession is not proper.
21. With respect to the relief of direction to the plaintiff to deposit the rent the defendant had valued the relief u/Section 24(D) which relates to the suit for declaration in other cases which not referred in Section 24 (a) and (b) whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the relief sought in the plaint or on Rs.1,000/-, whichever is higher. Herein, admittedly the aforesaid relief is not the relief of declaration, it is in the form of mandatory injunction. Therefore, this relief of defendant does not come under Section 24(D) of Karnataka Court Fees and Suits Valuation Act, but this relief comes under Section 26(C) of the Karnataka Court Fees and Suits Valuation Act. Therefore, I hold that the court fee paid by defendant on counter claim is not proper and correct. Hence, I answer this issue in the negative.
22. Issue Nos.4, 5 & 7:- As these three issues are interlinked to each other, they are taken up together for consideration to avoid repetition of facts and evidence.
23. Ofcourse as discussed in issue No.1, the plaintiff has failed to prove that the suit schedule property was allotted jointly in his name and also in the name of defendant but it is proved for he had invested the huge amount on the suit schedule building for construction. When he had invested the money for construction of the building at the undisputed point of time, though the property was in the name of the defendant he did not have expected that dispute may arose in future and he has to move the court when the defendant has failed to prove that the plaintiff had bad habits and he had not taken care about his family though the defendant is the owner of the suit property. I deem fit to give some right to the plaintiff to reside in the property and collect the rents from the suit property which consist of 8 ACC sheet roofed house.
24. Herein the PW.1 deposed that there are 7 sheet house in the suit property out of that he let out 6 sheet house and he is getting income of Rs.11,000/- per month as a rent from these houses. It is also an admitted fact that this plaintiff is residing in one of the sheet house in the suit property. Either plaintiff or defendant have not produced any document to show how many portions are there in the suit property. When the plaintiff denied that there exists 8 ACC sheet roofed houses, and he deposed that there exists only 7 roofed houses, the defendant has not denied the said fact. In the course of chief-examination of D.W.1, nothing is elicited with respect to how many houses are situated in the suit property. In the absence of these particulars, I deem fit to consider that there exists 7 ACC sheet roofed house, out of that the plaintiff is residing in one house where the defendant along with her two children were also residing prior to 14/1/2010.
25. Admittedly till today the relationship of the plaintiff and the defendant as legally wedded husband and wife has not been dissolved by any legal proceedings. So still they are husband and wife. Though the suit schedule property is in the name of defendant, the children of the plaintiff and defendant, as admitted by them are now grown up and working, but the plaintiff is aged about 54 years and he has no other shelter to reside and he has no other income other than the rents which is received from the suit property. Considering all these aspects, I deem fit to decree the suit by granting permission to the plaintiff to reside in one sheet roofed house situated on the suit schedule property and collect the rent from 3 sheet roofed houses situated on the suit schedule property on the condition that he shall enjoy these 4 portions till his life time and he has no absolute right, ownership over this property, he shall not create any charge encumbrance over this property, and he shall not alienate this property. Hence, I hold that, the defendant is not entitled to the relief of the possession.
26. The defendant is also sought for the directions to the defendant to deposit the rent collected from the tenants. It is an admitted fact that even when she was residing with plaintiff, the rent was being collected by the plaintiff alone. When he had invested the money for construction of the house, the plaintiff is having every right to collect the rents. Hence, the defendant is not entitled for arrears of rent. In view of these discussions, I answer issue Nos.4, 5 and 7 in the negative.
27. Issue No.8:- In view of my findings on issue Nos.1 to 7, I proceed to pass the following:
ORDER Suit filed by the plaintiff against the defendant is disposed off as ordered below.
The counter claim of the defendant is hereby dismissed.
It is ordered that the plaintiff is entitled to reside in one ACC sheet roofed house, situated on the suit property and he is entitled to collect the rents from three ACC sheet roofed houses from the date of this order during his life time and he is entitled to enjoy the ACC sheet roofed houses where he is permitted to reside and collect the rents till his life time and he shall not create any charge, encumbrance over these portions and he shall not alienate these portions and he does not have any absolute right, title over the suit property.
The defendant is entitled to collect the rent from the tenants of other ACC sheet roofed houses situated in the suit schedule property from the date of this order.
Considering the relationship of the parties, there is no order as to costs.
The plaintiff and defendant are directed to file fresh valuation slips with respect to their claims over the suit property as observed in the judgment.
Office is hereby directed to draw decree but not to furnish copy of the judgment and decree to both the parties till they comply the order of this court with respect to the payment of the court fee.
Draw decree accordingly.
(Dictated to the stenographer and also directly on computer, transcript corrected, signed and then pronounced by me in the open court, this the 16th day of January 2017) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Jayaram @ Jayaram Reddy
2. List of documents exhibited for plaintiff :
Ex.P1 Hakku Patra dated 21.5.92
Ex.P.2&3 Two Electric bills
Ex.P.4 Tax paid receipts
Ex.P.5 Tax paid particulars for the year 2002-03
Ex.P.6 Receipt for the year 2003-04
Ex.P.7 Tax paid particulars for the year 2003-04
Ex.P.8 Tax paid receipt for the year 2004-05
Ex.P.9 Tax paid particulars for the year 2003-04
Ex.P.10 Tax paid receipt for the year 2005-06
Ex.P.11 Tax paid particulars for the year 2005-06
Ex.P.12 Tax paid receipts for the year 2006-07
Ex.P.13 Tax paid particulars for the year 2006-07
Ex.P.14 Tax paid receipt for the year 2003-04
Ex.P.15 Tax paid receipt dated 19.2.2009
Ex.P.16&17 Acknowledgements dated 13.10.10
List of witnesses examined for defendants:
D.W.1 Smt.Jyothi @ Jyothamma List of documents exhibited for defendants:
Ex.D.1 Sale deed dated 28.4.2010
Ex.D.2 Sale deed dated 3.4.2006
Ex.D.3 Notice dated 8.11.2010 issued by BBMP HSR sub
division
Ex.D.4 Property register extract
Ex.D.5 Khatha certificate
Ex.D.6 to 11 6 Tax paid receipts
Ex.D.12 Encumbrance Certificate
(Hemavathi)
XXXIX Additional City Civil & Sessions Judge, Bengaluru City.