Indian Kanoon - Search engine for Indian Law

3. Whether the court fee paid by the plaintiff is correct?

4. Whether defendant No.9 proves that, during the pendency of the above suit, the suit schedule property purchased from the parties which attracts the lis-

pendence or not?

5. Whether the defendants prove that the amount stated in the Sale Deed and Release Deed dated 26.06.2013 i.e., Rs.55,00,000/- towards the consideration and share in the suit schedule properties to the plaintiffs?

5.

37. In the present case on hand, in view of Ex.P8 - registered Partition, Deed there was no question of considering original plaint A, B, C and D properties as the joint family properties as contended by plaintiff No.1 and his say that he is in joint possession with defendants 1 to 8, cannot be believed at all.

38. Added to that, PW-1 himself filed I.A.No.11 under Order 1 Rule 10(2) CPC for deleting defendant No.9 and also I.A.No.12 to delete C-schedule property and considering the request made by plaintiff No.1 only this court has allowed the applications and ordered to delete C- schedule property which was originally allotted to the share of Sri.K.H.Thimmaiah under the Partition Deed dated 09.07.1980 and also that property was purchased by defendant No.9 under Sale Deed - Ex.P13 and necessary amendment was carried out. Here, these applications were filed subsequent to the filing of Ex.D1 - Memo. That means, PW-1 admits the Sale Deed - Ex.P13 and receipt of amount, now only harping upon to contend that Release Deed - Ex.D6 under which he has not received any amount of Rs.40,93,750/-. Even after getting deleted C-schedule property and defendant No.9, he cannot claim the relief that Sale Deed Ex.P13 through which C-schedule property was sold, was not binding on him. Half hearted attempt was made by PW-1. By express conduct of PW-1 it shows that he was not sure about his case and somehow wanted to get amendments, applications after applications, under wrong notion that properties are joint family properties and he is entitled to get share. Though under mediation they agreed to pay Rs.55,00,000/- considering that he had right, but statutorily it does not create any right on plaintiff No.1 to claim that all the suit schedule properties are the joint family properties and he is in joint possession along with defendants 1 to 8. As defendant No.9 deleted she has not led any evidence. However, claim for the relief in respect of C-schedule property is still continued and evidence led by the defendants is based on Ex.P13 and relevant circumstances. Even though, the issues 9, 10, 11 and Addl. Issue No.4 burden to prove is on defendant No.9, but defendants have taken the said burden to prove those issues, because their contention is based on Mediation Agreement and subsequent facts happened, execution of Ex.P10 to P13 by plaintiff No.1. Therefore, even though Addl. Issue No.9 speaks about the contention of plaintiff No.1 that there is an order of exparte T.I. order, restraining them from alienating the properties, the Sale Deeds executed is hit by lis pendence. But he himself is a party for Mediation Agreement, settlement arrived at and further conduct that execution of Sale Deed - Ex.P13, receipt of consideration and deleting the name of defendant No.9 and C-schedule property, filing of Ex.D1 - Memo, throw light on the fact that he is a consenting party. Therefore, inter-se between the parties, out of mediation settlement if properties are sold, certain documents are executed, plaintiff No.1 cannot claim that it is hit by lis pendence.