Bangalore District Court
) Smt.Chinnamma -Dead vs E. Narayanappa on 20 February, 2020
IN THE COURT OF LX ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
(CCH.NO 61)
Present :
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.3344/2007
Dated this the 20th day of February, 2020
PLAINTIFFS: 1) Smt.Chinnamma -Dead
represented by her legal heirs.
1(a)Venkatappa @ Venkataram S/o
Late Muniyellappa, Husband of
late Chinnamma, Aged about
82 years.
1(b)Muniraju S/o Venkatappa @
Venkataram and Late
Chinnamma Aged about 59
years,
Both are residing at No.563, 3rd
Main, Police Station road, Hebbal,
Bengaluru.
2) Muniyellappa S/o Late
Muniramaiah, Dead
represented by her legal heirs.
2(a) Yellappa, S/o Late
Muniyellappa & Late
Mariyamma, Aged about 56
years,
2 O.S.No.3344/2007
2(b) Muniraju, S/o Late
Muniyellappa & Late
Mariyamma, Aged about 53
years,
2(c) Nagaraju, S/o Late
Muniyellappa & Late
Mariyamma, Aged about 50
years,
2(d) Muniyappa, S/o Late
Muniyellappa & Late
Mariyamma, Aged about 47
years,
2(e) Mariyamma @ Vijayakala, D/o
Late Muniyellappa & Late
Mariyamma, Aged about 40
years,
2(f) Venktamma, Second wife of Late
Muniyellappa, Aged about 60
years,
2(g) Mariyappa, S/o Late
Muniyellappa & Venkaraamma,
All are residing at No.159, R.T.Nagar
post, Guddadahalli, Hebbala,
Bengaluru-560032.
[
[By Sri.N.J.Ramesh.Adv]
-V/S-
DEFENDANTS: 1. E. Narayanappa, -Dead
reptd., by his legal heirs,
3 O.S.No.3344/2007
1(a) Jayalakshmi D/o Late
Narayanappa, Aged about 55
years, R/at Vakkaleri Grama,
Maluru Taluk, Kolar District.
1(b) Gowramma, D/o Late
Narayanappa, Aged about 45
years,
1(c) Soubhagya, D/o Late
Narayanappa, Aged about 45
years,
Defendant No.(1b)&(1c) are R/at
Guddadahalli Grama, R.T. Nagar
post, Bengaluru-560032.
1(d) Srinivas, S/o Late
Narayanappa, Aged about 53
years,
1(e) Shankaranarayana, S/o Late
Narayanappa, Aged about 53
years,
Defendants No.(1d) &(1e) are R/at
No.17, Earagurappa Matta,
Guddahalli Grama,
Vishwanathnagenhalli Main road,
R.T. Nagar post, Bengaluru-560032.
2. Krishnappa, -Dead Reptd.,
by his Lrs,
2(a) Jayamma, W/o Late
Krishnappa, Aged about 76
years,
4 O.S.No.3344/2007
2(b) Venkatesh, S/o Late
Krishnappa, Aged about 42
years,
2(c) Rajendra, S/o Late Krishnappa,
Aged about 40 years, Lrs No.1 to
3 are R/at Guddandahalli
Vishwanath, Nagenhalli Main
Road, R.T.Nagar post,
Bengaluru-560008.
2(d) Sumithra, D/o Late
Krishnappa, W/0
Munikrishnappa, Aged about 40
years, R/at Dhopanahalli,
Indiranagara post, Bengaluru-
560008.
2(e) Manjula, D/o Late Krishnappa,
W/o Ramesh, Aged about 38
years, R/at Chandapura, Anekal
Taluk, Bengaluru Rural District.
3. Gullamma -Dead Reptd., by
her Lrs.,
3(a) Anjinamma, D/o Gullamma,
Aged about 50 years,
3(b) Jayamma, D/o Gullamma, Aged
about 48 years,
Defendant No.3a to 3b are R/at
Yeshwanthapura Village.Malur
Taluk, Kolar District.
3(c) Neelamma, D/o Gullamma,
Aged about 46 years, R/at
5 O.S.No.3344/2007
Thapagondahalli, Malur Taluk,
Kolar District .
3(d) Vijayamma D/o Gullamma,
Aged about 44 years, R/at
Kakanath, Malur Taluk, Kolar
District.
3(e) Ravindra Kumar, S/o
Gullamma, Aged about 42 years,
R/at Yeshwanthapura Village,
Malur Taluk, Kolar District.
3(f) Meena, D/o Gullamma, W/o
Shankarappa, Aged about 40
years, R/at Guddadhahalli,
Vishwanath, Nagenahalli Main
Road, R.T.Nagar post.
Bengaluru-560032.
3(g) Rajesh, S/o Gullamma, Aged
about 38 years, R/at
Yeshwanthapura village, Malur
Taluk, Kolar District.
3(h) Ramesh, S/o Gullamma, Aged
about 36 years, R/at
Yeshwanthapura village, Malur
Taluk, Kolar District.
3(i) Ramu S/o Gullamma, Aged
about 34 years, R/at
Yeshwanthapura Village, Malur
Taluk, Kolar District.
4. Paravathi, D/o Eragurappa, Aged
about 50 years, R/a Ramapura,
Solibele Hobli, Anekal Taluk,
6 O.S.No.3344/2007
Bengaluru District.
(Sri.K.L.Srinivas, Adv)
Date of Institution 23/4/2007
Nature of the suit Partition
Date of recording 28/06/2011
of evidence
Date of Judgment 20/02/2020
Total Duration Days Months Years
27 09 12
JUDGMENT
This suit filed by the plaintiffs against defendant Nos.1 to 4 for partition and separate possession of the suit schedule property i.e. ½ share in the suit schedule property situated at Sy.No.20/1A, of the Guddadahalli Village, measuring 2 guntas bounded as East by land belonging to Chikkappana, West to Land in Sy.No.20/1A, North by Government road and south by land belonging to Budda and Dodda Huduga..
2. The plaint averments in nutshell as under:
The plaintiff Smt.Chinnamma and her younger daughter namely Late Smt.Mariyamma are the only 7 O.S.No.3344/2007 daughters to one late Sri.Muniyappa. The younger daughter Mariyamma was given in marriage with one Sri.Muniyellappa, the second plaintiff here and thereafter she died intestate long back leaving behind her husband and children as her sole legal heirs and successors to her estate. The 2nd plaintiff being the head of the family and representing his family and accordingly, he alone arrayed as party here.
3. It is submitted that, defendants are the children of one late Eragurappa, the paternal grandfather of the defendants and the paternal grandfather of the first plaintiff are brothers being the sons of late Gurappa. Thus the father of the first plaintiff and the father of the defendants are cousins. It is submitted that, later Eragruppa, the father of the defendants and his cousin brother late Muniyappa father of the plaintiff No.1 and father in law of second plaintiff hails from agricultural family and they were agriculturist by profession and they were carrying out their agricultural operations in 8 O.S.No.3344/2007 Guddadahalli village, Near Hebbal, Bengaluru. It is submitted that, during their lifetime, when they were carrying agricultural operations, both of them have jointly purchased the land measuring 2 guntas in Sy.No.20/1 of Gugdadahalli, Kasaba Hobli, Bengaluru under the registered sale deed dt:26/10/1940, registered as document No.1410 of 1940-41, at pages 176 to 178, of volume 528 in book No.1 before the Sub-Register, Bengaluru North Taluk from one Sri.Doddamunivenkata and Chikkamunivenkata. It is submitted that, both parties have purchased this schedule land to store the manure pit for their agricultural lands. Since the time of its purchase both of them jointly using the schedule land as manure pit.
4. It is stated that, the said Eragurappa died on 14.8.1984 and his brother Muniyappa predeceased him in the year 1970 itself. Thereafter their legal heirs have been using the same as manure pit jointly. After urbanization around the schedule land, all the lands 9 O.S.No.3344/2007 have lost their agricultural character and several residential buildings have been constructed and thus the family members of the both the branches have stopped agricultural operations in their respective lands and accordingly, this schedule land has become a vacant site and same has not been using as manure pit.
5. The plaintiff further submits that, plaintiffs being the joint owners of the schedule property have asked the defendants to effect the partition or join them for partition, but the defendants have shown deaf ears at their requests. The defendants have approached the village accountant and submitted an application to transfer the khata of the entire schedule property in their favour and village accountant refused to do so and then defendants preferred an appeal before the Asst. Commissioner, Bengaluru North Taluk, in R.A.No.93/2003 and that appeal also dismissed. 10 O.S.No.3344/2007
6. Further the plaintiffs submits that, plaintiffs and defendants are joint owners and having an half shares of late Muniyappa and late Eragurappa and defendants are trying to knock off the entire schedule land measuring 2 gunatas by getting the khata transferred in their name. By knowing this, the plaintiffs approached the defendants join them or effect partition of the schedule property, but the defendants are denied the same. Hence, plaintiffs having left with no other alternative, have filed suit for partition and separate possession by meets and bounds in O.S.No.5632/2002 before the Hon'ble Court. The said suit was dismissed on 5/12/2006 for non prosecution for having not taken steps against the defendant No.2 to 4 herein.
7. After dismissal of the said suit, plaintiffs herein approached the defendants for several times and requested them to join to effect the partition or to effect the partition. Instead of doing so, on 16/4/2007, the 11 O.S.No.3344/2007 defendants herein started to dig earth in the schedule property to put up constructions of the building over the same in the entire schedule property illegally in order to deprive the plaintiffs legitimate share in the schedule property. Having without any other alternative, the plaintiffs herein filed this suit.
8. After registering the suit, summons were issued to the defendants. Defendant No.1 and 2 were appeared through their counsel and filed detailed written statement. Inspite of suit summons were duly served to the defendants No.3 and 4 have not appeared before the court. Hence, defendant No.3 and 4 are placed exparte.
9. The defendant No.1 and 2 have denied the averments of the plaint and were taken contention in their written statement that, suit is not maintainable in law and facts and same is deserves to be dismissed in limine.
12 O.S.No.3344/2007
10. It is submitted by the defendants that, the grandfather of Munigurappa had one son i.e. father of the defendant by name Eragurappa. The said Eragurappa having three sons by name Muniyappa, E.Narayanappa i.e. defendant No.1, and Krishnappa i.e. defendant No.2 herein and two daughters by name Gullamma and Smt.Parvathi those are defendant Nos.3 and 4 respectively. The father of these defendants was an agriculturist and he had purchased the schedule property measuring 2 guntas of land from his previous owner in the name of the father of the defendants and defendants elder brother by name Muniyappa after purchasing of the property, the entire joint family including father of defendants and defendants herein using the said property for manure pit and all the revenue documents stood in the name of elder brother of Muniyappa and the said Muniyappa died celibate or unmarried and after this death, the defendants and his father were enjoying the schedule property. The 13 O.S.No.3344/2007 defendants are uneducated and they ailed from rural back drop and they have not aware about the change of katha and other required things and get it changed the katha in to their name. Even then the defendants are in possession and enjoyment and paying taxes regularly to the concerned authority. Though the defendants have awakening that some third parties have got changed entire entries into the RTC by hoodwinking the revenue officials, the said entries are questioned by the preferring revenue appeal. Now the plaintiffs does not have any right over the suit schedule property and the relationship are stated in the plaint are all false and is bogus for knowing the knock of valuable property of these defendants. Hence, the defendants prayed to dismiss the suit with extreme cost.
11. On the basis of pleadings, the following 4 issues came to be framed.
14 O.S.No.3344/2007
ISSUES
1) Whether plaintiffs prove the relationship pleaded by them?
2) Whether the plaintiffs prove that, suit property is the undivided property of the plaintiffs and defendants?
3) Whether the plaintiffs are entitled for a share in the schedule property?
4) What order or decree?
12. The plaintiffs in support of their contention, got examined plaintiff No.2 as PW1 and produced the documents at Ex.P.1 to Ex.P.16 and LRs of plaintiff No.1 as PW2 and got marked Ex.P17 to Ex.P.19 and closed their side and defendants in support of their defence have examined 1st defendant as DW1 and got marked Ex.D1 to Ex.P.10 on their behalf and closed their side evidnece and posted the case for arguments. 15 O.S.No.3344/2007
13. Heard the arguments of learned counsel for the plaintiffs and defendants. The learned counsel for the plaintiffs has also filed written arugments.
14. My findings on the above points are as under:
Issue No.1: In the Affirmative;
Issue No.2: In the Affirmative;
Issue No.3: In the Affirmative;
Issue No.4: As per final order
15. ISSUE NOS.1 to 3: I take all these issues are taken for commons consideration, because they are interlinked with each other and it will avoid repeating of facts and evidence.
16. It is the specific case of the plaintiff that, The plaintiff Smt.Chinnamma and her younger daughter namely Late Smt.Mariyamma are the only daughters to one late Sri.Muniyappa. The younger daughter 16 O.S.No.3344/2007 Mariyamma was given in marriage with one Sri.Muniyellappa, the second plaintiff here and thereafter she died intestate long back leaving behind her husband and children as her sole legal heirs and successors to her estate. The 2nd plaintiff being the head of the family and representing his family and accordingly, he alone arrayed as party here. Defendants are the children of one late Eragurappa, the paternal grandfather of the defendants and the paternal grandfather of the first plaintiff are brothers being the sons of late Gurappa. Thus the father of the first plaintiff and the father of the defendants are cousins. It is submitted that, later Eragruppa, the father of the defendants and his cousin brother late Muniyappa father of the plaintiff No.1 and father in law of second plaintiff hails from agricultural family and they were agriculturist by profession and they were carrying out their agricultural operations in Guddadahalli village, Near Hebbal, Bengaluru. It is submitted that, during their lifetime, when they were carrying agricultural 17 O.S.No.3344/2007 operations, both of them have jointly purchased the land measuring 2 guntas in Sy.No.20/1 of Gugdadahalli, Kasaba Hobli, Bengaluru under the registered sale deed dt:26/10/1940, registered as document No.1410 of 1940-41, at pages 176 to 178, of volume 528 in book No.1 before the Sub-Register, Bengaluru North Taluk from one Sri.Doddamunivenkata and Chikkamunivenkata. It is submitted that, both parties have purchased this schedule land to store the manure pit for their agricultural lands. Since the time of its purchase both of them jointly using the schedule land as manure pit.
17. It is stated that, the said Eragurappa died on 14.8.1984 and his brother Muniyappa predeceased him in the year 1970 itself. Thereafter their legal heirs have been using the same as manure pit jointly. After urbanization around the schedule land, all the lands have lost their agricultural character and several residential buildings have been constructed and thus the 18 O.S.No.3344/2007 family members of the both the branches have stopped agricultural operations in their respective lands and accordingly, this schedule land has become a vacant site and same has not been using as manure pit.
18. The plaintiff further submits that, plaintiffs being the joint owners of the schedule property have asked the defendants to effect the partition or join them for partition, but the defendants have shown deaf ears at their requests. The defendants have approached the village accountant and submitted an application to transfer the khata of the entire schedule property in their favour and village accountant refused to do so and then defendants preferred an appeal before the Asst. Commissioner, Bengaluru North Taluk, in R.A.No.93/2003 and that appeal also dismissed.
19. Further the plaintiffs submits that, plaintiffs and defendants are joint owners and having an half shares of late Muniyappa and late Eragurappa and 19 O.S.No.3344/2007 defendants are trying to knock off the entire schedule land measuring 2 gunatas by getting the khata transferred in their name. By knowing this, the plaintiffs approached the defendants join them or effect partition of the schedule property, but the defendants are denied the same. Hence, plaintiffs having left with no other alternative, have filed suit for partition and separate possession by meets and bounds in O.S.No.5632/2002 before the Hon'ble Court. The said suit was dismissed on 5/12/2006 for non prosecution for having not taken steps against the defendant No.2 to 4 herein.
20. After dismissal of the said suit, plaintiffs herein approached the defendants for several times and requested them to join to effect the partition or to effect the partition. Instead of doing so, on 16/4/2007, the defendants herein started to dig earth in the schedule property to put up constructions of the building over the same in the entire schedule property illegally in order to 20 O.S.No.3344/2007 deprive the plaintiffs legitimate share in the schedule property. Having without any other alternative, the plaintiffs herein filed this suit.
21. In support of their contention, the plaintiff No.2 examined as PW1 and got marked 16 documents as Ex.P.1 to Ex.P.15. Ex.P.1 is the certified copy of sale deed dt:26/10/1940, Ex.P.2 is the certified copy of notice issued by Asst. Commissioner, Ex.P.3 to Ex.P7 are the certified copy of RTC extracts, Ex.P.8 is the certified copy of plaint in O.S.No.5632/2002, Ex.P.9 is the certified copy of entire order sheet in O.S.No.5632/2002, Ex.P.10 is the death ceremony card, Ex.P.11 is the death certificate of Marimma, Ex.P.12 is the RTC Extract, Ex.P.13 is the certified copy of registered Will deed dt:16/7/1969, Ex.P.14 is the certified copy of Will deed dt:22/4.19711, Ex.P.15 is the certified copy of registered partition deed dt:18/5/1977, Ex.P.16 is the pahani which is armed through DW1 and LRs of plaintiff No.1 21 O.S.No.3344/2007 i.e. plaintiff No.1(b) examined as PW2 and got marked 3 documents as Ex.P.17 to Ex.P.19. Ex.P.17 is the certified copy of Tippani Nakalu, Ex.P.18 is the certified copy of interim order in W.P.NO.19186 and 19187/1989 and Ex.P.19 is the Mutation register extract.
22. On behalf of defendant No.1 and 2, 1st defendant examined as DW1 and got marked Ex.D1 to Ex.P10. Ex.D1 and Ex.D2 are family genealogical of defendants. Ex.D3 to Ex.D9 are the seven tax paid receipts and Ex.D.10 is the copy of application given to Tahasildar, Bengaluru North Taluk.
23. The learned counsel for the plaintiffs argued that one Late Muniyappa @ Gullethimmppa, the father of original plaintiff No.1 and father-in-law of the plaintiff No.2 and defendants' father Eragurappa are jontly purchased the schedule property under the Registered Sale Deed dt:26/10/1940 and they are using the suit schedule property for manure pit for their respective 22 O.S.No.3344/2007 agricultural lands. He further submits that, the said Muniyappa was using western half portion and father of the original defendants Eragurapppa using the eastern potion and there was no partition took place between them and thereafter due to urbanization in and around the area where the suit schedule property the agricultural operations were stopped and thereafter, the suit schedule property continued in joint possession of the legal heirs of the joint purchasers. He further argued that, with an intention to grab entire schedule property, the defendants approached the concerned Tahasildar and submitted an application to register the khata of the entire schedule property in their favour. However, the said application was rejected and as against the said order, they preferred an appeal before the Asst.Commissioner, Bengaluru North Taluk, in R.A.No.93/2003 and after receiving the notice, the plaintiffs have contested the appeal and finally the said appeal was dismissed. He also argued that, the plaintiffs 23 O.S.No.3344/2007 have filed suit for partition in O.S.No.5632/2002 against the defendants for partition and separate possession and the said suit was dismissed for non prosecution and thereafter they approached the defendants for partition. However, they refused to do.
24. Per contra, the learned counsel for the defendants argued that, suit schedule property was purchased by their father Earagurappa and their elder brother by name Muniyappa, who died unmarried longback and therefore, schedule property is not joint property as contended by the plaintiffs and they are not entitled for ½ share in the suit schedule property. Therefore, they prayed for dismissal of the suit.
25. In view of the contention taken by the both parties, I have carefully gone through the documents produced by the both parties and the oral evidence. According to the plaintiffs, suit schedule property is the joint property, as it was purchased by the father of the 24 O.S.No.3344/2007 plaintiff No.1 and father-in-law of plaintiff No.2 and the father of the defendants. However, the contention of the defendants is that, suit schedule property was purchased by their father Earagurappa and their elder brother Muniyappa who is unmarried and died long back.
26. According to the plaintiffs in the sale deed i.e., Ex.P.1 the name mentioned by two purchasers i.e. Munigurappana Maga Eragurappa and Eraguappana Maga Muniyappa. Further the plaintiffs contended that, father name of plaintiff No.1 is Muniyappa and his grandfather name is Eragurappa. Per contra, the defendants contended that, the purchasers name mentioned in Ex.P.1 1st purchaser is their father Eragurappa and the 2nd purchaser is their elder brother Muniyappa who died longback and according to them, the name mentioned in Ex.P.1 are their father and elder brother and the said Muniyappa is not the father of plaintiff No.1 and father- in-law of plaintiff No.2. 25 O.S.No.3344/2007
27. In light of contention taken by the both parties, I have carefully gone through the Ex.P.1. On perusing the Ex.P.1 is clear that the suit schedule property purchased by one Eragurappa and one Muniyappa. No doubt, in the said sale deed the 2nd purchaser name is mentioned as Eraguappana Maga Muniyappa. However, it is contention of the plaintiffs that, their grandfather name is also Eragurappa. Per contra, the contention of the defendants that, 2nd purchaser is the son of 1st purchaser. To substantiate the contention of defendants, they have produced the genealogical tree. I have carefully gone through the said genealogical tree. Except the said genealogical tree, the defendants have not produced any documents to show that they had one elder brother by name Muniyappa, who died leaving behind the defendants are his legal heirs. It is relevant to note that, in the cross examination DW1 has admitted that, he being the elder son of the late Earagurappa, after the death of his father, he is looking 26 O.S.No.3344/2007 after the lands belonging to his father and other brothers have not shown any interest to look after the properties. He has also clearly stated that, his father Earagurappa has not having any son elder then him. Therefore, on careful appreciation of evidence of DW1, it clearly discloses that, there is lot of discrepancies and contradiction and he completely go by his evidence in the cross examination. The inconsistent version of DW1 creates lot of doubt in the mind of court and his evidence is not free from discrepancies and not trustworthy. Therefore, the contention taken by the defendants are not acceptable and believable. However, if the name of the son is entered in the Ex.P.1, why the father has inserted the name of other than elder son who is non then the defendants No.1.
28. Per contra, the plaintiffs have submitted that, the father of the plaintiff No.1 and the father in law of the plaintiff No.2 is Muniyappa and he colluding with the father of the defendants late Eragurappa had purchased 27 O.S.No.3344/2007 the suit schedule property. To substantiate their contention they have produced the genealogical tree. That apart, they have also taken contention that, earlier the BDA had acquired the suit schedule property in the year 1989 by issuing the preliminary notification and the mother of the plaintiff No.1 Smt.Chinnamma and younger sister of his mother Smt.Mariyamma had questioned the same before the Hon'ble High Court of Karnataka in W.P.No.19186 and 19187/1989 and obtained the interim order of stay and in the said Writ petition they have questioned the acquisition of the western portion of the suit schedule property and thereafter BDA had de-notified the area where the schedule property is situated from the acquisition. Therefore, it clearly goes to show that, the plaintiffs have filed writ petition questioning the acquisition of their western half portion and this goes to show that, the plaintiffs have been exercising their right in respect of 28 O.S.No.3344/2007 their half portion of the schedule property as mutual understanding by them.
29. That apart the plaintiffs have also produced the RTC extract at Ex.P.12 and 16, wherein the name of the plaintiffs were entered in the khatadar of the schedule property. It is also admitted by the defendants, they have questioned the same by filing appeal in R.A.No.93/2002-03 against the same and the said appeal also dismissed and as against the said appeal, the defendants have not preferred any appeal. Hence, it is clear that the said order is become final.
30. Further the contention of the plaintiffs that 2nd purchaser Muniyappa is also called Gullethimmanna and the same has been mentioned in Ex.P.14 and Ex.P.19 and the defendant No.1 also admitted the same in his cross examination that in the village the said Muniyappa was being called a Gullethimmana.
29 O.S.No.3344/2007
31. Further the plaintiffs taken contention that defendants' father has executed the registered Will on 16.7.1969 in respect of his self acquired properties and in the said Will the schedule property is not bequeathed to anybody. Hence, it shows that, the suit schedule property is joint property of plaintiffs and defendants. Per contra, defendants have taken contention that, suit schedule property was purchased in the name of his father and elder brother and entire sale proceedings amount paid by his father and therefore, their father had executed any Will bequeathing the schedule property to anybody.
32. In view of the contention taken by the both parties, I have carefully gone through the evidence on record. Though the contention of the defendants is believed, admittedly as on the date of execution of Will in the year 1969, the alleged elder brother of defendants Sri.Muniyappa was not alive, hence, if the suit schedule property is purchased by the father of defendants, their 30 O.S.No.3344/2007 father could have bequeathed the schedule property in the said Will. Therefore, the contention of the plaintiffs at this stage is believable.
33. The learned counsel for the defendants has taken contention that, earlier the plaintiffs had filed suit against them in O.S.No.5632/2002 before the Hon'ble City Civil Court, Bengaluru, which was dismissed on 5/12/2006 and the plaintiffs have not made any efforts to restore or challenge the said order. Hence, the suit of the plaintiffs is not maintainable. He further submits that, the defendants are not coparceners. Hence, the suit for partition is not maintainable against the non- coparceners.
34. The learned counsel for the plaintiffs has relied upon the judgment reported in ILR1985 Kar.2062 in Fakirappa Bailappa Kambar V/s Kristappa Bailappa Kambar wherein it is held that:
'The members of the coparcener to arrange amicably separate possession and enjoyment of 31 O.S.No.3344/2007 the family properties without effecting the partition or disruption of the joint family. But at the same time, whether co-owners in exclusive possession of the different portions of joint family property held the same in partition or under an arrangement as to the possession, depends upon the intention of the parties which has to be gathered from the facts and circumstances of each cases.'
35. Here in this case also the parties are not coparceners, but the co-owners as purchased the schedule property for common purpose as manure pit and the plaintiffs were using ½ portion and defendants are using ½ portion, as records reveals. Therefore, in view of the judgment relied by the learned counsel for the plaintiffs the point raised by the defendants that plaintiffs and defendants are not coparceners and hence, the suit for partition is not maintainable is not admissible.
36. Further the contention taken by the defendants that, suit is not maintainable. The plaintiffs 32 O.S.No.3344/2007 have also relied upon the judgment reported in (2018) 11 SCC 449 in Dharmapal (DEAD) through Legal Representatives v. Punjab Wakf Board and Ors, wherein it is held that:
'It is permissible in former case if the suit was dismissal of the earlier suit by virtue of provision u/O 9 rule 4 CPC, or u/O. 9 rule 8 of CPC there is no bar to file fresh suit, as the earlier suit was not finally decided'.
37. Hence, the subsequent suit is maintainable. Therefore, in view of the aforesaid judgment, the contention of the defendants is not sustainable.
38. With these observations, I hold that the plaintiffs are entitled for the relief of partition and separate possession. With these observations, I hold that the plaintiffs are entitled for the relief claimed and accordingly, I answer Issue No.1 to 3 in the 'Affirmative'
39. Issue No.4: In view of my findings on above issues No.1 to 3, suit is liable to be decreeed. Under 33 O.S.No.3344/2007 peculiar circumstances of the case, there shall be no order as to costs. With this observation and being of that opinion, I proceed to pass the following:-
ORDER Suit of the plaintiffs is hereby decreed.
No order as to costs.
The plaintiffs and defendants are entitled for ½ share each in the suit schedule property.
Draw decree accordingly.
*** (Directly dictated to the Stenographer on computer, corrected and then pronounced by me in open court on this the 20th day of February, 2020).
(Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW-1 Muniyellappa
PW-2. Muniraju
34 O.S.No.3344/2007
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW1 E.Narayanappa
DOCUMENTS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : Certified copy of sale deed
dt:26/10/1940
Ex.P.2 : Certified copy of notice
Ex.P.3 : Certified copy of RTC extracts to Ex.P.7 Ex.P.8 : Certified copy of plaint in O.S.No.5632/2002 Ex.P.9 : Certified copy of order sheet in O.S.No.5632/2002 Ex.P.10 : Death ceremony card Ex.P.11 : Certified copy of death certificate Mariyamma Ex.P.12 : Certified copy RTC extract Ex.P.13 : Certified copy will deed Ex.P.14 : Certified copy of will deed Ex.P.15 : Certified copy of registered partition deed Ex.P.16 : Pahani Ex.P.17 : Certified copy of Tippani Nakalu Ex.P.18 : Certified copy of interim order Ex.P.19 : Mutation Register extract.35 O.S.No.3344/2007
DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D1 : Family genealogical Ex.D2 : Family genealogical Ex.D3 : 7 Tax paid receipts to Ex.D9
Ex.D10 : Copy of application to the Tahasildar (Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru 36 O.S.No.3344/2007