Bangalore District Court
Krishna Murthy N vs Byrappa on 16 January, 2025
KABC010171882011
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 16th January 2025
Present:
Sri.Sirajuddeen A., B.A., LL.B.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.5331/2011
Plaintiffs Sri.N.Krishna Murthy,
Since deceased by his LRs.
1.Smt.Sudha .K,
D/o late N. Krishnamurthy,
W/o late Venkatesh,
Aged about 46 years.
2.Smt.Sunitha .K,
D/o late N.Krishnamurthy,
W/o Sri.B.C.Srirama Reddy,
Aged about 44 years.
3.Sri.Surendra .K,
S/o late N.Krishnamurthy,
Aged about 42 years.
4.Smt.Sureka .K,
D/o late N.Krishnamurthy,
W/o Sri.Nagaraj Reddy,
Aged about 40 years.
5.Sri.Nallappa .K,
S/o late N.Krishnamurthy,
2 O.S.No.5331/2011
Aged about 38 years.
All are residing at:
Nallappa Transport,
Papareddy Palya,
Nagarabhavi 2nd Stage,
Bengaluru-560072.
(By Sri.C.S, Advocate)
v/s.
Defendants 1.Sri.Byrappa,
since deceased by his Lrs.
1(a).Smt.Gowramma,
aged about 68 years,
W/o late Byrappa,
1(b).Sri.Vijayakumar P.B,
Aged about 45 years,
S/o late Byrappa.
1(c).Sri.Lokesh P.B,
Aged about 42 years,
S/o late Byrappa.
1(d).Sri.Kantharaju P.B,
Aged about 40 years,
S/o late Byrappa.
All are residing at :
Near Deepa Complex,
Papareddypalya,
Nagarabhavi 2nd Stage,
11th Block, Nisarga Layout,
Bengaluru-560072.
2.Sri.Chodappa
Aged about 64 years,
S/o late Nanjappa,
Since deceased his LRs.
3 O.S.No.5331/2011
(a)Smt.Rathnamma,
Aged about 59 years,
W/o late Chowdappa.
(b) Sri.lakshmikantha,
Aged about 45 years,
S/o late Chowdappa.
(c) Smt.Nethravathi,
Aged about 42 years,
S/o late Chowdappa,
(d) Sri.Chidhananda,
Aged about 39 years,
S/o late Chowdappa,
All are residing at:
Near Deepa Complex,
Papareddy Palya,
Nagarabhavi 2nd Stage,
11th Block, Nisarga Layout,
Bengaluru-560072.
3.Sri.Muthuraya Reddy,
Aged about 55 years,
S/o Nanjappa,
Defendants No.1 to 3 are
residing at near Deepa Complex,
Papireddy Palya,
Nagarabhavi II Stage,
11th Block, Nisarga Layout,
Bengaluru-560072.
4.Smt.Thippamma,
Aged about 66 years,
W/o late Muniswamappa,
Papireddy Palya,
Nagarabhavi II Stage,
Nisarga Layout,
Nagarabhavi Post,
Bengaluru-560072.
4 O.S.No.5331/2011
5.Smt.Nanjamma,
Aged about 46 years,
D/o late Muniswamappa
Narasapura, Bidaraguppe Post,
Attibele Hobli, Anekal Taluk,
Bengaluru District.
6.Smt.Chinnamma,
D/o late Muniswamappa,
W/o Gajendra,
Aged about 44 years,
Eddulurdinne, House No.1564,
15th Cross, 3rd Block,
Rajajinagara,
Bengaluru-560010.
7.Sri.M.Nagaraju,
S/o late Muniswamappa,
Aged about 42 years,
Papireddy Palya,
11th Block, Nisarga Layout,
Nagarabhavi II Stage,
Bengaluru-560072.
8.Sri.M.Lakshminarayana,
S/o late Muniswamappa,
Aged about 40 years,
11th Block, Nisarga Layout,
Nagarabhavi II Stage,
Bengaluru-560072.
9.Sri.Nanjegowda,
S/o late Muniswamappa,
Aged about 38 years,
Papireddy Palya,
11th Block, Nisarga Layout,
Nagarabhavi II Stage,
Bengaluru-560072.
10.Smt.Chandrakala,
D/o late Muniswamappa,
Aged about 36 years,
5 O.S.No.5331/2011
W/o Sathyanarayana,
No.99/74, Sarala Nilayam,
Opp: Benaka, Tent House,
22nd Main Road, Subbanna
Gardens, Vijayanagara,
Bengaluru-560040.
11.Smt.Padma Vishwanath,
Aged about 53 years,
W/o P.Vishwanath,
R/at No.1301/34,
Raghavendra Nilaya,
6th Cross, Srirampuram,
Bengaluru-560021.
12.Sri.B.Lakshmaiah,
Aged about 62 years,
S/o late Bhyrappa,
R/at No.1416,
Byraveshwara Nilaya,
12th B Cross, 6th Main,
2nd Stage, West of Chord Road,
Mahalakshmipura,
Bengaluru-560086.
13.Sri.M.G.Chikkanna,
Aged about 67 years,
S/o late Mariyappa,
R/at No.3938, 8th Cross,
2nd Stage, Rajajinagar, B Block,
Bengaluru-560010.
14.Sri.Yogi Trivedi,
Aged about 64 years,
S/o Rasiklal,
(address same as defendant No.15)
15.Smt.Geetha Trivedi,
Aged about 65 years,
W/o Yogi Trivedi,
R/at Coimbatore, Tamil Nadu.
Both 14 and 15 represented by
their attorney Smt.Jaya Rama Rao,
6 O.S.No.5331/2011
Aged about 69 years,
W/o S.Rama Rao,
R/at 605/A, 80 feet double road,
RMV 2nd Stage, 3rd Block,
Bengaluru-560094.
16.Smt.K.V.Ramesh,
Aged about 63 years,
S/o late K.L.Venkataswamy,
R/at No.1208, Mathru Jyothi,
3rd Main, Mandanagara,
Nagarabhavi, 1st Stage,
(Kengeri Satellite Town),
Bengaluru-560072.
17.Smt.R.Hemalatha,
W/o late Venkatesh,
No.7 (558), Padmalaya,
11th B Cross,
Girinagar 2nd Stage,
Bengaluru-560085.
18.Smt.Saraswathi @
Saraswathamma,
W/o Jayaramaiah,
Aged about 48 years,
Resident of :
No.920, 20th Main Road,
Government Employees Layout,
D Group Sreegandhada Kaval,
Vishwaneedam Post,
Bengaluru-560091.
19.Sri.N.Sathyanarayana,
S/o late Narasimha Rao,
Aged about 63 years,
R/at No.269/05, 4th Cross,
Venkatapura Main Road,
Koramangala,
Bengaluru-560032.
20.Smt.M.Radamma
W/o Mallaiah,
7 O.S.No.5331/2011
Aged about 55 years,
R/at No.21, K.K.Layout,
3rd Cross, Papareddy Palya,
Nagarabhavi 2nd Stage,
Bengaluru.
21.Sri.B.Y.Shanthosh Raj Urs,
Aged about 29 years,
S/o B.Yellappa,
R/at No.318, "Sumangala Nilaya"
12th 'A' Main Road, 6th Block,
Rajajinagara, Bengaluru.
(D1 to D10 by Sri.S.N, Advocate,
D11 to D21 - M.S.G, Advocate)
Date of institution
of the suit: : 17/07/2011
Nature of suit : Declaration and Injunction
Date of commencement
of recording of evidence : 28/06/2016
Date on which the
judgment was pronounced : 16/01/2025
Duration : year/s Month/s day/s
13 06 00
(Sirajuddeen A.),
XX Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
Plaintiff instituted this suit against defendants for
declaration and injunction.
8 O.S.No.5331/2011
2. The brief facts of the case of the plaintiff is that the
properties bearing Sy.No.19 to an extent of 6 acres 4 guntas
excluding kharab land of 0.26 guntas presently phoded as
19/1 to 19/19 by the defendants during the pendency of the
revenue proceedings by illegal means and which is not binding
on the plaintiff. 2) Sy.No.22/6 to an extent of 1 acre 22
guntas, 3) Sy.No.28 to an extent of 6 acres 4) Sy.No.23/7 to an
extent of 0.4 guntas, 5) Sy.No.24/10 to an extent of 0.4 guntas,
6) Sy.No.26 to an extent of 0.36 guntas, presently phoded as
26/1 to 26/5 by the defendants during the pendency of the
revenue proceedings by illegal means and which is not binding
on the plaintiff, are all situated at Mallathahalli village,
Yeshwanthpura Hobli, Bengaluru North Taluk, constituted the
property of one Sri.Nanjappa referred to as Nanjappa -1 and
said Sri.Nanjappa -1 had two sons by name Papaiah and
Byrappa. The said Byrappa had only son by name Nanjappa
referred to as Nanjappa-2 the father of defendants 1 to 3 and
father in law of defendant No.4 and grandfather of defendants
5 to 10. The Papaiah had a son by name Byrappa referred to
as Byrappa-2. Sri.Nanjappa-2 and Sri.Byrappa-2 were cousins
and were constitute joint hindu undivided family and were the
grandsons of Nanjappa-1. The land bearing Sy.No.19, 22/6,
9 O.S.No.5331/2011
28, 23/7, 24/10 and 26 of Mallathahalli village,
Yeshwanthpura Hobli, Bengaluru North Taluk, Bengaluru were
the properties constituted the property of Sri.Nanjappa-1, the
family properties that belonged to Nanjappa-1, the original
propositus were partitioned by an oral partition by Nanjappa-2
and Byrappa-2, except Sy.No.28 totally measuring to an extent
of 6 acres in which Byrappa-2 is entitled half share.
Sri.Nanjappa -2 executed a registered mortgage deed dated
29/9/1934 in favour of one Muniyamma. In the said mortgage
deed Nanjappa-2 admitted that himself and Byrappa-2 are the
brothers and Byrappa-2 is his younger brother. Sri.Nanjappa-
2 and Byrappa-2 partitioned the family properties and under
the said partition in respect to his half share in the properties
with regard to Sy.No.19 measuring 3 acres 2 guntas,
Sy.No.22/6 measuring 31 guntas and Sy.No.26 measuring 18
guntas and Sy.No.23/7 measuring 2 guntas clearly excluding
half share allotted to Byrappa-2 and the said mortgage deed
also evidence that there was partition taken place in the family
earlier. Under the said oral partition the land bearing Sy.No.28
totally measuring 6 acres had to be divided to Nanjappa-2 and
Byrappa-2.
10 O.S.No.5331/2011
3. Further stated that subsequently on 19/3/1966 a
receipt executed by Yarachannamma and Chowdamma both
daughters of late Muniyamma in favour of Nanjappa-2,
discharging earlier mortgage deed dated 30/9/1934 executed
by Nanjappa-2 in favour of Muniyamma with regard to
Sy.No.19 measuring 3 acres 2 guntas, Sy.No.22/6 measuring
0.31 guntas, Sy.No.26 measuring 0.18 guntas and Sy.No.23/7
measuring 02 guntas. In the said redemption deed Nanjappa-2
was allotted only half portion in each of the above said survey
numbers. The land bearing Sy.No.19 and other properties
were partitioned by an oral partition by Nanjappa-2 and
Byrappa-2, except Sy.No.28 measuring total extent of 6 acres
in which Byrappa-2 entitled half share. The said Byrappa-2
had executed a registered agreement dated 28/10/1946 in
favour of Muniyamma in respect of half share in all the said
survey numbers and Nanjappa-2 has affixed his signature to
this agreement as an attesting witness and subsequently under
a registered sale deed dated 8/8/1948 in favour of Nanjamma
(plaintiffs mother) D/o Muniyamma and name of Nanjamma
came to be mutated and said Nanjamma was in possession and
enjoyment of the said 5 survey numbers, this shows there was
already a partition of all the properties in the family. The said
11 O.S.No.5331/2011
Nanjamma executed a will dated 12/1/1980 in favour of
plaintiff bequeathing all the properties purchased by her under
the said sale deed dated 8/8/1948 and thereafter plaintiff’s
mother Nanjamma passed away on 30/7/1984 and thereafter
revenue entries were made in the name of plaintiff.
4. Further contended that the land bearing Sy.No.28
totally measuring 6 acres was by oversight left out in the oral
partition of Nanjappa-II and Byrappa-II. Under the said oral
partition the said land had to be divided into two equal shares,
one share was to be allotted to Byrappa-II and another share to
Nanjappa-II which is item No.6 of the suit schedule property.
This mistake is an error which was occurred by mistake. The
plaintiff and the defendants constitute members of undivided
Hindu Joint Family in respect of item No.6 the plaintiff is in
joint possession and enjoyment with defendants and entitled to
a legitimate share in item No.6. The item No.6 of the suit
schedule property is the ancestral property of plaintiff and
defendants and they are the coparceners of item No.6 of suit
schedule property. Hence the plaintiff had filed a suit bearing
OS No.3126/2010 for partition and separate possession in
respect of item No.6. Smt.Subbamma W/o Nanjappa-II has
filed RA No.59/2001-02 before the Assistant Commissioner,
12 O.S.No.5331/2011
Bengaluru North Sub Division against the plaintiff and others
challenging the mutation proceedings bearing IHC No.11/87-
88 and MR No.43/87-88 in the name of plaintiff after a period
of 13 years, whereas the act stipulates 60 days from the date of
order or knowledge and the Assistant Commissioner allowing
the appeal and setting aside the mutation entries in the name
of plaintiff. The said act of Assistant Commissioner is beyond
the scope of Section 136 granted under the Karnataka Land
Revenue 1964. Hence plaintiff filed Revision Petition
No.133/2001-02 before the Special Deputy Commissioner,
Bengaluru challenging the order dated 15/1/2002 in RA
59/2001-02 and the said revision petition is dismissed by
order dated 11/10/2002 and thereafter the plaintiff filed
W.P.No.40025/2002 challenging the order of Revision Petition
No.133/2001-02 and the Hon’ble High Court has allowed the
Writ Petition vide order dated 31/07/2006 by setting aside the
orders of Special Deputy Commissioner. Thereafter
Subbamma W/o Nanjappa-II filed Writ Appeal No.1479/2009
before the Hon’ble High Court challenging the order passed in
W.P No.40025/2002 and the Hon’ble High Court allowed the
writ appeal. Thereafter plaintiff filed Civil Appeal
No.9542/2010 before the Hon’ble Supreme Court challenging
13 O.S.No.5331/2011
the orders passed in Writ Appeal No.1479/2009. The Hon’ble
Supreme Court ordered in the said appeal No.9542/2010
liberty is given to the plaintiff to file suit for determination of
his title over the suit property in dispute. Hence the plaintiff
has filed this suit for declaration and permanent injunction in
respect of suit schedule properties.
5. Upon issuance of suit summons, the defendants
have appeared before the court through their respective
counsels and filed their written statements independently.
6. The defendant No.3 filed his written statement by
denying the averments made in the plaint and contended that
the originator of the family of the defendants is one Nanjappa
who died leaving behind his only son Byrappa who has also
died leaving behind him his only son Nanjappa. The said
Nanjappa succeeded to the schedule property on inheritance
who is none other than the father of defendants 1 to 3, father-
in-law of defendant No.4 and grandfather of defendants 5 to
10. The oral partition took place between Byrappa-II and
Nanjappa-II is denied. The entire extent of land in each survey
number covered in the schedule of the plaint is in the
continuous possession and enjoyment of the defendants right
from the period of the originator Nanjappa till date and which
14 O.S.No.5331/2011
fact is evidenced from the entries made in the survey and the
revenue records maintained by the survey and the Revenue
Departments. The contention raised in para 8 of the plaint is
nothing to do with the main issue of the alleged partition. The
defendants have no knowledge of the alleged mortgage deed
dated 30/9/1934 and the alleged discharge certificate dated
19/3/1966. Further the defendants have no knowledge of the
alleged sale deed dated 28/10/1966. Further there is no
partition of the schedule properties already submitted and out-
rightly denies the alleged partition. If there was such partition
the plaintiff has failed to spell out as to why his grandfather
Byrappa did not enter upon the suit schedule properties ever
since the alleged oral partition took place either by Byrappa or
his successors so far. The contention raised in para 11 of the
plaint is false for the reason that the registered sale deed
No.904 dated 8/8/1948 it is stated that Smt.Nanjamma
referred to in the said sale deed is the only daughter of
Byrappa the grandfather of the plaintiffs. Besides the said
Byrappa S/o Papaiah cannot alienate the schedule property in
favour of his only daughter Nanjamma . The said alleged sale
deed does not find place in the encumbrance certificate
furnished by the Sub Registrar from 1/7/1924 to 31/3/2004.
15 O.S.No.5331/2011
Plaint para 12 denies and contended that in pursuance of the
sale deed dated 8/8/1948 the katha has been changed in the
name of his mother by the Tahasildar vide MK.T..1/1948-49
which has not been produced. Besides in Col.No.10 of the RTC
in respect of Sy.No.19 and 26 it is recorded that the plaintiffs
mother Nanjamma has derived the title of these two properties
through partition and in the case of Sy.No.22/6 and 23/7 is
recorded that his mother has derived the title on inheritance.
The entries made in the RTC for the years 1966-77 to 2011-12
confirms not only the ownership but also the continuous
possession of the schedule properties by Sri.Nanjappa since
died the father of the defendants No.1 to 3, the father-in-law of
defendant No.4 and grandfather of defendants 5 to 10 till his
death and thereafter by his successors i.e. defendants. Besides
the family partition effected from among the survivors of late
Nanjappa since died and referred to above in 1980 which has
been got subsequently registered vide Reg.No.8454/02-03
dated 25/7/2002. This also confirms not only the ownership
of the defendants but also the continuous possession and
enjoyment of their portion of the suit schedule properties
without any hindrance. Based on the partition deeds referred
above, the katha has also been changed in favour of each as
16 O.S.No.5331/2011
per partition under Section 128 and 129 of the Karnataka Land
Revenue Act 1964. The validity of which has not been
challenged so far. Thereafter the defendant No.1 being the
khatedar – occupant of the properties bearing Sy.No.19/8
measuring 0.14 guntas, defendants No.3, 4 and 5 in respect of
Sy.No.19/19 measuring 0.16.08 guntas jointly. Defendant
No.3 – Sy.No.19/12 measuring 0.17 guntas, Defendant No.2 in
Sy.No.19/13 measuring 0.16 guntas, Sri.Muniswamappa the
husband of 4th defendant and father of defendants 5 to 10 has
obtained conversion in respect of Sy.No.19/6 measuring 0.14
guntas, Sy.No.19/19 measuring 0.15 guntas of Mallathahalli
village which are part and parcel of the schedule properties has
obtained the orders under Section 95 of the Karnataka Land
Revenue Act 1964 for their conversion from agricultural to non
agricultural purpose from Deputy Commissioner, Bengaluru
vide order No.B.DIS.ALN. SR.81/02-03 dated 24/1/2003,
B.DIS.ALN.SR.78/02-03 dated 25/1/2003, B.DIS.ALN.SR.
84/02-03 dated 24/1/2003, B.DIS. ALN.SR.79/02-03 dated
24/1/2003 and B.DIS.ALN.SR.82/02-03 dated 25/1/2003
respectively. These documentary evidences demonstrates
beyond doubt that no land in any of the schedule properties
has been allotted in favour of anyone much less the
17 O.S.No.5331/2011
grandfather of the plaintiff. If the mother of the plaintiff
Nanjamma has derived the title under the sale deed dated
8/8/1948 and obtained the alleged katha in M.R.I.1948-49
nothing prevented her and her successors to enter on the
schedule properties since then. But neither Nanjamma nor her
successors have ever entered on the suit schedule properties so
far and even today.
7. Further contended that the plaintiff claiming his right
on the schedule properties based on the alleged will dated
12/1/1980, the original of which has not been produced by the
plaintiffs before the Assistant Commissioner / Deputy
Commissioner/ Hon’ble High Court and Hon’ble Supreme
Court of India. In fact, the said will has not been registered
and even the same has not been probated as required under
the law. Therefore the same is not enforceable under the law
and also it is not admissible in evidence under the law. The
plaintiff has contended that his mother Nanjamma has
bequeathed the schedule properties in favour of plaintiff under
the alleged unregistered will dated 12/1/1980 and based on
the said will plaintiff has obtained the katha in his name from
the Tahasildar vide order No.M.R.IHC.11/1987-88. The said
order states that late Nanjamma is having 3 children viz.
18 O.S.No.5331/2011
Krishnamurthy, P.N.Srinivas and N.Prabhakar and that
brothers P.N.Srinivas and N.Prabhakar have given their
statement to change the katha of the schedule properties on
inheritance in the name of Krishnamurthy. If the plaintiff has
derived the alleged title on the schedule properties under the
alleged will dated 12/1/1980 nothing prevented him to obtain
the katha based on the alleged will but obtaining of the katha
on inheritance as per order prima facie proves that the plaintiff
is depending on the documents created fraudulently. However
the said orders passed in appeal before Assistant
Commissioner has been set aside and against the said orders
before Special Deputy Commissioner also dismissed and the
writ petition filed by the plaintiff against orders of Special DC,
Bengaluru also dismissed, the writ appeal filed in
W.A.No.1722/07 filed by plaintiff in W.A.No.1479/2006 and
the writ appeal filed by defendants mother in
W.A.NO.1722/2007 have been clubbed together and common
judgment has been rendered on 16/3/2009 by the Division
Bench of Hon’ble High Court dismissing the Writ Appeal filed
by the plaintiff and allowed the writ appeal filed by defendants
mother and thereafter Special Leave Petition filed by plaintiff
against the writ appeal in Civil Appeal No.9542/2010 and with
19 O.S.No.5331/2011
contempt petition No.269/2010 the Civil Appeal No.9542/2010
and the contempt petition have been dismissed on 4/7/2011.
The plaintiff playing a fraud and in conclusion with the local
revenue officials had managed to obtain the khata of the
schedule properties. No proof has been produced for having
obtained the orders under Section 95 of the Karnataka Land
Revenue Act for the diversion of the item No.1 of the schedule
property for non agricultural purpose as contended in this para
and no sites has been formed as contended. Besides basically
the item No.1 of the schedule property bearing Sy.No.19
measuring 6 acrees 30 guntas including the kharab land of
0.26 guntas belongs tot he family of the defendants which they
have succeeded on inheritance and continues to be in
possession for over 80 years and even today and in fact on
effecting the partition among the defendants in 1980 each one
of the defendants or their successors in title have derived the
valid title and are in continuous possession and enjoyment
from time of their ancestors to the extent of their share and
also obtained katha under Section 128 and 129 of the
Karnataka Land Revenue Act. The alleged sale deed dated
20/11/1998 is one of the documents created fraudulently by
the plaintiff and the same is not binding on the defendants.
20 O.S.No.5331/2011
The total extent of 6 acres 30 guntas in Sy.No.19 and one of
the schedule properties remains in one block since the time of
original survey till the hissa phodi was concluded in 2002 in
pursuance of the partition deed effected in 1980 which has
been got registered vide No.8454/2002-03 amongst the
defendants. Hence prayed to dismiss the suit.
8. The defendant No.17 filed written statement
contending that the averments made in the plaint that during
pendency of the suit the defendants 1 to 10 have got the phody
in respect of Sy.No.19 as Sy.No.19/1 to 19/9 and in Sy.No.26
as 26/1 to 26/5 and their legality are all not within his
knowledge. The relationship of the parties and their joint
family status are not within the knowledge of this defendant.
The earlier partition and execution of mortgage deed dated
29/9/1934 by Nanjappa in favour of Muniyamma as well as
his admission regarding the partition and allotment of share
are not within his knowledge. The discharge of earlier
mortgage deed and receipt of Yarachannamma and
Chowdamma D/o late Muniyamma in favour of Nanjappa and
reference of the half share fallen to the share of Nanjappa II are
not within his knowledge. Further the execution of registered
agreement dated 28/10/1946 in favour of Muniyamma by
21 O.S.No.5331/2011
Byrappa who is none other than grandfather of plaintiff and
other facts pleaded in para 10 of the plaint are not within the
knowledge of the defendant. Plaint paras 13, 21 and 22 are
admitted, plaint paras 14 to 16 are no way concerned to this
defendant and contents of paras 17 to 20 of the plaint are not
within the knowledge of this defendant and hence prayed to
dispose the suit without effecting the right, title and interest in
respect of the property bearing site No.1952/1 carved in
Sy.No.19 (item No.1 of the suit schedule property) purchased
by this defendant.
9. The defendant No.8 filed written statement by denying
the averments made in the plaint in parawise and contended
that the plaintiff has not paid sufficient court fee and the
valuation made by the plaintiff is against law. The plaintiff has
not made all the necessary and proper parties to this suit. The
plaintiff himself stated that the plaintiff has formed a private
layout in item No.1 of the suit schedule properties and sold
those sites to number of purchasers under the registered sale
deeds. If it is true those purchasers are necessary parties to
this suit. Other than this Nanjamma the mother of the plaintiff
has 3 sons and daughters they are also necessary parties and
22 O.S.No.5331/2011
hence the suit is bad for non joinder of necessary parties.
Hence prayed to dismiss the suit with costs.
10. The defendant No.11 filed his written statement by
accepting the contentions of plaint paras 3 to 14, 17 to 25.
Further contended that pertaining to paras 15 and 16 he has
no knowledge of joint nature of families of the plaintiff and
defendants 1 to 10 with respect to schedule item No.6 property.
Further contended that she has purchased site No.8 and 9
formed in Sy.No.19 i.e. item No.1 of the suit schedule property
from the plaintiff under a registered sale deed dated
20/12/1993 and after registration of the sale deed she was in
possession and enjoyment of the same and the plaintiff has no
objection about the ownership of defendant No.11 in respect of
site No.8 and 9. The 3 rd defendant due to some differences
with the plaintiff he is harassing the defendant No.11 and
other defendants No.12 to 16 with ulterior motives. The
defendants No.1 to 10 even after knowing the existence of the
sale deed in favour of defendant No.11 have not taken any
steps till today against the said sale by the plaintiff. Hence
prayed to decree the suit in favour of the plaintiff by
incorporating the statement that the defendant No.11 is the
23 O.S.No.5331/2011
successor in interest of the plaintiff of sites No.8 and 9 formed
in Sy.No.19 i.e item No.1 of the suit schedule property.
11. The defendant No.12, 13 & 16 filed separate written
statement and defendant No.14 and 15 filed common written
statement and all the defendants No.12, 13, 16 and defendants
No.14 and 15 independently have given similar set of
contentions as put-forth by the defendant No.11 in his written
statement and prayed to decree the suit in favour of the
plaintiff by incorporating the statement that the defendant
No.12, 13 & 16 are the successors in interest of the plaintiff of
site No.7, 5, 10 and portion of site No.11 formed in Sy.No.19 i.e
item No.1 of the suit schedule property and defendants No.14
and 15 are the successors in interest of the plaintiff of site
No.11 formed in Sy.No.19 i.e item No.1 of the suit schedule
property.
12. The defendant No.19 and 20 have filed written
statement independently by accepting the contentions as put-
forth in the plaint paras and further stated that the defendant
No.19 has purchased site No.4 from the plaintiff under
registered sale deed dated 17/3/1994 formed in Sy.No.22/6 of
suit schedule property and defendant No.20 has purchased site
24 O.S.No.5331/2011
No.6 from the plaintiff under registered sale deed dated
31/3/1994 formed in Sy.No.22/6 of suit schedule property and
they are the owners of their sites and they are in peaceful
possession and enjoyment of the same. The 3rd defendant due
to some differences with the plaintiff he is harassing the
defendant No.19 and 20 with ulterior motives. The defendants
No.1 to 10 even after knowing the existence of the sale deed in
favour of defendant No.19 and 20 have not taken any steps till
today against the said sale by the plaintiff. Hence prayed to
decree the suit in favour of the plaintiff by incorporating the
statement that the defendant No.19 and 20 are the successors
in interest of the plaintiff of site No.4 and 6 formed in
Sy.No.22/6 of the suit schedule property.
13. The defendant No.21 filed written statement by
admitting the contentions as put-forth in the plaint and further
contended that the plaintiff is the absolute owner of the suit
schedule property bearing Sy.No.19 to an extent of 6 acres 4
guntas excluding kharab land of 0.26 guntas presnetly phoded
as 19/1 to 19/9 by the defendants during pendency of the
revenue proceedings by illegal means, it is not within the
knowledge of this defendant and the plaintiff is the owner in
Sy.No.22/6 to an extent of 1 acre 22 guntas, Sy.No.28 to an
25 O.S.No.5331/2011
extent of 6 acres, Sy.No.23/7 to an extent of 0.4 guntas,
Sy.No.24/10 to an extent of 0.4 guntas, Sy.No.26 to an extent
of 0.36 guntas, phoded as 26/1 to 26/5 by the defendants
during the pendency of the revenue proceedings which are not
binding on the plaintiff. The contention put-forth in plaint
paras 4 to 6, 9 and 14 to 16 are not within the knowledge of
this defendant and rest of the para of the plaint are admitted
by this defendant and prayed to decree that the plaintiff is the
absolute owner of item No.1 of the suit schedule properties.
14. Defendant No.18 filed written statement contending
that she is the absolute owner in possession of site bearing
No.567/1 (earlier bearing site No.1) formed in Sy.No.19 i.e.
item No.1 of the suit schedule property approached plaintiff
since the sale deeds pertaining to revenue properties during
the relevant time could not be registered, a GPA along with a
declaration, both dated 7/4/1987 was executed by plaintiff in
favour of this defendant. The plaintiff in the said declaration
had acknowledged the receipt of the entire sale consideration
and delivered possession of the site formed in item No.1 of the
schedule property. Subsequently this defendant in the
capacity of holding possession of the site bearing No.1029/567
and continued to pay the taxes before the concerned municipal
26 O.S.No.5331/2011
authorities. On 14/12/2000, the sale deed was executed by
plaintiff conveying the said site in favour of this defendant and
he has also got a shed constructed by obtaining necessary
licenses from the Pattanagere Municipal authorities and she is
in peaceful possession and enjoyment of the same. During
pendency of the revenue proceedings the defendants 1 to 10
have got phody in respect of Sy.No.19 as Sy.No.19/1 to 19/9
and in Sy.No.26 as 26/1 to 26/5 and their legality are all not
within the knowledge of this defendant. The averments made
in paras 4 to 8, 10, 17 to 20 of the plaint are not within the
knowledge of this defendant and no comments made in paras
9, 14 to 16 and 21, 23 to 27 and rest of the paras are admitted
by this defendant and prayed to dispose the suit without
affecting the right, title and interest in respect of the property
bearing Site No.1 carved in Sy.No.19 purchased by this
defendant.
15. In view of my rival pleadings of both parties, my
predecessor in office has framed following issues:
ISSUES
1. Whether the plaintiff proves that he is the
absolute owner in possession, occupation and
enjoyment of the suit properties as pleaded?
27 O.S.No.5331/2011
2. Whether he further proves the alleged
interference?
3. Whether the plaintiff is entitled for the
reliefs of declaration and permanent injunction as
prayed against the defendants?
4. What order or decree?
16. The burden of poof of issue no.1 and 2 is on
plaintiff. In order to discharge the burden the plaintiff himself
examined as PW1 and got marked documents as per Ex.P.1 to
Ex.P.27 and closed his side evidence.
17 Defendants, in order to discharge their onus cross
examined PW1 and defendant No.3 is examined as Dw.1 and
produced documentary evidence ExD1 to ExD18 and EX D26
to EX D 79 and ExD100to ExD103.
18 The defendant no. 11 to 21 are supported the case of
the plaintiff. Among them the defendant no 17 examined as
DW2 and he produced the document EX D 80 to EX D 96 the
defendant no 19 examined as DW3 and he produced the
document EX D 97 to EX D 99 and defendant no 12 examined
as DW4 and defendant no 21 examined as DW5 and he
produced the document EX D 104 to EX D 108 and defendant
no 18 examined as DW6 and he produced the document EX D
108 to EX D 116 closed their side evidence.
28 O.S.No.5331/2011
19.Heard arguments. Perused records and written
arguments.
20 In support of his argument the counsel plaintiff has
relied the following citations:
1. AIR 2023 SC 4810 (Appaiya vs. Andimuthu @
Thangapandi and others)
2. AIR 1960 SC 100 ( Narayan Bhagwantrao Gosavi
Balajiwale vs. Gopal Vinayak Gosavi and others)
3. ILR 2004 KAR 1112 ( Smt.Devi and others vs.
Prabhakar and another)
4. AIR 1992 SC 2009 ( Patel Naranbhai Marghabhai
and others vs. Deceased Dhulabhai Galbabhai and
others)
21. In support of their argument the counsel for
defendant no.11 to 16 and 21 has relied the following citations:
1. 1988(1) KLJ 335 DB
(Srinivas vs. Venkatappa)
2. AIR 2003 Delhi 142 ( Rajiv Saluja vs. Bhartia
Industries Limited and another)
3. 1971 Orissa 276 (Smt. Geeta Mishra vs. Utkal
University)
4. AIR 1964 SC 538 ( Badat and Co., vs. East India
Trading Company)
5. Extract from House of Lords case in Cairn Cross
Vs. Lorimer.
6. Order of the Supreme Court in SC in Civil Appeal
No.9542/2010.
29 O.S.No.5331/2011
7. Judgment in Civil Appeal No.1511/2020 of Hon’ble
Supreme Court of India (Shri Pratap Singh (dead)
through LRs vs. Shiv Ram(dead) through LRs).
8. Judgment in R.F.A No.170/2005 of Hon’ble High
Court of Karnataka, Bengaluru (Smt.Jayamma
Venkatram and another vs. Ashraf Jahan Begum
and another)
22. In support of his argument the counsel defendant
no.1 to 10 has relied the following citations:
1. AIR 2009 SC 1766
2. ILR 2008 KAR 2115
3. AIR 1993 SC 957
4. 2017(4) AKR 47
5. 2017 (5) ABR 695
6. AIR 1954 SC 606
7. AIR 1996 SC 1253
8. AIR 1968 SC 947
23. My answer to the above issues are :
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : As per final order for the following:
REASONS
24. ISSUES No.1 & 2 : Since these two issues are inter
related with each other, to avoid repetition of facts, I have
taken together for common discussion.
25. In order to prove their contention, the plaintiff is
examined as PW1 and got marked documents Ex.P.1 to P.26.
Ex.P.1 is the 19 RTCs. Ex.P.2 is the family tree. Ex.P.3 is the
30 O.S.No.5331/2011
certified copy of mortgage copy. Ex.P.4 is the certified copy of
registered redemption deed. Ex.P.5 is the certified copy of
registered agreement. Ex.P.6 is the certified copy of sale deed.
Ex.P.7 is the mutation register. Ex.P.8 is the receipt of patta.
Ex.P.9 is the encumbrance certificate, Ex.P.10 is the certified
copy of Will. Ex.P.11 is the order passed by AC, Ex.P.12 is the
certified copy of order dated 15/1/2002 passed in RA
59/2001-02 by the Assistant Commissioner, Bengaluru North
Taluk, Ex.P.13 is the Order passed in Revision petition.
Ex.P.14 is the certified copy of order passed in the writ petition.
Ex.P.15 is the certified copy of writ appeal. Ex.P.16 is the
certified copy of order passed in Civil Appeal. Ex.P.17 is the
certified copy of sale deed. Ex.P.18 is the certified copy of
order passed in OS 4600/05. Ex.P.19 is the certified copy of
sale deed. Ex.P.20 is the certified copy of Supreme Court
Order. Ex.P.21 is the certified copy of survey sketch. Ex.P.22
is the certified copy of I.A. in OS No.3126/10. Ex.P.23 is the
certified copy of objection to I.A. Ex.P.24 is the certified copy of
order. Ex.P.25 is the record of rights, Ex.P.26 is the certified
copy of sale deed dated 19/8/2004, Ex.P.27 is the certified
copy of Crl.Petition No.2422/2007.
31 O.S.No.5331/2011
26. In order to defend the case the defendant No.3 is
examined as DW1, defendant No.17 is examined as DW2,
defendant No.19 is examined as DW3, defendant No.12 is
examined as DW4, defendant No.21 is examined as DW5 and
defendant No.18 is examined as DW6 and in all 116
documents are marked as per Ex.D1 to Ex.D.116. Ex.D.1 is
the 25 RTCs, Ex.D.2 is the certified copy of preliminary record,
Ex.D3 is the certified copy of encumbrance certificate, Ex.D4 is
the certified copy of index of lands, Ex.D5 is the certified copy
of continuing mortgage bond, ExD6 is the certified copies of
conversion order dated 25/1/2003, Ex.D7 is the certified copy
of order dated 15/1/2002 passed in R.A.NO.59/2001-02 by
the Assistant Commissioner, Bengaluru North Sub Division,
Ex.D.8 is the certified copy of order passed in Revision Petition
No.133/2001-02 dated 11/10/2002 passed by Special Deputy
Commissioner, Bengaluru District, Ex.D.9 is the certified copy
of order passed in Writ Petition No.40025/2002 dated
31/7/2006 by the Hon’ble High Court of Karnataka,
Bengaluru, Ex.D10 is the certified copy of order passed in Civil
Appeal No.9542/2010 by Supreme Court of India, Ex.D.11 is
the certified copy of partition deed dated 25/7/2002, Ex.D.12
and Ex.D.13 are the two certified copies of sale deed dated
32 O.S.No.5331/2011
11/6/2004. Ex.D.14 is the certified copy of gazette notification
of Government of Mysore, Ex.D15 is the certified copy of sale
deed dated 12/10/1916, Ex.D16 is the certified copy of sale
deed dated 14/6/1922, Ex.D17 is the certified copy of order
dated 10/7/2006 passed in CCC No.568/2005, Ex.D.18 is the
certified copy of judgment passed in Writ Appeal No.1479
clubbed with Writ Appeal No.1722/2007, Ex.D.19 is the
certified copy of sale deed dated 17/3/1994 executed by
plaintiff in favour of defendant No.19, Ex.D.20 is the certified
copy of katha issued BBMP in favour of defendant No.20,
Ex.D21 to Ex.D25 are the certified copies of tax paid receipts of
defendant No.19, Ex.D.26 is the certified copy of genealogy,
Ex.D.27 is the receipt patta, Ex.D.28 is the certified copy of
Hissa Tippani, Ex.D.29 is the certified copy of classification
copy, Ex.D.30 is the certified copy of sketch issued by ADLR,
Bengaluru North Taluk, Ex.D31 is the certified copy of Hissa
Tippani in Sy.No.19, Ex.D32 is the certified copy of Hissa
Tippani of Survey No.19/1, Ex.D.33 is the certified copy of
Hissa Tippani of Sy.No.26, Ex.D34 is the certified copy of Hissa
Tippani No.22/6, Ex.D.35 is the certified copy of Hissa Tippani
of Sy.No.26/1 to 5, Ex.D.36 is the atlas copy of survey
No.26/1, Ex.D.37 is the certified copy of atlas copy of Sy.
33 O.S.No.5331/2011
No.23/7, Ex.D38 is the certified copy of Hissa Tippani
Sy.No.24/48, Ex.D39 is the certified copy of Akar Bund for
Sy.No.19,22,23,24 and 26, Ex.D.40 is the certified copy of Akar
Bund for Sy.No.26,22,23 and 24, Ex.D.41 is the certified copy
of Akar Bund for Sy.No.19 and 26, Ex.D.42 is the certified copy
of MR No.2, Ex.D.43 is the certified copy of MR No.43, Ex.D.44
is the certified copy of MR No.17, Ex.D45 is the certified copy of
MR No.69 of 2003-04, Ex.D.46 is the certified copy of MR No.9,
Ex.D.47 is the certified copy of MR No.7, Ex.D.48 is the
certified copy of MR No.17, Ex.D.49 is the certified copy of MR
No.5, Ex.D.50 is the revenue paid receipts, Ex.D.51 is the
death certificate of mother of DW1, Ex.D.52 is the RTC for the
year 2001-2020 of survey No.24/48, Ex.D53 is the RTC for the
year 2001-2003 of Sy.No.22/6, Ex.D.54 is the RTC of
Sy.No.22/6, Ex.D.55 is the RTC of Sy.No.23/7,Ex.D.56 is the
RTC of Sy.No.26, Ex.D.57 is the RTC of Sy.No.26/5, Ex.D.58 is
the RTC of Sy.No.26/1, Ex.D.59 is the RTC of Sy.No.26/2,
Ex.D.60 is the RTC of Sy.No.26/3, Ex.D.61 is the RTC of
Sy.No.26/4, Ex.D.62 is the RTC of Sy.No.26/5, Ex.D.63 is the
RTC of Sy.No.19/2, Ex.D.64 is the RTC of Sy.No.19/1, Ex.D.65
is the RTC of Sy.No.19/5, Ex.D.66 is the RTC of Sy.No.19/4,
Ex.D.67 is the conversion order dated 28/11/2012 in respect
34 O.S.No.5331/2011
of Sy.No.19/1, Ex.D68 is the conversion order dated
28/11/2012 in respect of Sy.No.19/14, Ex.D.69 is the
conversion order dated 28/11/2012 in respect of Sy.No.26/5,
Ex.D.70 is the conversion order dated 28/11/2012 in respect
of Sy.No.26/1, Ex.D.71 is the certified copy of conversion
order dated 25/1/2003, Ex.D.72 is the certified copy of
conversion order dated 24/1/2003, Ex.D.73 is the certified
copy of conversion order dated 25/1/2003, Ex.D74 is the
certified copy of atlas of Sy.No.19/1 to 18, Ex.D75 is the
certified copy of registered Will dated 8/6/2004, Ex.D.76 is the
memo dated 13/9/2004 issued by Jnanabharathi police,
Ex.D.77 received copy of application dated 1/11/2003,
Ex.D.78 is the police acknowledgment dated 1/11/2003
Ex.D.79 is the the received copy of petition dated 1/11/2003
issued by Jnanabarathi police, Ex.D80 is the SPA dated
10/2/2022, Ex.D81 is the certified copy of mortgage deed
dated 20/9/1934, Ex.D82 is the certified copy of sale deed
dated 12/9/1994, Ex.D83 is the certified copy of redemption
deed dated 19/3/1966, Ex.D84 is the copy of agreement of sale
dated 29/10/1946, Ex.D.85 is the certified copy of sale deed
dated 8/8/1948, Ex.D86 is the certified copy of sale deed dated
25/11/2015, Ex.D.87 is the encumbrance certificate dated
35 O.S.No.5331/2011
5/11/2020, Ex.D88 is the B property extract, Ex.D.89 is the
two tax paid receipts, Ex.D90 and Ex.D91 are the two tax paid
receipts, Ex.D92 is the electricity bill, Ex.D93 is the water bill,
Ex.D94 is the demand notice dated 4/8/2016, Ex.D.95 is the
application under Sajala scheme with sketch, Ex.D96 is the 4
photo copies, ExD96(a) is the CD of Ex.D96, Ex.D97 and
Ex.D98 are the two tax paid receipts, Ex.D99 is the property
register extract issued by BBMP, Ex.D100 is the certified copy
of registered sale deed dated 12/10/1914, Ex.D100(a) is the
typed copy of sale deed dated 12/10/1914, Ex.D.101 is the
certified copy of proceedings of the government i.e. Maharaja of
Mysore, Ex.D.102 is the certified copy of Mysore Gazette
Notification issued by the Revenue Department dated
7/3/2010, Ex.D.103 is the certified copy of encumbrance
certificate in respect of Sy.No.24, Ex.D104 is the E-Sanje daily
newspaper, Ex.D105 is the certified copy of the RTI application,
Ex.D106 is the certified copy of registered power of attorney
dated 23/5/1996, Ex.D107 is the certified copy of the Gift
Deed dated 23/11/2012, Ex.D108 is the certified copy of GPA
dated 7/4/1987, Ex.D109 is the certified copy of katha issued
by Pattanagere CMC dated 11/1/1999, Ex.D110 is the certified
copy of sale deed dated 14/12/2000, Ex.D111 is the certified
36 O.S.No.5331/2011
copy of License issued by Pattanagere CMC dated 27/1/2000,
Ex.D112 is the certified copy of Katha certificate issued by
BBMP dated 9/3/2012, Ex.D113 is the certified copy of House
and vacant site register extract dated 9/3/2012, Ex.D114 is
the certified copy of tax paid receipt dated 9/2/2012, Ex.D115
is the certified copy of judgment in OS No.2047/2012 and
Ex.D116 is the certified copy of Decree in OS No.2047/2012.
27. The plaintiff who is examined as P.W.1 has reiterated
the plaint averments in his affidavit evidence filed in lieu of
examination-in-chief.
28 The counsel for plaintiff stated in his evidence that
suit item No.6 has been deleted as per order of this court dated
28/2/2012. The suit items 1 to 5 are situated in Mallathahalli
village belonged to one Nanjappa and said Nanjappa is referred
as Nanjappa-1 and Nanjappa-1 had two sons by name Papaiah
and Byrappa and said Byrappa is referred as Byrappa-1.
Byrappa-1 had only son by name Nanjappa and said Nanjappa
is referred as Nanjappa-2 who is the father of defendants 1 to
3, father in law of defendant No.4 and grandfather of
defendants 5 to 10. Papaiah had a son by name Byrappa and
said Byrappa is referred as Byrappa-2. Nanjappa-2 and
Byrappa-2 are cousins. Suit properties earlier constituted the
37 O.S.No.5331/2011
property of Nanjappa-1 and were subjected to oral partition by
Nanjappa-2 and Byrappa-2. In respect of the properties which
fell to the share of Nanjappa-2, he had executed a registered
mortgage deed dated 29/9/1934 in favour of one Muniyamma
as per Ex.P.3. Subsequently on 19/3/1966 a redemption deed
executed by Yarchannamma and Chowdamma both daughters
of late Muniyamma discharging the earlier mortgage deed
dated 30/9/1934 as per Ex.P.4. The said Byrappa-2 had
executed a registered agreement dated 28/10/1946 in favour
of Muniyamma wife of Seegehalli Ramaiah in respect of his half
share in all the properties and in the said agreement Nanjappa-
2 had affixed his signature as per Ex.P.5. Plaintiff’s mother
Nanjamma executed a Will dated 12/1/1980 in favour of
plaintiff bequeathing all the properties purchased by her under
the sale deed dated 8/8/1948 and said Nanjamma died on
30/7/1984 and on the basis of the will since from the date of
death of Nanjamma, plaintiff is the absolute owner of all the
properties and plaintiff approached revenue authorities seeking
mutation change in his favour in respect of the properties that
were bequeathed in favour of plaintiff. Subbamma W/o
Nanjappa-2 filed RA No.59/2001-02 before Assistant
Commissioner, Bengaluru North Sub Division challenging the
38 O.S.No.5331/2011
mutation proceedings bearing IHC No.11/87-88 and
MR No.43/87-88 in the name of plaintiff after a period of 13
years and the said appeal was allowed as per Ex.P.12 and later
the same was subject matter of Revision Petition bearing
No.133/2001-02 before the Special Deputy Commissioner
challenging the order dated 15/1/2002 in RA 59/2001-02
which was dismissed as per order dated 11/10/2002 as per
Ex.P.13 and the same was challenged before the Hon’ble High
Court in Writ Petition No.40025/2002 and Writ Appeal
No.1722/2007 and before the Hon’ble Apex Court in Civil
Appeal No.9542/2010 which was disposed of the appeal
reserving liberty to file appropriate proceedings before this
court. Plaintiff further contended that the defendants have no
manner of right, title and interest over the suit properties and
on 17/7/2011 with the help of rowdy elements they are trying
to interfere with the peaceful possession and enjoyment of the
suit schedule properties. In support of his contentions the
plaintiff has produced 27 documents as per Ex.P.1 to Ex.P.27.
Ex.P.1 is the certified copy of RTCs are shown in the name of
plaintiff and his mother from the year 1982 to 2001. Ex.P.3
certified copy of mortgage deed dated 20/9/1934 and in the
said mortgage deed shows that Nanjappa-2 and Byrappa-2 are
39 O.S.No.5331/2011
brothers and partition was taken place earlier and Nanjappa-2
has mortgaged his share in favour of Muniyamma. In Ex.P.4
certified copy of registered redemption deed dated 19/3/1966
executed by daughters of Muniyamma in favour of Nanjappa-2.
Ex.P.5 certified copy of registered agreement of sale dated
29/10/1946 executed by Byrappa-2 in favour of Muniyamma
and reading of this document shows there was already
partition of all the properties and Nanjappa-2 has affixed his
signature to this agreement. Ex.P.7 mutation extract and
Ex.P.8 patta book shows the name of plaintiff’s mother
Nanjamma. Ex.P.10 will dated 12/1/1980 executed by
Nanjamma in favour of plaintiff. Ex.P.11 mutation register is
in the name of plaintiff and brothers of plaintiff given no
objection to said mutation in respect of all 5 items of suit
schedule property and in order to prove the contention of the
plaintiff has relied upon the decision reported in AIR 2023 SC
4810, AIR 1960 Supreme Court 100, ILR 2004 KAR 1112 and
AIR 1992 Supreme Court 2009 and hence prayed for decreeing
the suit.
29. In order to disprove the contention of the plaintiff,
the defendant No.3 is examined himself as DW1 for self and on
behalf of defendants 1, 2 and 4 to 10 and re-iterated the
40 O.S.No.5331/2011
written statement averments in his evidence affidavit filed in
lieu of examination-in-chief.
30. The counsel for defendant in his arguments stated
that initially there was a dispute with regard to revenue
entries between the plaintiff and Smt. Subbamma. Though the
plaintiff has got the knowledge about the revenue entries
standing in the name of Munishamappa and other family
members of the defendants No.1 to 10, for the reasons best
known to the plaintiff, he did not question the said entries for
the reasons best known to him. Though the plaintiff has got
the knowledge about the survey and phodi of the suit schedule
property, which was done Way back in the year 1957, and
subsequently based on the partition entered into between the
family members of the defendants No 1 to 10, the plaintiff has
not questioned the same. Hence, after lapse of more than 30
years filing the Suit seeking the relief of Declaration and
Permanent Injunction against the defendants No.1 to 10 is not
sustainable in law. During the pendency of the suit the
defendants No 11 to 21 have been impleaded themselves and
claiming to be the purchasers of the sites alleged to be formed
by the plaintiff. The defendants No.11 to 21 have no
independent rights in respect of any of the suit schedule
41 O.S.No.5331/2011
properties, but they are claiming the title in respect of the
alleged sites under the plaintiff. The defendant No.11 to 21
colluding with the plaintiff have come on record in support of
the plaintiff only with an intention to grab the property
belonging to the defendants No.1 to 10. The plaintiff has taken
a contention in the plaint that originally the suit schedule
properties belonged to one Nanjappa wherein, the plaintiff has
claimed that the said Nanjappa is the Nanjappa 1, and the said
Nanjappa-1has got 2 sons namely Papaiah and Byrappa,
wherein the said Byrappa has been referred to as the
Byrappa-1 and the said Byrappa-1 had only son by name
Nanjappa and the said Nanjappa has been referred as
Nanjappa-2 and the said Nanjappa-2 and Byrappa-2 were
cousins, and constituted joint Hindu Undivided Family and
were the grandsons of the Nanjappa-1. The plaintiff has further
contended that there was oral partition taken place between
the Nanyappa-2 and Byrappa-2. It is also the specific
contention of the plaintiff that Nanjappa-2 has executed a
registered Mortgage Deed dated 13.09.1934 in favour of one
Muniyamma contending that himself and the Byrappa-2 are
the brothers and there was a partition amongst them and there
after the said mortgage has been discharged by the daughters
42 O.S.No.5331/2011
of Muniyamma in favour of Nanjappa-2 as per the document
dated 19.03.1966 the registered Redemption Deed. The plaintiff
has further contended that there was a registered agreement
dated 28.10.1946 executed by Byrappa-2 in favour of Smt.
Muniyamma wife of Segehalli Ramaiah and Nanjappa-2 was
also an attesting witness. Subsequently undér the registered
Sale Deed dated 08.08.1948 the Byrappa-2 grandfather of the
plaintiff who is the son of Papaiah and Smt. Muniyamma wife
of Ramaiah in favour of Nanjamma wife of Nallappa mother of
the plaintiff in respect of half share in the suit schedule
properties. Thereafter the specific contention of the plaintiff
that the plaintiff’s mother executed a Will dated 12.01.1980
bequeathing all the properties purchased by her under the sale
deed dated 08.03.1948 in favour of the plaintiff and
accordingly, the revenue records have been changed in the
name of the plaintiff in MR. No. IHC 11/87-88 and MR No.43/
87-88. Further contention of the plaintiff is that the plaintiff
has also filed a suit in OS No. 3126/2010 for partition in
respect of the item No.6 of the suit schedule properties. The
plaintiff has specifically contending that Smt Subbamma wife
of Nanjappa- 2 mother of the defendants No. 1 to 3 has filed an
appeal in RA No. 59/2001-2002 before the Assistant
43 O.S.No.5331/2011
Commissioner Bangalore Sub Division against the plaintiff and
others challenging the mutation proceedings as per IHC
No.11/87-88 and MR No. 43/87-88. The said appeal filled by
Smt Subbamma has been allowed and thereby set aside the
Mutation entries in IHC No.11/87-88 and MR No. 43/87-88.
31. Further argued that thereafter, the plaintiff has filed
a Revision Petition bearing No. 133/2001-02 before the special
Deputy Commissioner Bangalore District challenging the order
passed in RA No. 39/2001-02. The special Deputy
Commissioner has passed the order and thereby dismissed the
Revision Petition. The plaintiff has filed the Writ Petition
No.40025/ 2002 before the Hon’ble High Court of Karnataka
challenging the order passed by the Deputy Commissioner and
the Assistant Commissioner. After hearing the parties, the
Hon’ble High Court of Karnataka was pleased to dismiss the
Writ Petition as per the order dated 31.07.2006. The plaintiff
has filed the Writ Appeal No. 1479/2009 challenging the order
passed in Writ Petition. The Hon’ble High Court was pleased to
dismiss the Writ Appeal filed by the plaintiff, and allowed the
Writ Appeal filed by Smt. Subbamma in Writ Appeal No.
1722/2007. The plaintiff has challenged the said order before
the Hon’ble Supreme Court in Civil Appeal No. (S) 9542/2010.
44 O.S.No.5331/2011
The Hon’ble Supreme Court was pleased to dismiss the
petition. The plaintiff has further contended that he has also
formed the residential sites in the suit schedule properties as
per the sanctioned plan and he has sold the sites in favour of
the prospective purchasers and thereby they are in possession
and enjoyment of the sites. The plaintiff has specifically
contending that the cause of action for the above Suit has
arisen on 17.07.2011 when the defendants have trespassed
over item No.1 of the suit schedule properties and try to
dispossess the plaintiff. Accordingly, he has sought for the
declaration of the title in respect of the suit schedule properties
based on the alleged Will executed by his mother in his favour.
The specific defense has been taken by the defendants No. 1 to
10 apart from denying the plaint averments. The additional
plea has also been taken by the defendants that they are
contending that they are the absolute owners of the suit
schedule properties and the plaintiff is a stranger in respect of
the suit schedule properties. The defendants denied the
relationship of the plaintiff with the Nanjappa who is the great
grandfather of the defendants No.1 to 3. The plaintiff is a
stranger as far as the family of the defendants No.1 to 10 is
concerned. It is the specific case of the defendants No.1 to 10
45 O.S.No.5331/2011
that there was no such person in existence as claimed by the
plaintiff in the plaint that Nanjappa-1 and Nanjappa-2,
Byrappa-1 and the Byrappa-2, and one Papaiah. The plaintiff
has alleged and mentioned that the said names were nothing to
do with the family of the defendants No.1 to 10. The defendants
No.1 to 10 have specifically contended that the prepositor of
the family of the defendants No.1 to 10 is none other than one
Nanjappa. The said Nanjappa has got the only son by name
Byrappa. The said Byrappa has got the only son by name
Nanjappa. The said Nanjappa is none other than the husband
of the Smt. Subbamma, and the said Nanjappa and Subbamma
have got 4 sons namely Munishamappa, Byrappa, Chodappa
and Muthuraya Reddy. The said Nanjappa is none other the
father of the defendants No.1 to 3 herein and the grandfather
of the defendents 5 to 10. Nanjappa son of Byrappa who is
none other than father of the defendants No.1 to 3 and
Munishamappa have succeeded the properties owned by his
father Byrappa, After the death of Nanjappa his wife Smt.
Subbamma and his children defendants No.1 to 3 herein and
Munishamappa have succeeded to the properties owned by the
said Nanjappa Accordingly, there was a partition taken place
amongst Subbamma wife of Nanjappa and her children as per
46 O.S.No.5331/2011
the partition deed effected in year 1980 which was reduced into
writing. Thereafter the said partition effected in the year 1980
and has been reduced into registered partition deed dated 26
07.2002 entered into between Smt. Subbamma and her
children. Till the date of entering into partition the revenue
records in respect of the suit schedule properties have been
standing in the name of the Nanjappa and his family members
continuously. Based on the partition taken place in the year
1980 and subsequently the registered partition deed dated
26.07.2002 the revenue records like Mutation and RTC extract
have been changed in the respective names of the sharers as
per the partition. Thereafter the suit schedule properties have
been Phoded and based on the partition Smt. Subbamma and
her children and grandchildren, the defendants No.1 to 10
herein, have been in continuous possession and enjoyment of
their respective shares as per the partition. Except the
defendants No.1 to 10 none else, particularly, the plaintiff has
got any manner of right, title, interest or possession in respect
of the suit schedule properties. This being the situation the
plaintiff who is a land grabber colluding with the Revenue
Officials has created the Revenue Records like IHC No. 11/87-
88 and MR.No.43/87-88 based on the concocted documents.
47 O.S.No.5331/2011
The plaintiff has entered his name in the Revenue Records,
Smt.Subbamma the mother of defendants No.1 to 3 and
Munishamappa and grandmother of the defendants No. 5 to 10
after coming to know about the illegal entries in the Revenue
Records pertaining to the properties belonging to the family of
Smt. Subbamma has challenged the said Revenue entries as
per MR IHC No.11/87-88 and MR No, 43/87-88
by way of filing an Appeal in RA Mo.59/2001-2002 on the file
of the Assistant Commissioner and after detailed enquiry and
after hearing Smt. Subbamma was the plaintiff herein the
Assistant Commissioner allowed the Appeal thereby set aside
the alleged Revenue entries in the name of the plaintiff as per
the order dated 15.01.2002 and thereafter the plaintiff has filed
a Revision Petition before the Special Deputy Commissioner as
per the Revenue Petition No.133/ 2001-2002. The Special
Deputy Commissioner after hearing the Parties was pleased to
dismiss the Revision Petition as per order date 11.10.2002.
Thereafter the plaintiff has filed a Writ Petition before the
Han’ble High Court of Karnataka in W.P No.40025/2002. The
Hon’ble High Court was pleased to dismiss the WP thereby
confirming the orders passed by the Assistant Commissioner
and Deputy Commissioner. The plaintiff has preferred a Writ
48 O.S.No.5331/2011
Appeal in WA No.1479/2006 wherein Smt. Subbamma has also
filed a Writ Appeal in WA No.1722/2007. The Division Bench of
the Hon’ble High Court of Karnataka was pleased to dismiss
the Writ Appeal No.1479/2006 and allowed the Writ Petition
filed by Smt. Subbamma in WA No.1722/2007, and thereby
confirming the orders passed by the Assistant Commissioner
and Deputy Commissioner and the Hon’ble High Court of
Karntaka in the Writ Petition, The plaintiff herein has filed a
Special Leave Petition before the Hon’ble Supreme Court in
Civil Appeal No. 9542/2010. The Hon’ble Supreme Court was
pleased to dismiss the said Appeal on 14.07.2011. It it clear
from the order passed by the Hon’ble Supreme Court, the
orders passed by the Assistant Commissioner, the Special
Deputy Commissioner, the orders passed in the Writ Petition
and the orders passed by the Division Bench by the Hon’ble
High Court of Karnataka have been confirmed.
32. Further argued that there after the plaintiff have
filed the present suit seeking the relief of Declaration and
Permanent Injunction based on the created documents with an
intention to make unlawful gain from the defendants No.1to10.
When the plaintiffs have not been in possession of any portion
of the suit schedule properties at any point of time, seeking the
49 O.S.No.5331/2011
relief of Declaration of Title and the Permanent Injunction
without seeking the relief of possession of the suit schedule
properties is not sustainable. When the plaintiff who is not in
possession of the suit schedule properties has failed to value
the suit properly as required under the Karnataka Court Fee
and Suit Valuation Act. It is clear from the documentary
evidence produced before this Hon’ble Court, Smt. Subbamma,
mother of the defendants No.1 to 3 and Munishamappa, has
challenged the Revenue entries made in the name of the
plaintiff based on the created documents before the Assistant
Commissioner in R.A No.59/2001-2002. It is clear from the
records that Smt. Subbamma has specifically contended that
she and her family members being the absolute owners of the
suit schedule properties have been in continuous possession
and enjoyment of the suit schedule properties and thereby
disputed the title of the plaintiff in the year 2001 itself. The
plaintiff having the knowledge about the dispute of the title in
respect of the suit schedule properties has kept quite till the
year 2011 to seek the relief of declaration. Hence, the suit filed
by the plaintiff seeking the relief of declaration after 10 years
from the date of disputing the title is barred by the law of
limitation. It is also clear from the proceedings initiated by the
50 O.S.No.5331/2011
plaintiff and the orders passed by the court particularly in the
contempt proceedings initiated by him before the Hon’ble High
Court, the same was dismissed holding that the defendants are
in possession of the suit schedule properties. Though the
plaintiff having knowledge about the said observation has kept
quite till the Year 2011 without any explanation.
33. Further argued that based on the pleadings and the
documents produced by plaintiff and the defendants this
Hon’ble Court was pleased to frame the Issues, the plaintiff
himself has been examined as PW1 and produced the
documents as per ExPl to P27. The defendants have examined
the defendant No.3 as DW1 and produced the documents as
per the ExDl to D96. Thereafter, the defendants who have been
impleaded as defendants No.11 to 21 have examined the
defendant No.19 as DW3 the defendant No.12 as DW4 and one
B.Y Santosh Raj Urs has been examined as DW5. All the
witnesses have been cross examined by the contesting parties.
The RTC extracts produced by the plaintiff as per Ex.P.1 series
discloses the names of the defendants 1 to 10 and name of
Smt.Subbamma the mother of defendants 1 to 3 and
Munishamappa. The Genealogical tree filed by the plaintiff as
per Ex.P.2 is far from truth and the plaintiff has filed the
51 O.S.No.5331/2011
affidavit by furnishing the wrong Names of the persons who
were no way related to the family of the defendant No.1 to 10,
who were not in existence. Insertion of the name of Papaiah
his son Byrappa and their daughter Nanjamma and the names
of the plaintiff and others in the Genealogical tree are incorrect.
The plaintiff in in the habit of swearing the false affidavit and
furnishing the different Genealogical tree before the different
Authorities. The Genealogical tree as per Ex.P.2 is not based on
the any document and the same has not been issued by any
Authorities. The said document is concocted by the plaintiff by
swearing the false affidavit. Though the plaintiff has got the
knowledge about the revenue entries standing in the name of
Smt Subbumma and her family members as per Ex-P1. The
plaintiff has never questioned the said entries at any point of
time. The document produced by the plaintiff as per Ex-P3
alleged to be executed by one Nanjappa son of Byrappa
wherein, the recitals specified that there was a partition
between the said Nanjappa and his younger brother Byrappa,
wherein, there are no persons namely Nanjappa and Byrappa
being the brothers having been entered into the partition as
claimed by the plaintiff in the said document. Hence, the
document as per Ex-P3 is nothing to do with Nanjappa father
52 O.S.No.5331/2011
of the defendants No.1 to 3 or Byrappa father of the said
Nanjappa, or Nanjappa father of the said Byrappa. Hence, the
said document has nothing to do with the defendants No.1 to
10 and their family members. The documents produced by the
plaintiff as per Ex-P4 alleged to be executed by Byrappa son of
Papaiah titled as the Agreement wherein, it is specified in the
recitals of the said document that there was a partition entered
into between his father and his brothers which is contrary to
the recitals made in Ex-P3 wherein, in Ex-P3 it is specified that
the partition has been taken place between Nanjappa and his
brother Byrappa and in Ex-P4 it is specified that the partition
has been taken place between Byrappa father of Papaiah and
his brothers. The recitals made in Ex-P3 and in Ex-P4 are
contrary to each other which clearly discloses that the said
documents are created by the persons who are nothing to do
with family of the defendants No.1 to 10. The plaintiff has
produced Ex-P6 sale deed alleged to be executed by him in
favour of Muniyamma who is none other than his daughter in
respect of the properties specified in the sale deed. It is clear
from the said sale deed that he has executed the sale deed in
favour of said Nanjamma stating that she is the only daughter
and he has executed the sale deed in respect of the properties
53 O.S.No.5331/2011
fell to his shares. Though as on the date of executing the
alleged sale deed none of the properties specified in the said
sale deed have been standing in the name of the vendor
Byrappa. Hence, question of executing the sale deed in respect
of the properties specified in the said sale deed does not arise
at all. Even otherwise according to the said Byrappa, except
Nanjamma none else were there to claim the property. It is
necessary to analyze that in respect of the survey numbers
specified in the said sale deed Sy. No.26, 22 and 19 have been
reflected twice with different measurements though the said
Byrappa and Muniyamma have no manner of right, title and
interest in respect of the properties specified in the sale deed
and only with an intention to create an encumbrance over the
said properties the said alleged Byrappa have concocted the
document colluding with his daughter and Muniyamma. The
document produced by the plaintiff as per Ex-P7 Mutation
register there is a Shara written by Revenue Officer on
29.09.1953 that on 29.09.1953 the Khatha in respect of the
said properties cannot be effected. Hence it is clear from the
said revenue document, the alleged sale deed as per Ex-P6 has
not been acted upon. The Shara mentioned in Ex-P7 has not
been challenged by either the plaintiff or his mother. When the
54 O.S.No.5331/2011
Ex-P6 and 7 has not been acted upon the plaintiff has created
the receipt patta as per Ex-P8. The plaintiff has filed the suit
seeking the relief of declaration based on the alleged Will dated
12.01.1980 said to have been executed by his mother Smt.
Nanjamma bequeathing the properties specified in the said
document in the family of the plaintiff. When the plaintiff has
sought for the declaration of his title to the property based on
the alleged Will, the burden of proof is on him to produce the
original will before the court for examination. It is the bounden
duty of the person who is claiming the title based on the
alleged Will, being a propounder of the Will has to produce the
original Will before the court for cross examination. The
plaintiff has not produced the original Will before the court and
has not explained whereabouts of the Will. When the original
Will has not been produced before the court, and the plaintiff
has categorically admitted in his evidence that he has taken
active participation in execution of the alleged Will, and failure
on the part of the plaintiff to examine any of the attesting
witnesses the alleged Will as per Ex-P10 has not been executed
at all. The conduct of the PW1 that he has categorically
admitted that he has produced the original Will before the
court wherein one of his relatives has filed the case, and he do
55 O.S.No.5331/2011
not know the name of his relative, and he do not remember in
which court he has produced, and he has categorically
admitted that apart from this case he has not filed any other
case in respect of the present suit schedule properties. It is
clear from Ex-P7 that there is a Shara written by the revenue
office that since there is a requirement of Phodi and
measurement of the land in question. Khata in respect of the
said properties cannot be changed. When there is a shara from
the revenue office in respect of the change of the khata the
name of Nanjamma and Krishnamurthy entered into the RTC
extracts as per Ex-P1 is nothing but a created document
without any basis. The plaintiff has failed to prove the fact that
he has acquired the suit schedule properties and the revenue
records in respect of the suit schedule properties have been
changed in their name. The conduct of the plaintiff shows that
the plaintiff is trying to grab the property belonging to the
defendants No.1 to 10. The plaintiff herein has questioned the
order passed by the Assistant Commissioner and the Deputy
Commissioner as per Ex-P12 and 13 before the Hon’ble High
Court of Karnataka in Writ Petition No 40025/2002. The
Hon’ble High Court of Karnataka has considered all the
documents and arguments put forth by the parties concerned
56 O.S.No.5331/2011
and a detailed appreciation of the merits available on record
the Hon’ble High Court was pleased to dismiss the Writ
Petition, and thereby upheld the order passed by the Assistant
Commissioner in R.A No.59/2001-2002 dated 15.01.2002 and
the order passed by the Deputy Commissioner in Revision
Petition 133/2001-2002 dated 11.10.2002. The order passed
by the Honble High Court and the Supreme Court that the
revenue entries in respect of the suit schedule properties have
been changed and ordered to continue in the name of Smt.
Subbamma mother of the Defendants No.1 to 4. Though the
plaintiff has no manner of night, title or interest in respect of
the suit schedule properties was in the habit of creating the
documents and executing the sale deed in favour of third
parties pertaining to the suit schedule properties with an
intention to create an encumbrance over the suit schedule
properties. The plaintiff was in the habit of assigning the
khaneshmari number, gramatana number, assessment
number pertaining to the suit schedule properties which are
the agricultural properties with an intention to create the
documents, and to make unlawful gain from the defendants.
34. Further argued that though the defendants No.11 to
21 herein have no manner of right, title, interest or possession
57 O.S.No.5331/2011
in respect of the suit schedule properties. The plaintiff has
produced a sketch alleged to be prepared by a private surveyor
as per Ex-P21 in respect of the land bearing Sy.19. The said
sketch has been concocted by the plaintiff colluding with the
others, Wherein no survey has been conducted by any of the
surveyor, except the Phodi conducted at the instance of
defendants No.1 to 4 by the Government Surveyor. At no point
of time the alleged surveyor in Ex-P21 has given any notice
either to the defendants No.1 to 4 or to the neighboring land
owners to Measure the property. Ex-P21 is not in conformity
with the land available, and the said sketch is not sustainable
in law and the same cannot be relied upon. There are number
of transactions pertaining to the suit schedule properties taken
place before the Revenue Authorities and also before the court
of law. The plaintiff herein was in the habit of creating the
documents in respect of the suit schedule properties with an
intention to make unlawful gain from the family of the
defendants No.1 to 4. The PW1 who has contended that there
were only 2 parties in the partition held in the year 1934 has
not produced any documents pertaining to the alleged partition
as claimed by the plaintiff. The plaintiff has failed to establish
the fact that his mother is related to Nanjappa son of Byrappa
58 O.S.No.5331/2011
in any manner. The PW1 has also categorically admitted in his
evidence that he has not ascertained the relationship between
the said Muniyamma and his Great-Grandfather who are
referred to in the 1948 sale deed. The plaintiff has failed to
produce the original documents pertaining to the suit schedule
properties though he has contended that he has produced the
original documents before the Hon’ble High Court of
Karnataka. The PW1 has gone to the extent of deposing before
the court that he has produced the original Will before the
court. The PW1 has pleaded ignorance with regard to the
acquisition of the suit schedule properties by the Nanjappa.
The PW1 has gone to the extent of deposing false that he has
seen the partition deed and Nanjappa and Byrappa are the
parties to the partition deed taken place in the year 1934. He
deposed that he did not know who is in possession of the
original Mortgage Deed. PW1 has categorically admitted in his
evidence that he had not seen any documents which were
standing in the name of Papaiah in respect of the suit schedule
properties, and he has not enquired regarding his acquisition
of the property. PW1 also deposed that he cannot say the exact
relationship of the parties, and he has gone to the extent of
deposing that he has produced the Partition Deed before the
59 O.S.No.5331/2011
court though he has not produced any document to that effect.
It is the categorical case of the plaintiff that he has filed the
above suit by virtue of the Will executed by his mother. The
PW1 has categorically admitted in the cross examination that
he has filed the suit by virtue of the Will executed by his
mother and has gone to the extent of deposing that he has
produced the original Will before this court. In the cross
examination PW1 has admitted that the Will as per Ex-P10 is
the xerox copy. The PW1 has admitted in his evidence that he,
his mother and witnesses were present at the time of execution
of Ex-P10, though he cannot say the names of the witnesses. It
is clear from the evidence available on record that he being the
beneficiary has taken part in creating the Will though he has
not produced the original Will before the court. PW1 has also
deposed in his evidence that after 1978 he has mutated his
name in the Revenue Records though he claimed that his
mother died in the year 1984. He deposed that he got mutated
the Revenue entries in his name by virtue of the Will even prior
to the death of his mother. The PWI has also deposed that he
has not produced the Ex-P21, though he has deposed that
survey has been conducted more than 20 years ago. PW1 has
also deposed that he has deleted the Sy.No.28 from the
60 O.S.No.5331/2011
schedule to the plaint though he has withdrawn the other
suits. It is clear from his admission that he has not converted
the Sy.No. 19 and there is no sanctioned plan and he has sold
the sites to 35 persons and admitted that he has not done any
khata before selling the sites. PW1 has categorically admitted
that he has no impediment to produce the original Will before
this court wherein he has sought for the declaration of the suit
schedule properties by virtue of the Will. PW1 has also
admitted that the name of the defendants appeared in R.T.C
though the PW1 has admitted with regard to revenue entries
standing in the name of the defendants, and that he has not
challenged the entries though the plaintiff has produced the
sketch as per Ex-P21, He deposed that he will not examine the
Surveyor. The PW1 has also admitted his contention before the
court that the original Will was misplaced and the same will be
produced before the court if it is traced. PW.1 has admitted
that the defendants have constructed the complex in the
property allotted to their share in the land bearing Sy.No.19. It
is clear from the Oral evidence of PW1 that the evidence of PW1
is untrustworthy as he has deposed contrary to the material
evidence available on record. The defendants No.1 to 10 to
establish their case have examined the defendant No.3 as the
61 O.S.No.5331/2011
DW1 and produced the documents. The DW1 has given his
Oral evidence to establish his case. It is the categorical
contention of the defendants No.1 to 10 and the DW1 has
deposed that the originator of their family is one Nanjappa who
died leaving behind him his only son Byrappa, who died leaving
behind him his only son by name Nanjappa. The said Nanjappa
son of Byrappa has succeeded to the suit schedule properties
by way of inheritance who is none other than the father of the
DW1 and the defendants No.1 and 2 and Grand Father of the
defendants No.5 to 10. The entire extent of the land specified in
the suit schedule is in continuous possession and enjoyment of
the family of Nanjappa, and presently the defendants No.1 to
10 in the present suit. It is the contention of defendants No.1
to 10 that Byrappa Grand Father of the defendant No.3 has
owned and possessed the suit schedule properties and the
Revenue Records in respect of the said property were standing
in the name of the said Byrappa. Hence the plaintiff is not
entitled for the relief sought.
35. Defendants 11 to 21 have come on record by
pleading themselves as purchasers of sites formed in Sy.No.19
and they have produced sale deeds executed by plaintiff in
62 O.S.No.5331/2011
their favour and they have supported the case of the plaintiff
and prayed to decree the suit in favour of the plaintiff.
36. The counsel for defendant No.1 to 10 has argued
that the defendants No.11 to 21 are the purchasers of sites
formed in Sy.No.19 from the plaintiff and the plaintiff has
executed sale deeds in their favour to create encumbrance in
respect of suit schedule properties though they have no right,
title and interest much less the possession in respect of any
portion of the suit schedule properties. The plaintiff who has
no manner of right, title or interest in respect of any of the suit
schedule properties and the plaintiff is trying to take advantage
of the documents alleged to be executed by the third parties i.e.
defendants 11 to 21 who are no way related to the family of the
defendants 1 to 10. Ex.D26 genealogical tree produced by
defendants that propositor of their family is one Nanjappa who
has got the only son by name Byrappa and Said Byrappa has
got only son Nanjappa whose wife is Smt.Subbamma has got 4
children i.e. defendants 1 to 3 and one Munishamappa who
has left behind his wife Smt.Thippamma – defendant No.4 and
his children defendants 5 to 10. But plaintiff states that
propositer Nanjappa has got 2 sons and Byrappa has got 2
sons.
63 O.S.No.5331/2011
37. The defendant No.3 argued that the defendants 1 to
10 have got title deeds in respect of suit schedule properties
and also based on the title deeds the revenue records like
receipt patta, hissa tippani and sketch and aakar band as per
Ex.D.27 to 41 have been continuously standing in the name of
defendants 1 to 10. Based on partition entered into amongst
the family members of defendants 1 to 10, Ex.P.11 mutation
register have been changed in the name of defendants 1 to 10
and all the revenue entries have been made in their names as
per Ex.D42 to Ex.D.49. In order to disprove the Will Ex.P.10
the defendant No.3 has relied upon decision reported in AIR
2009 SC 1977, ILR 2008 KAR 2115 and in order to disprove
the contention of the plaintiff in respect of the suit schedule
property the defendant No.3 has relied upon decision reported
in AIR 1993, SC 957, AIR 2017(4) AKR 47, AIR 2017(5) ABR
695, AIR 1954 SC 606, AIR 1996 SC 1253, AIR 1968 SC 947.
38. In this case the defendant no. 1 to 10 denied family
tree marked at Ex p 2 and argued that the plaintiff produced
deferent family tree affidavit before the revenue court and
before this court and that too not issued by government
authority and no credence can be given to Ex p 2. Admittedly
the Ex p 2 is a notarised family tree sworn before notary
64 O.S.No.5331/2011
advocate it was not issued by any government authority hence
no credence can be given to Ex p 2.
39. On perusal of the documents produced by the
plaintiff and defendants and on hearing the arguments of both
the sides the court has ascertained that the plaintiff avers that
Nanjamma executed a will dated 12/1/1980 marked as EX P
10 in favour of plaintiff bequeathing all the properties
purchased by her under the said sale deed dated 8/8/1948
and thereafter plaintiff’s mother Nanjamma passed away on
30/7/1984 and thereafter revenue entries were mutated in the
name of plaintiff, but the plaintiff has not produced the original
will before the court and he has produced only certified copy of
the will and not explained about whereabouts of the original
will and not examined any of the attesting witnesses to prove
the will.
40. As per section 68 of Indian Evidence Act will has to
be proved by examining any one of attesting witness.
41. The contention of the plaintiff is that based on the
will dated 12/1/1980 plaintiff has obtained the katha in his
name from the Tahasildar. But EX P11 M.R.IHC.11/1987-88
and the said order states that late Nanjamma is having 3
children viz. Krishnamurthy, P.N.Srinivas and N.Prabhakar
65 O.S.No.5331/2011
and that brothers P.N.Srinivas and N.Prabhakar have given
their statement to change the katha of the schedule properties
it was changed on the basis of inheritance in the name of
Krishnamurthy. This shows he has obtained katha on
inheritance. There is no mention about will.
42. The plaintiff has filed the suit seeking the relief of
declaration based on the alleged Will dated 12.01.1980 said to
have been executed by his mother Smt. Nanjamma
bequeathing the properties specified in the said document in
the family of the plaintiff. When the plaintiff has sought for the
declaration of his title to the property based on the alleged Will,
the burden of proof is on him to produce the original will before
the court for examination and to prove the will as per law.
43. Therefore, in view of the above discussion, I am of the
opinion that the plaintiff has failed to prove the will executed
and obtained katha and the plaintiff is failed to prove his owner
ship over the suit schedule property. Hence the plaintiff cannot
claim possession over the suit schedule property.
44. The citations relied by the plaintiff and defendant
no. 11 to 16 and defendant no. 21 are not applicable to the
facts and circumstances of this case.
66 O.S.No.5331/2011
45. Hence, this courts answer to issues No.1 and 2 in
the negative.
46. ISSUE No.3 : In view of answers to issue No.1 and 2,
plaintiff is not entitled for the reliefs of declaration and
permanent injunction. Hence, this courts answer to issue
No.3 in the negative.
47. ISSUE No.4: In view of above said observations, I
proceed to pass the following
ORDER
Suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, computerized by
her, corrected and then pronounced by me in open court on the 16th
day of January 2025)
(Sirajuddeen A.)
XX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
ANNEXURE
List of witnesses examined for the Plaintiff:
PW.1 : Sri.N.Krishnamurthy
List of documents marked for the Plaintiff:
Ex.P.1 :19 RTCs.
67 O.S.No.5331/2011
Ex.P.2 : Family Tree.
Ex.P.3 : Certified copy of mortgage deed.
Ex.P.4 : Certified copy of registered redemption deed.
Ex.P.5 : Certified copy of registered agreement.
Ex.P.6 : Certified copy of sale deed.
Ex.P.7 : Mutation Register.
Ex.P.8 : Receipt of Patta.
Ex.P.9 : Encumbrance Certificate.
Ex.P.10 : Certified copy of Will.
Ex.P.11 : Order passed by AC.
Ex.P.12 : C.C of the order dated 15/1/2002 passed
in RA 59/2001-02 by the Asst. Commissioner,
Bengaluru North Taluk.
Ex.P.13 : Order passed in Revision petition.
Ex.P.14 : Certified copy of order passed in the writ petition.
Ex.P.15 : Certified copy of writ appeal. Ex.P.16 : Certified copy of order passed in Civil Appeal. Ex.P.17 : Certified copy of sale deed. Ex.P.18 : Certified copy of order passed in OS 4600/05. Ex.P.19 : Certified copy of sale deed. Ex.P.20 : Certified copy of Supreme Court Order. Ex.P.21 : Certified copy of survey sketch. Ex.P.22 : Certified copy of I.A. in OS No.3126/10. Ex.P.23 : Certified copy of objection to I.A. Ex.P.24 : Certified copy of order. Ex.P.25 : Record of Rights. Ex.P.26 : Certified copy of sale deed dated 19/8/2004. Ex.P.27 : Certified copy of Crl.Petition No.2422/2007.
List of Witnesses examined for the defendants:
DW.1 : Muthurayareddy
DW.2 : B.K.Nandakishore
DW.3 : N/Sathyanarayana
DW.4 : B.Lakshmaiah
DW.5 : B.Y.Santosh Raj Urs
DW.6 : Saraswathi @ Saraswathamma
68 O.S.No.5331/2011
List of documents marked for the defendants:
Ex.D.1 : 25 RTCs.
Ex.D.2 : Certified copy of preliminary record.
Ex.D3 : Certified copy of encumbrance certificate.
Ex.D4 : Certified copy of index of lands.
Ex.D5 : Certified copy of continuing mortgage bond.
ExD6 : Certified copies of conversion order dated
25/1/2003.
Ex.D7 : Certified copy of order dated 15/1/2002 passed
in R.A.NO.59/2001-02 by the Assistant
Commissioner, Bengaluru North Sub Division.
Ex.D.8 : Certified copy of order passed in Revision Petition
No.133/2001-02 dated 11/10/2002 passed by
Special Deputy Commissioner, Bengaluru District.Ex.D.9 : Certified copy of order passed in Writ Petition
No.40025/2002 dated 31/7/2006 by the Hon’ble
High Court of Karnataka, Bengaluru.Ex.D10 : Certified copy of order passed in Civil Appeal
No.9542/2010 by Supreme Court of India.Ex.D.11 : Certified copy of partition deed dated 25/7/2002.
Ex.D.12&13: Two certified copies of sale deed dated
11/6/2004.
Ex.D.14 : Certified copy of gazette notification of
Government of Mysore.
Ex.D15 : Certified copy of sale deed dated 12/10/1916.
Ex.D16 : Certified copy of sale deed dated 14/6/1922.
Ex.D17 : Certified copy of order dated 10/7/2006 passed
in CCC No.568/2005.
Ex.D.18 : Certified copy of judgment passed in Writ Appeal
No.1479 clubbed with Writ Appeal No.1722/2007.
69 O.S.No.5331/2011Ex.D.19 : Certified copy of sale deed dated 17/3/1994
executed by plaintiff in favour of defendant No.19.Ex.D.20 : Certified copy of katha issued BBMP in favour of
defendant No.20.
Ex.D21to25 : Certified copies of tax paid receipts of defendant
No.19.
Ex.D.26 : Certified copy of genealogy.
Ex.D.27 : Receipt patta.
Ex.D.28 : Certified copy of Hissa Tippani.
Ex.D.29 : Certified copy of classification copy.
Ex.D.30 : Certified copy of sketch issued by ADLR,
Bengaluru North Taluk.
Ex.D31 : Certified copy of Hissa Tippani in Sy.No.19.
Ex.D32 : Certified copy of Hissa Tippani of Survey
No.19/1.
Ex.D.33 : Certified copy of Hissa Tippani of Sy.No.26.
Ex.D34 : Certified copy of Hissa Tippani No.22/6.
Ex.D.35 : Certified copy of Hissa Tippani of Sy.No.26/1
to 5.
Ex.D.36 : Atlas copy of survey No.26/1.
Ex.D.37 : Certified copy of atlas copy of Sy. No.23/7.
Ex.D38 : Certified copy of Hissa Tippani Sy.No.24/48.
Ex.D39 : Certified copy of Akar Bund for
Sy.No.19,22,23,24 and 26.
Ex.D.40 : Certified copy of Akar Bund for Sy.No.26,22,23
and 24.
70 O.S.No.5331/2011
Ex.D.41 : Certified copy of Akar Bund for Sy.No.19 and 26.
Ex.D.42 : Certified copy of MR No.2.
Ex.D.43 : Certified copy of MR No.43.
Ex.D.44 : Certified copy of MR No.17.
Ex.D45 : Certified copy of MR No.69 of 2003-04.
Ex.D.46 : Certified copy of MR No.9.
Ex.D.47 : Certified copy of MR No.7.
Ex.D.48 : Certified copy of MR No.17.
Ex.D.49 : Certified copy of MR No.5.
Ex.D.50 : Revenue paid receipts.
Ex.D.51 : Death certificate of mother of DW1.
Ex.D.52 : RTC for the year 2001-2020 of survey No.24/48.
Ex.D53 : RTC for the year 2001-2003 of Sy.No.22/6.
Ex.D.54 : RTC of Sy.No.22/6.
Ex.D.55 : RTC of Sy.No.23/7.
Ex.D.56 : RTC of Sy.No.26.
Ex.D.57 : RTC of Sy.No.26/5.
Ex.D.58 : RTC of Sy.No.26/1.
Ex.D.59 : RTC of Sy.No.26/2.
Ex.D.60 : RTC of Sy.No.26/3.
Ex.D.61 : RTC of Sy.No.26/4.
71 O.S.No.5331/2011
Ex.D.62 : RTC of Sy.No.26/5.
Ex.D.63 : RTC of Sy.No.19/2.
Ex.D.64 : RTC of Sy.No.19/1.
Ex.D.65 : RTC of Sy.No.19/5.
Ex.D.66 : RTC of Sy.No.19/4.
Ex.D.67 : Conversion order dated 28/11/2012 in respect of
Sy.No.19/1.
Ex.D68 : Conversion order dated 28/11/2012 in respect of
Sy.No.19/14.
Ex.D.69 : Conversion order dated 28/11/2012 in respect of
Sy.No.26/5.
Ex.D.70 : Conversion order dated 28/11/2012 in respect of
Sy.No.26/1.
Ex.D.71 : Certified copy of conversion order dated
25/1/2003.
Ex.D.72 : Certified copy of conversion order dated
24/1/2003.
Ex.D.73 : Certified copy of conversion order dated
25/1/2003.
Ex.D74 : Certified copy of atlas of Sy.No.19/1 to 18.
Ex.D75 : Certified copy of registered Will dated 8/6/2004.
Ex.D.76 : Memo dated 13/9/2004 issued by Jnanabharathi
police.
Ex.D.77 : Received copy of application dated 1/11/2003.
Ex.D.78 : Police acknowledgment dated 1/11/2003.Ex.D.79 : Received copy of petition dated 1/11/2003 issued
by Jnanabarathi police.
72 O.S.No.5331/2011
Ex.D80 : SPA dated 10/2/2022.
Ex.D81 : Certified copy of mortgage deed dated 20/9/1934.
Ex.D82 : Certified copy of sale deed dated 12/9/1994.
Ex.D83 : Certified copy of redemption deed dated
19/3/1966.
Ex.D84 : Copy of agreement of sale dated 29/10/1946.
Ex.D.85 : Certified copy of sale deed dated 8/8/1948.
Ex.D86 : Certified copy of sale deed dated 25/11/2015.
Ex.D.87 : Encumbrance certificate dated 5/11/2020.
Ex.D88 : 'B' property extract.
Ex.D.89 : Two tax paid receipts.
Ex.D90&91 : Two tax paid receipts.
Ex.D92 : Electricity bill.
Ex.D93 : Water bill.
Ex.D94 : Demand Notice dated 4/8/2016.
Ex.D.95 : Application under Sajala scheme with sketch.
Ex.D96 : 4 photo copies.
ExD96(a) : CD of Ex.D96.
Ex.D97&98 : Two tax paid receipts.
Ex.D99 : Property register extract issued by BBMP.
Ex.D100 : Certified copy of registered sale deed dated
12/10/1914.
Ex.D100(a) : Typed copy of sale deed dated 12/10/1914.
73 O.S.No.5331/2011Ex.D.101 : Certified copy of proceedings of the government
i.e. Maharaja of Mysore.
Ex.D.102 : Certified copy of Mysore Gazette Notification
issued by the Revenue Department dated
7/3/2010.
Ex.D.103 : Certified copy of encumbrance certificate in
respect of Sy.No.24.
Ex.D104 : E-Sanje daily newspaper.
Ex.D105 : Certified copy of the RTI application.
Ex.D106 : Certified copy of registered power of attorney
dated 23/5/1996.
Ex.D107 : Certified copy of the Gift Deed dated 23/11/2012.
Ex.D108 : Certified copy of GPA dated 7/4/1987.
Ex.D109 : Certified copy of katha issued by Pattanagere
CMC dated 11/1/1999.
Ex.D110 : Certified copy of sale deed dated 14/12/2000.
Ex.D111 : Certified copy of License issued by Pattanagere
CMC dated 27/1/2000.
Ex.D112 : Certified copy of Katha certificate issued by BBMP
dated 9/3/2012.
Ex.D113 : Certified copy of House and vacant site register
extract dated 9/3/2012.
Ex.D114 : Certified copy of tax paid receipt dated 9/2/2012.
Ex.D115 : Certified copy of judgment in OS No.2047/2012,
Ex.D116 : Certified copy of Decree in OS No.2047/2012.
(Sirajuddeen A.)
XX ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
74 O.S.No.5331/2011
75 O.S.No.5331/2011
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