Bangalore District Court
Gopinath K.A vs Narayana on 28 March, 2025
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O.S.No.1946/2011
KABC010138252011
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU (CCH-28)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 28th day of March, 2025
O.S.No.1946/2011
Plaintiff: K.A. Gopinath,
S/o. Late Y.N. Abbaiah Reddy,
Aged about 49 years,
R/at No.98, 19th Cross,
C.V. Raman Nagar Post,
Kaggadasapura,
Bengaluru 560093.
(By Sri.N.J.R. Advocate)
V/s.
Defendants: 1. Narayana ,
S/o. Late Muniyappa &
Smt. Mallakka,
Aged about 57 years,
R/at Near Ashwatha Katte,
10th Cross, Mahadevapura Post,
Garudachar Palya,
Bengaluru 560 048.
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O.S.No.1946/2011
2. Rajanna @ Rajappa,
S/o. Late Muniyappa &
Smt. Mallakka,
Aged about 54 years,
R/at Opp. Government Primary School
& BBMP Ward Office,
C.V. Raman Nagara Post,
Kaggadasapura,
Bengaluru 560 093.
3. M. Srinivas,
S/o. Late Muniyappa &
Smt. Mallakka,
Aged about 50 years.
4. Mallakka,
W/o. Late Muniyappa,
Aged about 70 years.
Defendants 2 to 4 are r/at:
Near Srinidhi Bakery,
Ramanjaneya Layout
Garudachar Palya,
Bengaluru 560 048.
5. Kempamma,
W/o. Late Dodda Muniyappa,
Aged about 64 years.
6. D.Gowda,
S/o. Late Dodda Muniyappa &
Kempamma,
Aged about 56 years.
Defendants 5 & 6 are r/at :
No.759, 2nd Cross,
Domlur Layout,
Bengaluru 560 071.
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O.S.No.1946/2011
7. M/s. MAP Builders & Developers,
Partnership Firm, having its
Registered Office at No.73/1,
3rd Main Road, Vignana Nagara,
Bengaluru 560 075.
Represented by its Partners.
8. N.K. Mohan Raj,
S/o. K.T. Sridhar,
Aged about 55 years.
9. P. Purushotham Raju,
S/o. P. Kuppa Raju,
Aged about 36 years.
Defendants 7 & 8 are
Partners of M/s. MAP Builders
& Developers, situated at No.73/1,
3rd Main Road, Vignana Nagar,
Bengaluru 560 075.
10. Somashekar Reddy,
Father's name not known to the Plaintiff,
Aged about 45 years,
R/at No.32, Rama Temple Road,
New Thippasandra,
Bengaluru 560 075.
(D1, 3 to 5, 7 : Exparte
D2, 6 : By Sri. B.G.N.
D8, 9 : By Sri.R.S.K.
D10 : By Sri. K.R.P. Advocates)
Date of Institution of the suit 14/3/2011
Nature of the suit Declaration & other reliefs.
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O.S.No.1946/2011
Date of the commencement 28/11/2014
of recording of the Evidence.
Date on which the judgment
28/3/2025
is pronounced.
Year/s Month/s Days
Total duration 14 0 14
JUDGMENT
The Plaintiff has filed the present suit for the relief of
declaration to declare that the Plaintiff is the absolute owner of
B-schedule Property and to direct the Defendants No.1 to 6 to
deliver the possession of the B-schedule Property by
demarcating the boundaries as per the Registered Sale Deed
dated 10.07.1991 and further to declare the decree of Partition
dated 15/4/1997 obtained in O.S.No. 4029/1969 and final decree
dated 25/8/2003 in FDP No.72/1997 as illegal, void and to draw
preliminary decree directing the Defendant No.1 to pay the open
market value of the site with other consequential relief in respect
of Suit Schedule A & B Property. Suit Schedule A-property is
land measuring 1 acre 15 guntas of Sy.No. 73/1 of
Kaggadasapura village, K.R. Puram Hobli, Bengaluru East
Taluk, bounded on the East by Road, West by land belonging to
Thanisandra Muniswamappa, North by land belonging to
Krishnappa and South by land belonging to Kalappa. And B-
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O.S.No.1946/2011
schedule Property is a portion of A-schedule agricultural land
measuring 2.02 guntas and in feet East to West 80 feet, North to
South 30 feet, bearing Site No.26 & 27, bounded on the East by
Road, West by site No.28, North by site No.24 and South by
Road.
2. The brief facts of the case of the Plaintiff is that, Plaintiff is
the resident of Kaggadasapura and Defendant No.1 to 3 are
brothers being the sons of late Muniyappa and his wife
Mallakka, the 4th Defendant herein and that the Defendant No.6
is the son of 5th Defendant Kempamma and the 4th and 5th
Defendants are sisters being the daughters of late Papaiah and
late Ramakka, who had no male issues. The Defendant No.1 to
4 are the grand children of late Papaiah and late Ramakka. And
that the Defendant No.7 is a partnership firm and Defendant
No.8 and 9 are its partners. And that they are the builders and
developers who had entered into a Joint Development
Agreement with the Defendant NO.5 to develop the land
measuring 18.08 guntas in Sy.No. 73/1. And that the proposior
of the family of the Defendant No.1 to 5 namely Papaiah was the
permanent resident of Kaggadasapura village, who is said to
have demised in the year 1987 leaving behind his wife Ramakka
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O.S.No.1946/2011
and 2 daughters namely Kempamma and Mallakka, the 3 rd
Defendant herein as his legal heirs and successors to his estate.
Out of the immovable properties that is being 3 items of the
properties, devolved upon the children and grand children of
Papaiah.
3. It is also the case of the Plaintiff that, out of 3 Joint Family
lands, A-schedule Property as a propositor and manager of Joint
Family, Papaiah is said to have formed revenue sites and fixed
boundary stones to each revenue sites of different dimension for
the purpose of identification. And that, immediately after the
formation of revenue sites, before alienating the same, said
Papaiah is said to have died intestate leaving behind his wife,
daughters and grand daughters as his sold legal heirs and
successors. Plaintiff contends that thereafter by means of oral
partition the legal heirs of late Papaiah namely the mother, 2
daughters and their children are said to have divided the
ancestral Joint Family properties including A-schedule Property
amongst themselves. And that the 1st Defendant being the close
friend of the Plaintiff since their childhood, in view of the fact
that, they are the natives of the same village, insisted and
induced the Plaintiff to purchase the site from him by saying that,
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O.S.No.1946/2011
in the partition that took place amongst his family members, he
has got certain sites, for which a separate khata was given by
H.A. Sanitary Board as 150/1 and he had showed the copies of
Registered Sale Deeds which were executed by him and other
family members in favour of the 3 rd persons by selling their
respective sites fallen to their shares in A-schedule land in
partition along with rough sketch and layout plan.
4. It is also the case of the Plaintiff that, the 1 st Defendant is
also said to have shown the Sale Deeds executed by him and
his mother the Defendant No.4 and his grand mother Ramakka
to various purchasers. Plaintiff believing his words is said to
have visited the spot and agreed to purchase 2 adjacent
revenue sites bearing No.26 & 27 measuring 1.1 gunta each
measuring in feet as East to West 40 feet, North to South 30
feet each and in total it measures 2.2 guntas in feet East to
West 80 feet, North to South 30 feet with definite boundaries
from the 1st Defendant. Further it is contended by the Plaintiff
that the 1st Defendant would get the Registered deed as he has
executed the sale deeds to other purchasers. Since the 1 st
Defendant was a close friend of the Plaintiff, having immense
faith on him, believing his words, entrusted the work of execution
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O.S.No.1946/2011
of Sale Deed to the 1st Defendant. Accordingly, the 1st
Defendant herein got prepared the Sale Deed, executed and
Registered the Sale Deed before the concerned sub-registrar’s
office on 10.7.1991 and delivered the possession of the same to
the Plaintiff herein. And the original Sale Deed dated
10.07.1991 is also produced before the Court. Thus the 1 st
Defendant is said to have executed a Sale Deed in respect of
2.2 guntas of land measuring East to West 80 feet, North to
South 30 feet, out of A-schedule land.
5. And further it is also contended by the Plaintiff that, in the
Sale Deed the survey number is not mentioned since the 1 st
Defendant had misrepresented him on some other grounds and
further the Plaintiff also contends that Ramakka is said to have
sold to various persons, the Sale Deeds executed by 4th
Defendant Mallakka who also said to have sold several sites
fallen to her share to various purchasers. And similarly Certified
Copies of Sale Deeds executed by 1st Defendant herein the
vendor of the Plaintiff in favour of several other persons is also
produced.
6. It is the case of the Plaintiff that, the Sale Deeds, the
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O.S.No.1946/2011
different khata numbers were mentioned and the same
conversion order is also mentioned, separate site numbers and
boundaries are given to the site formed in A-schedule land and
for the sake of registration of Sale Deed, house number is also
mentioned. And further contended that, in pursuance to the
purchase of B-schedule Property, as per the aforesaid Sale
Deed, Plaintiff is in possession and enjoyment of the Property,
got the khatha transferred in his name through H.A.Sanitary
Board and paid taxes regularly. And thereby the Plaintiff has
been in continues possession and enjoyment of B-schedule
Property as its absolute owner. And this being the factual
situation, in the year 2005, the Defendant No.1 and 2 tried to
dispossess the Plaintiff from the Suit Schedule Property and
interfered with his possession. Therefore, the Plaintiff is said to
have filed the suit for the relief of Permanent Injunction in
O.S.No. 8714/2005 and wherein this Defendant remained ex-
parte, inspite of service of the summons. And in the Written
Statement the 2nd Defendant herein has contended that A-
schedule Property belong to the wife of late Papaiah and his 2
daughters and that they have filed a suit for partition in O.S.No.
4029/1989, which came to be decreed on 15.4.1997.
Accordingly the 1st Defendant has no manner of right, title,
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O.S.No.1946/2011
interest in respect of the same. And that A-schedule Property is
not converted land and there was no formation of sites,
boundaries and measurement and therefore the Plaintiff led his
evidence and the 2nd Defendant herein also led the evidence and
produced documents and after hearing both parties, the suit
came to be dismissed on 2/9/2010 on the ground that the title
deeds of the Plaintiff in respect of B-schedule Property was
seriously under dispute. And the questions of identity of the site
is also involved. Accordingly, the suit for injunction is not
maintainable.
7. It is further contended by the Plaintiff that, the legal heirs
of late Papaiah have got divided all their Joint Family properties
including A-schedule Property immediately after the demise of
Papaiah and sold the same in A-schedule to various persons
and that they have colluded among themselves and have filed a
suit for partition in O.S.No. 4029/1989 as if no partition is said to
have taken place. And that based upon collusive suit for
partition behind the back of its purchasers, the suit for partition
came to be decreed and a preliminary decree came to be drawn
as on 15.4.1997 in O.S.No. 4029/1989, which is a collusive
partition decree obtained by the Defendant and FDP No.997 is
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O.S.No.1946/2011
also filed,
8. It is also contended by the Plaintiff that the Defendant
based upon the said collusive decree have obtained the final
decree and are trying to remove the boundaries in respect of the
said Property. And that based upon the said final decree,
Defendants 1 to 6 have got their names effected in the said A-
schedule Property. And phoded the said Property into 73/1, 73/4
and 73/5. And that the names of Defendants No.1 & 4 are not
mutated as khatedars deliberately to avoid the purchasers from
getting the Sale Deed executed. And therefore on these and
other grounds the Plaintiff has approached this Court seeking
the above relief for declaration and setting aside the decree.
9. The 2nd Defendant has filed Written Statement and has
contended that the suit filed by the Plaintiff is a speculative one
and as such it is not maintainable and therefore the Plaintiff is
not entitled for any relief as sought for by the Plaintiff and that
the Plaintiff is an utter stranger to the Suit Schedule Property ,
having no right, title or interest and that there is no privity of
contract or any relationship of any kind between the Defendant
and the Plaintiff. And further without admitting the existence of
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O.S.No.1946/2011
Sale Deed dated 10/7/1991 as contended by the Plaintiff, the
Defendant has contented that the the said alleged documents
entered into to between himself and Defendant No.1 and on that
basis the possession is enjoyed is denied. And further it is
contended that no person can transfer a better title than what he
himself had in respect of a Property sought to be transferred.
And further contended that there is no existence of Property as
described in Schedule-B of the plaint and that the Plaintiff is not
in possession and enjoyment of the Suit Schedule Property and
that the Plaintiff cannot seek for the relief of declaration over the
schedule-B Property and that the suit is hopelessly barred by
limitation and that the Court fee paid is insufficient and that the
Plaintiff filed the suit for the relief of declaration of right, title and
possession over the Property and ought to have valued the suit
Under Section 24(b) r/w. Section 29(1), 38(1) and 1 of Karnataka
Court Fees and Suits Valuation Act, and that the Defendant No.2
has also contended that there is no cause of action to the suit.
10. However, admitted the fact that the Defendant No.5 had
filed a suit in O.S.No. 4029/1989 as against the 4 th Defendant
and Smt.Ramakka for Partition & Separate Possession of her
share in respect of Suit Schedule -A Property as well as other
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O.S.No.1946/2011
family properties. And that subsequent to the Preliminary
decree dated 15/4/1997, a final decree was passed in FDP
No.72/1997 as on 25/8/2003, thereafter the properties allotted to
each of them are said to have got allotted with new Sy.No. 73/1.
73/4, 73/5 respectively and in the said Decree, Ramakka had
got allotted with 18.04 guntas in the Suit Schedule Property.
But there was no necessity of mentioning the formation of layout
and selling the sites since there was no sites formed in Suit
Schedule-A Property at the time of filing the said partition suit
and since Ramakka, Mallakka or Kempamma are not at all
independent owners of the Suit Schedule – A Property, there
cannot be formation of layout or selling sites to the Plaintiff or
such other persons and that if at all there are any documents
pertaining to Schedule-B Property, those are created and
fabricated by the Plaintiff in collusion with the 1 st Defendant and
therefore contended hat no sites were formed or in existence of
in the B-schedule Property. And on these and other grounds the
2nd Defendant has further contended at para-28 that originally
lands in Sy.No. 73/1 measuring 1 acre 15 guntas, Sy.No. 123/1
measuring 1 acre 27 guntas and Sy.No. 120/2 measuring 6
guntas and residential premises bearing No.72/47/45 measuring
25×42 and 24×21 situated at Kaggadasapura village,
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O.S.No.1946/2011
K.R.Puram, Bengaluru South Taluk are the ancestral properties
of one Sri.Papaiah and that Papaiah by his wife Smt. Ramakka
had only 2 daughters namely Mallakka and Kempamma the
Defendant No.4 and 5 herein and that Papaiah died intestate
leaving behind himself, his wife Ramakka and the Defendant
No.4 and 5 to succeed to the estate and after the death of
Papaiah, the 5th Defendant had filed a suit against Ramakka and
4th Defendant in O.S.No. 4029/1989 for the relief of Partition &
Separate Possession and after enquiry into the matter, a
Judgment and decree was passed as on 15/4/1997, thereby the
properties were divided and in pursuance of the said preliminary
decree, Smt. Kempamma had initiated Final Decree
Proceedings in FDP No.22/1997 and thereby, Tahasildar,
K.R.Puram was appointed as Commissioner to effect the
partition and division of the said Property. And the Court
Commissioner surveyed and measured the Property and
marked the land fallen to each parties in terms of the decree and
as per the said final decree proceedings, Smt. Ramakka, 4 th
Defendant and 5th Defendant were put in possession of their
1/3rd share. And that the final decree proceedings ended in the
year 2003.
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O.S.No.1946/2011
11. It is also contended that during her lifetime Smt. Ramakka
is said to have bequeathed her share of properties to be allotted
in the aforesaid proceedings jointly in favour of her grand
children Defendant No.2 and 6 respectively herein through a
Registered Will dated 5/5/1995 and after the death of
Ramakakka, Defendant No.2 and 6 have been succeeded to the
share of deceased Ramakka and the revenue records are
mutated in their joint names and that they are in peaceful
possession and enjoyment of the properties as absolute owners
thereof including 18.04 guntas in Sy.No. 73/1, 73/5, which is
again part and parcel of A-schedule Property. And on these and
other grounds the this Defendant has specifically that Property
measuring 18.04 guntas in Schedule-A Property herein is said
to have been allotted to Smt. Ramakka in O.S.No. 4029/1989
and that the claim of the Plaintiff that he had purchased B-
schedule Property from the 1st Defendant would not arise.
Therefore on these and other grounds the 2nd Defendant has
sought to dismiss the suit.
12. Defendant No.7, 8 and 9 have also field their Written
Statement denying the entire plaint averments, the above
Defendants have contended that the Suit Schedule Properties
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O.S.No.1946/2011
are converted lands and that the Plaintiffs nor the other
Defendants are concerned with the said Property, measuring an
extent in Sy.No. 37 of Kaggadaapura to an extent of 1 acre 15
guntas, though the Plaintiffs claim to be the owner of extent 2.2
guntas in said Sy.No. 73 of Kaggadasapura and that it is highly
ridiculous that the Plaintiff claims to be the owner of 2.2 guntas.
And to seek an order not to develop or alienate the entire 1 acre
15 guntas of land. And that the Defendant No.8 and 9 have
developed converted land in Sy.No. 73/1, totally measuring
about 18.06 guntas by entred into a Joint Development
Agreement with one Kempamma, wife of late Doddamuniyappa,
which is admitted by the Plaintiff that he has not purchased any
land from Kempamma despite the same Plaintiff is seeking for
an order as against Kempamma and Defendant No.7, 8 & 9 in
respect of converted land developed by the said Defendant,
which is no way concerned to the Plaintiff or to the other
Defendants and denied the entire averments of the plaint casting
strict burden of proof upon the Plaintiff. These Defendants have
denied the entire plaint averments and sought to dismiss the suit
filed by the Plaintiff herein.
13. Defendant No.10 has also filed Written Statement denying
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O.S.No.1946/2011
the entire plaint averments of the plaint also contended that the
suit is bad for non joinder of proper and necessary parties and
suit is hit by the principles of resjudicata and it is also barred by
limitation and that the Court fee paid is insufficient and denying
the entire averments of the plaint, this Defendant No.10 has
contended that 1 acre 15 guntas of agricultural land in Sy.No.
73/1 and other properties belonged to one Papaiah and that the
said Papaiah is said to have died intestate leaving behind is wife
Smt. Ramakka and sisters Mallakka and Kempamma to succeed
to their estate. The joint owners were in possession of estate of
the aforesaid deceased and have been in joint possession
cultivating it as owners. One of the joint owners namely Smt.
Kempamma is said to have sought partition of her 1/3rd share in
O.S.No. 4029/1989 as against her mother and sister, which
came to be decreed as on 15/4/1997 and that the Sy.No. 73/1 of
Kaggadasapura village to an extent of 18.05 guntas of
agricultural land is said to have been allotted to Mallakka and
the revenue entries have been made over in her name on the
strength of the final decree passed in her favour and that it is
also the case of the Plaintiff that the said Mallakka and her
family members have sold their 1/3rd share in suit Sy.No. 73/1 of
Kaggadasapura village as an agricultural land to M. Srinivas as
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O.S.No.1946/2011
on 26/6/2018 and that he was paying taxes to the concerned
authorities by getting the revenue entries in his name. Thereafter
one M.Srinivas on 22/12/2008 is said to have sold 7 guntas of
land to this Defendant out of 18.05 guntas, which was assigned
bifurcated number as Sy.No. 73/4 and remaining extent was
retained by him. The said Defendant in a Registered Sale Deed
dated 7/5/2009 has admitted of the fact. And therefore the 1 st
Defendant is said to have become the owner to the entire extent
of 18.05 guntas of land which is mutated in the name of this
Defendant under M.R.No.12/2008-09 and M.R.6/2009010
respectively. Therefore, it is also contended that the Plaintiff
under conversion order dated 1/6/2011 has got his share to an
extent of 0.18.05 guntas of land converted from agricultural to
residential purpose. And that thereafter including the said land
in BBMP limits, the khata is said to have been mutated and
effected in his name in respect of Property bearing khata
No.16/73/4 and 16/73/6 having been allotted by the BBMP
authorities. And that these Defendants under L.P.No.63/2012-13
have sought the sanctioned plan or license, obtained and as
such commenced the construction as per the plan and license
obtained. The 1st Defendant is in possession of his 18.05 guntas
of converted land in Sy.No. 73/1, phoded, bifurcated as No.734
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O.S.No.1946/2011
and Sy.No. 73/6. Hence, on these and other grounds the
Defendant No.10 has sought for dismissal of the above suit.
14. Having perused the said pleadings of the parties, my
learned predecessor in office has framed the following issues :-
ISSUES
1. Whether the plaintiff proves that he became the
owner of the suit schedule property by virtue of the sale
deed dated 10.07.1991?
2. Whether the plaintiff proves that the decree of
partition dated 15.04.1997 passed in O.S.No.4029/1989
and FDP No.72/1997 dated 26.08.2003 are not binding
on him?
3. Whether the defendants prove that one Smt.
Ramakka bequeathed her share in favour of defendants
2 to 6 under the registered Will dated 05.05.1995 as
such, they became the owners of the suit schedule
property?
4. Whether the suit is barred by law of limitation?
5. Whether the plaintiff is entitled for the reliefs as
sought for?
6. What order or decree?
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Additional Issue :
1. Whether the valuation for the purpose of the Court
fee and jurisdiction is not proper and correct?
(This issue is treated as preliminary issue)
RECASTED :
The Additional Issue No.1 above is recasted as follows in
pursuance of the order dated 3/2/2022 passed by the
Hon’ble High Court of Karnataka in WP No.31369/2016
and only the issue regarding jurisdiction is ordered to be
tried as preliminary issue.
1. Whether the valuation made by the Plaintiff for the
purpose of Court fee is correct?
2. Whether this Court has jurisdiction to try this suit.
(Issue No.2 shall be treated as preliminary issue)
15. In order to substantiate the above said issues, the Plaintiff
one K.A. Gopinath and Prakash R. are examined as P.W.1 and
2. And got marked Ex.P1 to P73 documetns. Per contra, the
Defendant has examined himself as DW.1 and got marked
Ex.D1 to D38.
16. Accordingly having heard the Learned Counsel for the
Plaintiff and also the Defendants, and perused the materials
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O.S.No.1946/2011
prima-facie available on record. My findings to the above
Issues are as under :
Issue No.1 .. In the Negative
Issue No.2 .. In the Negative
Issue No.3 .. In the Affirmative
Issue No.4 .. Barred by time
Issue No.5 .. Plaintiff is entitled to the partial
relief as per prayer No.(d),
Addl. Issue No.1 .. Insufficient
Addl. Issue No.2 .. This Court has jurisdiction
to try the suit.
Issue No.6 .. As per final order, for the following:
REASONS
17. Additional issue No.2 (Preliminary issue) : Having
discussed the above facts of the case, it is crucial to note that
there was an observation by the Hon’ble High Court of
Karnataka in W.P.No.31369/2017 filed by the present Plaintiff
K.A. Gopinath as against Narayana and others ie., the present
Defendants in this case, whereby the Plaintiff has challenged the
order passed by this Court dated 1/4/2017 passed on I.A.No.8 in
the present case in hand, whereby there was a direction to this
Court by the Hon’ble High Court of Karnataka to try the
jurisdiction issue as preliminary issue. Thereby the trial Court
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O.S.No.1946/2011
ie., present Court was directed to treat jurisdiction issue as
preliminary issue. In furtherance of the said directions of the
Hon’ble High Court of Karnataka in the above Writ Petition,
Plaintiff has filed a Memo dated 26/7/2024, whereby the Plaintiff
has relied upon one document to show that, the Suit Schedule
Property falls within the jurisdiction of this Court. The Suit
Schedule Properties are falling within the BBMP limits. In this
regard, the Plaintiff has produced the latest tax paid receipt and
the khata certificate, house list extract for the year 2019-2020
and again another tax paid receipt.
18. The Suit Schedule Property is the agricultural land
measuring 1 acre 15 guntas situated in Sy.No. 73/1 of
Kaggadasapura village, K.R. Puram Hobli, Bengaluru East
Taluk, bounded on the East by Road, West by land belonging to
Thanisandra Muniswamappa, North by land belonging to
Krishnappa and South by land belonging to Kalappa. And B-
schedule Property is a portion of A-schedule agricultural land
measuring 2.02 guntas and in feets East to West 80 feet, North
to South 30 feet, bearing Site No.26 & 27, situated at obviously
at Kaggadasapura village, K.R. Puram Hobli, Bengaluru East
Taluk. In this regard, the Plaintiff by virtue of the said Memo has
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O.S.No.1946/2011
produced the tax paid receipt and also produced Ex.P55 and
Ex.P56 and 57, which is the RTC, wherein the Property bearing
Sy.No. 73/1 measuring 18.08 guntas of Property as on
13/12/2010 is situated at Kaggadasapura village, falling within
the Bengaluru East Taluk of Varthur Hobli. Therefore, this
document goes to show that the Suit Schedule Property falls
within the territorial jurisdiction of this Court and there is no
impediment for this Court to proceed with the case in hand.
Accordingly the preliminary issue relating to jurisdiction, which is
casted upon the Plaintiff is answered in the Affirmative, holding
that this Court has got territorial jurisdiction to try the above case
in hand.
19. In furtherance of the said objections raised by the
Defendant relating to jurisdiction the Plaintiff has filed a memo
dated 26/7/2024 and produced documents with regard to
jurisdiction obtained under RTI from the City Civil Court,
whereby the Public Information Officer and Assistant Registrar
City Civil Court, vide their information dated 23/7/2024 have
answered the question as under :
“As per notification No.LAW247LCE80 Bengaluru dated
10.11.1980, Kaggadasapura village, K.R.Puram,
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O.S.No.1946/2011Bengaluru East Taluk, Bengaluru comes under the
territorial jurisdiction of this Hon’ble City Civil & Sessions
Judge Court, Bengaluru”.
20. So, this information as well as the Notification annexed
with this document and the information provided by the Public
Information Officer under the RTI Act, the Plaintiff has
established that this Court has got jurisdiction to try the case. As
such, noting the same that this Court has jurisdiction to try this
matter, the matter is proceeded with the Judgment.
21. In furtherance of my findings to the Additional issue No.2,
I proceed to pass Judgment in relation to the other issues
relating to the main matter.
22. Issue No.1 : This Issue No.1 is upon the Plaintiff to prove
that he has become the absolute owner of the Suit Schedule
Property by virtue of Sale Deed dated 10/7/1991.
23. In this regard, as discussed supra, the Plaintiff has
examined himself ie., A.K. Gopinath has examined himself as
P.W.1 and has reiterated the plaint averments. In the
examination-in-chief Affidavit, it is contended that Defendants
Dr.
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O.S.No.1946/2011
No.1 to 3 are brothers and sons of of late Muniyappa and his
wife Mallakka, the 4th Defendant herein and as far as the
Defendant No.6 is concerned, he is the son of 5 th Defendant
Smt.Kempamma and the 4th and 5th Defendants are the sisters
and daughters of late Papaiah and late Ramakka, who had no
male issues and Defendant No.2, 3 and 4 are grand children of
late Papaiah and late Ramakka, and have produced G.Tree to
that effect. Whereby Papaiah is said to have demised in the year
1987 and he has got one wife by name Ramakka and both
Papaiah and Ramakka in turn have got 2 daughters namely
Kempamma, the Defendant No.5 and Mallakka, the Defendant
No.4. And Kempamma is represented by one Doddamuniyappa
as her son and one D.Gowda, the Defendant No.6 and
Muniyappa and Mallakka are reflected who is said to have had
3 sons namely Rajanna, the Defendant No.2. Narayana, the
Defendant No.1 and M. Srinivasa the Defendant No.3 as shown
in the affidavit annexed to the said I.A.
24. It is also the case of the Plaintiff that Defendant No.7 to 9
are the builders and developers who are said to have entered
into a Joint Development Agreement with the Defendant No.5
and 6 to develop the land measuring 18.08 guntas in
Dr.
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O.S.No.1946/2011
Sy.No.73/1. And that it is also the case of the Plaintiff that
Papaiah was the permanent resident of Kaggadasapura village,
and he died intestate 1987, leaving behind his wife Ramakka
and 2 daughters namely Kempamma and Mallakka, the 3 rd
Defendant herein as his legal heirs and successors to his estate.
And therefore the land measuring 1 acre 15 guntas in
Sy.No.No.73/1, land measuring 6 guntas in Sy.No. 120/2 and
land measuring 1 acre 27 guntas in Sy.No. 123/1 and a
residential house were devolved up on Papaiah and his children
and grand children.
25. It is also reiterated by the Plaintiff that, Papaiah was
looking after the affairs of all the Joint Family properties and
formed sites in the said Joint Family in land measuring 1 acre 15
guntas in Sy.No. 73/1. So far as this contention of the Plaintiff is
concerned, it is crucial to note that the Plaintiff has filed the
present suit in respect of Property measuring 1acre 15 guntas
which is the A-schedule Property having Sy.No. 73/1, bounded
on the East by road, West by land belonging to Muniswamappa
of Tanisandra, North by land belonging to Krishnappa and South
by land belonging to Kalappa and B-schedule Property is the
portion of A-schedule agricultural land measuring 0 acres 2.2
Dr.
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O.S.No.1946/2011
guntas and measuring East to West 80 feet, North to South 30
feet, bearing site No.26 and 27 bounded on the East by Road,
West by site No.28, North by site No.24 and South by Road.
26. Issue No.1 is upon the Plaintiff to prove that he has
become the absolute owner of the Suit Schedule Property by
virtue of the Sale Deed 10/7/1991. In this regard, as discussed
supra, the Plaintiff by name K.A. Gopinath has reiterated the
plaint averments and examined himself as P.W.1. In the affidavit
annexed to the said evidence affidavit he has contended that
initially the family of Papaiah who is said to have demised in the
year 1987 is said to have succeeded by his wife Ramakka, and
2 daughters Kempamma and Mallakka, the Defendant No.4 and
5 herein and that the Defendant No.5 Kempamma had a
husband by name Doddamuniyappa and one D.Gowda as one
of the issues and per contra the Defendant Mallakka, the
Defendant No.4 had a husband Muniyappa and that she had 3
issues namely the Defendant No.1 to 3 Narayana, Rajanna and
Srinivas herein and that the Defendant No.6 to 8 are the builders
and developers who had entered into Joint Development
Agreement with Defendant No.5 in respect of land bearing
Sy.No.73/1 of Kaggadasapura village measuring 18.08 guntas
Dr.
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O.S.No.1946/2011
and that the propositus of the family of Defendant No.1 to 5 Sri.
Papaiah was a permanent resident of Kaggadaspura, and that
after his demise, Ramakka, Kempamma and Mallakka are said
to have succeeded to the immovable Property bearing land
measuring 1 acre 15 guntas in Sy.No. 73/1, land measuring 6
guntas in Sy.No. 120/2, and land measuring 1 acre 27 guntas in
Sy.No. 123/1 and a residential house situated at Kaggadasapura
village, Bengaluru. And that said Papaiah towards maintenance
of the Joint Family and also towards legal necessity is said to
have formed sites in Sy.No. 73/1 to an extent of 1 acre 15
guntas and before alienating the same, Papaiah is said to have
demised and the Defendants are said to have succeeded to the
estates of the said late Papaiah. And accordingly the 2
daughters and their children namely Kempamma and Mallakka
are said to have divided the said Property which is A-schedule
Property and the sites formed therein. Defendant No.1
Narayana is said to be grandson of late Papaiah and also the
close friend of the Plaintiff who is said to have induced the
Plaintiff to purchase the site from him on the contention that
there is a partition which is taken place in the family members
and that he has got certain sites towards his share and thereby
he has shown few Registered Sale Deeds which were executed
Dr.
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O.S.No.1946/2011
by him and other family members in favour of third persons. And
he has also showed few documents which is one khata which is
standing in the name of Ramakka in respect of khata No.146/2
and one khata in respect of 147/1 in the name of Mallakka. And
the khata in the name of Defendant No.1 in respect of 150/1 and
he has also produced rough sketch of the layout plan to the
Plaintiff which is said to have been approved by way of a
conversion order passed by the Tahasildar. It is also his
contention that initially the 1st Defendant is said to have taken
the Plaintiff to A-schedule Property and shown him the sites that
were formed and the boundary stones that were fixed to each
site. Therefore believing his words, the Plaintiff is said to have
agreed to purchase 2 adjacent sites namely site No.26 and 27
measuring East to West 40 feet, North to South 30 feet and
totally measuring East to West 80 feet and North to South 30
feet from the 1st Defendant herein. And also the 1st Defendant is
said to have undertaken to get the Sale Deed prepared and get
the said Registered in his favour and that he has not entered
into any Agreement of Sale with other purchasers. Believing his
words, the Plaintiff is said to have entrusted the work of
execution of Sale Deed and that he has done the same job with
regard to other purchasers. And accordingly the 1st Defendant is
Dr.
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O.S.No.1946/2011
said to have prepared a Sale Deed, executed a Registered Sale
Deed in his favour as on 10/7/1991, which is said to be the
Registered document.
27. And the Plaintiff also claims that the possession of the
said 2 sites are said to have been standing in the name of the
Plaintiff and that the original Sale Deed to that effect is produced
by the Plaintiff and based upon the same, the Plaintiff claims his
title in respect of the suit schedule-B Property which is site
No.26 and 27. It is also the case of the Plaintiff that based upon
the said Sale Deed dated 10/7/1991 the Plaintiff is said to have
become the absolute owner and is in possession and enjoyment
of the Suit Schedule Property and that he is paying taxes to
H.A.Sanitary Board, which is said to have assigned a new khata
number to B-schedule Property which is site No.150/1B.
28. It is also the case of the Plaintiff that, in the year 2005,
Defendant No.1 and 2 is said to have tried to dispossess the
Plaintiff from the Suit Schedule Property and therefore the
Plaintiff is said to have filed a suit in O.S.No. 8714/2005. And
further in the present suit the Defendant is said to have filed his
Written Statement whereby the Defendants have contended that
Dr.
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O.S.No.1946/2011
the wife and daughters of late Papaiah are said to have filed a
suit in O.S.No. 4029/1989 which is said to have been decreed
on 15/4/1997 and that the 1 st Defendant has no manner of right,
title, interest to sell the said Property. Therefore in this regard
the Plaintiff is said to have approached this Court.
29. In order to substantiate his claim, it is crucial to note
whether as on the date of execution of the Sale Deed by
Defendant No.1 in favour of the Plaintiff, whether the Defendant
No.1 had any right, title, interest in respect of execution of a Sale
Deed in favour of the present Plaintiff herein. In this regard, the
documents relied by the Plaintiff will have to be looked into.
30. Having perused the said documents, the crucial aspect is
upon the Plaintiff to prove that he has become the absolute
owner of Suit Schedule Property by virtue of Sale Deed dated
10/7/1991 and also with the decree dated 15/4/1997 passed in
O.S.No. 4029/1989 and FDP No.72/1997 dated 26/8/2008 is not
binding upon him. Having perused the same, the crucial
document would be Sale Deed dated 10/7/1991. Therefore,
Ex.P26 is the said deed which needs a careful appreciation. It is
a Sale Deed dated 10/7/1991 executed by Narayana in favour of
K.A. Gopinath, the present Plaintiff herein. The recitals of the
Dr.
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O.S.No.1946/2011
said document needs a careful appreciation. It is recited that the
vendor is the absolute owner of the Suit Schedule Property
bearing Site No.26 and 27 of HASB khatha No.150/1 situated at
Kaggadasapura village, K.R.Puram, and that the khata of the
suit Property is also standing in the name of the vendor and the
vendor is also paying taxes to the said Property. Therefore, the
Plaintiff will have to establish that as on the date of execution of
the said Sale Deed, the khata was standing in the name of
Plaintiff’s vendor namely Narayana. Ex.P54 is the Mutation
Register No.9/2010, wherein the Sy.No. 73/1 is standing in the
name of Kempamma w/o Late Doddamuniyappa, and 73/5 is
standing in the name of D.Gowda Bin Kempamma, Rajappa Bin
Mallakka, to an extent of 18.08 guntas and 18.04 guntas as on
24/10/2009. Ex.P55 is another mutation No.6/2008-09 which is
the continuation of Ex.P54. Ex.P56 is the RTC in respect of
Sy.No. 73/1, for the year 2010-11 reflects the name Kempamma
in column No.9 and 12 as well. The kabjadhar column ie.,
possessor column at Column No.10 reflects vide
M.R.No.9/2009-10 on the basis of partition ie., ವಿಭಜನೆ as on
24/10/2009 the said name of Kempamma W/o.Dodda
Muniyappa is reflected. Ex.P57 is another RTC in respect of
Property bearing Sy.No. 73/4 for the year 2010-11 reflecting the
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O.S.No.1946/2011
name M. Srinivas. Again at column No.10 reflects of ವಿಭಜನೆ
dated 13/1/2009. Ex.P58 is another RTC standing in the joint
name of D. Gowda Bin Kempamma, Rajanna Bin Mallakka to an
extent of 0.18.04 guntas on the basis of ವಿಭಜನೆ vide
M.R.No.9/2009-10 dated 24.10.2009 in respect of Property
bearing Sy.No. 73/5.
31. As discussed supra, the Suit Schedule Property is the
Property bearing Sy.No. 73/1. As per Ex.P26, A.K. Gopinath the
Plaintiff herein is said to have acquired the Property as on
10/7/1991 which is site No. 26 and 27 formed in HASB Khata
No.150 of Kaggadasapura village. In order to show that the
sites No.26 and 27 of HASB Khata was standing in the name of
this Plaintiff’s vendor is concerned, no document is placed on
record by the Plaintiff.
32. In order to substantiate the same, as discussed supra, the
Plaintiff has reiterated the plaint averments and got marked
Ex.P1 to P73 documents. Ex.P1 is the certified copy Sale Deed
dated 2/4/1990, which is an absolute Sale Deed, Ex.P2 is
another deed dated 27/11/1989. Ex.P3 is another deed dated
3/7/1989, Ex.P4 is another deed dated 3/7/1989. Likewise,
Dr.
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O.S.No.1946/2011
Ex.P6 is a deed in favour of Shivakumar B.N. as on 27/11/1989.
Ex.P8 is another deed dated 25/10/1989, Ex.P9 is another deed
dated 13/9/1989, Ex.P10 is another deed dated 13/9/1989,
Ex.P11 is the deed dated 31/7/1989, Ex.P12 is another deed
dated 30/9/1981. Ex.P13 is another deed dated 14/6/1989.
Ex.P15 is another deed dated 30/11/1989. Ex.P16 is another
deed dated 30/9/1989, which is the Sale Deed. Ex.P17 is the
certified copy of a Sale Deed dated 31/7/1989. Ex.P18 is the
deed bearing No.03056305 of the year 1/9/1990. Ex.P19 is
another deed dated 18/9/1989. Ex.P20 is another deed dated
1/6/1990. Ex.P21 is another deed dated 9/4/1980. Ex.P24 is
the certified copy of another deed dated 1/12/1989. Ex.P25 is
another certified copy of Sale Deed dated 5/10/1990. Ex.P26 is
the deed of absolute sale made and executed at Bengaluru on
10/7/1991 entered into between Narayana S/o. Late Muniyappa,
in favour of its vendor, A.K.Gopinath S/o. Y.N. Abbaiah Reddy.
Ex.P27 is the encumbrance certificate, Ex.P28 is the tax paid
receipt, Ex.P29 is again a challan for having paid the tax.
Ex.P29 to 35 are the tax paid receipts. Ex.P36 is the plaint in
O.S.No. 8714/2005. Ex.P37 is certified copy of Written
Statement in O.S.No. 8714/2005. Ex.P39 is another deed dated
4/8/1989. Ex.P39 is the Judgment in O.S.No. 8714/2005 filed by
Dr.
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O.S.No.1946/2011
Gopinath as against Narayana and Rajanna. Ex.P42 is the
orders in I.A.No.1 under Order 39 Rule 1 and 2 of C.P.C. and
likewise the documents are relating to the proceedings in
O.S.No. 4029/1989. Ex.P56 and 57 are the RTCs, so also
Ex.P58 standing in the names of one D.Gowda Bin Kempamma,
Rajappa Bin Mallakka to a extent of 18.04 guntas. Ex.P59 is the
Joint Development Agreement entered into between
Kempamma and M/s. MAP Builders and Developers. Ex.P61 to
67 are the photographs and CDs of the same are produced as
Ex.P68, 69 & 70 and 71. Ex.P72 is the receipt for having
secured the copies of the said photographs. Ex.P73 is the
registration certificate of a vehicle bearing No.KA-03-MP-5274.
33. The Defendant who has reiterated the Written Statement
averments has relied upon Ex.D1 to D38 documents, which
consists of plaint and Written Statement filed in O.S.No.
8714/2005, Judgment and decree and order sheet in the said
suit, documents produced in the said suit etc., including the
Ex.D27 to 29 consisting of photographs.
34. Before discussing the documentary evidence of
Defendant, the burden is upon the Plaintiff to prove as to the title
Dr.
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O.S.No.1946/2011
accrued in his favour. It is crucial to note that this Plaintiff has
filed the suit in O.S.No. 14/2005 as on 2/9/2010, which came to
be dismissed as on 2/9/2010, whereas the suit for Partition is
filed by Smt.Kempamma as against Ramakka and Mallakka, in
the year 1989, which suit is decreed in favour of the said
Defendants herein as on 15/4/1997. In the said suit 1/3rd share
is been allotted to Kempappa, Defendant No.5 herein and 1/3rd
share is been allotted to Ramakka, the wife of Papaiah and
1/3rd share is allotted to Mallakka, daughter of said Papaiah.
The Defendant No.1 herein is the son of Mallakka. Therefore,
the Plaintiff who has approached this Court for the relief of
declaration will have to establish that, as on the date of
execution of Sale Deed in favour of the present Plaintiff,
Narayanana ie., Defendant No.1 had a title in respect of the suit
schedule sites so as to execution of the same in favour of the
present Plaintiff herein. Whereas except for the documents
produced by the Plaintiff with regard to the Sale Deed and the
documents Ex.P1 to P70, the Plaintiff has failed to establish his
title through Defendant No.1 Narayana. Further the Judgment
and decree in respect of the suit filed by the present Plaintiff also
goes to show that the suit in O.S.No. 8714/2005 filed by the
present Plaintiff for the relief of Permanent Injunction itself was
Dr.
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O.S.No.1946/2011
dismissed, since the Plaintiff had failed to establish his title,
much less the possession. Therefore, the burden is crucial upon
the Plaintiff to establish that as on the date of execution of a
Sale Deed in favour of the Plaintiff herein, Narayana had any
title in respect of the Suit Schedule Property, and the site Nos.26
and 27 were formed during the lifetime of said Papaiah and that
the said Property ie., suit schedule sites had fallen to the share
of Narayana through his mother Mallakka. Whereas on the
other hand, the Plaintiff has produced document to show the title
of Kempamma. Therefore, categorically the Plaintiff has
admitted that Suit Schedule Property fell to the share of
Kempamma. And that before the Defendant No.1 had executed
a Sale Deed in favour of the present Plaintiff herein, there was
already a suit pending which was filed in the year 1989 itself by
the Defendant No.5 Kempamma as against her mother and
sister herein. Therefore, the Sale Deed dated 10/7/1991
executed by Defendant No.1 in favour of the Plaintiff herein was
a pendente-lite transaction, which is also bared Under Section
52 of Transfer of Property Act. Therefore, neither the Defendant
No.1 had any absolute title to alienate the said Property in
favour of the present Plaintiff since the said transaction between
the Plaintiff and the Defendant No.1 was during the pendency of
Dr.
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O.S.No.1946/2011
suit in O.S.No. 4029/1989 and the same is hit by the provisions
of Section 52 of the Transfer of Property Act. Therefore, Plaintiff
has failed to prove issue No.1 which is casted upon him.
Accordingly issue No.1 stands answered in the Negative.
35. Issue No.2 : This issue is upon the Plaintiff to prove that
the decree of Partition dated 15/4/1997 passed in O.S.No.
4029/1989 and FDP No.72/1997 dated 26/8/2003 are not
binding on him. In order to establish this clam, Plaintiff has no
doubt produced Ex.P1 to P73, of which document, Ex.P41 to
53 needs a careful appreciation, whereby the suit of the
Defendant No.5 by name Kempamma, who had filed a suit as
against Ramakka, Mallakka and one Yashodamma is decreed
as on 15/4/1997. Whereby the Plaintiff and Defendant No.1 & 2
were allotted with 1/3rd share in the Suit Schedule Property and
Plaintiff Kempamma was entitled for 1/3rd share in all the suit
schedule item by metes and bounds and also she was entitled to
the possession by way of separate possession to an extent of
1/3rd share.
36. It is also crucial to note the Defendant’s documents. The
Defendant one D.Gowda ie., son of Kempamma has examined
Dr.
39
O.S.No.1946/2011
himself as D.W.1 and has reiterated the entire Written Statement
averments, wherein he has contended that the land bearing
Sy.No. 73/1 measuring 1 acre 15 guntas originally belonged to
his grandfather Papaiah and after the death of Papaiah, his
mother the Defendant No.5 had filed a suit in O.S.No.
4029/1989 against the 4th Defendant and his grandmother
Ramakka for Partition & Separate Possession and whereby the
said suit came to be decreed and Final Decree Proceedings
FDP No.72/1997 was also decreed as on 25/8/2003 and
thereafter the properties were allotted with new new numbers
ie., 73/1, 73/4 and 73/5 respectively and in the said decree,
Ramakka was allotted with 18.04 guntas in Suit Schedule
Property and that said Ramakka had bequeathed her share of
Property in favour of the Defendant No.2 and himself through a
Registered Will dated 11/1/1995 and that after the demise of
Smt. Ramakka, he has succeeded to the said Property.
Whereby the Defendant has relied upon Ex.D4 and 5 which is
the certified copy of FDP decree in FDP No.72/1997, whereby
as per the final decree proceedings ie., Ex.D5, Kempamma is
allotted a portion of item No.1 of Suit Schedule Property ie., land
bearing Sy.No. 73/1 measuring 18.66 guntas in HAA which is
marked in blue colour and a portion of item No.1 of schedule
Dr.
40
O.S.No.1946/2011
land bearing Sy.No.120/2 measuring 2 guntas and item No.3 to
an extent of 1 guntas. And further land bearing Sy.No. 73/1 out
of 1 acre 15 guntas is also reflected. Ex.D6 is the mutation
bearing No.18/2002-03 wherein 1 acre 15 guntas is allotted by
way of Final Decree Proceedings extent of 18.6 guntas is
allotted to the share of Kempamma, 18.05 guntas is allotted to
the share of Ramakka, W/o. Late Papaiah and 18.05 guntas is
allotted to the share of Mallakka D/o. Papaiah. And likewise out
of 6 guntas of Property, 2 guntas each is allotted in favour of
Kempamma, Ramakka and Mallakka. And out 1 acre 27 gunts,
22.05 guntas and 22.06 guntas and 22.05 guntas are
respectively allotted to the share of Kempamma, Ramakka and
Mallakka. Likewise the Defendant has placed RTCs standing in
the individual names of the said Ramakka, Kempamma and
Mallakka. Ex.D12 is the Registered Will dated 5/5/1995
executed by Smt. Ramakka, D.Gowda and D. Rajappa in
respect of Property bearing Sy.No. 73/1 out of 1 acre 15 guntas
and Sy.No. 123/1 out of 1 acre 27 guntas and Sy.No. 120/2 to an
extent of 6 guntas and house Property bearing khata
No.72/47/45 measuring 25×42 is concerned, she has executed
the said Will. Said D.Gowda is said to have filed a suit in
O.S.No. 8321/2018 as against Rajappa, Jayamma, Pushpavathi
Dr.
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O.S.No.1946/2011
and R. Shilpa on the basis of the said Will, accordingly the same
is been compromised and the Property is allotted as per Ex.D13
by way of a compromise petition, wherein A-schedule is fallen to
the share of D.Gowda to an extent of 9.192 guntas ie.,
10009.881 Sft., in Property in Sy.No. 73 which is old No.73/1.
And the remaining extent of 12011 Sft., of land in Sy.No. 123/1 is
allotted to the share of the Defendants 1 to 4 therein.
37. This being the case, the Defendant has placed materials
to show as to how he has acquired the title to the said Property
by way of a partition as well as by way of a Will executed by his
grandmother and accordingly compromise effected in his favour.
Thereby the burden is upon the Plaintiff to establish as to how
the said partition and the FDP proceedings are not binding upon
him. In the case in hand, though there was a suit existing as on
the date of Plaintiff having filed a suit for the relief of Permanent
Injunction, the suit filed by the Defendant No.5 Kempamma in
respect of the Partition & Separate Possession was in
subsistence. Therefore, the present Plaintiff should have
challenged the said proceedings or he should have got himself
impleaded as purchaser pendente-lite. But no such attempt is
made by this Plaintiff. Therefore, though the Plaintiff was aware
Dr.
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O.S.No.1946/2011
of the said suit, which fact in the Written Statement the
Defendants have taken a contention of the said suit being filed
by Kempamma as against Ramakka and Mallakka. Inspite of
which the present Plaintiff has not challenged or got impleaded
in the said proceedings. And further it is also crucial to note that
the Defendant has not led any counter evidence to show that the
said partition or the said compromise or the said FDP
proceedings were brought about between the Plaintiff and the
Defendants to defraud the Plaintiff herein. As such, the
contention raised by the Plaintiff that the Partiton & Compromise
or FDP as not binding upon him cannot be accepted. Therefore,
this issue needs a negative finding holding that the Plaintiff has
not established that the said Final Decree Proceeding decree
was obtained by the Defendant No.5 and amongst her family
members and FDP proceedings initiated are based upon the
said preliminary decree was not binding upon the Plaintiff herein.
Accordingly this issue No.2 stands answered in Negative.
38. Issue No.3 : This issue is upon the Defendant to prove
that one Smt. Ramakka bequeathed her share in favour of
Defendants No.2 to 6 under a Registered Will dated 5/5/1995,
as such they have become the absolute owners of the Suit
Dr.
43
O.S.No.1946/2011
Schedule Property. In this regard the Defendants have
produced Ex.D1 to D38 documents. The crucial document that
needs an appreciation for the adjudication of this issue is Ex.D2,
which is Judgment in O.S.No. 4029/1989 which is the document,
whereby the suit filed by Kempamma as against Ramakka,
Mallakka came to be decreed, whereby 1/3rd share was allotted
to Ramakka, the grandmother of this Defendant as well. Ex.D3
is the preliminary decree in O.S.No. 4026/1989. Ex.D4 is the
FDP petition filed by Kempamma as against Ramakka and
Mallakka and one Yashodamma as well, and vide Ex.D5 the
share is allotted to this Ramakka by virtue of Ex.D5 the
proceedings in FDP No.72/1997 and the khata is also mutated in
the name of the said Kempamma, Ramakka and Mallakka vide
Ex.D6, D7 and D8 to 11 documents are the RTCs reflecting the
said transactions. Ex.P12 is the said certified copy of the Will
dated 5/5/1995, wherein the said Ramakka has contended in the
said Will that it is D.Gowda and Rajappa are the only persons
who are her grandsons who are taking care of her and she has
also stated of her daughter Kempamma having filed a suit,
which fact is hereby culled out hereunder :
” ನನ್ನ ಕಾಲಾನಂತರ ಶೆಡ್ಯೂ ಲ್ ನಲ್ಲಿ ತೋರಿಸಿರುವ
Dr.44
O.S.No.1946/2011ಆಸ್ತಿ ಯಲ್ಲಿ ನನಗೆ ಬರಬೇಕಾದ 1/3 ಭಾಗವನ್ನು ಮೇಲೆ
ತಿಳಿಸಿರುವ ನನ್ನ ಮೊಮ್ಮ ಕ್ಕ ಳಾದ ಡಿ. ಗೌಡ ಮತ್ತು ರಾಜಪ್ಪ
ನವರು ಸ್ವಾ ಧೀನಕ್ಕೆ ತೆಗೆದುಕೊಂಡು ಖಾತೆಯನ್ನು ಅವರವರ
ಹೆಸರಿಗೆ ಮಾಡಿಸಿಕೊಂಡು ಅನುಭವಿಸಿಕೊಂಡು ಬರಬೇಕೆಂದು
ಇಲ್ಲಿ ತಿಳಿಸುತ್ತೆ ೕನೆ .”
39. Therefore, 1/3rd share of Ramakka is bequeathed in
favour of D.Gowda and Rajappa. Ex.D13 is a compromise
petition based upon the suit filed by D. Gowda, the present
Defendant herein in O.S.No. 8381/2018 as against Rajappa,
Jayamma and Pushpa and Shilpa. Wherein the parties to the
same have effected a compromise on the basis of the said Will
executed by said Ramakka.
40. One of the Defendant by name D. Gowda has examined
himself as D.W.1 ie., the present Defendant has examined
himself as D.W.1. However, he has not examined the attesting
witnesses to the said Will executed by said Ramakka. But the
Defendant No.6 has filed a suit based upon the said Will
executed by Ramakka, which came to be compromised between
the present Defendant No.6 and Rajappa and other legal heirs
of Rajappa. And as such, the Defendant No.6 has placed
Dr.
45
O.S.No.1946/2011
Ex.D13, which is a compromise petition, based upon the said
Will executed by Ramakka. As such, both the Defendant No.6
and Rajappa have given effect to the said Will executed by
Ramakka. Therefore, on the basis of the available documents on
record, issue No.3 stands answered in the Affirmative.
41. Issue No.4 : The suit of the Plaintiff is one for the relief of
declaration to declare that the Plaintiff is the absolute owner of
the B-schedule Property and to direct the Defendant No.1 to 6 to
deliver the possession of the B-schedule Property by
demarcating its boundaries and consequentially to declare the
partition deed dated 15/4/1997 obtained in O.S.No. 4029/1969
and the Final Decree Proceedings dated 25/8/2003 in FDP
No.72/1997 as illegal, invalid and further to pass a preliminary
decree directing Defendant No.1 to pay the open market value
of the Site as mentioned in Registered Sale Deed dated
10/7/1991. This suit is filed by the present Plaintiff in the year
2011, more particularly as on 14/3/2011. The relief sought by the
Plaintiff is one for the relief of declaration. The relief of
declaration is to be filed within 3 years from the date of denial of
title by the opponent or the opposite party or the Defendants. In
the case in hand, these Defendants ie., Defendant No.1 to 5
Dr.
46
O.S.No.1946/2011
have denied the title of this Plaintiff in O.S.No. 8714/2005,
wherein there was a clear observation by this Court at para-17
of the Judgment in O.S.No. 8714/2005 that the Plaintiff has
approached the Court seeking the relief of bare Permanent
Injunction, the title of the Plaintiff in respect of the Suit Schedule
Property has been seriously disputed. Therefore, as on the date
of filing the Written Statement by the Defendant in O.S.No.
8714/2005, this Plaintiff had a knowledge of denial of title by the
Defendants. Therefore, the Plaintiff should should have filed the
suit within 3 years from the date of said denial. Admittedly the
suit was filed by this Plaintiff in O.S.No. 8714/2005 as on
8/11/2005 and the said suit came to be decided in the year 2010.
But however the denial of title of the Plaintiff was by way of
Written Statement. Therefore, from the date of denial of the title
of the Plaintiff by filing the Written Statement by the Defendants,
this Plaintiff had the knowledge of denial of his title in respect of
the Suit Schedule Property. Therefore, the cause of action
would arise somewhere in the year 2005 when the Defendants
had filed the Written Statement. So therefore, within 3 years
from that date, the Plaintiff should have filed the suit for
declaration.
Dr.
47
O.S.No.1946/2011
42. That apart, the Plaintiff has also filed the present suit
based upon the cause of action that is said to have arisen ie., at
para-13 of the plaint, the present Plaintiff has pleaded in the year
2005 the Defendant No.1 and 2 tried to dispossess the Plaintiff
from B-schedule Property by interfering with his possession, and
as such he has filed the suit. Therefore, even in the year 2005
the cause of action to the present suit is also traced to the year
2005. Therefore, that is also one of the grounds wherein the
limitation will have to be gathered for the present case in hand.
43. Apart from this, the Plaintiff has pleaded that there was a
partition effected in between the family of the Defendants in
respect of the Suit Schedule Property and as such he has
sought for declaration of the said FDP proceedings as not
binding. In the case in hand as well the prayer relief No.3 is
sought to declare the Partition Deed dated 15/4/1997 obtained in
O.S.No. 4029/1989 as not binding and the final decree dated
25/8/2003 in FDP No.72/1997 is illegal and invalid. So, in the
case in hand, the partition was of the year 1997 and the Final
Decree was drawn on 25/8/2003 in FDP No.72/1997. Therefore,
even on the said basis of the said cause of action as well, the
Plaintiff has approached this Court by way of the present suit in
Dr.
48
O.S.No.1946/2011
the year 2011. Therefore, from the date of the said Decree and
Final Decree and the Partition Deed also, the suit of the Plaintiff
is barred by limitation and the Plaintiff is not entitled for the relief
as sought for in the present suit since it is barred by time.
44. Issue No.5 : This issue is with regard to Plaintiff’s
entitlement or not for the relief sought by him. The Plaintiff
herein has filed the present suit seeking the relief of Plaintiff to
be the absolute owner of B-schedule Property and
consequentially to direct the Defendant No.1 to 6 to deliver the
possession of B-schedule Property by demarcating the
boundaries as per the Registered Sale Deed dated 10.07.1991
Registered as Document No.1905/1991-92 and also to declare
that the decree of partition dated 15/4/1997 obtained in O.S.No.
4029/1969 and final decree dated 25/8/2003 in FDP No.79/1997
as illegal and invalid. And also to pass a preliminary decree by
directing the Defendant No.1 to pay the open market value of
the site as mentioned in the Registered Sale Deed dated
10.07.1991 and further to declare that in case the 1st Defendant
failed to follow the directions passed by this Court, for recovery
of the same with other consequential relief.
Dr.
49
O.S.No.1946/2011
45. In furtherance of my findings to issue No.1, the Plaintiff
has failed to prove that he has become the absolute owner of
the Suit Schedule Property by virtue of Sale Deed dated
10.07.1991 for the reasons that Defendant No.1 had no right to
execute a Registered Sale Deed in his favour. That apart, by
virtue of issue No.2, the Plaintiff also failed to prove that the
decree of partition dated 15.4.1997 passed in O.S.No.
4029/1989 and FDP No.72/1997 dated 26/8/2003 as not binding.
It is also crucial to note that the Defendants were called up on to
prove that one Smt. Ramakka had bequeathed her share in
favour of the Defendants 2 to 6 by virtue of her Registered Will
dated 5/5/1995. Having noted the same, the Defendants have
corroboratively placed documents to show as to how the 1/3rd
share of the Property fell to the share of Ramakka and Ramakka
in turn had executed Will in favour of the present Defendant
No.2 & 6. Further it is not the case of the Plaintiff that the
Defendant No.1 did not derive any right in respect of the suit
survey number. The Plaintiff claims the Property on the basis of
her Sale Deed executed by Defendant No.1. So far as the suit
Property is concerned, by way of 1/3rd share was fallen to the
share of Ramakka, which in turn she has bequeathed in favour
of the 2nd Defendant and Defendant No.6 D. Gowda herein. So
Dr.
50
O.S.No.1946/2011
far as the Defendant No.1 is concerned, he has acquired the
share through Mallakka. Therefore, if at all the Plaintiff was to
agitate any share or right, it has to be as against Defendant
No.1, the Plaintiff should proceed as against Defendant No.1, in
respect of the Property that is fallen to the share of Defendant
No.1 through Mallakka. Whereas the present suit of the Plaintiff
in respect of the said Suit Schedule Property is concerned, this
Plaintiff is not entitled for the recovery of possession as against
all the Defendants. But however, as the Defendant No.1 has
represented of he having succeeded to the share of Ramaiah
through Ramakka and through his mother Mallakka, the
Defendant No.1 will have to compensate the said
misrepresentation to the Plaintiff herein, who in turn had
executed the Sale Deed in favour of the Plaintiff herein.
Therefore, the Plaintiff’s claim in respect of the suit Property may
not be as of now sustainable. But however, the Plaintiff has
sought a relief whereby to pass a preliminary decree by directing
the Defendant No.1 to pay open market value of the site as
mentioned in the Registered Sale Deed dated 10.1.1991 ie., the
relief No.(d). Since the Defendant No.1 has not filed his Written
Statement and the contesting Defendants are Defendants No.2,
6, 10 herein, 7, 8 & 9 and this Defendant No.1 has not filed his
Dr.
51
O.S.No.1946/2011
Written Statement, therefore, the Defendant No.1 has admitted
the claim of the Plaintiff and further he has also remained
exparte. Therefore, the claim of the Plaintiff to that extent of the
relief No.(d) is concerned, needs decree in favour of the Plaintiff
herein to an extent of the relief No.(d), provided the Plaintiff pays
the requisite Court fee upon the relief No.(d).
46. While addressing the arguments relating to Court fee is
concerned, the counsel or the Plaintiff has relied upon the
following citation reported in 2000 SCC OnLine Karnataka 255,
in case of Karnataka Housing Board Vs. Yamanur Sab and
others, wherein their Lordships have held under para-5 as
under:
“Suit for declaration : In a suit for declaratory decree or
order whether with or without consequential relief, not
falling Under Section 25, where the prayer is for a
declaration and for possession of the Property to which
the declaration relates, fee shall be computed on the
market value of the Property or on Rs.1,000/- whichever is
higher”.
47. Further another citation in Civil Appeal NO.3680/2022 in
case of Sathyanath and another Vs. Sarojamani, which is
relating to treating the preliminary issue as main issue is
Dr.
52
O.S.No.1946/2011
concerned.
48. Another citation in Writ Petition No.31369/2017, which is
an appeal preferred upon the order passed by this Court, which
is duly complied.
49. Hence, having noted the above aspects and also in
furtherance of my findings to the above issues, the relief No.(d)
is relating to the relief of preliminary decree directing the
Defendant No.1 pay the open market value of the site as
mentioned in the Sale Deed dated 10.7.1991 is concerned and
therefore though the Plaintiff is not entitled for the other reliefs as
against the other Defendants, the Plaintiff has probabalized his
case in respect of the execution of the Sale Deed by the
Defendant No.1 in his favour as on 10.7.1991 since the Plaintiff
has placed a Registered document and corroboratively he has
placed the other documents as well. The Defendant No.1 who
has remained exparte has not challenged the said Sale Deed
nor as he denied the Sale Deed in favour of the Plaintiff herein.
Therefore, the Defendant No.1 is aware of the said Sale Deed
executed in favour of the Plaintiff herein and in turn he has
admitted the same. Therefore the Defendant No.1 is liable to
Dr.
53
O.S.No.1946/2011
repay the said amount of Rs.50,000/- which was the sale
consideration amount received by the Defendant No.1
representing that he has succeeded to the Suit Schedule
Property through his mother, though the Property was not
available for partition and that the Defendant No.1 was aware of
the pending litigation between his mother and his grandmother
in O.S.No. 4029/1989 and FDP No.72/1997 which came to be
decreed as on 26.8.2003. Therefore, in the light of the above
discussion, the Plaintiff is entitled to the partial relief as per
prayer No.(d), which is claimed by him. Accordingly, I answer
issue No.1 holding that the Plaintiff is entitled for partial relief as
per prayer No.(d).
50. Additional Issue No.1 : This issue is with regard to the
valuation for the purpose of Court fee and jurisdiction which is
objected by the Defendants to be improper and incorrect. In this
regard, as seen from the plaint averments, the suit of the Plaintiff
is one for the relief of declaration and also for possession and
also for a direction to declare that the partition deed dated
15/4/1997 and final decree dated 25/8/2003 as not binding and
further a preliminary decree directing the Defendant No.1 to pay
the open market value of the Site mentioned in Registered Sale
Dr.
54
O.S.No.1946/2011
Deed dated 10/7/1991 and further for other consequential
reliefs.
51. This Plaintiff has valued the suit Under Section 7 (2) of
Karnataka Court Fees and Suits Valuation Act, and based upon
the Land Revenue which is Rs.69 paise, 25 time of the said
Land Revenue, the Plaintiff has arrived at a valuation of Rs.18.
And further valuing under Clause-c, d, e & f prayers under
Section 24 (d) of Karnataka Court Fees and Suits Valuation Act,
he has valued each and every relief at the rate of Rs.1,000/-
and valued at a sum of Rs.75,00,000/- and totally paid a sum of
Rs.93/- towards cf fee. And totally upon the relief (a), (b), (c),
(d) (e) & (f) the Plaintiff has paid only a sum of Rs.93/-.
52. Having perused the same, at any stretch of imagination,
the Plaintiff is not in possession of the Suit Schedule Property .
The Plaintiff has sought the relief of declaration. The relief of
declaration will have to be valued as per Section 24 of the
Karnataka Court Fees and Suits Valuation Act, and should have
been calculated at the rate of 25 times upon the said market
value. That apart, the Plaintiff has deficitly valued the relief of
declaration. Secondly the Plaintiff is not in possession of the Suit
Dr.
55
O.S.No.1946/2011
Schedule Property. Therefore, to recover back the possession,
the Plaintiff should have paid the market value of the said
Property which is also not valued properly. Thirdly the Plaintiff
has also sought the relief of preliminary decree directing the
Defendant No.1 to pay the open market value of the Site as
mentioned in the Registered Sale Deed dated 10/7/1991, which
amount was Rs.50,000/-, and no Court fee is paid upon the said
relief, which is sought by the Plaintiff. Therefore, at any stretch
of imagination the valuation provided by the Plaintiff is
insufficient and the Court fee paid upon the said calculation is
also insufficient. Accordingly Additional Issue No.1 is answered
as insufficient.
53. Issue No.6 : In furtherance of my findings on issue
Nos.1 to 5 & additional issue No.1 and 2, I proceed to pass the
following:
ORDER
The suit of the Plaintiff seeking the relief of
declaration to declare himself as absolute owner
in respect of B-schedule Property and with further
direction to direct the Defendant No.1 to 6 to
deliver possession of the B-schedule Property
and consequentially to declare the decree of
Partition deed dated 15/4/1997 obtained in
Dr.56
O.S.No.1946/2011O.S.No. 4029/1969 and final decree dated
25/8/2003 in FDP No.72/1997 and other reliefs
are concerned, is hereby dismissed with cost.
However, the Plaintiff is entitled for recovery
of the market value of the Site / consideration
amount mentioned in the Registered Sale Deed
dated 10.07.1991 executed by Defendant No.1 in
favour of the Plaintiff herein at the rate of 6% p.a.
from the date of the suit till its realization, provided
the Plaintiff pays the requisite Court fee upon the
said market value of the said Site as mentioned in
Ex.P26.
In terms of the same, Office is directed to
draw a decree accordingly.
(Dictated over Dictaphone, typed by Stenographer G-I, corrected
and then pronounced by me in the Open Court, on this the 28 th day
of March, 2025)(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
ANNEXURE
List of witnesses examined for the Plaintiffs’ side:
PW.1 : K.A. Gopinath PW.2 : Prakash R
List of exhibits marked for the Plaintiffs’ side:
Ex.P.1 Certified copy of the sale deed dated
02.04.1990
Dr.57
O.S.No.1946/2011Ex.P.2 Certified copy of the sale deed dated
27.11.1998
Ex.P.3 Certified copy of the sale deed dated
03.07.1998
Ex.P.4 Certified copy of the sale deed dated
03.07.1998
Ex.P.5 Certified copy of the sale deed dated
19.08.1989
Ex.P.6 Certified copy of the sale deed dated
27.11.1989
Ex.P.7 Certified copy of the sale deed dated
27.11.1989
Ex.P.8 Certified copy of the sale deed dated
27.10.1989
Ex.P.9 Certified copy of the sale deed dated
30.09.1989
Ex.P.10 Certified copy of the sale deed dated
30.09.1989
Ex.P.11 Certified copy of the sale deed dated
31.07.1989
Ex.P.12 Certified copy of the sale deed dated
30.09.1989
Ex.P.13 Certified copy of the sale deed dated
14.06.1989
Ex.P.14 Certified copy of the sale deed dated
01.12.1989
Ex.P.15 Certified copy of the sale deed dated
30.11.1989
Ex.P.16 Certified copy of the sale deed dated
30.09.1989
Ex.P.17 Certified copy of the sale deed dated
31.07.1989
Dr.58
O.S.No.1946/2011Ex.P.18 Certified copy of the sale deed dated
01.06.1990
Ex.P.719 Certified copy of the sale deed dated
19.09.1989
Ex.P.20 Certified copy of the sale deed dated
01.06.1990
Ex.P.21 Certified copy of the sale deed dated
09.04.1990
Ex.P.22 Certified copy of the sale deed dated
01.12.1989
Ex.P.23 Certified copy of the sale deed dated
05.06.1989
Ex.P.24 Certified copy of the sale deed dated
05.06.1989
Ex.P.25 Certified copy of the sale deed dated
10.05.1990
Ex.P.26 Certified copy of the sale deed dated
10.07.1991
Ex.P.27 Certified copy of the endorsement issued
by HA Sanitary board is at Ex.P-27.
Ex.P.28 Certified copy of the Property
assessment extract
Ex.P.29 Certified copy of the challan for having
paid the tax
Ex.P.30 Certified copy of the property tax return
Ex.P.31 to 34 Certified copies of the challans and
assessment extract
Ex.P.35 Self-assessed tax extractEx.P.36 Certified copy of the plaint in
O.S.No.8714/2005.
Ex.P.37 Certified copy of the written statement
filed in O.S.8714/2005
Dr.
59
O.S.No.1946/2011
Ex.P.38 Certified copy of the sale deed dated
04.08.1989
Ex.P.39 & 40 Certified copies of the judgment and
decree in O.S.8714/05
Ex.P.41 Certified copy of the plaint in
O.S.4029/89
Ex.P.42 Certified copy of the IA No.1 with affidavit
filed in O.S.4029/89
Ex.P.43 Certified copy of the written statement
filed in O.S.4029/98
Ex.P.44 Certified copy of the written statement in
O.S.4029/89
Ex.P.45 & 46 Certified copy of the of additional written
statements in O.S.4029/89
Ex.P.47 Certified copy of the amendment
application filed in O.S.4029/89
Ex.P.48 Certified copy of the GPA
Ex.P.49 Certified copy of the deposition of Smt.
Kempamma in O.S.4029/89
Ex.P.50 Certified copy of the deposition of Sri.
Kalappa
Ex.P.51 Certified copy of the issues framed in
O.S.4029/89
Ex.P.52 & 53 Certified copies of the judgment and
decree in O.S.4029/89
Ex.P.54 & 55 MR extracts
Ex.P.56 to 58 RTCs
Ex.P.59 Certified copy of the Joint Development
Agreement
Ex.P.60 Certified copy of the GPA .
Ex.P.61 to 63 Photographs
Dr.
60
O.S.No.1946/2011
Ex.P.61(a) Negatives of Ex.P-61 to 63
Ex.P.64 to 72 Six photographs, two CDs and the
receipt issued by RP digital studio
Ex.P.73 B Register extract
List of witnesses examined on behalf of Defendant’s side:
DW.1 : D. Gowda
List of exhibits marked on behalf of the Defendant’s side:
Ex.D.1 Certified copy of deposition in O.S.No.
8714/2005
Ex.D.2 Certified copy Judgment in O.S.No.
4029/89
Ex.D.3 Certified copy of decree in O.S.No.
4029/89
Ex.D.4 Certified copy of application in FDP
72/1997
Ex.D.5 Certified Copy of final decree in FDP
72/1997
Ex.D.6 Certified copy of MR.No.18Ex.D.7 Certified copy of MR No.12/2004-05
Ex.D.8 to 11 RTCs of Sy.No. 73/1
Ex.D.12 Certified copy of Registered Will dated
5/5/1995
Ex.D.13 Certified copy of compromise petition in
O.S.No. 8381/2018
Ex.D.14 Certified copy of MR No.9/2009-10Ex.D.15 Certified copy of RTC Sy.No. 73/5
Ex.D.16 & 17 Certified copy of Judgment and decree
Dr.61
O.S.No.1946/2011in O.S.No. 8714/2005
Ex.D.18 Certified copy of Form No.15Ex.D19 & 20 Certified copy of Judgment and decree
in O.S.No. 5031/1997
Ex.D21 Certified copy of order in O.S.No. 8373,
8374, 8375, 8376/2000
Ex.D22 Certified copy of decree in O.S.No.
8373/2000
Ex.D23 & 24 Certified copy of Judgment and decree
in O.S.No. 3739/2005
Ex.D25 & 26 Certified copy of Judgment and decree
in O.S.No. 4962/1996
Ex.D27 to 29 Photographs and CDEx.D30 & 31 Form No.15 and 65 B Certificate
Ex.D32 Digital copy of Sale Deed dated
26/6/2008
Ex.D33 Digital copy of Sale Deed dated
22/12/2008
Ex.D34 Digital copy of Sale Deed dated
22/12/2008
Ex.D35 Digital copy of encumbranceEx.D36 Conversion order dated 23/10/2009
Ex.D37 Conversion order dated 1/6/2011
Ex.D38 Conversion order dated 8/3/2023
(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
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