Bangalore District Court
P Mary Chitra vs P Domnick Rosario @ Dominick on 10 January, 2025
KABC0A0009302008
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 10th day of January, 2025.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.B.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.25367/2008
PLAINTIFFS : 1. Smt. P. Mary Chitra,
D/o. R. Pappiah,
Aged about 57 years,
Residing at No.249, Arogyappa
Layout, Thomas Town Post,
Kammanahalli,
Bangalore - 84.
2. Smt. P. Elizabath Arokea Mary,
D/o. R. Pappiah,
Residing at No.17, Vivekananda
Street, Kammanahalli Main Road,
Bangalore - 560 033.
3. Smt. S.M. Suvarnapushapalatha,
D/o. Late Philip Kumar,
Aged about 50 years.
Cont'd..
2 O.S.No.25367/2008
4. Smt. P. Priyandarshini,
D/o. Late P. Philip Kumar,
Aged about 26 years.
5. Smt. P. Preethi,
D/o. Late P. Philip Kumar,
Plaintiff's No.3 to 5 are
residing of No.12, Shamanna
Gowda Road, Kaveri Nagar,
R.T. Nagar Post, Bangalore - 39.
6. Smt. R. Rosley,
W/o. Late R. Pappiah,
Aged about 83 years,
Residing at No.17, Vivekananda
Street, Kammanahalli,
Bangalore - 560 033.
(By Sri A.C. Patil, Advocate)
-VERSUS-
DEFENDANTS : 1. P. Domnick Rosario @ Dominick,
S/o. Late R. Pappiah,
Residing at No.1085, Arogyappa
Layout, Kammanahalli, Thomas
Town Post, Bangalore - 84.
2. The precious Blood Missionaries
A Society registered under the
Karnataka Societies registration
Act, Having its registered office at
Gasper Bhavan, Dharamaram
College Post, Bangalore-560029.
Represented by its present
President, Fr. Amaldoss.
(By Sri Joseph Anil Kumar A., Advocate)
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Date of Institution of the Suit : 23-02-2008
3 O.S.No.25367/2008
Nature of the Suit (Suit on : Partition Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 24-09-2018
of recording of the evidence
Date on which the Judgment : 10-01-2025
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 16years, 10months, 17days.
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(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
JUDGMENT
This suit is instituted by the plaintiffs against the
defendants for relief of partition and separate
possession of their 1/5th share each of the suit
schedule mentioned properties by metes and bounds.
The plaintiffs have also sought for declaration to
declare, registered sale deed dated 19.05.2000 executed
by T.A. Ananda Rao and Smt. Nagalakshmi in favour of
2nd defendant is not binding on plaintiffs. The plaintiffs
have sought for mesne profits and grant of such other
reliefs.
4 O.S.No.25367/2008
2. The case of the plaintiffs in brief is as
under:-
That, one V.L. Rayalu is ancestors of plaintiffs and
defendant No.1. Said V.L. Rayalu died intestate. After
death of V.L. Rayalu his children have entered into
registered partition deed in respect of properties left
behind him. As per registered partition deed dated
16.01.1964, R. Pappaiah who is second son of V.L.
Rayalu got suit item No.1 to 3 properties as his share in
partition. Plaintiff No.6 is wife of R. Pappaiah. P. Philip
Kumar, P. Domnic Rosario @ Dominic, Mrs. Mary
Chitra, and Mrs. Elizabth Arockia Mary are children of
R. Papaiah. P. Philip Kumar died and plaintiffs No.3 to
5 are legal heirs of deceased P. Philip Kumar.
R. Pappaiah died on 15.06.1993. Suit schedule
properties are ancestral and joint family properties of
plaintiffs and defendant No.1. After death of R.
Pappaiah, plaintiffs are requesting defendant No.1 to
effect partition in suit properties and allot their share.
Defendant No.1 postponed same one or the other
pretext. The defendant No.2 who got impleaded in suit
filed written statement by contending that, R. Pappaiah,
5 O.S.No.25367/2008
Mr. Domnik Rosario and defendant No.1 and late P.
Philip Kumar have sold suit ‘A’ schedule property in
faovur of T.N. Ananda Rao and L.S. Nagalakshmi.
Defendant No.2 further claimed he purchased suit item
No.1 property under sale deed dated 19.05.2000 from
T.N. Anand Rao and L.S. Nagalakshmi. Those sale
deeds are fictitious, fraudulent, which are created to
knock suit item No.1 property. Defendant No.2 or his
alleged vendor were never in possession and enjoyment
of suit item No.1 property. Alleged sale deeds in respect
of suit item No.1 property not binding on plaintiffs. On
these pleadings, the plaintiffs have prayed to decree the
suit as prayed in plaint.
3. In response to the service of suit summons, the
defendants have tendered their appearance before the
court through their respective counsels and contested
the case. The defendant No.2 has filed written
statement.
4. The contents of written statement of
defendant No. 2 in brief are as under:-
6 O.S.No.25367/2008
The suit filed by plaintiffs is hopelessly barred by
law of limitation. Late R. Pappaiah, who is father of
plaintiff No.1, 2 and father-in-law of plaintiff No.3,
grand father of plaintiffs No.4 and 5 and husband of
plaintiff No.6 along with his sons, defendant No.1 and
late Philip Kumar sold suit item No.1 property by
dividing into residential sites i.e., 8 plots to T.N. Anand
Rao and Smt. L.S. Nagalakshmi in the year 1981-82 for
valid sale consideration. As such, suit item No.1
property not remained as agricultural land as claimed
by plaintiffs. Defendant No.2 being registered society
has purchased 8 residential plots formed in suit item
No.1 property from T.N. Anand Rao L.S.Nagalakshmi
under registered sale deed dated 19.05.2000 for
valuable sale consideration. Though, plaintiffs and
defendant No.1 are fully aware about said facts by
colluding with each other have filed false suit for
wrongful gain. Defendant No.2 being registered society
engaged in charitable, educational and social welfare
activities. Defendant No.2 is absolute owner and in
possession of suit item No.1 property. On these
7 O.S.No.25367/2008grounds, the defendant No.2 has requested to dismiss
suit with costs.
5. On the basis of above pleadings of both parties,
this court has framed the following :-
ISSUES
1. Whether the plaintiff proves that the
suit schedule properties are the joint
family properties liable for partition?
2. Whether the plaintiff is entitle 1/5th
share?
3. Whether the plaintiff is entitle for
mense profits?
4. Whether the suit is hit by non-joinder
of necessary parties?
5. Whether the defendants prove that
they purchase the schedule property
from its vendor by name E. Anand Rao
and others, who is in possession of the
same as an absolute owners?
6. What order?
7. To substantiate the case of plaintiffs, plaintiff
No.2 – Smt. P. Elizabeth Arockia Mary examined herself
as PW1 and produced in 17 documents as Exs.P1 to
8 O.S.No.25367/2008Ex.P.17. The Secretary of defendant No.2 examined
himself as D.W.1 and current President of defendant
No.2 examined himself as D.W.2 and produced in 52
documents as Exs.D.1 to D.52.
8. I have heard the arguments of learned counsel
for plaintiffs and learned counsel for defendant No.2
and I have perused the case records.
9. My answers to the above issues are as under-
ISSUE No.1 – In the affirmative;
ISSUE No.2 – In the affirmative;
ISSUE No.3 – In the negative;
ISSUE No.4 – In the negative;
ISSUE No.5 – In the negative;
ISSUE No.6 – As per final order,
for the following –
REASONS
10. ISSUES No.1 AND 5 :- As these issues are
inter-related to each other and involves common
appreciation of facts and evidence on record, findings on
one issue are bearing on other issue, in order to avoid
9 O.S.No.25367/2008
repetition of facts and for convenience sake, both issues
are taken together for common discussion.
11. On going through the pleadings of parties
and documents placed on record, contesting defendant
No.2 has not seriously disputed, suit item No.1 property
originally belonged to Pappaiah. It is specific contention
of contesting defendant No.2 that, late Pappaiah and his
two sons, who are defendant No.1 herein and deceased
P. Philip Kumar together have sold suit item No.1
property by divide into 8 residential sites to T.N. Ananda
Rao and Smt. Nagalakshmi. The defendant No.2 society
has claimed he purchased suit item No.1 property
wherein residential plots were formed from T.N. Ananda
Rao and Nagalakshmi under registered sale deed dated
19.05.2000. Taking into contents of such contention
taken up by contesting by defendant No.2, he cannot
deny and dispute that, suit item No.1 property was not
acquired by late Pappaiah. So far as, suit item Nos.2
and 3 properties are concerned, defendant No.1 who is
family member of plaintiffs has not denied these
10 O.S.No.25367/2008
properties are joint family properties of plaintiffs and
himself.
12. In schedule of plaint, suit item Nos.1 to 3
properties have been clearly mentioned with all
identification as such property number and extent and
boundaries. Genealogy of family of plaintiffs has been
produced as per Ex.P.1. On going through contents of
Ex.P.1 and plaint averments, as well as evidence of
plaintiff No.2 who examined as P.W.1. it is forthcoming,
plaintiff No.6 is wife of late Pappaiah. Deceased P.
Philip Kumar, defendant No.1 herein, plaintiff No.1 and
plaintiff No.2 are children of late Pappiah through his
wife plaintiff No.6. Plaintiffs No.3 to 5 are legal
heirs/representatives of deceased P. Philip Kumar.
13. In para 3 of plaint and also in examination-in-
chief of P.W.1, it is specifically stated by plaintiff, one
V.L. Rayalu is ancestor of the plaintiffs and defendant
No.1. Said V.L. Rayalu had acquired some immovable
properties and he died intestate in the year 1952. After
death of V.L. Rayalu, his children have effected partition
in family properties by virtue of registered partition deed
11 O.S.No.25367/2008
dated 16.01.1964. In said partition, present suit item
Nos.1 to 3 properties fallen to the share of late
Pappaiah, who is one of sons of V.L. Rayalu. It is worth
to note here, certified copy of registered partition deed
dated 16.01.1964 has been produced as per Ex.P.4 or
Ex.P.8 before the court. Exs.P.2 and P.3 are death
certificates of Pappaiah and P. Philip Kumar.
14. It is significant to note here that, defendant
No.2 society in order to establish, it has purchased 8
sites formed in suit item No.1 property from T.N.
Ananda Rao and Nagalakshmi has produced certified
copies of sale deeds as per Exs.D.45 to D.52. Ex.D.43
and D.44 are sale deeds dated 19.05.2000 executed by
T.N. Ananda Rao and Smt. Nagalakhsmi in favour of
defendant No.2 society. On careful perusal of recital of
Ex.D.43, it is mentioned sites No.1, 2, 3 and 8 formed in
old Sy.No.152/14 which is suit ‘A’ schedule property
sold by T.N. Ananda Rao in favour of defendant No.2
society. Likewise, on careful perusal of contents of
Exs.D.44, Smt. Nagalakshmi had sold site Nos.4, 5, 6
and 7 formed in Sy.No.152/14 in favour of defendant
12 O.S.No.25367/2008
No.2 society. These facts, have been clearly stated by Fr.
Francis Sahaya Ruben, who examined as D.W.1 before
the court, who is Secretary of defendant No.2 society.
These sale deeds executed by T.N. Ananda Rao and
Smt. Nagalakshmi have been also produced by plaintiffs
before the court as per Exs.P.13 and P.14.
15. It is worth to note here that, it is specific
case of plaintiffs and specifically contended, Exs.D.45 to
D.52 are certified copies of sale deeds, which have been
created and these documents are fictitious documents.
On the other hand, defendant No.2 society has
contended, late Pappaiah and his two sons, who are
defendant No.1 herein and late P. Philip Kumar together
have sold sites formed in suit item No.1 property as per
Exs.D.43 and D.44. As such, plaintiffs have no right or
interest in suit item No.1 property. While cross-
examining of P.W.1, it is suggested by learned counsel
for defendant No.2 that, from the year 1981-82 khatas
of 8 sites formed in suit item No.1 property are standing
in names of T.N. Ananda Rao and Smt. Nagalakhsmi,
same is denied as false. It is further suggested, till
13 O.S.No.25367/2008
2000-2021 khatas of said suit properties were standing
in the names of T.N. Ananda Rao and Smt.
Nagalakshmi. Said suggestion is denied by P.W.1 as
false. The P.W.1 has specifically deposed, they might
changed khata illegally. It is further denied by P.W.1
that, T.N. Ananda Rao and Smt. Nagalakshmi were in
possession of suit item No.1 property from date of
purchase.
16. It is worth to note here, in order to show,
khatas of sites formed in suit item No.1 property were
standing in the names of T.N. Ananda Rao and Smt.
Nagalakshmi from date of purchase till sale of property
in favour of defendant No.2 society, no such khatas
which are standing in the names of T.N. Ananda Rao
and Smt. Nagalakshmi are produced before the court.
The P.W.1 has specifically stated, plaintiffs have
produced documents to show khatas of suit properties
standing in the name of Pappaiah. The plaintiffs have
produced records of rights as per Exs.P.9 and P.10, tax
paid receipts as per Exs.P.11 and P.12 wherein name of
Pappaiah shown to suit ‘A’ schedule property. As per
14 O.S.No.25367/2008
Exs.P.9 and P.10 as on date of filing of suit, name of
Pappaiah shown in column No.9 of records of rights of
suit item No.1 property.
17. It is to be noted here, D.W.1 in his cross-
examination has clearly admitted in Exs.P.13 and P.14
details of acquisition of suit item No.1 property by
T.N.Ananda Rao and Smt. Nagalakshmi from Pappaiah
is not mentioned. On going through the contents of
certified copies of sale deeds, it is only mentioned T.N.
Ananda Rao and Smt. Nagalakshmi are absolute owners
of properties. As rightly contended by learned counsel
for plaintiffs, it is not mentioned in these documents
how T.N. Ananda Rao and Smt. Nagalakshmi had
acquired properties. The D.W.2 – Fr. Vara Kumar
Chowtapalli, who is President of defendant No.2 society
in his cross-examination clearly admitted in Exs.P.13
and P.14 there is no mention about vendors of
defendant No.2 had purchased properties from
Pappaiah. It is denied by D.W.2 that, these Exs.P.13
and P.14 are bogus documents. It is specifically
suggested to D.W.2 that, T.N. Ananda Rao and Smt.
15 O.S.No.25367/2008
Nagalakshmi are imaginary persons, they have been
created to create sale deeds in respect of suit item No.1
property. The D.W.2 in his cross-examination has
clearly stated BBMP has not issued khata of suit item
No.1 property in the name of defendant No.2. It was
tried to clarify by D.W.2 that, as litigation is pending
khata not issued by concerned authority.
18. It is further to be noted here, D.W.2 in his
cross-examination has clearly stated, in Exs.P.13 and
P.14 it is not mentioned, sites were formed in
Sy.No.152/2014. It is also admitted by D.W.2 in his
cross-examination that, it is not mentioned in Exs.P.13
and P.14 about original documents of property were
handover by vendors of vendee. An attempt was made
by D.W.2 in his cross-examination to say originals of
sale deeds as per Exs.D.42 to D.52 have been produced
before Hon’ble High Court. The D.W.2 has not given
details of case before Hon’ble High Court in which
originals of these documents said to have been
produced.
16 O.S.No.25367/2008
19. The learned counsel for plaintiffs has argued
that, legal presumption as provided under provisions of
Section 90 of Evidence Act, not available to certified
copies of documents. The learned counsel for plaintiffs,
in support of his arguments has relied upon decision of
Hon’ble High Court reported in 2024(1) KCCR 568 in
case of Anthuriah Vs. Revanna @ Revaiah, wherein it
is held that, “though the gift is alleged to be of 1958, the
presumption under section 90 of the Indian Evidence
Act, 1872, cannot be drawn, as the said presumption is
available only in respect of the original document but
not in respect of the certified copy. No. original
document is produced before the trial court.”
20. The learned counsel for plaintiffs has further
relied upon decision reported in AIR 1953 SC 431 in
case of Mahasay Ganbesh Prasad Ray and Others
Vs. Narendra Nath Sen and Others, wherein it is held
that, “As regards the entries in the almanac, it is
necessary only to point out, as has been done by the
High Court, that these are again loose sheets of papers
with blanks left at different places. The writer is of
17 O.S.No.25367/2008
course not available and therefore the weight which
could be attached to documents which on the face of
them are regularly kept cannot attach to these papers.
The sheets and entries could be substituted or
interpolated at different places, if one were so minded.
Having regard to these defects therefore it is not
possible to say that the entries have been made in the
regular course of business and have the necessary
probative value. In our opinion therefore the conclusion
of the High Court is correct.”
21. The learned counsel for plaintiffs has relied
upon decision reported in AIR 1956 SC 305 in case of
Haribar Prasad Singh and Another Vs. Deonarain
Prasad and others, wherein it is held that, “the
presumption enacted in Sec.90 can be raised only with
reference to original documents and not to copies
thereof. Further if the document happens to be signed
by the agent of the person against whom the
presumption is sought to be raised and there is no proof
that he was an agent, Sec.90 does not authorize the
18 O.S.No.25367/2008
raising of a presumption as to the existence of authority
on the part of the agent to represent that person.”
22. The learned counsel for plaintiffs has further
relied upon decision reported in AIR 1968 SC 947 in
case of Kalidindi Venkata Subbaraju and Others Vs.
Chintalapati Subbaraju and Others, wherein it is
held that, “Evidence Act (1872), Section 90 Production
of copy of will purporting to be 30 years old does not
warrant presumption of its execution or attestation –
presumption under section 90 arises in respect of
original document.”
23. The learned counsel for plaintiffs further
argued that, secondary evidence not admissible as
matter of course. The learned counsel for plaintiffs in
support of his arguments has relied upon decision of
Hon’ble of High Court reported in ILR 2010 KAR 3480
in case of M.T. Siddashetty and Another Vs. P.H.
Gowda and Another, wherein it is held that,
“Secondary evidence is not admissible mechanically or
as a matter of course. Section 65 of the Act provides for
the procedure for production of secondary evidence.
19 O.S.No.25367/2008
Section 65(c) states that secondary evidence may be
given of the existence, condition or contents of a
document when original has been destroyed or lost or
when the party offering evidence of its contests cannot
for any other reason not arising from his own default or
neglect produce it in reasonable time. The existence and
execution of the document must of course be proved.
Secondary evidence is not admitted mechanically or as
a matter of course. If the primary evidence is not
available for the reason set out in section 65 of the Act,
only then secondary evidence is admissible. However,
before the secondary evidence is adduced, a proper
foundation has to be laid for not producing the primary
evidence. Only after non-production of the primary
evidence is satisfactorily accounted for, the secondary
evidence would be permitted to be adduced.”
24. The learned counsel for plaintiffs has further
relied upon the decision of Hon’ble Supreme Court
reported in AIR 1971 SC 1865 in case Sait Tarajee
Khimchand and Others Vs. Yelamarti Satyam and
Others, wherein it is held that, “mere marking of a
20 O.S.No.25367/2008
document as an exhibit does not dispense with its proof
– Sec.61 of Evidence Act.”
25. In view of principles laid down in above
decisions, if evidence on record is properly and carefully
appreciated, it is fact that, in Exs.P.9 and P.10 name of
R. Pappaiah clearly mentioned as owner of suit item
No.1 property. The defendant No.2 in order to establish
T.N. Ananda Rao and Smt. Nagalakshmi had sold, sites
formed in suit item No.1 property in favour of defendant
No.2 society has much relied on Ex.D.43 and D.44
which are certified copies of sale deeds. There is no
explanation or foundation laid down by defendant No.2
whose claim of ownership and possession over suit item
No.1 property is based on Ex.D.43 to D.52, why original
documents of these sale deeds have not been produced
before the court. It is clearly and specifically extracted
in his cross-examination of D.W.2 wherein he has
clearly deposed, signatures of T.N. Ananda Rao and
Smt. Nagalakshmi as forthcoming in Exs.D.43 and D.44
differs with that of signatures as forthcoming in
Exs.P.13 and P.14.
21 O.S.No.25367/2008
26. As already discussed, no efforts made by
defendant No.2 to produce original of these sale deeds
as per Exs.P.13 and P.14 or Exs.D.43 to D.52 before the
court to disprove contention of plaintiffs that, T.N.
Ananda Rao and Smt. Nagalakshmi are not imaginary
persons and those persons having right and interest
over suit item No.1 property had executed sale deeds.
27. It is significant to note here that, defendants
have not produced any documents on record to show
sites in suit item No.1 property were formed by
Pappaiah and his two sons. Further, there is no any
documents produced to show, these sites formed in suit
item No.1 property were standing in the names of
Pappaiah and his sons at relevant piont of time when
alleged sale deeds in respect of plots in suit item No.1
property sold to T.N. Ananda Rao and Smt.
Nagalakshmi. Another important fact is that, D.W.2 in
his cross-examination has admitted, vendors of
defendant No.2 who are T.N. Ananda Rao and Smt.
Nagalakshmi are available. There is no efforts made by
defendant No.2 to examine these persons before the
22 O.S.No.25367/2008
court. It means, though vendors of defendant No.2 very
much availed for the reasons best known to defendant
No.2, they have not been examined before the court to
prove contents and due execution of Exs.D.43 and D.44
in favour of defendant No.2 society.
28. Further it is to be noted here, there are no
documents to show, based on sale deeds as per
Exs.P.13 and P.14 or Exs.D.43 and D.44 khata of sites
were entered in the names of T.N. Ananda Rao and Smt.
Nagalakshmi. It is fact that, in Exs.D.9 to D.42 which
are Encumbrance Certificates, names of T.N. Ananda
Rao and Smt. Nagalakshmi not at all mentioned. In
these documents produced by defendant No.2 himself, it
is clearly mentioned, there are no proceedings and
encumbrance found. It is not case of defendant No.2
that, T.N. Ananda Rao and Smt. Nagalakshmi within
short span of time from date of purchase of properties,
they have immediately sold those property to defendant
No.2. As such, their names have been not been mutated
any khata or encumbrance certificate. Evidence on
record clearly indicates that, after nearly 18 years from
23 O.S.No.25367/2008
date of alleged purchase, T.N. Ananda Rao and Smt.
Nagalakshmi have sold suit properties to defendant
No.2 society under Exs.P.13 and P.14 or Exs.D.43 and
D.44.
29. No doubt it is true, defendant No.1 being
family member of plaintiffs have not contested suit but
that alone is not sufficient to say defendant No.2 society
has proved due execution of Exs.D.43 to D.52 sale
deeds. While cross-examining of D.W.2 an attempt was
made, at relevant point of time, Karnataka Prevention of
Fragmentation and Consolidation of Holdings Act, 1966
was in force and defendant No.2 being society as per
provisions of Section 79(A) and 79(B) and Section 80 of
Karnataka Land Reforms Act, cannot purchase
agricultural land.
30. It is true, as per Section 6 and 7 of Karnataka
Prevention of Fragmentation and Consolidation of
Holdings Act, 1966 no land in any area shall be
transferred or partitioned or sub-divided so as to create
fragmentation and fragmentation not to be sold in court
sale or created by such sale. In schedule 3, it is
24 O.S.No.25367/2008
mentioned 4th class of property as dry land or garden
land not falling under 1st, 2nd, 3rd or 4th class in a land
which rain fall is more than 35 inches or dry cum
garden land that is light irrigated land or garden land.
31. As per section 79(A) of Karnatka Land Reform
Act 1961, acquisition of land by certain persons
prohibited. As per Section 79(B) of Act, it shall not
lawful for an educational, religious or charitable
institution or society or trust other thatn an institution
or society or trust referred to in Sub-sec.7 of Section 63
of cannot hold agricultural property. It is fact that,
plaintiffs are not admitting sale deeds of suit item No.1
property in favour of defendant No.2 society. As such,
they cannot permitted to contend, sale of suit item No.1
property in favour of defendant No.2 society is hit by
provisions of Karnataka Prevention of Fragmentation
and Consolidation of Holdings Act and Karnataka Land
Reform Act.
32. It is to be noted here, plaintiffs in para 7(a) of
plaint have specifically contended, R. Pappaiah and his
two sons never sold any property to T.N. Ananda Rao
25 O.S.No.25367/2008
and Smt. Nagalakshmi. The plaintiffs have not admitted
sale deeds as per Exs.D.45 to D.52. Further more, legal
presumption as attached to sale deeds relied by
defendant No.2 sufficiently destroyed or discharged in
cross-examination of D.W.1 and D.W.2 as referred
above. Defendant No.2 would have produced original
sale deeds and thereby requested the court to direct
plaintiffs to produce documents containing admitted
signatures of Pappaiah and his sons and thereby
requested court to refer those admitted and disputed
signatures for expert opinion to prove Pappaiah and his
two sons have sold suit item No.1 property in favour of
T.N. Ananda Rao and Smt. Nagalakshmi. Such proper
steps not taken by defendant No.2.
33. As already discussed, difference in signatures
of vendors of defendant No.2 in Exs.P.13 and P.14
compared to Exs.D.43 and D.44 is clearly admitted by
D.W.2 in his cross-examination. The defendant No.2 not
disproved contents of plaintiffs that, T.N. Ananda Rao
and Smt. Nagalakshmi are imaginary persons by
produced documents belonged to them or examining
26 O.S.No.25367/2008
those persons before the court. The execution of alleged
sale deeds by Pappaiah and his sons in favour of
T.N.Ananda Rao and Smt. Nagalakshmi is not
sufficiently establishes by defendant No.2 before the
court. Without there being any proper or plausible
explanation and reasons, defendant No.2 has not
produced original sale deeds relied by him before the
court. As such, defendant No.2 not proved Pappaiah
and his sons had formed sites in suit item No.1 property
and sold those sites to T.N.Ananda Rao and Smt.
Nagalakshmi as per Exs.D.45 to D.52.
34. Absolutely, there is no records to show
alleged sale deeds, which said to have been executed by
Pappaiah and his two sons were acted upon and
consequently names of T.N.Ananda Rao and Smt.
Nagalakshmi mutated to sites formed in item No.1
property. Taking into consideration of all these facts,
defendant No.2 has failed to establish, he purchased
suit item No.1 property from his vendor T.N.Ananda Rao
and Smt. Nagalakshmi.
27 O.S.No.25367/2008
35. Once it is held, defendant No.2 failed to
establish, Pappaiah and his two sons have sold suit
item No.1 property in favour of T.N.Ananda Rao and
Smt. Nagalakshmi and in turn these T.N.Ananda Rao
and Smt. Nagalakshmi have sold sites formed in suit
item No.1 property in favour of defendant No.2 society,
suit item No.1 property after death of Pappaiah,
remained as joint family property of plaintiffs and
defendant No.1. As already aforesaid, there is no
dispute between plaintiffs and defendant No.1 that, suit
item No.2 and 3 are joint family properties. As such,
suit properties are liable for partition. Hence, I answer
Issue No.1 in the affirmative and Issue No.5 in the
negative.
36. ISSUE NO.4 :- It is specific contention of
defendant No.2 that, suit of the plaintiffs is bad for non-
joinder of necessary parties. It is further specifically
contended, plaintiffs have not made T.N.Ananda Rao
and Smt. Nagalakshmi as parties to the suit. They have
filed suit against defendant No.2 who is purchaser of
the suit item No.1 property from T.N.Ananda Rao and
28 O.S.No.25367/2008
Smt. Nagalakshmi. As such, suit itself is not
maintainable.
37. On the other hand, the learned counsel for
plaintiffs has contended, purchaser is not proper party
to suit for partition. The learned counsel for plaintiffs in
support of his arguments has relied upon decision of
Hon’ble Supreme Court reported in ILR 2012 KAR
4129 in case of S.K. Lakshminarasappa, Since
deceased by his LR’s Vs. B. Rudraiah and others,
wherein it is held that, “suit for partition can be
dismissed on the ground of non-joinder of necessary
parties, in as suit for partition, at the stage of passing of
a preliminary decree for partition, the only question that
needs to be adjudicated by the Trial Court is, whether
the property in question is a co-parcenery property or a
joint family property and if so, what is the share to
which these family members are entitled to. For the
declaration of such shares, the presence of alienees is
not necessary. Even in their absence the suit of the
plaintiff can be adjudicated upon and their present is in
no way necessary for the court to determine the
29 O.S.No.25367/2008
questions involved in the suit. Therefore, a suit for
partition cannot be dismissed on the ground non-
joinder of these third parties/strangers to the family.
Therefore, it is clear in order to decide the share to
which each member of a family or a person claiming
under such member of a joint family, the necessary
parties are only the members of the joint family. Once
all those members are made parties, the suit for
partition cannot be dismissed on the ground of non-
joinder of necessary parties.
38. The learned counsel for plaintiffs further relied
upon the decision of Hon’ble Supreme Court reported
in AIR 2023 SC 3361 in case of M/s. Trinity
Infraventures Ltd., and others, etc. Vs. M.S. Murthy
and Others, etc., wherein it is held that, Strangers who
are impleaded in partition suit, may have nothing to say
about claim to partition but may have a claim to title to
the property – such a claim cannot be decided in a
partition suit.
39. In view of principles laid down in above
decisions, contention of defendant No.2 that, suit is bad
30 O.S.No.25367/2008
for non-joinder of T.N. Ananda Rao and Smt.
Nagalakshmi as party to the suit is not sustainable.
Hence, I answer Issue No.4 in the negative.
40. ISSUES NO.2 AND 3 :- As these issues are
inter-related to each other and involves common
appreciation of facts and evidence on record, findings on
one issue are bearing on other issue, in order to avoid
repetition of facts and for convenience sake, both issues
are taken together for common discussion.
41. It is argued on behalf of the learned counsel
for defendant No.2 that, plaintiffs have not sought for
cancellation of sale deeds in respect of suit item No.1
property. The learned counsel for plaintiffs argued that,
it is not necessary for plaintiffs to seek for cancellation
of sale deeds in respect of suit item No.1 property. In
this regard, the learned counsel for plaintiffs relied upon
the decision of Hon’ble Supreme Court reported in AIR
2022 SC 1640 in case of Mrs. Umadevi Nambiar Vs.
Thamarasseri Roman Catholic Diocese represented
by its Procurator Devssia’s Son Rev. Father Josesph
Kappil, wherein it is held that, Hindu Law – suit for
31 O.S.No.25367/2008
partition claim for – it is not always necessary for
plaintiff in a suit for partition to seek cancellation of
alienation – reasons behind said principle is that alienee
as well as co-sharer are still entitled to sustain
alienation to extent of share of co-sharer.
42. It is to be noted here, though in above
decisions it is held it is always not necessary for plaintiff
in suit for partition to seek cancellation of alienation but
as abundant caution, by amending plaint plaintiffs have
sought for declaration to declare, sale deeds dated
19.05.2000 executed by T.N. Ananda Rao and Smt.
Nagalakshmi in favour of defendant No.2 in respect of
suit item No.1 property are not binding on them. As
such contention of defendant No.2 that, suit is not
maintainable for not seeking cancellation of sale deeds
is not sustainable.
43. It is further contention of defendant No.2, very
suit filed by plaintiffs is barred by law of limitation. It is
argued on behalf of learned counsel for defendant No.2
that, Pappaiah and his sons have sold property in
favour of T.N. Ananda Rao and Smt. Nagalakshmi. And
32 O.S.No.25367/2008
present suit filed after lapse of nearly 27 years from
date of sale of suit item No.1 property in favour of T.N.
Ananda Rao and Smt. Nagalakshmi. The learned
counsel for plaintiffs has argued that, no period for
limitation is fixed for filing suit for partition by co-
owner. On this preposition of law, learned counsel for
plaintiffs has relied upon decision of Hon’ble Supreme
Court reported in AIR 1995 SC 1789 in case of Vidya
Devi @ Vidyavathi dead by LR’s Vs. Prem Prakash
and Others, wherein it is held that, “no period of
limitation is fixed for filing suit for partition by co-
bhumidhar.”
44. As already discussed, there is no material on
record to show, sale deeds in favour of T.N. Ananda Rao
and Nagalakshmi and thereafter sale deeds in respect of
suit item No.1 property in favour of defendant No.2
acted upon and based on sale deeds either names of
T.N. Ananda Rao and Nagalakshmi or defendant No.2
entered to sites alleged to have formed in suit item No.1
property. Further more, transaction said to have been
entered between Pappaiah and his sons and T.N.
33 O.S.No.25367/2008
Ananda Rao and Smt. Nagalakshmi and alleged
transaction between T.N. Ananda Rao and Smt.
Nagalakshmi with defendant No.2 is not at all
mentioned in encumbrance certificates of suit item No.1
property at relevant point of time. Hence, it can be
held, there is no notice of alleged sale transaction to
plaintiffs who are legal representatives of deceased
Pappaiah. In view of all these facts, contention of
defendant No.2 that, suit is barred by law of limitation
is not sustainable. Further more, there is no material
placed by defendant no.2 on record to show since date
of those alleged sale deeds, plaintiffs are aware about
transactions in respect of suit item No.1 property.
45. The learned counsel for plaintiffs has argued
that, records of rights of suit item No.1 property it is
shown as agricultural land and name of Pappaiah is
forthcoming. It is further argued that, in absence of
sanction from competent authority as provided under
Section 95 of Karnataka Land Revenue Act, contention
of defendant No.2 that, Pappaiah and his sons have
converted suit item No.1 property into sites and sold to
34 O.S.No.25367/2008
T.N. Ananda Rao and Smt. Nagalakshmi is not
sustainable. On this proposition of law, learned counsel
for plaintiffs has relied upon decision of Hon’ble
Supreme Court reported in AIR 1995 SC 234 inc ase
of State of Karnataka Vs. Shankar Textiles Mill
and decision of Hon’ble High Court reported in ILR
2006 KAR 4048 in case of John D’ Souza dead by
LR’s Vs. Vijaya Bank and Others, wherein it is held
that, use of agricultural land for non-agricultural
purpose permission under provisions of Sec.95 of
Karnataka Land Revenue Act is mandatory.
46. The learned counsel for plaintiffs further
argued that, based on alleged sale deeds, defendant
No.2 cannot claim possession over suit item No.1
property. In this regard, learned counsel for plaintiffs
has rightly relied upon decision of Hon’ble High Court
reported in 2019(4) KCCR 3331 in case of Rudrappa
vs. Prakash, wherein it is held that, title or possession
must have a valid source. The possession of vacant land
goes after ownership. In certain documents of
conveyance seller, refers his source of ownership as he
35 O.S.No.25367/2008
has been in peaceful, absolute and exclusive possession
as lawful owners. The mischief is not in word but
intention of person who presents document, when no
corroborative document or circumstances of legal
efficacy is mentioned to support such claim of
ownership.
47. It is argued on behalf of learned counsel for
defendant No.2 that, the defendant No.2 society had
already filed suit for injunction in O.S.No.517/2009 on
the file of CCH-40 against plaintiffs, same was decreed.
The plaintiffs have challenged judgment and decree of
said suit by filing RFA No.680/2015. In this regard,
learned counsel for plaintiffs argued that finding
recording in injunction suit not conclusive as regards to
title of property. In this regard, learned counsel for
plaintiffs has relied upon decision of Hon’ble High Court
reported in RSA No.5042/2013 in case of Basappa
Baliger and others Vs. Sadabi W/o. Hasanasab
Doddamani, wherein it is held that, it is settled law
that, any findings recorded in an injunction suit
36 O.S.No.25367/2008
regarding title would not by itself be conclusive as
regards title of property.
48. In view of principles laid down in above
decisions, even though in earlier suit filed by defendant
No.2 there was incidental findings with regard to title of
property, itself is not conclusive as regard to title of suit
item No.1 property in favour of defendant No.2. Present
suit being comprehensive suit, findings recorded in
present suit with regard to title of suit item No.1
property is conclusive regarding title of suit item No.1
property.
49. It is to be noted here, as defendant No.2 has
failed to establish Pappaiah and his two sons sold suit
item No.1 property to T.N. Ananda Rao and Smt.
Nagalakshmi. As such, it can be held Pappaiah died
intestate leaving behind plaintiffs and defendant No.1 as
his legal heirs. The parties being Christians governed by
Indian Succession Act. After death of Pappaiah all his
heirs are equally succeeded to property left behind by
him. As such, plaintiff No.1, plaintiff No.2, plaintiff
No.6 and defendant No.1 are entitled for 1/5th share
37 O.S.No.25367/2008
each in suit item No.1 to 3 properties by metes and
bounds. Plaintiffs No.3 to 5 being legal heirs of deceased
P. Philip Kumar, they together entitled for 1/5th share
in suit item No.1 to 3 properties by metes and bounds.
Sale deeds dated 19.05.2000 as per Exs.D.43 and D.44
executed by T.N. Ananda Rao and Smt. Nagalakshmi in
favour of defendant No.2 in respect of suit item No.1
property not binding on plaintiffs. As plaintiffs claiming
they are in possession of suit properties and suit is for
partition, they cannot claim mense profits. Hence, I
answer Issue No.2 in the affirmative and issue No.3
in the negative.
50. ISSUES No.6 :- In view of the above said
findings on Issue Nos. 1 to 5, I proceed to pass the
following:-
ORDER
The suit of the plaintiffs is herebydecreed with costs.
The plaintiff No.1, plaintiff No.2,
plaintiff No.6 and defendant No.1 are entitled
for 1/5th share each in suit item No.1 to 3
properties by metes and bounds.
38 O.S.No.25367/2008The plaintiffs No.3 to 5 being legal
heirs/representatives of deceased P. Philip
Kumar, they together entitled for 1/5th
share in suit item Nos.1 to 3 properties by
metes and bounds.
It is declared that, sale deeds dated
19.05.2000 as per Exs.D.43 and D.44
executed by T.N. Ananda Rao and Smt.
Nagalakshmi in favour of defendant No.2 in
respect of suit item No.1 property not
binding on plaintiffs.
Draw preliminary decree accordingly.
It is to be noted here, the Hon’ble
Supreme Court in decision reported in 2022
SCC Online SC 737 in case of Kattukandi
Edathil Krishnan and another Vs.
Kattukandi Edathil Valsan and others,
wherein it is held that, once preliminary
decree passed by the court, the court should
proceed with the case for drawing up the
final decree suo-motu. After passing
39 O.S.No.25367/2008
preliminary decree court has to list matter
for taking steps under Order 20 Rule 18 of
CPC. The court should not adjourned the
matter sine die. There is no need to file
separate final decree proceedings.
In view of mandate of Hon’ble Supreme
Court as referred above, office is directed to
draw preliminary decree on or before
07.02.2025 and put up case file before the
court on 07.02.2025 and keep certified copy
of preliminary decree passed in present suit
with file so as to proceed to take steps under
Order 20 Rule 18 of CPC and to draw up
final decree.
Parties to the suit are directed to
appear before the court on 07.02.2025.
(Dictated to the Stenographer directly on computer, typed &
computerized by her, corrected and signed by me and then pronounced
in the open Court on this the 10th day of January, 2025).
(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
40 O.S.No.25367/2008
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : Smt. P. Elizabeth Arockia Mary 24-09-2018
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : Family tree. Ex.P.2 : Death certificates. and P.3 Ex.P.4 : Certified copy of Partition Deed. Ex.P.5 : Certified copy of sketch. Ex.P.6 : Aakharband. Ex.P.7 : Sketch. Ex.P.8 : Certified copy of sale deed. Exs.P.9 : Two RTC's. and P.10 Exs.P.11 : Tax paid receipts. and P.12 Exs.P.13 : Certified copy of sale deed and P.14 dated 19.05.2000.
Ex.P.15 : Certified copy of order sheet in
RFA No.680/2015.
Ex.P.16 : Burial Certificate.
Ex.P.17 : Death certificate.
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : Fr. Francis Sahaya Ruben 12-02-2020
D.W.2 : Fr. Vara Kumar Chowtapalli 25-09-2023
41 O.S.No.25367/2008
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : Original Board Resolution.
Ex.D.2 : Society registration certificate
dated 04.04.2019.
Ex.D.3 : Society registration certificate
dated 22.09.2023.
Ex.D.4 : Certified copy of document showing the
officer bearers.
Exs.D.5 : Tax paid receipts.
to D.8
Exs.D.9 : Encumbrance certificates.
To D.42
Exs.D.43 : Certified copy of sale deeds.
to D.52(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.