Professional Documents
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1 O.S. 230/2014
KAKL200014192014
IN THE COURT OF THE ADDL. CIVIL JUDGE &
J.M.F.C, AT BANGARPET
PRESENT: Sri. DEEPU B.C., B.A.L., LL.B.
Addl. Civil Judge & JMFC: Bangarpet.
Dated this the 1 day of April 2022
st
O.S. 230/2014
Plaintiffs : 1. Smt. Venkatarathnamma
D/o Munivenkatappa,
W/o Narayanappa,
Aged about 43 years,
R/at Gullahalli,
Budikote Hobli,
Bangarpet Taluk.
2. Smt. Savithramma
D/o Munivenkatappa,
Aged about 38 years,
R/at Mageri Village,
Kasaba Hobli,
Bangarpet Taluk.
3. Smt. Manjula
D/o Munivenkatappa,
Aged about 31 years,
R/at Butterahalli Village,
2 O.S. 230/2014
Kolar Taluk.
(By Sri. M.H. Adv.)
V/s
Defendants : 1. Muniyappa Dead by Lrs.
(a) Nagamma W/o Muniyappa,
Aged about 40 years,
(b) Sunil S/o Muniyappa,
Aged about 22 years,
Both are R/ Mageri Village,
Kasaba Hobli, Bangarpet Taluk.
(c) Sumithramma
D/o Muniyappa,
W/o Venkatesh,
Aged about 20 years,
R/o Ombathaguli Village,
Kasaba Hobli, Bangarpet Taluk.
2. Chandrappa
S/o Munivenkatappa
Aged about 38 years,
3. Venkateshappa S/o Erappa
Aged about 67 years,
No. 2 and 3 are R/at Mageri Village,
Kasaba Hobli, Bangarpet Taluk.
(D1 & D2Ex.parte, D3 by Sri. MN Adv.)
3 O.S. 230/2014
Date of institution of the suit 04082014
Nature of the suit Partition and Separate
Possession
Date of commencement of 09072018
recovering of evidence
Date on which the Judgment 01042022
was pronounced
Total ratio Year/s Month/s Days
07 07 27
J U D G M E N T
children born namely Muniyappa and another one is
daughter who is dead. Through the 2nd wife
Venkatamma three sons and three daughters born
namely Muniyappa (defendant No. 1), Venkateshappa
and Chandrappa (defendant No. 2) and three
daughters are the plaintiffs herein.
Further, there was a oral partition effected between
the 1st wife’s son Muniyappa and 2nd wife Venkatamma
in respect of suit schedule property. Accordingly, 1
acre of land was allotted to the share of 1st wife’s son
Muniyappa and remaining 2 acres 6 guntas was
allotted to the share of 2nd wife’s children i.e., plaintiffs
and defendant No. 1 and 2. Further, the said
Munivenkatappa and Venkatamma died leaving behind
the plaintiffs and defendant No. 1 and 2 to succeed
their estate. But being a stranger to the family of the
plaintiffs and defendant No. 1 and 2, the defendant
No.3 colluding with the 1st defendant has created some
bogus documents in respect of suit schedule property,
being a coparcenars the plaintiffs are having equal
share in the suit schedule property. Hence, the said
document is not binding on the plaintiffs. In spite of
issuing of legal notice to the defendants for the
partition, they did not come forward to make the same
5 O.S. 230/2014
and the same was constrained the plaintiffs to file this
suit.
3. In response to the suit summons, the defendant
No. 3 appeared through his counsel and got filed his
written statement. But in spite of service of summons
the defendant No. 1 and 2 did not choose to appear
before this court. Hence, they placed Exparte.
Muniyappa has sold 1 acre of land to one Chandrappa
S/o Erappa brother of defendant No. 3 in Sy. No. 64/2.
In turn said Chandrappa has sold the said 1 acre of
land in favor of one A. Krishnareddy. But the said
Chandrappa and Krishnareddy are not made as as
parties to this suit. Further, the plaintiffs’ father
Munivenkatappa through his 2nd wife got six children.
I,e plaintiffs and defendant No.1 and 2 and one
Venkateshappa, who is died and in his name 28
guntas of land was fallen to his share.
bonafide purchaser and he was not known about the
plaintiffs rights over the 27 guntas in the year 1999
and the defendant No. 3 has invested huge amount for
the development of said land and after the lapse of 16
years the plaintiffs have raised their objection. Hence,
the suit of the plaintiffs is barred by law of limitation.
Further, if this court has come to conclusion that the
plaintiffs are entitled for the share in the suit property,
said 27 guntas of land may be allotted to the share of
defendant No. 1 and thereby safeguard interest of the
defendant No. 3 as bonafide purchaser. Since the suit
is a collusive suit between the plaintiffs and defendant
No. 1 and 2, the plaintiffs are not entitled for any share
in the suit schedule property. Accordingly, he prayed to
dismiss the suit of the plaintiffs.
4. On considering the rival pleadings of both parties,
this court has framed the following :
I S S U E S
1. Whether the plaintiffs prove that the suit
schedule property is joint family property
of themselves and defendant No. 1 and 2,
they are in joint possession over the suit
schedule property and there was no
partition in between them as on the date
8 O.S. 230/2014
of suit ?
2. Whether the defendant No. 3 proves that
there was a partition in between four sons
of late Munivenkatappa @ Muneppa @
Appaiah a long back by metes and
bounds ?
3. Whether the defendant No. 3 proves that
he is the bonafide purchaser of suit
schedule property ?
5. What order or decree ?
5. In order to substantiate their case, the plaintiff
No. 3 got examined herself as PW1 and got marked
the documents at Ex.P1 to P11 and closed their side.
7. Heard arguments on both sides.
The learned counsel for the plaintiffs has relied on
the following decisions:
(1) AIR 2008 Allahabad 37
9 O.S. 230/2014
(2) RSA 1653/2021 (Karnataka High Court)
(3) Civil Appeal No. 6659/11 (Supreme court of India)
8. On consideration of the materials placed on
record, this court answers the aforesaid issues are as
under;
Issue No. 1 : In the affirmative
Issue No. 2 : In the negative
Issue No. 3 : In the negative
Issue No. 4 : In the affirmative
Issue No. 5 : As per the final order
for the following ;
: : REASONS : :
9. Issue No. 1 to 3 : Since these issues are inter
connected to each other, they are taken up together for
common discussion, in order to avoid repetition of facts
and evidence.
10. As stated above, the plaintiffs are asserting that
themselves and defendant No.1 and 2 and one
deceased Venkateshappa are the children of
Munivenkatappa and Venkatamma. The suit schedule
property is their ancestral and joint family property
10 O.S. 230/2014
and they are having legitimate share therein, but the
defendant No. 1 and 2 colluding with defendant No.3
have created bogus document in respect of suit
property and same is not binding on them and they are
entitled for share over suit schedule property.
11. In order to substantiate their case, the plaintiff
No. 3 got examined herself as PW1. In lieu of her chief
examination she filed affidavit by reiterating the plaint
averments. Apart from her oral evidence she has
produced the documents at Ex.P1 to P11. Ex.P1 is a
Genealogical tree, Ex.P2 to P8 are RTC extracts, Ex.P9
and 10 are Mutation register extracts, Ex.P11 is RTC
extract.
12. On the other hand, the defendant No. 3 has
admitted the fact that the plaintiffs’ father
Munivenkatappa got two wives namely Maseeyamma
and Venkatamma and said Maseeyamma got 2
children namely Muniyappa and one daughter and 2nd
wife Venkatamma got 6 children i.e., plaintiffs and
defendant No. 1 and 2 and deceased Venkateshappa.
But he contended that the 1st wife son Muniyappa and
his daughter are not made as a parties in this suit and
1st wife son Muniyappa has sold 1 acre of land to him
11 O.S. 230/2014
13. In order to substantiate his case the defendant
No. 3 has entered in to witness box and got examined
himself as DW1. In lieu of his chief examination he
filed affidavit by reiterating the plaint averments. Apart
from his oral evidence he has produced the documents
at Ex.D1 to D5. Ex.D1 is registered sale deed dated:
12.10.1995, Ex.D2 is a registered sale deed dated:
14.05.1997, Ex.D3 is a registered sale deed dated:
24.05.1999, Ex.D4 and D5 are RTC extracts.
14. As could be seen from the records as stated
above it is admitted fact that the propositus
Muniyappa got one son by name Munivenkatappa and
the said Munivenkatappa got two wives i.e., 1 st wife
Maseeyamma and 2nd wife Venkatamma. Through 1st
wife one Muniyappa and one daughter were born,
through 2nd wife the plaintiffs and defendant No. 1 and
12 O.S. 230/2014
15. Further, as per Ex.D1 and D2/sale deeds, the 1st
wife’s son Muniyappa has sold 1 acre of land in suit
survey No.64/2 in favor of defendant No.3 on
12.10.1995 and 14.05.1997 respectively and in
pursuance to the said Ex.D1 and D2, the katha of said
1 acre of land muted into the name of defendant No. 3
as per Ex.D5. Further, as admitted by the PW1 during
her cross examination, the 1st wife son Muniyappa and
his family members have sold another 1 acre of land in
suit survey No. No.64/2 in favor of brother of
defendant No. 3 i.e., Chandrappa and in turn said
Chandrappa has sold the same in favor of one
Krishnareddy and the said fact is corroborate by
Ex.D4/RTC, wherein 1 acre of land in suit Sy. No.
64/2 is standing in the name of Krishnareddy. Hence it
would makes clear that the 1st wife’s son Muniyappa
has sold 2 acre of land in suit Sy. No. 64/2 in favor of
defendant No. 3 and his brother Chandrappa.
13 O.S. 230/2014
16. It is pertinent note here that the defendant No.3
has asserted that the plaintiffs have not made the first
wife’ children Muniyappa and his sister and their
purchaser Krishnareddy in this suit, hence suit of the
plaintiff is bad for nonjoinder of necessary parties. But
no issue was framed. However it is noted that the
plaintiffs did not claim any share in the first wife’s
property which was allotted in partition as admitted by
both parties and they are claiming share only in their
mother’s property. Hence the first wife’s children
Muniyappa and her sister and their purchaser
Krishnareddy are not all necessary parties in this suit.
17. Further it is noted that as per Ex.P8, the land
measuring 4 acre 8 guntas including 5 guntas of
kharab originally belonged to Munivenkatappa and as
admitted by both parties the same was got divided
between his two wives and accordingly, 2 acres of land
was allotted to the 1st wife and remaining 2 acre 3
guntas was allotted to the 2nd wife. As stated above the
1st wife’s son Muniyappa has sold his entire 2 acre of
land in favor of defendant No. 3 and his brother. But
after allotted the share to the 2nd wife, her three sons
i.e., defendant No. 1 and 2 and one deceased
14 O.S. 230/2014
19. Further it is note that as per the defendant No. 3
there was an oral partition/family settlement between
four sons of propositus Munivenkatappa and revenue
entries got entered in respect of their share. Hence, the
plaintiffs estopped or waived off their rights over the
suit schedule property. It is important note here that in
order to substantiate the fact that there was oral
partition held between the four sons of
Munivenkatappa, the defendant No.3 did not place any
piece of evidence before this court. Admittedly there is
revenue entry made in the name of defendant No.1 and
2 and their brother deceased Venkateshappa in respect
of suit schedule property, but there is no piece of
evidence to show that the plaintiff were also
participating in alleged oral partition and no
documents placed on records as to share allotted to the
plaintiffs. So such being the case, merely revenue entry
got entered into the name of defendant No.1 and 2, it
does mean that there was arealy partition held between
the plaintiff and defendant No.1 and 2. Since being a
Class1 legal heirs of propositus Munivenkatappa, the
plaintiffs and defendant No.1 and 2 are having equal
right over suit schedule property.
16 O.S. 230/2014
20. Further, the defendant No.3 is claiming to be a
bonafide purchaser of 27 guntas of land in suit Sy. No.
64/2 under Ex.D3/sale deed. But in his written
statement at para No.18, the defendant No.3 has
pleaded his ignorance as to rights of the plaintiff over
suit property and he has not denied the fact that the
plaintiffs are the legal heirs of propositus
Munivenkatappa and it is not the case of the defendant
No.3 that the defendant No.1 was kartha of joint family
of the plaintiffs and defendant No.2 and he has sold
said land for family legal necessity. So such being case,
it cannot be accepted that the defendant No.3 is the
bonafide purchaser of the said land and being a
purchaser, it was the duty of defendant No.3 to enquire
about the persons who are having right over said
property before purchasing of the same, but the
defendant No.3 has purchased said land by ignoring
the rights of the plaintiffs. Hence he cannot be a
bonafide purchaser. So such being the case, the sale
deed/Ex.D3 executed by defendant No.1 in favor of
defendant No.3 does not bind the plaintiffs.
21. On assessing the oral and documentary evidence
placed record, this court is of opinion that the plaintiffs
17 O.S. 230/2014
successfully proved that the suit schedule property is
the joint family property of themselves and defendant
No.1 and 2. On the other hand, the defendant No.3 has
failed to prove that there was oral partition held
between the plaintiffs and defendant No.1 and 2 and
he is the bonafide purchaser of 27 guntas of land in
suit survey number sold by defendant No.1 under
Ex.D3/sale deed. Thus, issue No. 1 is answered in
the affirmative and issue No. 2 and 3 are answered
in the negative.
22. Issue No. 4 : In view of the findings on issue
No. 1 to 3, this court is of opinion that since the
plaintiffs have proved that the suit schedule property is
the joint family property of themselves and defendant
No.1 and 2, they are entitled for 1/5th share each in the
suit schedule property and the defendant No.1 and 2
are also entitled 1/5th share each in the suit schedule
property, but since the defendant No.1 has sold 27
guntas of land in suit survey number in favor of
defendant No.3 under Ex.D3, the share of the
defendant No.1 is to be allotted to the defendant No.3.
Thus, issue No. 4 is answered in the affirmative.
18 O.S. 230/2014
The suit of the plaintiffs for the relief of
partition and separate possession is
hereby decreed.
In view of the facts and circumstances
of the case, parties are bare their own cost.
Draw preliminary decree accordingly.
(Dictated to the stenographer typed by her, corrected by me and then
pronounced in the open court on this the 1st day of April 2022.)
(DEEPU B.C.)
Addl. C.J. & JMFC: Bangarpet.
19 O.S. 230/2014
S C H E D U L E
Land bearing Sy. No. 64/2 measuring 2 acres
6 guntas including 3 guntas of phoot Karab,
assessed at Rs. 4.08 paisa, situated at Mageri
Village, Kasaba Hobli, Bangarpet Taluk and same
is bounded on East by: Valagamadi Muniyappa's
property, West by: Bairappa's property, North by:
Sridar's property, South by: Krishnareddy's
property.
(DEEPU B.C.)
Addl. C.J. & JMFC: Bangarpet.
20 O.S. 230/2014
Annexure : :
: :
1. List of witnesses examined on behalf of the plaintiff:
PW1 : Manjula
2. List of documents relied on behalf of the plaintiff:
Ex.P1 : Genealogical tree
Ex.P2 to P8: RTC extracts
Ex.P9 & P10: Mutation register extracts
Ex.P11 : RTC extract
3. List of witnesses examined on behalf of the defendants:
DW1 : Venkateshappa
4. List of documents relied on behalf of the defendants :
Ex.D1 : Registered sale deed dated: 12.10.1995
Ex.D2 : Registered sale deed dated: 14.05.1997
Ex.D3 : Registered sale deed dated: 24.05.1999
Ex.D4 & D5: RTC extracts
(DEEPU B.C.)
Addl. C.J. & JMFC: Bangarpet.