D. Sundarami Reddy and another vs N. Jagadish and others

Pradeep D. Waingankar, J. - By the judgment and decree dated 22.7.2014, the suit filed by the plaintiffs in O.S.No.8956/2010 on the file of the V Addl. City Civil Judge, Bangalore came to be dismissed. Challenging the judgment and decree, this appeal is preferred.

The parties are referred to by their ranks before the trial court:-

The appellants are referred to as plaintiffs and the respondents as defendants. The plaintiffs filed a suit to declare that the gift deeds dated 13.3.2008 and 28.4.2010 executed by defendant Nos.5 and 6 in favour of defendant Nos.2 and 7 as null and void and for a decree of permanent injunction against the defendants.

It is the case of the plaintiffs that they are absolute owners in possession of sites bearing Nos.57 and 61 respectively. These two sites were formed in Sy.No. 118 of Horamavu village, K.R. Puram Hobli, Bangalore East Taluk by the owners of Survey numbers P. Gopala Reddy and P. Janardhana Reddy-defendant Nos.5 and 6 two brothers. The plaintiffs purchased these two sites under two different sale deeds dated 10.9.1990 and 30.9.1990 from their vendors defendant Nos.5 and 6. After purchase of sites, they obtained khatha from Horamavu village panchayath. They paid taxes from time to time. Sites came under the jurisdiction of BBMP. Since then, they have been paying the taxes to BBMP from time to time. Sites 57 and 61 are shown as B and C schedule properties in the schedule plaint.

Defendant Nos.2 to 4 are the children of defendant No.5 P. Gopala Reddy. Defendant No.7 is the son of Defendant No.6 P. Janardhana Reddy. Knowing fully well that defendant Nos. 5 and 6 sold the schedule house site Nos.57 and 61 to the plaintiffs, they executed gift deed in respect of the very same property in favour of defendant No.2, S/o. P. Gopala Reddy and Defendant No.7 S/o. P. Janardhana Reddy clandestinely in order to dupe the plaintiffs. Defendant Nos.2 and 7 tried to interfere with the peaceful possession and enjoyment of B and C schedule properties of the plaintiffs on the strength of the alleged gift deed. As such, the plaintiffs filed a suit to declare that the gift deed executed by defendant Nos.5 and 6 in favour of defendant Nos.2 and 7 as null and void and consequential relief of decree of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the schedule property of the plaintiffs.

Upon service of summons, all the defendants except defendant Nos.6 and 7 remained absent. But, defendant Nos. 6 and 7, who appeared have not filed written statement. Defendant No.5 died during the pendency of the suit. Other defendants are LRs of deceased defendant No.5. The plaintiffs in order to prove their case examined the first plaintiff as PW-1 and a witness as PW-2. Exs-P1 to P32 were marked. Defendants have not led evidence. The trial court upon hearing the arguments advanced by the learned counsel for the plaintiffs and on appreciation of evidence, dismissed the suit of the plaintiffs by the impugned judgment and decree mainly on the ground that the suit filed by Umashankar and Manjunatha Reddy, children of Gopala Reddy and Suneetha, W/o. Chandrashekar P. Janardhan Reddy and their other children for partition and separate possession of their ⅜th share was pending. Aggrieved by the judgment and decree, this appeal is preferred.

In response to the notice, respondents did not appear. Upon securing the records, I have heard the arguments. The following points would arise for my determination: -

Whether the dismissal of the suit on the ground that the suit for partition and separate possession in O.S.No. 1152/2004 filed by children of P. Gopala Reddy was pending is proper ?

Whether the plaintiffs have made out a case to declare that the gift deed executed by defendant Nos.5 and 6 in favour of defendant Nos.2 and 7 as void and not binding on the plaintiffs?

Re-Point No.1: -

The case of the plaintiffs is that one D. Sundararami Reddy, defendant No.5 P. Gopala Reddy and defendant No.6 P. Janardhan Reddy are brothers. They were owners of Sy.No. 138 of Horamavu village measuring 6 acres 39 guntas. During the family partition on 16.1.1975, 4 acres 20 guntas of land out of said Sy.No. was allotted to the share of Sundararami Reddy, 39 guntas to P. Gopala Reddy and 1 acre 20 guntas to P. Janardhan Reddy. It is further case of the plaintiffs that thereafter P. Gopala Reddy and P. Janardhan Reddy purchased 4 acres 20 guntas out of said survey number allotted to their elder brother Sundararame Reddy and thereby P. Gopala Reddy and P. Janardhan Reddy became the owners of entire extent of 6 acres 39 guntas. Further, it is evident from the records that major portion of the property was acquired by BDA with the consent of P. Gopala Reddy and P. Janardhan Reddy by paying compensation. Out of the remaining portion, they formed layout and formed various sites. Site Nos.57 and 61 were purchased by the plaintiffs by registered sale deeds and thereafter they put up construction by investing huge amount. After coming to know of the same, two sons of P. Gopala Reddy and one Smt. Suneetha filed a suit in O.S.No. 1152/2004 for partition and separate possession of their share out of Sy.No. 188. Because of the pendency of the said suit for partition, instant suit came to be dismissed. Learned counsel for the plaintiffs produced certified copy of the judgment and decree dated 24.2.2015 in O.S.No. 1152/2004. It is evident from the said judgment and decree that the suit filed came to be dismissed with cost of Rs. 10,000/-. Areading of the judgment would further make it clear that being parties to the documents executed by their father, they have filed a suit suppressing the true facts of the case. As I have already stated, the instant suit came to be dismissed purely on account of pendency of O.S.No. 1152/2004.

The plaintiffs have produced necessary documents to show their title over B and C schedule properties. Ex-P1 is an agreement of sale dated 6.3.1988 executed by P. Gopala Reddy and P. Janardhana Reddy both brothers in favour of plaintiff No. 1 D. Sundarami Reddy and plaintiff No.2 G Gopala Reddy. Under this agreement, possession was delivered to the plaintiffs as could be seen from clause 6 of the agreement. This agreement was entered much prior to the execution of the gift deeds dated 13.3.2008 and 28.8.2010 in favour of defendant No.2 and defendant No.7. Ex-P2 is the Power of Attorney dated 7.7.1990 executed by plaintiff No.1 in favour of G.V. Kumar in respect of the schedule property purchased by him. Ex-P4 is the original sale deed dated 10.9.1990 executed by P. Gopala Reddy and P. Janardhana Reddy in favour of the plaintiffs D. Sundararami Gowda and G. Gopala Reddy in respect of the schedule property. Ex-P5 is the sale deed dated 30.10.1990 executed by P. Janar dhana Reddy and P. Gopala Reddy in favour of D. Sundararami Reddy in respect of the property purchased by D. Sundararami Reddy. Ex-P6 is the letter of acknowledgement where P. Janardhana Reddy and P. Gopala Reddy acknowledged that they sold site Nos.57 and 61 formed in Sy.No. 118 in favour of plaintiff No. 1 and plaintiff No.2 in pursuance of the sale agreement entered in the year 1988. Ex-P7 is the khatha extract issued by Horamavu Grama Panchayath for the year 2002-2003. Ex-P8 is the tax paid receipt. Ex-P9 is also khatha extract. Exs.-P10 and P11 are tax paid receipts issued by Bangalore Jilla Panchayath. Ex-P12 is the khatha extract issued in favour of plaintiff No.1 by BBMP. Ex-P20 is also khatha certificate. Ex-P24 is the certified copy of the affidavit filed by P. Gopala Reddy and P. Janardhan Reddy in O.S.No.83/1991 wherein they have stated that they formed layout out of Sy.No.118. Thus from the documentary evidence as stated above coupled with oral evidence of plaintiff No. 1 who is examined as PW1, plaintiffs have established that they purchased schedule B and C properties from its owner P. Gopala Reddy and P. Janardhana Reddy by registered sale-deed for valuable consideration in pursuance of the sale agreement entered much prior to the execution of the gift deeds in favour of defendant Nos.2 and 7. The defendants have not come forward to contest the suit for the reasons best known to them. The suit for partition and separate possession filed by children of P. Gopala Reddy in O.S.No. 1152/2004 came to be dismissed with cost of Rs. 10,000/-. The defendant No.5 P. Gopala Reddy and defendant No.6 P. Janardhana Reddy who having sold the schedule property in favour of the plaintiffs are not justified in executing gift deeds in respect of the very same property in favour of defendant Nos.2 and 7 their own children. The defendants have no right to interfere with the peaceful possession of the schedule property by the plaintiffs. The gift deed executed by P. Gopala Reddy and P. Janardhana Reddy in favour of defendant Nos.2 and 7 marked as Exs-P28 and 29 dated 13.3.2008 are not binding upon the plaintiffs. When the owner of the schedule property themselves have formed layout and demarcated sites, the boundaries of which are very clearly shown in the sale-deed, then question of plaintiffs filing a suit for partition for demarcation of their properties is uncalled for. It is for this reason, the judgment and decree passed by the court below arc liable to be set-aside.

Accordingly, the appeal filed by the appellants-plaintiffs is allowed. The judgment and decree dated 22.7.2014 in O.S.No.8956/2010 on the file of V Addl. City Civil Judge, Bangalore are hereby set-aside. O.S.No.8956/2010 filed by the appellants-plaintiffs on the file of 5th Addl. City Civil Judge is hereby decreed declaring that the gift deeds dated 13.8.1988 executed by defendant Nos.5 and 6 in favour of defendant Nos.2 and 7 marked as Exs-P28 and P29 are declared as null and void and not binding on the plaintiffs. Consequently, the defendants are restrained by a decree of permanent injunction by interfering with the peaceful possession and enjoyment of B and C schedule properties by the plaintiff.