AI Structured Summary
Not yet generated for this judgment
Judgment
Ashok B. Hinchigeri, J.—This appeal is directed against the judgment and decree, dated 19.08.2009 passed by the Court of the XXXVII Additional City Civil and Sessions Judge, Bangalore City in O.S. No. 8241/2001. The facts of the case in brief are that the appellants filed the suit seeking the reliefs, inter alia, that the sale deed, dated 21.12.2000 executed by the first respondent in favour of the second respondent be declared as void and not binding on the appellants. They also sought the mandatory injunction to the respondent No. 2 to demolish the existing structure on the suit schedule property and deliver its vacant possession to the appellant-plaintiffs. The land standing at Sy. No. 56/4 of Sarakki Village, Uttarahalli Hobli, Bangalore South Taluk, totally measures 2 acres 2 guntas. The property originally belonged to Yellappa. He had three sons, namely, Munimurthy, Muniswamy and Muniyellappa. Of the three sons, Muniswamy died unmarried. On the death of Munimurthy, the said property was partitioned between Gunjamma, the wife of Munimurthy on the one side and Muniyellappa and his sons on the other side. By the said partition arrangement, Gunjamma got 26+13 guntas; and 18 + 26 guntas fell to the share of Muniyelappa. The suit schedule property measuring 15 x 35 ft. was sold by the first defendant in favour of the second defendant on 21.12.2000. It is the claim of the appellant-plaintiffs that the suit schedule property forms part and parcel of 26 guntas of land which had fallen to the share of Gunjamma.
The first defendant filed the written statement contending that Gunjamma and her son had sold the entire share of their property to one Munithanappa by a registered sale deed, dated 02.05.1951. As the predecessor-in-title of the appellants had sold the entire portion of 39 guntas, the appellants cannot object to the sale of the suit schedule property by Muniyellapa''s son, M.S. Murthy, the respondent No. 1 herein. The second defendant also filed the written statement denying the right, title and possession of the appellants over the suit schedule property. The respondent-defendants averred that the husband of the first appellant and the father of the appellant Nos. 2 and 3 had filed O.S. No. 2781/1987 and the appellant Nos. 2 and 3 had filed O.S. No. 6252/2001. Both the suits for permanent injunction came to be dismissed for default.
Based on the rival pleadings, the Trial Court formulated the following issues:
Does plaintiff prove that the sale deed dated 21.12.2000 executed by 1st defendant in favour of 2nd defendant in respect of the suit schedule property is null and void and not binding on the plaintiff?
Is plaintiff entitled for a direction to 2nd defendant to demolish the existing structure on the suit schedule property and handover vacant possession of the same to the plaintiffs?
Is the plaintiff entitled for permanent injunction against 2nd defendant from alienating or creating any charge on the suit schedule property?
Whether the plaintiff is entitled for a consequential relief of a direction to Kengeri Sub Registrar to cancel the sale deed dated 21.12.2000 executed by 1st defendant in favour of 2nd defendant?
Whether the court fee as paid on the plaintiff is sufficient?
What order?
On behalf of the appellants, the appellant No. 3 is examined as P.W. 1. Two witnesses, namely, Rangaswamy and Smt. Jayalakshmamma are examined as P.Ws. 2 and 3 respectively marking 16 documents in Ex. P series. The respondent Nos. 1 and 2 are examined as D.W. 1 and D.W. 2 respectively, marking the documents at Exs. D1 to D16.
Heard the learned counsel for the appellants.
I have browsed through the L.C.R.s. The claim of the appellants is that out of 26 guntas of lands sold by the appellants'' predecessor-in-title, their vendor Munithanappa has released back 6 guntas of land. To make this version acceptable, the appellants have not examined the son of Munithanappa (Munithanappa himself is not alive). The appellants have not examined the scribe or witness to the said release deed (Ex. P2). Besides the said release deed, which is a compulsorily registrable document, has not been registered.
The appellants have not sought any relief of declaration that they be declared the owners of 6 guntas of lands. It is only, if they were to seek such a relief and establish their claim to the said relief that the suit schedule property could be considered as belonging to them, because; as per the appellants'' claim, the suit schedule site measuring 15'' x 35'' forms part of the said 6 guntas of land. There also seems to be lot of confusion regarding the very identity of 26 guntas of land, which fell to the share of the appellants'' predecessor-in-title. P.W. 1 has this to say in the course of cross-examination recorded on 28.11.2007: "I cannot say the boundaries of the land measuring 26 guntas".
P.W. 1 admits that her father had three wives. She states that her father''s first wife was issueless. She states that 5 children were born in the marriage between her father and the second wife. She has further deposed that herself and her elder brother are born to his father through his third wife. It is not known how the property was distributed amongst the children born to his father through his second wife and the children born through his third wife. The children born in the marriage between her father and the second wife are not made parties to the suit. Similarly, the first respondent''s brothers and sisters are also not made parties to the suit. Nor are they examined as witnesses. The suit suffers from the non-joinder of necessary parties.
The claim of the first respondent, who was examined as D.W. 1, is that ''B'' schedule property fell to his father''s share and that what is sold to the respondent No. 2 forms part of ''B'' schedule property This version has not been discredited or demolished by the appellant-plaintiffs in any way. Thus, even when the evidence is re-appreciated, it is difficult to accede to the claims of the appellant-plaintiffs. In the result, this appeal is dismissed. No order as to costs.