Mr K.P Mani Vs Mr. K.P Ganesh

3(c) V.C.LAKSHMINARAYANA SON OF CHOKKALINGAM, AGED ABOUT 49 YEARS, RESIDING AT NO.40/A, V.R.M.LAYOUT, SHASTRI NAGAR, VELLORE-2. 3(d) V.C.VIJAYALAKSHMI DAUGHTER OF CHOKKALINGAM, AGED ABOUT 47 YEARS, RESIDING AT NO.40/A V.R.M.LAYOUT, SHASTRI NAGAR, VELLORE-2. 4. MRS K.P.SARASWATHI D/O THE LATE A.P.SWAMY, W/O SRI S.MANI AGED ABOUT 61 YEARS, ESIDING AT NO.116/7, BESANT LANE, RAYAPETTAIAH, CHENNAI-600 014.

¶29

... RESPONDENTS (BY SRI. SRI. R. PUSHPAHASA., ADVOCATE FOR 1(A TO C) AND CR/R2; R3(A), 3(C), 3(D) & R4 ARE SERVED AND UNREPRESENTED

¶30

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.04.2014 PASSED IN O.S.25262/2008 ON THE FILE OF V ADDL., CITY CIVIL AND SESSIONS JUDGE, BANGALORE

¶31

4 -

¶32

CITY(CCH.NO.2), PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

¶33

IN RFA NO.1138/2014

¶34

BETWEEN:

¶35

1 . MR. K P MANI S/O LATE A.P.SWAMY AGED ABOUT 58 YEARS, RESIDING AT NO.255, 6^TH CROSS, H.M.T.LAYOUT, MATHIKERE, BANGALORE-560 054.

¶36

2 . MR.S.RAJKUMAR S/O THE LATE K.P.SHANMUGHAM, AGED ABOUT 37 YEARS, 3 . MR.S.KARTHIK KUMAR S/O THE LATE K.P.SHANMUGHAM, AGED ABOUT 34 YEARS,

¶37

BOTH 2 AND 3 ARE RESIDING AT NO.7, SWAMY MUDALIAR STREET, K.KAMARAJ ROAD CROSS, BANGALORE-560001

¶38

... APPELLANTS

¶39

(BY SRI. JANARDHANA G., ADVOCATE)

¶40

AND:

¶41

MR SELVARAJ S/O THE LATE A.P.SWAMY AGED ABOUT 63 YEARS, RESIDING AT PORTION OF NO.144, SUNDARANAGAR, BANGALORE-560 054.

¶42

... RESPONDENT

¶43

5 -

¶44

(BY SRI. R. PUSHPAHASA., ADVOCATE FOR CR/RESPONDENT)

¶45

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.04.2014 PASSED IN O.S.2909/2010 ON THE FILE OF I- ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

¶46

THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND RESERVED ON 31.01.2026 FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING:

¶47

CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL

¶48

CAV JUDGMENT

¶49

(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

¶50

These appeals are filed by the plaintiffs/appellants

¶51

herein aggrieved by the common judgment and decree dated 21.04.2014 passed in O.S.Nos.25262/2008 C/w 2909/2010, 6477/2004, 743/2008 and 26416/2009 on the file of I Additional City Civil and Sessions Judge, Bengaluru City (hereinafter referred to as 'the Trial Court').

¶52

RFA No.1131/2014 is filed against the judgment and decree pertaining to suit in O.S.No.25262/2008 and RFA No.1138/2014 is against the judgment and decree pertaining to suit in O.S.No.2909/2010. No appeal is filed in respect of judgment and decree pertaining to suits O.S.Nos.6477/2004, 743/2008 and 26416/2009.

¶53

6 -

¶54

3. Subject matter of these suits are the following

¶55

immovable properties (hereinafter referred to as 'the suit schedule properties'):

¶56

Item No.1

¶57

All that piece and parcel of the property situated in the ground floor, measuring around 10 sq. mtrs bearing No.3/28, situated at Sundar Nagar, 1st main Road, North to South 30 feet and East to West 50 feet and bounded by:

¶58

East by : Property No.22

¶59

West by: Road

¶60

North by: Property of Mrs. Chandraprabha

¶61

South by: Property No.4

¶62

Item No.2

¶63

All that piece and parcel of the property bearing No.255, 16th Main, HMT Layout, 6th Cross, Mathikere, Bangalore-560 054, measuring 30 feet x 50 feet.

¶64

Item No.3

¶65

All that piece and parcel of the property bearing No.59, consisting of ground floor, 1 Floor && 2nd floor situated at 2nd Cross, Bangalore - 560 054, measuring 30 feet x 50 feet.

¶66

Item No.4

¶67

All that piece and parcel of the property bearing No.3, consisting of 3 shops and a house in ground floor, situated at Sundar Nagar, Bangalore 560 054, measuring 30 feet x 60 feet.

¶68

Item No.5

¶69

All that piece and parcel of the property bearing No.497, consisting of ground floor, 1st Floor situated at 3rd Cross, Bahubali Nagar, MES Road, Jalahalli, Bangalore 560 013, measuring 20 feet x 30 feet.

¶70

Item No.6

¶71

All that piece and parcel of the property bearing No.24, consisting of ground floor, situated Pillai Gowda Layout, at 1 Cross, Patil Ramachandra Pura, Jalahalli post, Bangalore 560 013, measuring 20 feet x 40 feet.

¶72

Item No.7

¶73

7 -

¶74

All that piece and parcel of the property bearing No.16/3, situated at Krishna Temple Street, Doddabommasandra, Bangalore 560 097, measuring 60 feet x 40 feet.

¶75

Item No.8

¶76

All that piece and parcel of the property bearing No.6, situated at 3rd Cross, Vaishnavi Layout, Vidyaranapura, Bangalore 560 097, measuring 30 feet x 40 feet.

¶77

Item No.9

¶78

All that piece and parcel of the property bearing No.52, Kammgondanahalli, Jalahalli West, Yeshwanthpur Hobli, Bangalore-560031.

¶79

Item No.10

¶80

All that piece and parcel of the property No.29, katha No.bearing Doddabommasandra, Bangalore - 560 097. 61/3,

¶81

Item No.11

¶82

All that piece and parcel of the property bearing No.65, Katha No.486, situated at Chikkabetttahalli village, Yelahanka Hobli, Bangalore North, Bangalore - 560 097.

¶83

Item No.12

¶84

All that piece and parcel of the property bearing No.144, situated at 5th Cross, Sundar Nagar (Gokula), Bangalore 560 0054, consisting of Ground floor, first Floor & second floor measuring 30 ft x 50 ft.

¶85

Item No.13

¶86

All that piece and parcel of the property bearing No.3, situated at Sundar Nagar (Gokula), Bangalore560 0054, consisting of Ground floor, first Floor & second floor measuring 30 ft x 60 ft.

¶87

Item No.14

¶88

All that piece and parcel of factory shed bearing No.61, Sy. No.52, situated at Kammagondanahalli, Jalahalli West, Yeshwanthpura Hobli, Bangalore.

¶89

Item No.15

¶90

All that piece and parcel of the property bearing No.16/4, situated at Krishna Temple Street, Doddabommasandra, Bangalore-560 0097, consisting of 2 sites measuring 50 ft x 50 ft. and 20 x 40 ft.

¶91

For the purpose of convenience parties are referred to

¶92

in this judgment by their ranks before the trial Court in

¶93

8 -

¶94

O.S.No.25262/2008 which is filed by the plaintiffs/appellants

¶95

herein seeking partition and separate possession of the suit schedule properties. (while suit in O.S.No.2909/2010 is filed by defendant No.2 in O.S.No.25262/2008 for possession and permanent injunction).

¶96

Admittedly, the parties of the aforesaid suits are the children and grand-children of one Sri. A. Perumal Swamy and his wife Smt. Jayalakshmi. The genealogy is as under:

¶97

A Perumal Swamy (died 29.01.1985) + Smt. Jayalakshmi(died 11.06.2007)

¶98

K.P. Shanmugam K.P. Mani K.P. Selvaraj K.P. Ganesh K.P Vasantha K.P. Saraswathi ( died 27.01.2002) (Plf No.1) (Def No.2) (Def No.1) (died 06.12.2013) (Def No.4) (Def No.3)

¶99

S. Rajkumar S. Karthik Kumar Chokkalingam Premalatha Lakshminarayana Vijayalakshmi (Plf No.2) (Plf No.3)

¶100

Case of the plaintiffs in O.S.No.25262/2008 is;

¶101

(a). That A. Perumal Swamy the propositus, passed away intestate on 29.01.1985 leaving behind his wife Smt. Jayalakshmi, four sons and two daughters, namely; K.P. Shanmugam, Sri. K.P. Mani-plaintiff No.1, Sri. K.P. Ganesh-defendant No.1 and Sri. Selvaraj-defendant No.2, Smt. K.P. Vasanthadefendant No.3 and Smt. K.P. Saraswathi-Defendant No.4 to succeed his estate.

¶102

9 -

¶103

(b). First son Sri. K.P. Shanmugam, passed away on 27.01.2002 leaving behind his sons Sri. S. Rajkumar and Sri. S. Karthik Kumar, who are the plaintiff Nos.2 and 3 and said Smt. Jayalakshmi passed away on 11.06.2007.

¶104

(c). That said late A. Perumal Swamy during his lifetime had purchased immovable property bearing No.3/28 situated at Sundarnagar, MSR Main Road, Gokula, Bengaluru, in the name of his wife Smt. Jayalakshmi. (item No.1 of the suit schedule properties)

¶105

(d). Similarly, he had also purchased property bearing No.255, 16th Main, HMT Layout, 6^th Cross, Mathikere, Bengaluru in his name (item No.2 of the suit schedule properties).

¶106

(e). That out of the income generated from the aforesaid two properties, his wife Smt. Jayalakshmi had purchased item Nos.3, 5 to 11 of the suit schedule properties in the name of Sri. K.P. Ganesh/Defendant No.1.

¶107

(f). Similarly, she had purchased item Nos.12, 14 and 15 in the name of Sri. Selvaraj/Defendant No.2 .

¶108

(g). That Sri. K.P. Ganesh and Sri. Selvaraj defendant Nos.1 and 2 respectively had obtained deed of gift in respect of the entire item No.1 of the suit schedule properties from Smt Jayalakshmi. Since Sri.Selvaraj-defendant No.2 had created some galata to tie over the situation and also to avoid further partitioning of the suit scheduled properties between

¶109

10 -

¶110

plaintiffs and defendants, he was given ground floor of the said building.

¶111

(h). The suit schedule properties are joint family properties acquired from the funds belonging to their father late A. Perumal Swamy and there was no independent source of income to purchase the same. That the defendants are avoiding to give any share to the plaintiffs in the suit scheduled properties.

¶112

(i). In this regard, defendant No.1-Sri. K.P. Ganesh, and father of Sri. S. Rajkumar and Sri. S. KarthikPlaintiffs had given a complaint to the Police on 13.05.2000 against their mother for not giving any share out of the huge wealth left behind by their father. However, the police had issued an endorsement, calling upon the plaintiffs and defendants to have the matter resolved in the Civil Court.

¶113

(j). That the Sri. K.P. Shanmugham, father of Sri. S. Rajkumar and Sri. S. Karthik Kumar, plaintiff Nos.2 and 3 respectively passed away on 27.01.2002. After his demise plaintiffs once again approached the defendants seeking partition of the suit schedule properties. That, though the defendants have no manner of independent right, title or interest over the suit schedule properties, they are enjoying the same along with the plaintiffs as joint family properties. Instead of partitioning suit schedule properties among their family members they have refused to give the shares to the plaintiffs.

¶114

11 -

¶115

(k). That Sri. K.P. Ganesh-defendant No.1 had filed a suit against the plaintiffs in O.S.No.6477/2007 for permanent injunction on the alleged ground that he is the absolute owner of item No.1 of the suit schedule properties and that the plaintiffs were interfering with his possession.

¶116

(l). Defendants attempted to dispossess the plaintiffs from the residential portion of the building in first floor of item No.1 of the suit schedule properties and the shop in the ground floor. The income from the business in the shop is only source of income for Sri. K.P.Mani-plaintiff No.1 to maintain his family. The police had called upon them to Station and advised them to settle the matter amicably. Plaintiffs are therefore constrained to file the suit for partition.

¶117

7. Written statement is filed by the defendants;

¶118

(a) Admitting their relationship and also admitting the date of death of their father A. Perumal Swamy and mother Smt. Jayalakshmi respectively leaving behind plaintiffs, defendants and two other daughters.

¶119

(b) It is denied that A. Perumal Swamy had acquired several immovable properties bearing property No.255, 16th Main, HMT Layout, 6^th Cross, Mathikere, Bengaluru in his name and bearing property No.3/28 situated at Sundarnagar, MSR Main Road, Gokula, Bengaluru in the name of his wife

¶120

12 -

¶121

Smt. Jayalakshmi and that from and out of the income from the said properties Smt. Jayalakshmi purchased various properties as mentioned in the paragraph No.3 of the plaint.

¶122

(c) It is contented that the item No.1 of the suit schedule properties is the self-acquired absolute property of Smt. Jayalakshmi, and that she executed deed of gift on 24.02.2003 conveying all her right, title, interest and possession in favour of Sri. Selvaraj/defendant No.2 therein. Thereafter Sri. Selvaraj/defendant No.2 has conveyed ground floor portion of item No.1 of the suit schedule properties to his brother Sri. K.P. Ganesh/defendant No.1 in terms of registered deed of gift dated 27.04.2006, enabling him to have his business in the ground floor shop and to use the residence behind him. Thus, by virtue of the said documents, Sri. K.P. Ganesh and Sri. Selvaraj are the absolute owners of item No.1 of the suit schedule properties and the plaintiffs have no share, right, title or interest over the same.

¶123

(d) That Sri. K.P. Mani-plaintiff No.1 had taken the shop on rent in respect of item No.1 of the suit schedule properties from Sri. K.P. Ganesh-defendant No.1 and was running the same for sometime and it was not a good and profitable business. However, Sri. K.P. Ganesh-defendant No.1 wanted the shop, that was occupied by Sri. K.P. Mani/plaintiff No.1 for his own use, expanding his business by including the same to his shop by removing the common wall.

¶124

13 -

¶125

(e) Since, Sri. K.P. Mani-plaintiff No.1 refused to vacate the same, he had filed a case in H.R.C No.162/2008 and has executed the eviction order in Ex.No.60/2009, Sri. K.P. Ganesh-defendant No.1 has filed a frivolous application in the Execution Case, besides Miscellaneous Cases seeking setting aside the eviction order.

¶126

(f) Item No.2 of the suit schedule properties is the self acquired property of the father, late A. Perumal Swamy, who died intestate.

¶127

(g) That item No.4 and 13 are the repetition of item No.1. Item Nos.6, 7, 8, 9, 11 and 14 do not belong either to the joint family or to any other defendants and they are not available for partition. That item Nos.3, 5, 10, 12 and 15 are the selfacquired absolute properties of the defendants and their wives purchased from and out of their selfearning, savings and borrowings, over which the plaintiffs or anyone else have no share, right or interest, as such the same are not available for partition.

¶128

(h) The suit filed by the plaintiffs including the selfacquired properties of the defendants and their wives is only to force and coerce the defendants to meet their legal demands. That the suit schedule properties are not the joint family properties or ancestral properties. Hence, sought for dismissal of the suit.

¶129

14 -

¶130

O.S.No.2909/2010

¶131

Suit in O.S.No.2909/2010 is filed by Sri.

¶132

Selvaraj/defendant No.2 in O.S.No.25262/2008 claiming;

¶133

(a) that he is the owner in possession of item No.1 of suit schedule properties on the basis of deed of gift dated 24.02.2003 executed in his favour by mother Smt.Jayalakshmi, who was the earlier owner. That his name has been entered into the revenue records of the Bruhath Bengaluru Mahanagara Palike and he is in peaceful possession and enjoyment of the same. He is using a portion of the said property for himself and has let out another room and a house in the first floor to one Sri. B. Lokesh Nagaraj.

¶134

(b) That he has gifted ground floor portion of the said property in favour of his younger brother Sri. K.P. Ganesh-defendant No.1 in terms of deed of gift dated 27.04.2006.

¶135

(c) That the defendants and children of his deceased brother K.P. Shanmugam are trying to interfere with the possession and enjoyment of the suit property. That there are several civil and criminal cases pending amongst the brothers. That on 18.04.2010, plaintiffs and defendants came to the

¶136

15 -

¶137

suit schedule property, tried to dispossess his tenants and even they tried to interfere with his lawful possession and enjoyment and have forcibly occupied the single room in the first floor. Hence, sought for relief of permanent injunction.

¶138

Defendants, who are the plaintiffs in

¶139

O.S.No.25262/2008, have filed written statement contending that since plaintiffs started to interfere with their possession,

¶140

they have filed a suit in O.S.No.26416/2007 against the plaintiffs and his brother Sri. K.P. Ganesh/defendant No.1. Wherein, after issuance of notice, interim order was granted directing them not to disturb their possession. That taking advantage of the closing of the Courts for Summer Vacation and suppressing material facts, the suit was filed on obtaining an Ex-parte order on the very same day. That they have taken possession of the suit property. Hence, sought for dismissal of the suit.

¶141

O.S.No.6477/2007

¶142

Suit in O.S.No.6477/2007 is filed by Sri. K.P

¶143

Ganesh/defendant No.1, claiming that his mother Smt. Jayalakshmi was doing business during her lifetime and due to her hard work and savings she had purchased item No.1 of the suit schedule properties bearing No.3/28 situated at

¶144

16 -

¶145

Sundarnagar, MSR Main Road, Gokula, Bengaluru, measuring east-west 50 feet and north-south 30 feet, along with one Smt. Chandrapraba on joint basis under Registered deed of sale dated 10.08.1973 and have constructed some shops in the old property. The mother had partitioned the property in two halves equally between herself and said Smt.Chandrapraba in terms of registered partition dated 17.12.1975, and had got her portion in her possession. That she had constructed two houses in the ground floor and the first floor and had given ownership of the portion of the house to her first and third sons K. P. Shanmugham and K. P. Mani respectively and later her relationship with the said sons got strained and she filed an eviction suit to get her sons evicted from the suit property in O.S.No.4527/2000 before the City Civil Judge, Bengaluru (CCH23) and also for permanent injunction restraining them from interfering with the peaceful possession of the property. That said Smt. Jayalakshmi gifted her entire share of the property to her third son Sri.K.P.Selvaraj in terms of deed of gift dated 24.02.2003, said Sri. Selvaraj/defendant No.2 took possession of the gifted property and transferred the khata in his name. That the said Smt. Jayalakshmi passed away on 11.06.2007, said Sri.K.P. Selvaraj had retained first floor of the property and he further gifted ground floor of the property in favour of

¶146

17 -

¶147

his younger brother- KP Ganesh the plaintiff. That on 27.04.2006, plaintiff had taken possession of the gifted property and had obtained a khata in his name. That on 24.06.2007, defendants had picked up quarrel with plaintiffs and demanded to share the property alleging that two brothers Sri. K.P.Mani-plaintiff No.1 and Sri. Selvaraj-defendant No.2 had influenced their mother and obtained the deed of gift. As such, sought for permanent injunction.

¶148

The written statement is filed denying the allegations and averments made in the said plaint and sought for dismissal of the suit.

¶149

O.S.No.743/2008

¶150

Suit in O.S.No.743/2008 is filed by Smt.K.P.Vasantha /defendant No.3 against the plaintiff Nos.1 to 3 and defendant Nos.1, 2 and 4 in O.S.No.25262/2008 contending that her father A. Perumal Swamy was Ex-Service Man and later joined HMT factory as Transport Operator and had earned a suit schedule property in his name and that there was no division of property by metes and bounds during his lifetime and he passed away on 29.01.1985. That Defendant No.3Smt.K.P.Vasantha was staying in her maternal house. It is contented that she was granted equal share in the property by her father. Though she waited for her share and requested her

¶151

18 -

¶152

brothers to consider her request for giving a share of land along with his sister defendant No.4-Smt. K.P.Saraswathi, which was not considered by her brothers. Hence, she filed a suit for partition of 1/6^th share of the suit schedule properties. Defendants in the said suit filed common written statement.

¶153

Based on the pleading, the trial Court framed the

¶154

following issues:

¶155

ISSUES IN O.S.No.25262/2008

¶156

1. Whether the plaintiff proves that the suit properties are the joint family properties liable for partition?

¶157

2. Whether plaintiff is entitle for 1/4^th share?

¶158

3. Whether defendants 1 & 2 prove that item No.1 of the suit schedule property is the self-acquired properties of the mother of the defendants who executed a gift deed on 24.02.2003 in favour of Defendant No.2, who in turn gifted ground floor portion to defendant No.1 on 27.04.2006 who became the absolute owners?

¶159

4. Whether the defendants 1 & 2 proves that Item No.3, 5, 10, 12 and 15 properties are their absolute properties?

¶160

5. What order or decree?

¶161

ISSUES IN O.S.No.2909/2010

¶162

1. ªÁ¢AiÀÄÄ zÁªÁ ºÀÆqÀÄªÀ ¢£ÁAPÀzÀAzÀÄ zÁªÁ D¹ÛAiÀÄ £ÁåAiÀÄAiÀÄÄvÀ ¸Áé¢üÃ£À ºÉÆA¢gÀÄªÀgÀÄ J£ÀÄßªÀÅzÀ£ÀÄß gÀÄdÄªÁvÀÄ ªÀiÁrgÀÄªÀgÉÃ?

¶163

ºÁVzÀÝ ¥ÀPÀëzÀ°è ªÁ¢AiÀÄ zÁªÁ D¹ÛAiÀÄ ¸Áé¢üÃ£ÀvÉUÉ zÁªÁzÀ°è ºÉÃ½zÀAvÉ ¥ÀæwªÁ¢AiÀÄgÀÄ CrØAiÀÄÄAlÄ ªÀiÁrgÀÄªÀgÀÄ J£ÀÄßªÀÅzÀ£ÀÄß gÀÄdÄªÁvÀÄ ªÀiÁrgÀÄªÀgÉÃ?

¶164

CAwªÀÅ DeÉÕ K£ÀÄ?

¶165

Additional issues:

¶166

1. Whether the plaintiff is entitled to possession of suit schedule property ?

¶167

Issues in O.S.No.6477/2007

¶168

19 -

¶169

1. �ಾ�ಯು �ಾ�ಾ �ೆಡೂ�� ಆ��ಯ�� ಾ�ಾ ��ಾಂಕದಂದು �ಾನೂನು ಬದ� �ಾ��ೕ�ಾನುಭವದ�� ಇದ!�ೆಂದು �ಾ�ಯು ರುಜು�ಾತು ಪ&ಸು(ಾ � ೆ)ೕ ?

¶170

2. �ಾ�ಾ �ೆಡೂ�� ಆ��ಯ�� ಪ*+�ಾ�ಯರು �ಾ�ಯ ,ಾಂ+ಯುತ �ಾ��ೕ�ಾನುಭವ�ೆಅ&/ಪ&��ಾ!0ೆಂದು �ಾ�ಯು gÀÄdÄªÁvÀÄ ಪ&ಸು(ಾ � ೆ)ೕ ?

¶171

3. 2ಾವ+ೕಪ34 , 2ಾವ&5* ?

¶172

Issues in O.S.No. 743/2008

¶173

1. Whether plaintiff proves that suit schedule property is property of her father?

¶174

2. Whether plaintiff is entitled to 1/6th share in the suit schedule property ?

¶175

3. What order or decree?

¶176

Issues in O.S.No.26416/2007

¶177

1. Whether plaintiffs prove lawful possession over the plaint schedule property as on the date of suit?

¶178

2. Whether he proves interference with the possession over the plaint schedule property by defendants as pleaded?

¶179

3. Whether plaintiff is entitled for the Permanent Injunction as sought for?

¶180

4. What order or decree?''

¶181

The trial Court has recorded the common evidence in

¶182

the suits. Sri. K.P.Mani-plaintiff No.1 in O.S.No.25262/2008 has

¶183

examined himself as PW1 and exhibited 87 documents marked as Ex.P1 to Ex.P87. Five witnesses have been examined on behalf of defendants as DW1 to DW5 and have exhibited 100 documents marked Ex.D1 to Ex.D100.

¶184

20 -

¶185

The trial Court has taken up all the suits for common

¶186

disposal and on appreciation of the matter has passed the following:

¶187

'' ORDER

¶188

(i) The suit of the plaintiffs in OS No.25262/2008 is partly decreed.

¶189

(ii) The plaintiff No.1, defendants 1, 2 & 4 are entitled to 1/6th Share each only in item No.2 of the suit schedule property. The plaintiffs 2 & 3 are together entitled to 1/6th share in item No.2 of the suit schedule property and the defendants 3(a) to 3(d) are together entitled to 1/6th share in item No.2 of the suit schedule property.

¶190

(iii) The plaintiffs are entitled to partition and separate possession of their share in item No.2 of the suit schedule property.

¶191

(iv) The suit of the plaintiff in O.S.No.2909/2010 is decreed. The defendants are directed to handover vacant possession of one room in their occupation in the suit schedule property to the plaintiff within two months. The defendants are restrained from interfering with the possession of the plaintiff over the suit schedule property.

¶192

(v) The suit of the plaintiff in OS No.6477/2007 is partly decreed. The defendants are restrained from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property except one shop which is in occupation of defendant No.1.

¶193

(vi) The suit of the plaintiff in OS No.26416/2007 is dismissed.

¶194

(vii) The suit of the plaintiff in OS No.743/2008 is dismissed as abated.

¶195

(viii) Draw preliminary decree accordingly.

¶196

(ix) The parties are directed to bear their own costs.

¶197

The original of the Judgment shall be kept in the OS 25262/2008 and a copy each of the judgment shall be

¶198

21 -

¶199

kept in OS No.2909/2010, 6477/2007, 743/2008 & 26416/2007.''

¶200

Aggrieved by the common judgment and decree dated 21.04.2014 passed in O.S.No.25262/2008 and O.S.No.2909/2010, Sri. K.P.Mani-plaintiff No.1, Sri. S. Rajkumar-plaintiff No.2, Sri. S. Karthik Kumar-plaintiff No.3 are before this Court in RFA No.1131/2014 and in RFA No.1138/2014 respectively.

¶201

Sri. Janardhana G., learned counsel appearing for the appellants-Sri. K.P.Mani-plaintiff No.1, Sri. S. Rajkumarplaintiff No.2, Sri. S. Karthik Kumar-plaintiff No.3 taking this Court extensively through the records, submitted;

¶202

(a) that the trial Court has failed to appreciate the

¶203

evidence placed on record and grossly erred in holding Item No.1 of the suit schedule properties to be the self-acquired property of Smt Jayalaksmi, even though the plaintiffs have brought on record that Smt. Jayalakshmi was a housewife having no independent source of income to purchase any property.

¶204

22 -

¶205

(b) That the item No.1 of the suit schedule properties was purchased from the funds of their father late A. Perumal Swamy. That the said Smt. Jayalakshmi was residing with their father in a joint family at HMT quarters, where there was no place for carrying on any business by her as contended by the defendants. That the trial Court has erred in relying upon the alleged statement made by Smt. Jayalakshmi in O.S.No.4527/2000 and further erred in applying Section 32 of the Indian Evidence Act without appreciating the fact that the said suit was filed at the instance of K.P. Ganesh/Defendant No.1. (c) That the trial Court erred in holding that the plaintiffs failed to produce any documents to show that they had a property in Tamil Nadu, which was sold out and the proceeds from the said sale was utilized for the purpose of purchasing property in Malleshwaram and after selling the property in Malleshwaram, item No.1 of the suit schedule properties have been purchased, that the adverse inference ought to have been drawn by the trial Court.

¶206

23 -

¶207

(d) That the trial Court further erred in holding that their mother-Smt.Jayalakshmi was having sufficient income to purchase item No.1 of the suit schedule properties and in terms of Section 14 of the Hindu Succession Act, she became absolute owner. That finding of the trial Court was erroneous.

¶208

(e) That Item Nos.3 and 15 of the suit schedule properties were purchased from and out of the income from M/s. Jayalakshmi Transport business but the trial Court erred in holding that item Nos.3 to 15 properties were purchased in the name of K.P. Ganesh-defendant No.1 and Sri. Selvaraj-defendant No.2 and that same are their self acquired properties not being available for partition, though they had admitted in the cross-examination that the said properties were purchased from the income generated from M/s. Jayalakshmi Transport business and they had no other source of income to purchase the said properties.

¶209

(f) That the trial Court also erred in holding that the Item Nos.6 to 9, 11 and 14 of suit schedule properties were not available for partition. Despite the plaintiffs contending that they were purchased

¶210

24 -

¶211

from and out of the family business and had produced documentary evidence, such as, photographs, trip sheets, books containing the bills for carrying on the business which has not been appreciated by the trial Court.

¶212

(g) Documents at Exs.P19 to P29, Exs.D13 to D31 establish that there was a family business in the name of M/s. Jayalakshmi Transport, which fact has not been denied by the defendants Nos.1 and 2 in their cross-examination.

¶213

(h) That the Trial Court erred in holding that M/s Jayalakshmi Enterprises is run by plaintiff No.1, which is a lubricant business different and distinct business from of M/s. Jayalakshmi Transport. Though nobody had contended, M/s. Jayalakshmi Enterprises was a joint family business. The trial Court erred in relying upon the evidence of DW3 in the crossexamination of plaintiffs carrying on the M/s. Jayalakshmi Transport business and plaintiffs failed to plead and prove that the M/s. Jayalakshmi Transport was a joint family business. Though the plaintiffs had produced record to prove the said business to be the joint family business.

¶214

25 -

¶215

Per contra , learned counsel appearing for the defendant Nos.1 and 2 submitted;

¶216

(a) that the very description of the properties given by the plaintiffs in the plaint is erroneous and misleading, in that, Item Nos.4 and 13 of the suit schedule properties are the repetition of Item No.1. Item Nos.6, 7, 8, 9, 11 and 14, do not belong to family of the plaintiffs or the defendants. As such the said properties are not available for partition.

¶217

(b) Item Nos.3, 5, 10, 12 and 15 are the properties belonging to defendant Nos.1 and 2 and their respective spouse, they having purchased the same out of their own self earning.

¶218

(c) That though the plaintiffs have claimed that all the Item Nos.1 to 15 of the suit schedule properties

¶219

are the joint family properties, they have not produced any acceptable evidence to show that the said properties were acquired from and out of the joint family nucleus.

¶220

(d) That Item No.1 of the suit schedule properties was purchased by the mother of the plaintiffs and the defendants i.e., Smt.Jayalakshmi along with one

¶221

26 -

¶222

Smt.Chandraprabha, out of her own income. As such the claim of the plaintiffs that from and out of the income generated from Item No.1 of the suit schedule properties, the rest of the properties acquired is untenable.

¶223

(e) That item No.2 of the suit schedule properties though was purchased by late A. Perumal Swamy during his lifetime, the same was acquired by borrowing the loan. The said property was not generating any income, such that the other family properties could be purchased.

¶224

(f) As regards item No.1 of the suit schedule property, he reiterated that Smt.Jayalakshmi had executed a deed of gift dated 24.02.2003 in favour of defendant No.2 in respect to the entire suit property and defendant No.2 in turn had executed a deed of gift in favour of defendant No.1 in respect to the ground floor portion of the said property. That Smt.Jayalakshmi being the absolute owner of the property was having all legal right, title and interest to dispose of the property in Item No.1 as she deemed appropriate. Therefore the plaintiffs cannot

¶225

27 -

¶226

claim the said property to be the joint family property.

¶227

(g) That since the plaintiffs have not produced any evidence to show that the existence of joint family nucleus, the allegation of acquisition of the other properties is untenable and rightly rejected by the trial Court.

¶228

(h) That Item Nos.3, 5, 10, 12 and 15 are concerned, defendants who have claimed the said properties to be their self-acquired properties purchased by them and their spouse, have produced acceptable material evidence in the nature of loans borrowed and income tax returns indicating that the said properties were acquired out of their own income without there being any contribution from family.

¶229

(i) That the claim of the plaintiffs that the family was running a transport business known and called as M/s. Jayalakshmi Transports is misconceived. That there is no pleading in the plaint and the evidence produced in that regard does not support and justify the case of the plaintiffs. That mere production of photographs and the bill books and the lorry receipts

¶230

28 -

¶231

would not make the said business a joint family business unless the plaintiffs plead, prove and establish the said factum.

¶232

(j) That the further claim of the plaintiffs that there was a property in Malleshwaram which was purchased by their father late A. Perumal Swamy and the income generated from the sale of said property is also untenable as the plaintiffs have not given any detail with regard to such property as 'Malleshwaram property' was ever existed.

¶233

(k) That the trial Court has rightly dismissed the suit of the plaintiffs with respect to Item Nos.1 and 3, 5, 10, 12 and 15 of the suit schedule properties and has granted relief only in respect to Item No.2 of the suit schedule properties. Hence seeks for dismissal of the appeal.

¶234

Learned Counsel for the plaintiffs/appellants has filed an application under Order XLI Rule 27 R/w Section 151 of CPC seeking production of following documents;

¶235

(1). Digital copy of the sale deed dated 28.01.1981 under which late A. Perumal Swamy, the father of appellant Nos.2, 3 and defendant No. 2, jointly sold

¶236

29 -

¶237

property in Sy.No.442/1 in two items in all totally measuring 6476 Sq.ft. for valuable consideration situated at Kavanuru Village of Gudiyatam, Vellore District along with typed copy of the same.

¶238

(2). Digitally issued encumbrance certificate relating to Item Nos.7 and 10 (part of the same) and 15 and all these items are one and the same.

¶239

(3). Digitally issued encumbrance certificate relating

¶240

to Item No.11 of suit schedule properties.

¶241

(4). Certificate/affidavit under Section 63 of

¶242

Bharatiya Sakshya Adhiniyam , 2023.

¶243

In the affidavit accompanying the said application it is contented that during the cross examination of DW1 it was suggested that late A. Perumal Swamy, the father of plaintiff Nos.2, 3 and defendant No. 2 had properties at Kavanuru Village of Gudiyatam, Vellore District and he had sold the same and purchased the property in Malleshwaram Pipeline, Bengaluru and further sold it and purchased the properties at Bengaluru and however both defendant Nos.1 and 2 have denied the same. It is further contended that DW.1 has admitted that late A. Perumal Swamy had sold the property of

¶244

30 -

¶245

Malleshwaram Pipeline and in this regard he could not produce the said document before the Court since he was not having specific sale deed details of the said documents and thereafter on going to the said place he could able to secure the information and immediately he got the copy digitally downloaded. That the said document was necessary to prove the existence of the joint family nucleus. That the defendants in their written statement have contended that item No.11 the suit schedule properties did not belong to their family and however the said property is mentioned as No.65 Khata No.486, but in fact it is BBMP Khata No.61/3/8 and he has sold the same to Mr. Victory Karunanidhi under registered sale deed dated 11.06.2024. Similarly, part of item No.7 of suit schedule properties is concerned, it has been purchased by defendant No.1 as on 14.09.2014 from Kumari M. Rajitha and Master M. Lalith and since in respect of these properties pleadings are already available and they denied the same and in fact they were in possession of the said document were not produced before the court and with a great difficulty in collecting the information from the known sources. As such, he could not produce the document.

¶246

The point that arises for consideration is;

¶247

31 -

¶248

1. Whether the plaintiffs have proved that the suit item Nos.1 to 15 are the joint family properties belonging to the plaintiffs and the defendants and they being entitled for the equal share therein?

¶249

2. Whether the application filed by the plaintiffs/appellants under Order 41 Rule 27 seeking production of additional documents is required to be allowed?

¶250

3. Whether the trial Court is justified in partly allowing the suit granting decree of partition only in respect of item No.2 of the suit property?

¶251

4. Whether the trial Court is justified in granting the relief of possession in favour of defendant No.2 as sought for in O.S.No.2909/2010 ?

¶252

Regarding Point No.1:

¶253

Settled position of law is that there can be a presumption regarding existence of a joint family but there cannot be any such presumption of existence of joint family property. The burden of proof is on the person who asserts existence of undivided Hindu Joint family, not only with respect to jointness of family but also with respect to the fact that the property concerned belonged to such Hindu Joint family. Unless there is acceptable material evidence on record to show that the existence of joint family nucleus is sufficient enough to acquire property, claim of existence of joint family property cannot be accepted. Apex court in the case of Bhagwath Sharan (Dead through legal representatives) Vs.

¶254

32 -

¶255

Purushottam and others reported in (2020) 6 SCC 387, at

¶256

paragraph Nos.10, 12 and 21 held as under:

¶257

'' 10. At the outset we may note that a lot of arguments were addressed and judgments were cited on the attributes of HUF and the manner in which it can be constituted. In view of the facts narrated above, in our view, a large number of these arguments and citations need not be considered. The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal v. Reoti Devi. Both the parties have placed reliance on this judgment. In this case, this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in Bhagwati Prasad Sah v. Dulhin Rameshwari Kuer it held as follows : (SCC p. 491, para 10)

¶258

“10. … Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law.”

¶259

12. In D.S. Lakshmaiah v. L. Balasubramanyam this Court held as follows :, SCC p. 317, para 18)

¶260

“18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so

¶261

33 -

¶262

asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.”

¶263

Similar view was taken in Rukhmabai v. Lala Laxminarayan and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade. The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.

¶264

21. An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. It is in this light that we have to examine the admission made by Hari Ram and his brothers while filing the written statement to the suit filed by Seth Budhmal. In Para 6, the averment was that the defendants constituted trading joint Hindu family. It is obvious that the admission was with regard to a trading family and not HUF. In view of the law cited above, it is clear that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. In our opinion, this has not been proved in the present case. Merely because the business is joint would not raise the presumption that there is a joint Hindu family. As far as Para 8 is concerned, in our view, there is no clear-cut admission. The allegation made was that the minors were represented by Defendants 1 to 3, who were head of their respective branches. In reply to this it was stated that

¶265

34 -

¶266

Defendants 1 to 3 were neither the head or the karta, nor was the mortgage transaction made in that capacity. This admission cannot be said to be an unequivocal admission of there being a joint family.''

¶267

In the instant case plaintiffs have specifically claimed that late A. Perumal Swamy had purchased Item No.1 of the suit schedule properties in the name of his wife Smt.Jayalakshmi and that he had purchased the Item No.2 of the suit schedule properties in his name. It is further alleged that from and out of the income that was generated from item Nos.1 and 2 of the properties, their mother Smt. Jayalakshmi during her lifetime had purchased item Nos.3, 5 to 11 of the suit schedule properties in the name of defendant No.1-Sri. K. P. Ganesh, and that the said Smt.Jayalakshmi also purchased item Nos.12, 14 and 15 of the suit schedule properties in the name of defendant No.2.

¶268

According to the defendants item No.1 of the suit schedule properties, was purchased by Smt.Jayalakshmi along with one Smt. Chandraprabha vide deed of sale dated 10.08.1973. That the said Smt. Chandraprabha and Smt.Jayalakshmi had entered into a partition on 17.12.1975, in terms of which Item No.1 of the suit schedule properties was allotted to the share of Smt. Jayalakshmi.

¶269

35 -

¶270

It is appropriate to note that Smt.Jayalakshmi during her lifetime filed a suit in O.S.No.4527/2000, against the very plaintiffs, in respect of item No.1 of suit schedule properties seeking relief of permanent injunction restraining them from interfering with her peaceful possession and enjoyment of the said property. In the said suit, it appears she had claimed that she was doing business and out of her income purchased the item No.1 of the suit schedule properties along with said Smt. Chandraprabha. The trial Court on this material evidence placed on record, has concluded that the plaintiffs failed to prove that item No.1 of the suit schedule properties was purchased by late A. Perumal Swamy in the name of Smt. Jayalakshmi. It has also concluded that since the said property was indeed purchased by Smt.Jayalakshmi, she was absolute owner of the property in terms of Section 14 of Hindu Succession Act having absolute right to deal with the said property in the manner she desired. Having thus held, the trial Court has proceeded to hold that the deed of gift executed by her on 24.02.2003 in favour of defendant No.2 was valid and subsisting.

¶271

This Court, in the absence of plaintiffs bringing on record any material evidence or demonstrating from the records to the contrary, cannot find any error or irregularity

¶272

36 -

¶273

committed by the trial Court in concluding that the item No.1 of the suit schedule properties was the absolute property of Smt.Jayalakshmi, mother of the plaintiff No.1 and defendant Nos.1 to 4 and the grandmother of plaintiffs Nos.2 to 3. The said findings therefore cannot be interfered with.

¶274

As regards item No.2 of the suit schedule properties, it is on record that admittedly same was purchased by late A. Perumal Swamy. Ex.D1 is a discharge deed executed by Secretary of the HMT Employees' House Building Cooperative Society Ltd., wherein as noted by the trial Court, late A. Perumal Swamy had apparently borrowed a sum of Rs.3,000/- in terms of the deed of mortgage dated 06.01.1970 and he had fully paid or discharged the said sum through his salary. The said document Ex.D1 has been confronted to PW1 during the cross examination and the same has been admitted by him.

¶275

Further nothing is placed on record by the plaintiffs to demonstrate that the said Item No.2 of the suit schedule properties was generating any income. Though, the PW1 during his cross examination has stated that their father had constructed a house on the item No.2 consisting of ground floor and the first floor, nothing is either pleaded or proved that the said property was generating any income.

¶276

37 -

¶277

Clearly, the claim of the plaintiffs that the rest of

¶278

items in the suit schedule properties were purchased from and out of the income being generated from Item Nos.1 and 2 of the suit schedule properties cannot be accepted.

¶279

Defendants on other hand have specifically contended that item Nos.6 to 9, 11 and 14 of the suit schedule properties do not belong or constitute joint family properties. Plaintiffs have not produced any material evidence to prove that the said properties indeed belong to the family. In the absence of any material evidence brought on record by the plaintiffs to justify their claim of Item Nos.6 to 9, 11 to 14 of the suit schedule properties belonging to joint family, the trial Court in the considered view of this Court has rightly held that item Nos.6 to 9, 11 to 14 do not belong to the joint family and they are not available for partition.

¶280

Learned counsel for the plaintiffs/appellants vehemently submits that item Nos.3 to 15 of the suit schedule properties were purchased from and out of the income generated from the M/s. Jayalakshmi Transport business. He relies upon document at Exs.P19 to Exs.P29 which all are the trip sheets. Document at Ex.P32 is the counterfoil of the Karnataka Bank Ltd., and Document at Ex.P33 is the counterfoil

¶281

38 -

¶282

of State Bank of India. Based on these documents, learned counsel for the plaintiffs/appellants contended that since the said documents have been admitted by DW2 during his crossexamination as the same belonging to M/s. Jayalakshmi Transport business, sufficient material has been brought on record by the plaintiffs to justify the claim of item Nos.3 to 15 of the suit schedule properties having been purchased from and out of the income generated from the said business. There is absolutely no pleading in the plaint that the family was running any business much less the business known and called as M/s. Jayalakshmi Enterprises. It is only during the evidence this contention of family running the business of M/s. Jayalakshmi Transports has been brought forth. It is settled principle of law that any amount of evidence in the absence of pleading is of no avail.

¶283

Another aspect of the matter is Ex.P30, which is the registration certificate of the establishment of M/s. Jayalakshmi Enterprises. The said document has been confronted to PW1 who has admitted that the said document pertains to a business of M/s. Jayalakshmi Enterprises run by plaintiff No.1.

¶284

Thus the trial Court on basis of the documentary evidence and the admission of parties has come to the

¶285

39 -

¶286

conclusion that M/s. Jayalakshmi Transport business was different, from the M/s. Jayalakshmi Enterprises and the said businesses were carried on by defendant No.1 and plaintiff No.1 respectively and the same did not belong to the joint family.

¶287

The vehement submission made by learned counsel for the plaintiffs/appellants based on the aforesaid documents pertaining to ‘M/s. Jayalakshmi Transport’ and ‘M/s. Jayalakshmi Enterprises’ to contend and justify that the properties purchased at Item Nos.3 to 15 were purchased from and out of the income generated from the item No.1 of the suit schedule properties, has been rightly rejected by the trial Court.

¶288

As already noted no material placed by the plaintiffs with regard to properties at Item Nos.6 to 11 and 14 belonging to the joint family. Therefore, all that is required to be considered is with regard to the remaining properties namely item Nos.3, 5, 10, 12 and 15.

¶289

Defendant No.1 has contended that item Nos. 3,5 and 10 of the suit schedule properties are his self-acquired properties, while defendant No.2 has contended that item Nos.

¶290

40 -

¶291

12 and 15, are his self acquired properties acquired in his name and in the name of his wife.

¶292

Item No.3, 5 and 10 ;

¶293

Ex.D59 is the deed of sale dated 08.09.1986 in terms of which defendant No.1 has purchased Item No.3 of the suit schedule properties.

¶294

Ex.D60 is the General Power of Attorney executed by Karunakara Pillai in favour of defendant No.1 in respect of Item No.10 of the suit schedule properties.

¶295

Exs.D61 and D62 are the income tax returns of defendant No.1. In terms of Ex.D62, defendant No.1 has disclosed the income received from the Item Nos.3 and 10 of the suit schedule properties.

¶296

Ex.D63 is the letter issued by Life Insurance Corporation to the defendant No.1 wherein it indicates he having obtained a loan of Rs.1,62,000/-.

¶297

Ex.D64 is the loan payment voucher in terms of which defendant No.1 has repaid the loan to the LIC in a sum of Rs.35,900/-.

¶298

41 -

¶299

The trial Court has taken note of the aforesaid

¶300

documents to come to the conclusion that defendant No.1 was having independent income of his own through which he has purchased the Item No.3 of the suit schedule properties.

¶301

Sri.Malathi, is the wife of defendant No.1 who has purchased Item No.5 of the suit schedule properties in terms of a deed of sale dated 15.05.2002. The same is reflected in the encumbrance at Exs.D73 and D74.

¶302

Ex.D72 is the income tax returns filed by said Smt. Malathi, for the assessment year 2003-2004 wherein her total income is shown as Rs.78,860/-.

¶303

Exs.D76 and D77 are the loan application forms obtained by defendant No.1 and his wife Smt. Malathi from Vijaya Finance Corporation.

¶304

Exs.D78 and 79 are the promissory note and consideration receipt executed by defendant No.1 and his wife in favour of Vijaya Finance Corporation for Rs.50,000 each.

¶305

Relying upon these documents, the trial Court has come to the conclusion that Item No.5 of the suit schedule properties is the separate and self-acquired property of Smt.

¶306

42 -

¶307

Malathi wife of defendant No.1 and the same is not available for partition.

¶308

Item No.12 and 15;

¶309

(a). The trial court has referred to Ex.D51 encumbrance certificate in respect of item No.12 of the suit schedule properties. There is a reference to deed of sale dated 18.08.1999 executed by one V Ramakrishnan in favor of defendant No.2 and his wife, Smt Nalini.

¶310

(b). Ex.D52 is encumbrance certificate in respect of item No.12 of the suit schedule properties which refers to mortgage deed registered on 21.05.2007 executed by defendant No.2 and his wife Smt.Nalini in favor of Vijaya bank for Rs.10,00,000/-.

¶311

(c). Ex.D53 is a letter issued by Vijaya Bank, Jalahalli branch Bangalore evidencing deposit of title deed of item No. 12 of the suit schedule properties for loan of 10 lakhs obtained by defendant No.2 and his wife.

¶312

(d). Ex.D54 is the income tax return of defendant No.2 for the assessment year 2000-2001. There is a

¶313

43 -

¶314

reference to the income derived from item No.12 and 15 of the suit schedule properties.

¶315

(e). Exs.D46 to D50 are the letters indicating defendant No.2 being employed in different companies and earning income.

¶316

(f). Ex.D55 is the General power of attorney dated 05.03.1993 executed by Karunakaran Pillai in favor of defendant No.2 in respect of item No. 15 of the suit schedule properties. Income derived from item No. 15 of the suit schedule properties is shown in Ex.D54.

¶317

Referring to aforementioned documents the trial Court has come to the conclusion that item Nos.3, 5 10, 12 and 15 are the self-acquired properties of defendants 1 and 2 and the same are not available for partition. Since the plaintiffs have not been able to prove that these properties were acquired from the joint family nucleus, this Court do not find any irregularity or error in the trial Court coming to the said conclusion.

¶318

44 -

¶319

Regarding point No.2:

¶320

The case of the plaintiff is that Item No.1 of the suit schedule properties was purchased by late A. Perumal Swamy in the name of his wife Smt. Jayalakshmi and item No.2 was purchased by him. The remaining items of the suit schedule properties were purchased from and out of the income from the said item Nos.1 and 2 of the suit schedule properties. The document now sought to be produced is apparently a copy of the sale deed dated 28.01.1981 in terms of which certain property situated at Gudiyatam, Vellore District, Tamil Nadu was sold and property in Malleshwaram pipeline was purchased. The said document is of no avail. Firstly, even assuming the said document indicate as claimed by the plaintiff that the property was jointly sold by late A. Perumal Swamy, appellant Nos.1 and 2 and defendant No.2, it is necessary to note that item No.1 of the suit schedule properties has been purchased by Smt. Jayalakshmi in the year 1977 along with one Smt. Chandraprabha. That there was a partition between the said two persons. As such, the subsequent sale deed now sought to be produced of the year 1981 is hardly of any use to contend that the item No.1 of the suit schedule properties, which was purchased in the name of Smt. Jayalakshmi from

¶321

45 -

¶322

and out of the sale proceeds of the said property. Secondly, as regards Item No.2 of the suit schedule properties is concerned, document at Ex.D1 would indicate that the said property was purchased on 06.01.1970 i.e., much prior to the document now sought to be produced. Therefore, this document even if it is to be taken on record is of no consequences.

¶323

Further there is nothing on record as to purchase or sale of property allegedly situated at Malleshwaram pipeline, Bengaluru. The other documents sought to be produced are of no consequences as other item of the suit schedule properties do not constitute joint Hindu family property. I.A. seeking production of additional document is rejected.

¶324

Regarding Point No.3 :

¶325

In view of the aforesaid answers to point Nos.1 and 2,

¶326

this Court is of the considered view that the trial Court is justified in partly decreeing the suit granting relief of partition only in respect of item No.2 of the suit schedule properties.

¶327

Regarding Point No.4:

¶328

The suit in O.S.No.2909/2010 is filed by K.P. Selvaraj (defendant No.2 in O.S.No.25268/2008) against K.P. Mani (plaintiff in O.S.No. 25268/2008). The trial Court while dealing

¶329

46 -

¶330

with issue Nos.1 and 2 and additional issues in O.S.No.2909/2010, has found that the property subject matter of said suit is the 1^st floor portion of the property bearing No.3/28, which is Item No.1 of the suit schedule properties. The said property has been subject matter of a deed of gift dated 24.02.2003 executed by Smt. Jayalakshmi in favour of K.P. Selvaraj (defendant No.2 in O.S.No.25268/2008).

¶331

The case of the K.P. Selvaraj-plaintiff therein that he is in possession of suit property i.e., entire 1^st floor of the property bearing No.3/28. The said property consists of single room with bathroom and toilet, it is in occupation of its tenant one Nagaraj and a house is in occupation of another tenant Lokesh. A total measurement of the suit schedule property is East to West 50 feet and North to South 39 feet. Though initially the said suit was filed for relief of permanent injunction and, later on the plaint was amended contending that K.P. Mani-defendant No.1 therein had forcibly occupied the single room in the first floor and sought for relief of delivery of possession of the said single room.

¶332

There is no dispute to the fact that a deed of gift dated 24.02.2003 had been executed by Smt. Jayalakshmi in favour of K.P. Selvaraj, plaintiff in the said suit who in turn had

¶333

47 -

¶334

executed a deed of gift dated 27.06.2006 conveying ground floor portion of the property bearing No.3/28 i.e., Item No. 1 of the suit schedule properties in favour of his brother Sri. K.P. Ganesh. This Court has already held that the deed of gift executed by Smt. Jayalakshmi in favour of K.P. Selvaraj, is valid and subsisting. Therefore the subsequent deed of gift executed by K.P. Selvaraj in favour of K.P. Ganesh is also valid and subsisting.

¶335

K.P. Selvaraj, the plaintiff in the said suit in his affidavit/evidence has contended that he was in possession of the entire first floor of the suit property and Sri.K.P.Manidefendant No.1 has forcibly re-occupied the single room in the first floor of the said property after an ex-parte interim order was passed and he filed the police complaint against K.P. Mani -defendant No.1.

¶336

K.P. Selvaraj, the plaintiff in the said suit, has filed a police complaint on 28.04.2010 against the defendant No.1 to 3, stating that they trespassed by breaking open the lock and thrown away all the valuable things which were inside the said room. K.P.Mani-defendant No.1 who claimed to be in possession of the said rooms since the beginning has not produced any document in justification of his claim.

¶337

48 -

¶338

The trial Court has also found that there was an

¶339

interim order of injunction against defendant Nos.1 and 3, which has been granted on filing of the suit. Defendant Nos.1 to 3 have forcibly occupied the room in the first floor of the suit schedule properties. It is under these circumstances, the Trial Court has found that the K.P. Selvaraj-plaintiff proved his possession of entire first floor of the property bearing No.3/28 i.e., Item No. 1 of the suit schedule properties, except the room which has been forcibly occupied by defendant. Therefore, the trial Court has granted the relief of permanent injunction as well as the decree for possession in respect of that room in the first floor.

¶340

No error or irregularity can be found in impugned order passed by the Trial Court.

¶341

The point No.4 is answered accordingly.

¶342

Accordingly, following;

¶343

ORDER

¶344

(i) Appeals in RFA Nos.1131/2014 and 1138/2014 filed against the judgment and decree dated 21.04.2014 passed in O.S.No.25262/2018 as well as in O.S.No.2909/2010 are hereby dismissed.

¶345

49 -

¶346

(ii) Judgment and decree dated 21.04.2014 passed in O.S.Nos.25262/2008 C/w 2909/2010, 6477/2004, 743/2008 and 26416/2009 by the Additional City Civil and Sessions Judge, Bengaluru City is hereby confirmed.

¶347

Since the relief of possession is granted in O.S.No.2909/2010, Registry to calculate and determine the Court Fee payable by the plaintiff in the said suit and the plaintiff shall pay the Court fee accordingly.

¶348

Sd/(M.G.S. KAMAL) JUDGE

¶349

RL

Mr K.P Mani v. Mr. K.P Ganesh

Case brief

What is this about?

What did the court decide?

Mr K.P Mani v. Mr. K.P Ganesh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sri Akram Khan Vs Syed Jamaluddin

Mr Madhu Gowda M Vs Mar Harris

Nawaz Khan @ Nawaz Khan Vs the State of Karnataka

Muniraju Vs State of Karnataka

G Ramakrishna Vs State by Police Inspector

M S Arunkumar @ Arun @ Anni Vs State of Karnataka