SURESH FAMILY TRUST Vs. G.KANNAPPA

JUDGEMENT

(1.) The defendant Nos.4 and 5 in O.S. No.2262/1988 on the file of City Civil Judge, Bengaluru have filed this writ petition challenging the correctness of an order dtd. 11/8/2017 passed by XLI Additional City Civil Judge, Bengaluru by which, an application filed by them under Order VIII Rule 6A of Civil Procedure Code to consider their counter claim was rejected.

(2.) The suit in O.S.No.2262/1988 was filed for declaration to declare that the plaintiffs were the absolute owners of the suit property by virtue of a Will dtd. 25/6/1970 executed by Smt. Anooramma in favour of Smt. Lakshmamma. They also sought for a declaration to declare that the transfer of khata of the suit property by the defendant Nos.2 and 3 in the name of defendant No.1 as illegal and unsustainable and also consequently sought for revocation of the khata.

(3.) The sum and substance of the averments made in the plaint are that Smt. Anooramma was the owners of the suit property and that Smt. Lakshmamma, Sri. Muniswamy and Sri. Selmuttu had occupied the suit property and put up temporary structures with the permission of Smt. Anooramma. Smt. Anooramma allegedly executed a Will dtd. 25/6/1970 bequeathing the suit property to Smt. Lakshmamma. Smt. Anooramma died in the year 1973, consequent to which, Smt. Lakshmamma claimed that she became the owner of the suit property. She applied for transfer of khata which was accepted and her name was entered in the municipal records. When she applied for tax paid clearance certificate on 23/12/1983, the respondent No.3/Assistant Revenue Officer issued an endorsement calling upon her to produce the documents for verification etc., Smt. Lakshmamma produced the documents but the Assistant Revenue Officer who collected the documents did not return them. The plaintiffs contended that Smt. Lakshmamma, leased out a portion of the suit property to plaintiff No.12 for running a hotel. Later in the year 1983, she entered into a transaction to sell that portion of the suit property to plaintiff No.12 for a sale consideration of Rs.75,000.00 and plaintiff No.12 paid the sale consideration in installments. Smt. Lakshmamma died on 16/9/1986. The plaintiff No.12 claimed that he was placed in possession of the suit property under the agreement and that he was in possession continuously from them on. The plaintiff No.13 was also in the possession of portion of a suit property under a lease for running charcoal business and that Smt. Lakshmamma had agreed to sell that portion for a sum of Rs.30,000.00 and received Rs.22,000.00 and placed him in possession. The plaintiffs claimed that Smt. Lakshmamma had allowed the heirs of late Muniswamy and late Sella Muthu to reside in portions of the suit property and did not claim any rent from them. The plaintiff Nos.14 and 15 who claimed title under late Muniswamy and late Sella Muthu claimed that they were in adverse possession. Further it was claimed that plaintiff No.1 had leased out a portion of the suit schedule property to M. Ibrahim Saheb on 23/1/1985. The plaintiff claimed that Smt. Lakshmamma died on 16/9/1986 leaving behind plaintiff Nos.1 to 11 as her legal heirs and were in possession of suit property. They claimed that they were aware of the transactions between Smt. Lakshmamma and plaintiff Nos.12 and 13 as well as plaintiff Nos.14 and 15. They claimed that plaintiff Nos.7 to 11 were making arrangements to get khata of the suit property transferred to the name of plaintiff No.1 and conclude the transactions with plaintiff Nos.12 and 13. When things stood thus, they came to know that the defendant No.1 was asserting title to the suit property and that the municipal records were transferred to his name. He alleged that the plaintiffs did not have right, title and interest in the suit property. The plaintiffs claimed that they realized later that the defendant No.1 had no manner of title to the suit property and their efforts to persuade the defendant Nos.2 and 3 to revoke the khata in the name of defendant No.1, were of no avail. The plaintiffs were therefore advised to seek aforesaid relief's in the suit.