Karnataka High Court
Gopal Reddy vs K Sreenivasa Reddy on 19 December, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
1 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1433 OF 2014 (PAR/POS)
C/W
REGULAR FIRST APPEAL NO.1525 OF 2014 (PAR),
REGULAR FIRST APPEAL CROB NO. 1 OF 2015
IN RFA NO.1433/2014:
BETWEEN:
1. GOPAL REDDY,
S/O LATE MUNISWAMY REDDY,
DEAD BY HIS LRS.
1(A) SMT. LAKSHMAMMA,
W/O LATE M.GOPAL REDDY,
AGED ABOUT 66 YEARS.
1(B) KUM.VINODA,
D/O LATE M.GOPAL REDDY
AGED ABOUT 45 YEARS.
1(C) SMT.SHYAMALA,
D/O LATE M.GOPAL REDDY,
AGED ABOUT 42 YEARS.
1(D) NAGESHA REDDY,
S/O LATE M.GOPAL REDDY,
AGED ABOUT 39 YEARS.
1(E) SMT.SHOBHA,
2 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
D/O LATE M.GOPAL REDDY,
AGED ABOUT 36 YEARS.
ALL ARE R/AT:
SOMASANDRAPALYA, ARALAKUNTE
VILLAGE, BEGUR HOBLI,
BANGALORE SOUTH TALUK.
2. M.KRISHNA REDDY,
S/O LATE MUNISWAMY REDDY,
AGED ABOUT 64 YEARS,
R/AT NO.431, PIPELINE
SUNKADAKATTE, VISHWANIDUM POST,
BANGALORE - 560 091.
SINCE DEAD BY LR'S.
2(A) SMT. GOWRAMMA,
W/O LATE KRISHNA REDDY,
AGED ABOUT 55 YEARS.
2(B) S.K.GURU MURTHY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 35 YEARS.
2(C) K MURALIDHAR,
S/O LATE KRISHNA REDDY,
AGED ABOUT 33 YEARS.
2(D) SMT.K MANJULA,
D/O LATE KRISHNA REDDY,
AGED ABOUT 38 YEARS.
ALL ARE R/AT: SOMASANDRAPALYA,
ARALAKUNTE VILLAGE, BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE - 560 034.
...APPELLANTS
(BY SRI SATISH K, ADVOCATE FOR SRI PRASHANTH G FOR
APPELLANT NOS. 1 (A) TO (E);
SRI P D SURANA, ADVOCATE FOR APPELLANT NOS. 2(A)
TO (D))
AND:
1. K SREENIVASA REDDY,
S/O M.KRISHNA REDDY,
3 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
AGED ABOUT 54 YEARS,
R/AT NO.1206, HEBBAGODI VILLAGE,
BANGALORE-562 158.
2. K.NARAYANA REDDY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 59 YEARS,
R/AT MADURANAGAR, VARTHUR
BANGALORE SOUTH TALUK
PIN: 560 087.
(DEAD)
2(A) SMT. SARASAMMA,
W/O LATE NARAYANA REDDY,
AGED ABOUT 60 YEARS.
2(B) SMT. KALAVATHI,
D/O LATE NARAYANA REDDY,
AGED ABOUT 38 YEARS.
BOTH ARE R/AT NO.400,
MADURA NAGARA,
2ND STAGE, MUUTHSANDRA MAIN ROAD,
BENGALURU-560 087.
3. N.D.DEVELOPERS (P) LTD
NO.398, 1ST ,2ND AND 3RD FLOOR,
7TH CROSS, MICO LAYOUT,
BTM 2ND STAGE,
BANGALORE-560 076.
4. SMT.PARVATHAMMA,
W/O LATE A.MUNIREDDY,
AGED ABOUT 65 YEARS,
R/AT SOMASANDRAPALYA,
ARALAKUNTE VILLAGE, BEGUR HOBLI,
BANGALORE SOUTH TALUK, PIN:560 034.
5. SMT.KALYANAMMA
W/O ABBANNA REDDY,
MAJOR IN AGE,
R/AT ILLALAGI GRAMA,
ATTIPALYA HOBLI, ANEKAL TALUK,
BANGALORE RURAL DISTRICT, PIN:562 107.
4 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
6. PADMAMMA,
W/O BALAKRISHNA REDDY,
MAJOR IN AGE,
R/AT 3112, VIJAPURA,
SANNAKALLU BEEDHI,
NEARS YELLAMMA TEMPLE,
DEVANAHALLI TALUK, PIN:562 132.
7. M/S. MANAR DEVELOPERS (P) LTD.,
OFFICE AT NO.1210, 16TH MAIN ROAD,
BTM 2ND STAGE, BANGALORE-560 076.
REP. BY ITS DIRECTOR,
MRS. SHAHEDA DURRANI.
8. MR. ACHAL SHRIDHAR,
S/O R.P.SHARMA,
AGED ABOUT 55 YEARS.
9. MRS. ALKA SHRIDHAR,
W/O MR.ACHAL SHRIDHAR,
AGED ABOUT 52 YEARS.
RESPONDENTS NO.8 & 9 ARE
R/AT NO.84, 1ST FLOOR,
17TH C MAIN ROAD, 11TH CROSS,
HBR LAYOUT, SECTOR-4,
BANGALORE-560 102.
...RESPONDENTS
(BY SRI S P SHANKAR, SENIOR COUNSEL A/W
SRI M K SHIVARAJU, FOR R-1;
SRI RAJESH MAHALE, SENIOR COUNSEL A/W
SRI JAGADISH K AND SMT. MEGHANA RANI K.M FOR R-2;
SRI PONNANNA M B, ADVOCATE FOR SRI RAHUL
CARIAPPA K S, ADVOCATE FOR R-3 & R-7;
SRI B N UMESH, ADVOCATE FOR R-4;
SRI T R RAMESH, ADVOCATE FOR R-6;
SRI ARVIND B REDDY, ADVOCATE FOR R-10 TO R-20,
R-22 & R-23;
SMT. M V ANUPAMA, ADVOCATE FOR R-21;
V/O DATED 09/09/2015, NOTICE TO R-5, R-8 & R-9 ARE
HELD SUFFICIENT)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 21.07.2014 PASSED IN
O.S.7702/2004 ON THE FILE OF THE XVIII-ADDL. CITY CIVIL
5 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
IN RFA NO.1525/2014:
BETWEEN:
M/S. MANAR DEVELOPERS (P) LTD.,
OFFICE AT NO. 1210, 16TH MAIN ROAD,
BTM 2ND STAGE, BANGALORE-560 076.
REP. BY ITS DIRECTOR,
MRS. SHABEDA DURRANI
...APPELLANT
(BY SRI PONNANNA M B, ADVOCATE FOR
SRI RAHUL CARIAPPA K S, ADVOCATE)
AND:
1. MR. SREENIVASA REDDY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 54 YEARS,
R/AT NO. 1206, HEBBAGODI VILLAGE,
BANGALORE-562 158.
2. MR. M. GOPALA REDDY,
S/O LATE MUNISWAMY REDDY,
DEAD BY HIS LRS.
2(A) MRS. LAKSHMAMMA,
W/O LATE M GOPAL REDDY,
AGED ABOUT 66 YEARS.
2(B) KUM . VINODA,
D/O LATE M GOPAL REDDY,
AGED ABOUT 45 YEARS.
2(C) MRS. SHYAMALA,
D/O LATE M GOPALA REDDY,
AGED ABOUT 42 YEARS.
2(D) MR. NAGESHA REDDY,
S/O LATE M GOPALA REDDY,
AGED ABOUT 29 YEARS.
2(E) MRS. SHOBHA,
6 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
D/O LATE M GOPALA REDDY,
AGED ABOUT 26 YEARS,
ALL ARE R/AT SOMASANDRAPALYA,
ARALAKUNTE VILLAGE,
BEGUR HOBLI-571 109.
BANGALORE SOUTH TALUK.
3. MR. M. KRISHNA REDDY,
S/O LATE MUNISWAMY REDDY,
AGED ABOUT 54 YEARS,
SINCE DEAD BY LRS
3(A) SMT. GOWRAMMA,
W/O LATE M KRISHNA REDDY,
AGED ABOUT 60 YEARS.
3(B) SRI S.K.GURU MURTHY,
S/O LATE M KRISHNA REDDY,
AGED ABOUT 43 YEARS.
3(C) SRI K MURALIDHAR,
S/O LATE M KRISHNAREDDY,
AGED ABOUT 41 YEARS.
3(D) SMT. MANJULA,
D/O LATE M KRISHNAREDDY,
AGED ABOUT 46 YEARS.
ALL ARE R/O SOMASANDRAPALYA,
ARALAKUNTE VILLAGE, BEGUR HOBLI,
BENGALURU SOUTH TALUK - 560 039.
4. MR. K. NARAYANA REDDY,
S/O LATE KRISHNA REDDY,
DEAD BY HIS LRS.
4(A) SMT. SARASAMMA,
W/O LATE NARAYANA REDDY,
AGED ABOUT 60 YEARS.
4(B) SMT. KALAVATHI,
D/O LATE NARAYANA REDDY,
AGED ABOUT 30 YEARS.
BOTH ARE R/AT NO.400,
7 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
MADHURA NAGARA, 2ND STAGE,
MUUTSANDRA MAIN ROAD,
BENGALURU-560 087.
5. N D DEVELOPERS (P) LTD.,
NO. 398, 1ST 2ND AND 3RD FLOOR,
7TH CROSS, MICO LAYOUT,
BTM 2ND STAGE,
BANGALORE-560 076.
6. MRS. PARVATHAMMA,
W/O LATE A. MUNIREDDY,
AGED ABOUT 55 YEARS,
R/AT SOMASANDRAPALYA
ARAKALAKUNTE VILLAGE,
BEGUR HOBLI-571 109,
BANGALORE SOUTH TALUK.
7. MRS. KALYANAMMA,
W/O ABBANNA REDDY,
MAJOR,
R/AT NO. ILLALAGI GRAMA
ATTIPALYA HOBLI, ANEKAL TALUK,
BANGALORE RURAL DISTRICT-562 106.
8. MRS. PADMAMMA,
W/O BALAKRISHNA REDDY,
MAJOR,
R/AT NO.3112, VIJIPURA
SANNAKALLU BEEDHI,
NEAR YELLAMMA TEMPLE,
DEVANAHALLI TALUK, BANGALORE-562 135.
9. MR. ACHAL SHRIDHAR,
S/O R P SHARMA,
AGED ABOUT 55 YEARS.
10. MRS. ALKA SHRIDHAR,
W/O MR. ACHAL SHRIDHAR,
AGED ABOUT 52 YEARS.
DEFENDANT NO.9 AND 10 ARE
R/AT NO. 84, 1ST FLOOR,
17TH MAIN ROAD, 11TH CROSS,
8 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
HBR LAYOUT, SECTOR-4
BANGALORE-560 102.
...RESPONDENTS
(BY SRI S P SHANKAR, SENIOR COUNSEL A/W
SRI M.K SHIVARAJU, ADVOCATE FOR R-1;
SRI P D SURANA,ADVOCATE FOR R-2(B) AND
R3 (A) TO (D);
SRI SATISH K, ADVOCATE FOR
SRI PRASHANTH G, ADVOCATE FOR R-2 (D)
SRI RAMESH MAHALE, SENIOR COUNSEL A/W
SMT. MEGHANA RANI K M, ADVOCATE FOR R-4(A) & (B);
SRI T R RAMESH, ADVOCATE FOR R-8;
SRI ARVIND B REDDY, ADVOCATE FOR R-11 TO R-20 &
R-22 TO R-24;
SMT. M V ANUPAMA, ADVOCATE FOR R-23;
R-2(A), R-2(C), R-2(D), R-2(E) & R-5 ARE SERVED AND
UNREPRESENTED;
V/O DATED 20.01.2023, APPEAL AGAINST R-6, R-7, R-9 &
R-10 STANDS DISMISSED)
THIS RFA IS FILED U/SEC 96 R/W ORDER 41 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 21.7.2014
PASSED IN O.S.NO.7702/2004 ON THE FILE OF XVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
IN RFA CROB NO.1/2015:
BETWEEN:
SHRI K SREENIVASA REDDY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 54 YEARS,
R/AT NO.1206, HEBBAGODI VILLAGE,
BANGALORE-562 158.
...CROSS OBJECTOR
(BY SRI S P SHANKAR, SENIOR COUNSEL A/W
SRI M K SHIVARAJU, ADVOCATE FOR CROSS OBJECTOR)
AND:
1. SHRI M GOPAL REDDY,
SINCE DECEASED BY HIS LRS.
9 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
1(A) SMT. LAKSHMAMMA,
W/O LATE M.GOPAL REDDY,
AGED ABOUT 66 YEARS.
1(B) SRI VINODA,
D/O LATE M.GOPAL REDDY,
AGED ABOUT 45 YEARS.
1(C) SMT.SHAMALA,
D/O LATE M.GOPAL REDDY,
AGED ABOUT 42 YEARS.
1(D) SRI NAGESHA REDDY,
S/O LATE M.GOPAL REDDY,
AGED ABOUT 39 YEARS.
1(E) SMT.SHOBHA,
D/O LATE M.GOPAL REDDY,
AGED ABOUT 36 YEARS.
ALL ARE R/AT SOMASANDRAPALYA,
ARAKAKUNTE VILLAGE, BEGUR HOBLI,
BANGALORE SOUTH TALUK.
2. SRI M.KRISHNA REDDY,
S/O LATE MUNISWAMY REDDY,
AGED ABOUT 64 YEARS.
SINCE DEAD BY HIS LR'S.
2(A) SMT. GOWRAMMA,
W/O LATE KRISHNA REDDY,
AGED ABOUT 58 YEARS.
2(B) S.K.GURU MURTHY,
S/O LATE M KRISHNA REDDY,
AGED ABOUT 39 YEARS.
2(C) K MURALIDHAR,
S/O LATE M KRISHNA REDDY,
AGED ABOUT 36 YEARS.
D) SMT.K MANJULA,
D/O LATE KRISHNA REDDY,
AGED ABOUT 41 YEARS.
ALL ARE R/AT NO.270,
10 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
23RD CROSS, 28TH MAIN,
2ND SECTOR, HSR LAYOUT POST,
NEAR WATER TANK,
BANGALORE-560 102.
AMENDED CARRIED OUT V.C.O
DATED 17.11.2022.
3. SHRI K. NARAYANA REDDY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 59 YEARS,
R/AT MADURANAGAR, VARTHU,
BANGALORE SOUTH TALUK.
4. N D DEVELOPERS (P) LTD.,
NO. 398, 1ST,2ND AND 3RD FLOOR,
7TH CROSS, MICO LAYOUT,
BTM 2ND STAGE,
BANGALORE-560 076.
5. SMT. PARVATHAMMA,
W/O LATE A. MUNIREDDY,
AGED ABOUT 65 YEARS,
R/AT SOMASANDRAPALYA,
ARAKAKUNTE VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK.
6. SMT. KALYANAMMA,
W/O ABBANNA REDDY,
AGED MAJOR,
R/AT NO. ILLALAGI GRAMA,
ATTIPALYA HOBLI, ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
7. SMT. PADMAMMA,
W/O BALAKRISHNA REDDY,
AGED MAJOR
R/AT NO.3112, VIJIPURA
SANNAKALLU BEEDHI,
NEAR YELLAMMA TEMPLE,
DEVANAHALLI TALUK,
BANGALORE-562 135.
8. M/S MANAR DEVELOPERS PVT. LTD.,
NO.1210, 16TH MAIN ROAD,
BTM 2ND STAGE,
11 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
BANGALORE - 560 076.
REP. BY ITS DIRECTOR,
MRS. SHAHEDA DURRANI.
9. MR. ACHAL SHRIDHAR,
S/O R P SHARMA,
AGED ABOUT 46 YEARS.
10. MRS. ALKA SHRIDHAR
W/O MR. ACHAL SHRIDHAR,
AGED ABOUT 43 YEARS,
NO.9 & 10 ARE R/AT NO. 84,
1ST FLOOR, 17TH 'C' MAIN ROAD,
11TH CROSS, HBR LAYOUT, SECTOR-4,
BANGALORE-560 102.
...RESPONDENTS
(BY SRI SATISH K, ADVOCATE FOR
SRI PRASHANTH G, ADVOCATE FOR R-1(D);
SRI P D SURANA, ADVOCATE FOR R-2(A) TO (D);
SRI RAMESH MAHALE, SENIOR COUNSEL A/W
SMT. MEGHANA RANI K M, ADVOCATE FOR R3 (A) & (B);
SRI T R RAMESH, ADVOCATE AND
SRI T MANJUNATH, ADVOCATE FOR R7;
R1(A),(B),(C),(E), R-4 & R-5 ARE SERVED &
UNREPRESENTED;
NOTICE TO R-6, R-9 & R-10 ARE DISPENSED WITH V/O
DATED 26/08/2022)
THIS RFA.CROB IN RFA NO.1433/2014 IS FILED U/O 41
RULE 22 OF CPC, AGAINST THE JUDGEMENT AND DECREE
DATED 21.7.2014 PASSED IN O.S.7702/2004 ON THE FILE OF
XVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THE REGULAR FIRST APPEALS AND THE RFA CROB.
HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, C M JOSHI J., PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT
and
HON'BLE MR JUSTICE C M JOSHI
12 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
CAV JUDGMENT
(PER: HON’BLE MR JUSTICE C M JOSHI)
Being aggrieved by the judgment and decree passed
by the learned XVIII Additional City Civil Judge, Bangaluru
City (CCH No.10) on 21-07-2014 in OS No.7702/2004,
defendant Nos.1 and 2 (represented by their LRs) have
approached this Court in RFA No. 1433/2014; defendant
No.9 has approached this Court in RFA No.1525/2014
and plaintiff has approached this Court in RFA cross-
objection No.1/2015.
2. The factual matrix of the case as may be found
from the pleadings of the plaintiff is as below:
The Plaintiff and defendant No.3 are the sons of late
Krishna Reddy. Defendant Nos.1 and 2 are the sons of
Muniswami Reddy. Krishna Reddy and Muniswami Reddy
are brothers and were born to Chinnappa Reddy @
Chinnaiah. The said Chinnappa Reddy @ Chinnaiah had
also a daughter by name Gurramma. Chinnappa Reddy @
Chinnaiah died long back and thereafter, his sons Krishna
Reddy and Muniswami Reddy died leaving behind the
plaintiff and defendant Nos.1 to 3 as their legal heirs.
13 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015Plaintiff and Defendant Nos.1 to 3, being the members of
the joint family, inherited the properties owned by
Chinnappa Reddy @ Chinnaiah, who had several
immovable properties. The joint family properties were not
partitioned between the members of the family and the
said Chinnappa Reddy @ Chinnaiah died intestate. The
genealogical tree of the family as narrated in the plaint is
as below:
Family Tree
Nanjunda Reddy (Dead)Chinnappa Reddy (Dead)
Gullamma (Dead)Gurramma Muniswamy Reddy (Dead) Nanjundappa (Dead) Narayana Reddy (Dead) Krishna Reddy(Dead)
(Dead) Hanumakka Unmarried Unmarried ErammaM.Gopal Reddy M.Parvathamma K.Narayana Reddy K.Padmamma K.Srinivasa Reddy
Defendant 1 Defendant 5 Defendant 3 Defendant 7 PlaintiffM Krishna Reddy K.Kalyanamma
Defendant 2 Defendant 6
3. Earlier, the plaintiff and his brother (defendant
No.3) had filed a suit in OS No.7127/1990 for partition
before the City Civil Judge, Bangalore. The said suit came
to be dismissed for non-prosecution when it was slated for
adducing evidence. Thereafter, a Miscellaneous Petition
14 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
No.72/2003 was filed for restoration of the said suit, which
was also dismissed for non-prosecution. Later, another
Miscellaneous Petition No.616/2006 was filed seeking the
restoration of Miscellaneous Petition No.72/2003, which
came to be withdrawn by a memo as per Ex.P53.
4. The plaintiff, K. Srinivasa Reddy, filed the
present suit i.e., O.S.No.7702/2004, seeking partition of
‘A’ to ‘E’ schedule properties, which were not involved/
included in the earlier suit bearing O.S.No.7127/1990. The
description of the suit schedule ‘A’ to ‘E’ properties is
mentioned as below:
SCHEDULE ‘A’
All that piece and parcel of the land bearing Sy.No.37
situated at Aralukunte Village, Somasandrapalya,
Begur Hobli, Bangalore South Taluk, Bangalore
measuring 10 Acres 10 Guntas including kharab land
30 Guntas and bounded on:
East by : Road
West by : Kere
North by: Road
South by: Fertilizer FactorySCHEDULE ‘B’
All that piece and parcel of the land bearing
Sy.No.36/4 situated at Aralukunte Village,
Somasandrapalya, Begur Hobli, Bangalore South
Taluk, Bangalore measuring 3 Acres 20 Guntas
including 1 Acre 1 Gunta Kharab land and bounded
on:
East by : Balappa’s land
15 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015West by : Chinnappa Reddy’s land
North by: Graveyard
South by: Gurumurthy Reddy’s landSCHEDULE ‘C’
All that piece and parcel of the land bearing
Sy.No.59/1 of Aralukunte Village, Somasandrapalya,
Begur Hobli, Bangalore South Taluk, Bangalore
measuring 2 Acres 32 Guntas including 1 Guntas
Kharab land bounded on:
East by : Raju Kaluve
West by : Road
North by: K.B Land
South by: KerekatteSCHEDULE ‘D’
All that piece and parcel of the land bearing
Sy.No.29/18 of Aralukunte Village,
Somasandrapalya, Begur Hobli, Bangalore South
Taluk, measuring 10 Guntas bounded on:
East by : Hanumantha Reddy’s land
West by : Chinnappa Reddy’s land
North by : Pilla Reddy’s land
South by : Balappa’s landSCHEDULE ‘E’
All that piece and parcel of the land bearing
Sy.No.29/2A of Aralukunte Village,
Somasandrapalya, Begur Hobli, Bangalore South
Taluk, measuring 8 acres 17 guntas including 1
gunta including kharab land 37 guntas,:
East by : Chinnapppa Reddy’s land
West by : Kaludari
North by : Parasada Reddy’s land
South by : Gurumurthy Reddy’s land
5. It is the case of the plaintiff that ‘A’ schedule
property to the plaint is the joint family property and the
16 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
entries stood in the name of the grandfather of plaintiff
and whereas, the entries in respect of the land bearing
Sy.No.36/3 situated at Aralukunte village, which is ‘B’
schedule property, were in the name of the grandfather of
the plaintiff and now the same has been changed in favour
of the third parties who are not at all connected with the
family. The other properties i.e., Sy.No.59/1 measuring 02
Acres 32 Guntas and Sy.No.29/18 measuring 10 Guntas,
which are ‘C’ and ‘D’ schedule properties, are also the joint
family properties and they too were not the subject matter
of the suit filed earlier. These facts came to the knowledge
of the plaintiff recently and therefore, he filed the suit for
partition of these properties.
6. The plaintiff also avers that defendant Nos.4
and 5 are not the parties to earlier proceedings and the
relief now claimed is only in respect of the suit schedule
properties and he reserves his right to seek necessary
relief in respect of the properties involved in the earlier
suit. It was contented that defendant Nos.1 and 2 are not
entitled to alienate the suit schedule properties, create
charge etc., since the plaintiff also has a share in the
17 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
same. It was also contended that in the earlier suit,
defendant Nos.1 and 2 had admitted the relationship, but
had taken the contention that there was an oral partition
in the family and there was already a division. But
however, there is no document to show such oral partition.
It was contended that even if it is assumed that there was
an oral partition, defendant Nos.1 and 2 are bound to
prove such oral partition. Therefore, the plaintiff
contended that the suit schedule properties are liable to be
partitioned and he is entitled for his legitimate 1/4th share
in the same. The plaintiff further contended that defendant
Nos. 1 and 2 have sold portion of the properties in favour
of defendant Nos.4 and 5 and the alienation is not
sustainable in the eye of law and therefore, the alienations
will not bind the plaintiff and other family members in any
way. It was further contended that the plaintiff requested
defendant Nos.4 and 5 not to put up any construction in
the suit schedule properties and in spite of it, they are
proceeding with construction. On these grounds, the
plaintiff sought for the following reliefs:
“a) for declaration declaring that the suit schedule
properties are the joint family properties of the plaintiff
and the defendants No.1 to 3;
18 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
b) for partition and separate possession of the
scheduled properties by metes and bounds and to allot
1/4th share to the plaintiff in the schedule properties;
c) for permanent injunction restraining the defendants
or their agents, servants, administrators, henchmen or
any other persons claiming under or through them from
alienating the schedule property;
d) for permanent injunction restraining the defendants 4
and 5 or their agents servants, administrators,
henchmen or any other persons claiming under or
through them form alienating the nature of the schedule
property;
e) grant cost of this suit;
f) grant such other relief/s as this court deems fit under
the circumstances of the case.”
7. On being summoned, defendant Nos.1 and 2
filed their written statement. Subsequently, an
amendment was also brought to the written statement by
adding para 8(A) and 8(B). They denied the plaint
averments, but however, admitted the relationship of
plaintiff and defendant Nos.1 to 3. It was contended that
after death of his grandfather Chinnappa Reddy, there was
a partition between the father of plaintiff and the father of
defendant Nos.1 and 2. The properties allotted to the
share of father of the plaintiff, i.e., Krishna Reddy, were
sold by him and his brother during the lifetime of his
father; and the plaintiff and defendant No.3 left the
19 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
village. The demand made by the plaintiff for a share in
the suit schedule properties is denied. It was contended
that as there was a partition, the question of partition of
the suit schedule properties again will not arise. It was
contended that the plaintiff and his brother have no
manner of right title or interest over the properties which
were mentioned in the earlier suit and also the suit
schedule properties. They also denied that the plaintiff had
sought for a partition.
8. Further, it was contended that the land mentioned
in ‘A’ schedule property exclusively belongs to first
defendant as the same is his self-acquired property and in
this regard, the plaintiff has suppressed the decree passed
in favour of first defendant. It was contended that Krishna
Reddy and Muniswami Reddy had effected a partition
among the properties and Krishna Reddy, as per the
registered sale deed dated 31-08-1967 (Ex.D27), had sold
the land in Sy.No.37/2 in favour of one Venkatappa and
further he sold 02 Acres 12 Guntas of land in Sy.No.36/1
in favour of Annayappa and others under a registered sale
deed dated 16-12-1961 (Ex.D28).
20 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
9. It was further contended that defendant No.1,
Gopal Reddy purchased 04 Acres 36 Guntas of land in
Sy.No.37 under a registered Sale Deed dated 04-06-1970
(‘A’ schedule property) from one Narayan Shetty and 01
Acre 20 Guntas in the same Survey number from one
Krishna Reddy on 24-06-1971. Defendant Nos.1 and 2
were in possession and enjoyment of the same and
subsequently, during the lifetime of defendant No. 1-Gopal
Reddy, he and defendant No.2-Krishna Reddy partitioned
the same as per the registered partition deed dated 05-
07-2003. Defendant No.2, out of his share, sold a portion
of Sy.No.37/1 and executed a Joint Development
Agreement in favour of defendant No.4, M/s. N.D.
Developers (P) Limited. Therefore, the said land was fully
developed and there is no vacant land. In respect of the
portion allotted to the share of Gopal Reddy, it was
converted into non-agricultural purpose and after death of
Gopal Reddy, his wife and children have executed a Joint
Development Agreement of the same. Therefore, the
plaintiff has no manner of right, title or interest over the
suit schedule properties and the suit is liable to be
dismissed. When there was an illegal attempt by the
21 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
plaintiff to interfere with the possession, an injunction suit
was filed in OS No. 64/2000 which came to be decreed on
16-01-2004.
10. Defendant No.5 in his written statement
contends that the genealogy and the relationship as
depicted in the plaint is not correct. He contends that
taking advantage of the fact that name of grandfather of
the plaintiff is Chinnappa Reddy @ Chinnaiah, the plaintiff
has included all these survey numbers standing in the
name of Chinnappa Reddy @ Chinnaiah, of Somasundara
Palya, Aralukunte Village and said Chinaniah @ Chinnappa
Reddy has no relationship with the plaintiff in any manner.
There are other Chinnappa Reddy @ Chinnaiah numbering
about 4 to 5 in the said village and therefore, the
properties standing in their names are also brought in and
claimed as properties of the grandfather of the plaintiff.
He further contends that the property in Sy.No.36/3
measuring 03 Acres 20 Guntas including 01 Acre 01 Gunta
kharab was ancestral property of 5th defendant and it was
acquired by him and later it was divided between 5th
defendant and his elder brother Narayana Reddy. The
22 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
said survey number measuring 03 Acres 20 Guntas was
registered in the name of Chinnaiah son of Nanjundappa
and Sy. No.36/4 measuring 02 Acres 39 Guntas was in the
name of Gurreddy son of Nagareddy. The 5th defendant
and son of Chinnaiah, namely, S.C. Krishna Reddy
approached the Revenue Authorities for change of Hissa
numbers to their respective holdings. Accordingly, by an
interchange, Sy.No.36/4 was mutated in the name of
Chinnaiah son of Nanjundappa, who is father of Krishna
Reddy; Sy.No.36/3 was entered in the name of Gurreddy
son of Nagareddy. It was contended that the plaintiff
mistakenly, taking advantage of the name of Chinnaiah,
father of S.C. Krishna Reddy has claimed share in
Sy.No.36/3, which is ‘B’ schedule property. It is denied
that defendant Nos.4 and 5 purchased the property from
defendant Nos.1 and 2. On the other hand, the 5th
defendant and his brother on their own rights which they
acquired from their ancestors are in lawful possession and
enjoyment of Sy.No.36/3 and as such, plaintiff is a
stranger to Sy.No.36/3 and therefore, defendant No.5 is
not a necessary party to the suit.
23 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
11. Defendant No.9, M/s. Manar Developers (P)
Ltd, in its pleadings contended that the plaintiff has
included certain properties which do not in any manner
whatsoever belong to the joint family of the plaintiff and
defendant Nos.1 to 3. It was contended that the present
suit is not maintainable since an earlier partition suit in OS
No.7127/1990 was filed and it came to be dismissed for
non- prosecution. It was stated that schedule ‘C’ and ‘D’
properties were also the properties involved in the earlier
suit. This defendant has restricted its contention only in
respect of Sy.No.37, which is ‘A’ schedule property. It was
the case of defendant No.9 that Sy.No.37/1 measuring 05
Acres 04 Guntas and Sy.No.37/3 measuring 01 Acre 12
Guntas, totally measuring 06 Acres 16 Guntas was
purchased in the name of defendant No.1, he being elder
brother of defendant No.2 as a Karta, from one Narayana
Shetty under sale deed dated 04-06-1970. Another portion
in Sy.No.14/8 was also purchased from G Krishna Reddy
on 24-06-1971. Later, the said property was partitioned
between defendant Nos.1 and 2 and also the sons of
defendant No.2, Gurumurthy and Muralidhar under a
registered partition deed dated 05-07-2003. As per the
24 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
said partition, 03 Acres 32 Guntas came to the share of
defendant No.1; and 02 Acres 20 Guntas came to the
share of defendant No.2. Out of 02 Acres 20 Guntas falling
to the share of defendant No.2 and his sons, 02 Acres of
land was converted for residential and commercial
purposes. Out of such 02 Acres, 01 Acre was purchased by
defendant No.4 under a sale deed dated 15-11-2005 and
the remaining 01 Acre was the subject matter of a Joint
Development Agreement with defendant No.4. Later,
defendant No.4, and owner of remaining 01 Acre i.e.,
defendant No.2 and his sons assigned all their rights to
defendant No.9 under deeds dated 12-09-2008 and
15-12-2008. In the said 02 Acres of land, an Apartment
has been constructed and has been sold to prospective
buyers. Defendant No.9 also contends that some others
had filed suit in OS No.1674/2011 and the same came to
be rejected.
12. Apart from these contentions, defendant No.9
also contended that Sy.No.29/2A belonged to one
Gurreddy, and it was partitioned later among his brothers.
The said property no way relates to the plaintiff. A portion
25 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
of it has also been developed by defendant No.4 by
entering into the Joint Development Agreement with its
owners and purchasing the portion of it. Another portion
has been developed by M/s.Aban Developers. In
substance, defendant No.9 contends that Sy.No.37 was
the absolute property of defendant Nos.1 and 2 and
neither the plaintiff nor defendant No.3 had any share,
right, title or interest in the same. On these grounds,
defendant No.9 has sought for dismissal of the suit.
13. On the basis of the above pleadings, the
following issues were framed by the trial Court:
1. Whether the plaintiff proves that suit properties are
the joint family properties as pleaded?
2. Whether the defendants 1 and 2 prove the partition
between plaintiffs father and their father referred in
Para-3 of their written statement?
3. Whether the plaintiff proves the alienation of suit
schedule properties by the defendants 1 and 2 in favour
of defendants 4 and 5 as pleaded?
4. Whether the defendant No.5 proves that second item
of suit property is acquired by him from his ancestors
as contended?
5. Whether the plaintiff proves that he is in joint
possession of the suit properties as pleaded?
6. What is the effect of dismissal of the suit in O.S.No.
7127/1990 on 19.12.2002?
7. Whether the plaintiff is entitled to 1/4th share in the
suit schedule properties?
26 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
8. Whether the plaintiff is entitled for the relief of
perpetual injunction as prayed?
9. To what relief?
14. The plaintiff deposed as PW1 and Exhibits P1 to
P83 were marked. Defendant No.2 deposed as DW1 and
two witnesses were examined on his behalf as DWs.2 and
3. Defendant No.9 examined its Managing Director as DW4
and Exhibits D1 to D53 were marked on their behalf.
15. After hearing the arguments, the trial Court
answered issue Nos. 1,5,7 and 8 partly in the affirmative;
issue No. 3 in the affirmative; Issue No.2 in the negative
and decreed the suit only in respect of Schedule ‘A’ and ‘D’
properties awarding 1/4th share to the plaintiff, while
holding that the dismissal of OS NO.7127/1990 will not
have any effect on the present suit.
16. Being aggrieved by the said judgment,
defendants No.1 (by LRs) and defendant No. 2 filed RFA
No.1433/2014; defendant No.9 has filed RFA
No.1525/2014 and plaintiff has filed Cross objection in RFA
CROB.No.1/2015.
17. On issuance of notice, in RFA No.1433/2014
respondent No.1/plaintiff, respondent Nos.2,3 and 7, 4, 6,
27 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
7, 10 to 20, 22 and 23 and respondent No.21 appeared
through their respective counsel. However, service of
notice to respondent Nos.5, 8 and 9 is held sufficient.
During the pendency of the appeal, appellant No.2-M.
Krishna Reddy and respondent No.2-K.Narayana Reddy
died and their LRs were brought on record.
18. In RFA No.1525/2014, respondent Nos.1, R2(b),
2(d); respondent Nos.3(a) to (d); respondents 4 (a) and
(b); respondent Nos.8,11 to 20 and 22 to 24 and
respondent No.23 have appeared through their respective
counsel. However, despite service of notice, respondent
Nos.2(a), 2(c), 2(d), 2(e) and 5 served and unrepresented
and appeal against respondent Nos. 6, 7, 9 and 10 stands
dismissed.
19. In RFA CROB No.1/2015, respondent No.1(d);
respondent Nos. 2(a) to (d); respondent Nos. 3(a) and
(b); respondent No.7 appeared through their respective
counsel. Respondent Nos.1(a),(b),(c), (e),4 and 5 served
and unrepresented and notice to respondents 6,9 and 10
are dispensed with.
28 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
20. The appellants, (LRs of defendant Nos.1 and 2)
in RFA No.1433/2014 have filed an application under
Order 41 Rule 27 of CPC seeking to introduce 09
documents as additional evidence. The affidavit filed in
support of the application states that, in para 14 of the
impugned judgment the trial Court had taken note of the
RTC extracts to conclude that ‘A’ schedule property is the
joint family property. But it had failed to notice that the
corresponding sale deeds as Ex.D18 and Ex.D33 were not
appreciated properly, so as to link them to the
transactions depicted in the RTC. It is stated that the case
was fought by his father before the trial Court during his
life time and the various sale deeds and other revenue
entries could not be traced by his father at that time.
Now, the appellants have made efforts in tracing old
documents which are more than 30 years old in the
Revenue Offices and have obtained the certified copies of
the same. The affidavit narrates the flow of the title in
respect of land in Sy.No.37, which has changed many
hands while it finally landed in the hands of defendant
Nos.1 and 2. Therefore, at the time of leading evidence in
the trial Court, the appellants could not produce these
29 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
documents since their uncles could not trace them. It is
stated that these documents will throw light on the flow of
title and would be of immense help for the Court to
pronounce the judgment. The documents sought to be
produced include certified copies of the 02 mortgage
deeds, 03 sale deeds, index of the lands and 03
encumbrance certificates.
21. This application is opposed by the plaintiff
contending that these documents could have been
produced by appellants/defendant Nos. 1 and 2 during
trial and therefore, the requirements of Order 41 Rule 27
of CPC are not met by the appellants. None of the
requirements under Rule 27 are applicable. It is further
submitted that the provisions of Order 41 Rule 27 (2) of
CPC squarely applies to the case on hand since the
applicants are trying to fill the gaps in the case and to
better their case in the Appellate Court. The objections
statement also states about the merit of the documents
sought to be produced. Therefore, the application is liable
to be dismissed.
30 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
22. We have heard the arguments by learned
counsel appearing for respective parties in all these
matters.
23. After hearing the arguments, the points that
arise for our considerations are:
(1) Whether the application filed under order 41 Rule
27 of CPC requires to be allowed for effective
pronouncement of the judgment?
(2) Whether the Suit is not maintainable on account of
the dismissal of earlier suit in OS No.7127/1990 for
partition?
(3) Whether the schedule ‘A’ property is the joint
family property of the plaintiff and defendants No. 1 to 3
and as such, is amenable for partition?
(4) Whether the schedule ‘B’,’C’,’D’ and ‘E’ properties
are the joint family properties of the plaintiff and
defendant Nos. 1 to 3?
(5) Whether the suit being only for 5 properties, suffer
from non-inclusion of all the properties.?
Re.Point No.1 -IA No.1/2023 filed under Order 41 Rule 27 CPC:
24. The LRs of defendant Nos.1 and 2, who are
appellants in RFA No.1433/2014 have filed this
application. As noted above, the reasons assigned by the
applicants for belated production of the documents in this
31 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
appeal are: that their uncles were fighting the case and
the applicants were unaware of their diligence. Secondly,
these documents are of immense importance for just
decision in the case.
25. Learned counsel appearing for the appellants
Sri P.D. Surana, points out that the contentions taken up
by defendant Nos.1 and 2 in their written statement,
particularly, in para 8(A) and 8(B) needs to be appreciated
in the light of the documentary evidence available on
record. In order to ascertain the contentions taken up in
para 8(A) and 8(B), the documents now sought to be
produced are now essential. In other words, he relies on
the grounds available under Rule 27 (a)&(aa) of Order 41
of CPC. His second prong of the argument is that the
documents sought to be produced are either public
documents or private documents kept in Public Offices and
also that they are more than 30 years old. Therefore, he
seek allowing of the application.
26. In support of his contentions, he relies upon the
following judgments:
32 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
1. Jagdish Prasad Patel (Dead) Through Legal
Representatives and Another Vs. Shivnath and Others1
3. Shyam Gopal Bindal and Others Vs. Land Acquisition
Officer and Another3
4. Lachhman Singh (Deceased) Through Legal
Representatives and Others Vs. Hazara Singh
(Deceased) Through Legal Representatives and Others4
5. North Eastern Railway Administration, Gorakhpur Vs.
Bhagwan Das (D) by L.Rs5
6. Billa Jagan Mohan Reddy and Another Vs. Billa
Sanjeeva Reddy and Others6
27. Per contra, learned counsel appearing for
respondent No.1/plaintiff contends that the documents
now sought to be produced could have been produced by
the defendants before the trial Court, had they were
diligent in conducting the case. It is submitted that when
the defendants suffered the decree, now they want to fill
up the lacunae and put forth a new version. Therefore,
such act of the defendants cannot be acceded to.
1
(2019) 6 SCC 82
2
(2016) 13 SCC 124
3
AIR 2010 SC 690
4
(2008) 5 SCC 444
5
AIR 2008 SC 2139
6
(1994) 4 SCC 659
7
AIR 1963 SC 1526
33 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
28. On a careful consideration of the contentions
raised in respect of application filed under Order 41 Rule
27 CPC, we are of the view that the documents sought to
be produced are either the public documents or the private
documents registered with public authorities. This Court
must observe that the documents which are public in
nature can very well be looked into and relied by the court
if necessary. Such documents would definitely throw light
on the circumstances that existed in a case. Such
documents maintained by the public authorities in due
course of business partake the character of documents of
title if they remain unobjected, undisputed for
continuously long time. The Hon’ble Supreme Court in the
case of The State of Haryana and another vs. Amin
Lal (since deceased) through his LRs and others8
has observed that, “if the revenue entries remain
undisputed for long time, they can very well indicate the
title to the property”. Para 8.2 reads as below:
“8.2 The plaintiffs relied on jamabandi entries to
establish their ownership. The jamabandi for the
year 1969-70 (Exhibit P1) records the name of
Shri Amin Lal as owner to the extent of half
share. Revenue records are public documents8
SLP (Civil) No.25213/2024 DD 19-11-2024
34 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015maintained by government officials in the regular
course of duties and carry a presumption of
correctness under Section 35 of the Indian
Evidence Act, 1872. While it is true that revenue
entries do not by themselves confer title, they are
admissible as evidence of possession and can
support a claim of ownership when corroborated
by other evidence.”
29. The moot question in the present case is,
whether the documents sought to be produced are
necessary for a effective pronouncement of judgment in
the matter?
30.The provisions of Order 41 Rule 27 (aa) and (b)
read as below:
“27. Production of additional evidence in
Appellate Court.- (1) The parties to an appeal shall
not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate Court.
But if–
(a) XXX
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise
of due diligence, be produced by him at the time when
the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial
cause, the Appellate Court may allow such evidence or
document to be produced, or witness to be
examined.”
35 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
31. The affidavit filed by the applicants’ show that
the case was conducted by his father and he could not
produce the documents during the trial and as such, the
application be allowed. It is to be noted that defendant
Nos.1 and 2 have contended that Sy.No.37 was earlier
owned by Chinnappa Reddy, the propositus and there was
an oral partition between Krishna Reddy and Muniswami
Reddy. Later, father of the plaintiff Krishna Reddy has
sold his share to other vendors and the defendant No.1
purchased it from such vendor. Therefore, it is necessary
for this Court to ascertain whether the property in
Sy.No.37 had changed the hands from Krishna Reddy to
others and thereafter, defendant No.1- Gopal Reddy
purchased it for a valuable consideration. This flow of title
from Chinnappa Reddy till plaintiff and defendants No.1 to
3 needs to be ascertained, as it will throw light on the
nature of the property. Obviously, the trial Court has not
ventured into tracing the title of the property. Therefore,
for above reasons, we feel that the application filed under
Order 41 Rule 27 of CPC requires to be allowed. While
coming to such conclusion, we have kept in mind the law
36 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
laid down by the Apex Court in various decisions relied by
the learned counsel for the appellants. The law concerning
Order 41 Rule 27 CPC is elaborately considered and laid by
the Apex Court in the case of Union of India Vs.
Ibrahim Uddin and another 9.
32. The Apex Court in the case of Appaiya Vs.
Andimuthu alias Thangapandi and others10, regarding
the admissibility and proof of contents of certified copies of
the sale deed and such other documents, after a thorough
discussion, holds as below:
“30…….Thus, the cumulative effect of the
aforementioned sections of the Evidence Act and
Section 57(5) of the Registration Act would make the
certified copy of the sale deed No. 1209/1928 dated
27.08.1928 of SRO Andipatti, produced as Ext.A1
admissible in evidence for the purpose of proving the
contents of the said original document. When this be
the position in the light of the specific provisions
referred hereinbefore under the Evidence Act and the
Registration Act, we have no hesitation to hold that
the finding of the High Court that the certified copy of
Ext.A1 owing to the failure in production of the
original and proving through an independent witness
is inadmissible in evidence, is legally
unsustainable………….”
Therefore, the certified copies of the sale deeds and
the revenue records are admissible in evidence and when
9
(2012) 8 SCR 35
10
2023 SCC Online SC 1183
37 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
they throw light on the transactions involved in respect of
the schedule properties in this suit, they deserve to be
permitted to be produced. More so, when these documents
lend a link to the flow of title of the suit schedule
properties.
33. The discussion made in the following
paragraphs would show that the documents now sought to
be produced by the appellants would only link the flow of
title of Sy.No.37, which is ‘A’ schedule property in the
present suit. If we take into consideration the documents
produced, the jigsaw fits in and the flow of title is
established. The documents being public documents, they
have to be considered. The certified copies of the sale
deeds do not require the formal proof since they only
depict the flow of title in respect of Sy.No.37 and lend
support to the revenue records. The revenue records being
public documents kept in due course of business by the
Government officials, are permissible to be considered
without the formal proof. Therefore, the application under
Order 41 Rule 27 of CPC is allowed and the following
38 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
documents are permitted to be produced as additional
evidence:
1) The certified copy of the Index of Lands of Sy.No.37
of Aralakunte Village showing the entries made on
20.06.1927 certified copy of the Record of Rights.
2) The certified copy of the Deed of Mortgage Deed
dated 16.06.1927 executed by Sri Chinnaiah S/o.
Reddigara Gurappa in favour of Sri Muniyappa alias
Pillaiah S/o. Muniyappa mortgaging 09 Acres 21
Guntas of land in Sy.No.37 of Aralakunte Village.
3) The certified copy of the Sale Deed dated 04.09.1951
executed by Sri Chikka Chinnanna @ Chinnanna @
Chinnappa @ Chinnaiah in favour of Smt.
Muniyamma W/o Late Nanjappa in respect of 06
Acres of land in Sy No.37 of Aralakunte Village.
4) The certified copy of the Deed of Mortgage dated
02.05.1958 executed by Sri Krishnappa and Sri
Muniswami both sons of Sri Chikka Chinnanna @
Chinnanna @ Chinnappa @ Chinnaiah in respect of
03 Acres 05 Guntas of land in Sy.No. 37/2 of
Aralakunte Village along with 02 Acres 12 Guntas of
land in Sy.No.36/1.
5) The certified copy of the sale deed dated 20.09.1965
executed by Smt. Muniyamma W/o Late. Nanjappa in
favour of Sri Krishna Reddy S/o Dodda Gureddy
relating to 1 Acre 20 Guntas of land in Sy.No.37/1 of
Aralakunte Village.
6) The certified copy of the sale deed dated. 19.03.1968
executed by Smt. Muniyamma W/o Late.Nanjappa in
favour of Sri Narayana Sheety in favour of Sri.
Hanumantha Shetty in respect of 03 Acres 24 Guntas
of land in Sy.No.37/1 and 1 Acre 12 Guntas of land
in Sy.No.37/3 of Aralakunte Village.
7) Nil Encumbrance certificate (in Form No.16) of
Sy.No.37 (new No.37/1, 37/2 and 37/3) of
Aralakunte Village for the period from 01.04.1920 to
30.06.1924.
8) Encumbrance certificate of Sy.No.37 (New No.37/1,
37/2 & 37/3) of Aralakunte Village for the period
from 01.07.1924 to 14.02.1957.
39 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
9) Encumbrance certificate of Sy.No.37 (New No.37/1,
37/2 & 37/3) of Aralakunte Village for the period
from 15.2.1957 to 31.03.1975.
Point No.2: Re maintainability:
34. The next point that arises for consideration is
regarding maintainability of second suit for partition. The
trial Court while deciding issue No.6 has held that OS
No.7127/1990 was not decided on merits and findings
were not rendered on issues. By relying on the judgment
in S.K.Lakshminarasappa vs. B. Rudraiah11 it held that
the dismissal of OS No.7127/1990 would not amount to
res judicata and therefore, it will not have any effect on
the present suit.
35. The learned counsel appearing for appellants
Sri P.D. Surana, argues that the cause of action for
partition would arise when the plaintiff got knowledge of
denial of right of partition and denial of such right came to
their knowledge when defendant Nos.1 and 2 filed their
written statement in OS No.7127/1990 and therefore,
their claim in the present suit is time barred. The word
‘exclusion’ employed in Article 110 of the Limitation Act
11
ILR 2012 KAR 4129
40 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015becomes invokable. In this regard, he relies on the
judgment in the case of Krishna Pillai Rajasekharan
Nair (dead) by LRs. Vs. Padmanabha Pillai (dead) by
LRs. and others12. We are unable to accept the
applicability of this case since the factual matrix in that
case involved the question of redemption of a mortgage
by one of the member of the family and the question of
subrogation was also raised. But in the case at our hands,
it is a simple suit for partition and therefore, the cause of
action is only in respect of the partition of the properties.
Therefore, there is no necessity of considering the reliance
placed by the learned counsel for the plaintiff that the
judgment in the case of State of U.P. and Another Vs.
Synthetics and Chemicals Ltd. and Another13 is
applicable.
36. Learned Counsel Sri P.D. Surana, also relied on
the judgment in the case of Des Raj and others Vs.
Bhagat Ram (deceased by LRs) and others14 to
contend that though the successive suits for partition
being on the premise that there would be continuous cause
12
(2004) 12 SCC 754
13
(1991) 4 SCC 139
14
2007 AIR SCW 1560
41 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
of action, but it is equally well settled that the pendency of
a suit does not stop running of limitation. It was a case
wherein the issue regarding adverse possession was
involved and in the back ground of such issue, the above
view was expressed by the Apex Court. We are unable to
accept the applicability of this judgment as it can be
distinguished on facts.
37. Per contra, learned Senior Counsel Sri
S.P.Shankar, appearing for respondent No.1/plaintiff
submits that the right to seek partition is inherent in every
coparcener and such right is never get extinguished and
could be exercised till the partition is effected. He submits
that the cause of action is recurring one and not one time
event. He submits that the earlier suit in OS No.7127/1990
was dismissed for non-prosecution and it was not decided
on merits. Though there were attempts by the plaintiff to
resurrect the same by filing Miscellaneous Petitions
invoking order 9 of CPC, there were also unsuccessful and
ultimately, the second Miscellaneous petition No.616/2006,
which was filed to restore Miscellaneous Petition
No.72/2000 was withdrawn as per memo at Ex.P53 dated
42 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
30.3.2009. In this regard, he relies on the judgment of a
Co-ordinate Bench of this Court in the case of Smt.
Gangamma and others vs. Smt.Tholasamma and
others15 wherein, by relying on two other judgments of
this Court, it was held that “the right to sue for partition
survives till the properties are divided by metes and
bounds and there is recurring cause of action for the
party claiming partition.”
38. Learned Senior Counsel Sri.S.P.Shankar by
relying on the judgment in the case of The
Commissioner of Income-tax, Gujarat Vs. Keshavlal
Lallubhai Patel16 and also V.N Sarin Vs. Ajit Kumar
Poplai17 submits that the partition involves only the
identification of the specific property in a joint holding and
the right to seek partition would continue till the shares
are bifurcated. He also relied on a judgment of this Court
in the case of Sri Aralappa Vs. Sri Jagannath and
Others18 which also lay down same principle. He further
buttressed his argument by saying that DW.1 had
admitted that there is no documentary evidence to prove
15
RFA No.1300/2022 DD 19-6-2024
16
AIR 1965 SC 866
17
AIR 1966 SC 432
18
ILR 2007 KAR 339
43 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
the partition and therefore, the question of bar of
limitation for the second suit for partition does not arise.
39. He also submitted that a second suit for
partition is maintainable since the principles of res-judicata
will not apply. It is submitted that the principle underlying
in Order XXIII Rule 1 of CPC was considered in the case of
Sarguja Transport Service Vs. State Transport
Appellate Tribunal, M.P., Gwalior and Others19 and it
was held that bar of second lis is based on public policy
and the present suit is only in respect of the rights
between the siblings. In fact, in the memo for withdrawal
of the miscellaneous petition, the plaintiff had mentioned
that he had already filed a comprehensive suit for
partition. On this ground, learned Senior Counsel Sri S P
Shankar, submits that the second suit for partition is
maintainable when the earlier suit was not decided on
merits.
40. It is relevant to note that in yet another
judgment in the case of Sri Srinivas and others Vs.
Sri M.C. Narayanaswamy and others20 a Co-ordinate
19
(1987) 1 SCC 5
20
RFA No.946/2018 DD 26-07-2024
44 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
Bench of this Court, of which one of us was a Member, by
relying on three other judgments viz., of High Court of
Himachal Pradesh, High Court of Madras and that of the
Apex Court (in the case of Ganesh Prasad Vs.
Rajeshwar Prasad and others21 came to the
conclusion that “the right to seek partition is not
extinguished till such time the right in the property is
determined.” It concluded that the cause of action in a
partition suit is a recurring one. It had also relied on the
judgment in the case of Kumari Geetha D/o Late
Krishna and others Vs. Nanjundasway and others22
rendered by Apex Court.
41. From the above expositions, we are of the clear
view that the contention of the appellants that the second
suit for partition was not maintainable is bereft of any
merits. The cause of action in a partition suit is a recurring
one but not a continuing cause of action. It is also relevant
to note that plaint in OS No.7127/1990, in para 8, narrates
the cause of action as below:
” 8. The cause of action for the Suit arose after the
death of father of the Plaintiffs and on 21.11.90,
21
SLP (c) No. 28377/2018 DD 14-3-2023
22
Civil Appeal No.7413/2023 DD 31-10-2023
45 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015when the partition demanded through legal notices
and subsequently within the jurisdiction of this
Hon’ble Court.”
The present suit i.e. OS No. 7702/2004 states the
cause of action in para 20 as below:
“The cause of action for the above suit on
08.10.2004, 09.10.2014, 10.10.2004 and on all
subsequent dates and the same is within the
jurisdiction of this Hon’ble Court.”
42. Therefore, it is evident that the cause of action
contended by the plaintiff in both the suits are different.
Moreover, the claim for partition in the earlier suit was not
clubbed with any other claim which otherwise could have
become time barred. There is also no abandonment of the
claim made by the plaintiff in the earlier suit, inasmuch as,
he had filed petitions under Order IX of CPC to restore the
earlier suit and only after filing the present comprehensive
suit, the memo for withdrawal as per Ex.P53 was filed in
the second petition. Hence, we hold that the trial Court
has rightly decided Issue No.6 by holding that the present
suit for partition is maintainable. We concur with the said
findings. Hence, the point raised above is answered
accordingly.
46 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
Re.Point No.3:
Whether the suit schedule properties are joint family
properties?
43. Learned counsel appearing for the appellants
Sri P.D.Surana, submits that although there is
presumption of the joint family among Hindus, such
presumption will not extend to the property being the joint
family property. In the absence of evidence to show that
the property is the joint family property, a suit for partition
should fail. In this regard, he relied on the judgment in the
case of D.S.Lakshmaiah and another Vs. L.
Balasubramanyam and another23. He also relied on
the judgment in the case of Appasaheb Peerappa
Chamdgade Vs. Devendra Peerappa Chamdgade and
Others24 and in the case of T.S Subbaraju Vs. T.A.
Shivarama Setty and Others25 to contend that the
existence of the Hindu Undivided Family will not
automatically result in a presumption that property is joint
family property and there was sufficient nucleus to
purchase the property by a member of the joint family. It
23
AIR 2003 SC 3800
24
(2007) 1 SCC 521
25
AIR 2004 KARNATAKA 479
47 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
was observed in the above decisions that the primary
burden of proving that the property held by a member of
the joint family is on the plaintiff; and a self serving
statement by plaintiff that there was sufficient nucleus
would not be sufficient to discharge the burden. He
contended that the propositus Chinnappa Reddy had
alienated 06 acres of land in Sy. No.37 in the year 1951
and later there were several alienations of the property in
bits and pieces, which is indicative of the partition.
44. He further submits that, Sy.No.37 which was
measuring 10 Acres 09 Guntas, including 28 Guntas of
kharab land was earlier owned by Chinnappa Reddy is not
in dispute. He submits that the said land was the subject
matter of an oral partition and the two sons of Chinnappa
Reddy, namely, Krishna Reddy and Muniswami Reddy had
separated and were enjoying their lands separately. They
had brothers by name Nanjundappa and Narayana Reddy
who died without any marriage. Their sister Gurramma
also died as a spinster. It is contended that Chinnappa
Reddy @ Chikka Sinnanna himself had sold 06 Acres of
land to one Muniyamma. He submits that 03 Acres 05
48 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
Guntas of remaining land in Sy.No.37 was mortgaged by
Krishna Reddy and Muniswami Reddy in the year 1958.
Later, Krishna Reddy had sold the lands to one Venkatappa
under Ex.D13 and Ex.D27. Obviously, it was subsequent to
the oral partition between Muniswami Reddy and Krishna
Reddy. Later, the property which was sold by Chinnappa
Reddy was purchased by Narayana Shetty and one Krishna
Reddy; and thereafter purchased by the appellant No.1
Gopal Reddy under Ex.D33 and Ex.D18. Therefore, he
contends that the Sy.No.37 had been divided long back
and it never remained to be the joint family property.
45. He further submits that he confines his appeal
(RFA No.1433/2014) only to Sy.No.37 measuring 06 Acres
16 Guntas which is part of Schedule ‘A’. He has
categorically submitted that for rest of the properties he
has neither interest, grievance nor claim at all. Sri P.D.
Surana, has drawn attention of the Court to the RTCs, Sale
Deeds, Mortgage Deeds, and Index of lands (Survey
Tippan) and Encumbrance certificates to depict and
demonstrate the flow of title of Sy.No.37. According to
him, the flow of title in respect of Sy.No.37, ‘A’ schedule
49 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
property clearly indicate that it was sold during the life
time of Chinnappa Reddy and later, 06 Acres 16 Guntas
was purchased by Gopal Reddy and therefore, the said
property is not the joint family property and as such, it is
not available for partition.
46. He further contends that the name of Chikka
Chinnanna appearing in the conveyance deeds is none
other than the Chinnanna @ Chikka Chinnanna @
Chinnappa Reddy, which contention is vehemently refuted
by the learned Senior Counsel Sri S.P. Shankar appearing
for the plaintiff/respondent No.1. It is submitted that the
additional documents produced by the appellants under IA
No.1/2023, inter alia, comprised of certain land records
and that they carry presumptive value since those entries
have been made in due discharge of official duties, in
terms of Section 33 of the Indian Evidence Act. He further
submitted that the registered Mortgage deed is of 1927
and therefore, there exists a presumption.
47. Contending that these sale deeds are 30 years
old documents, learned counsel Sri P. D. Surana, also
pressed into service the decisions in the case of Rattan
50 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
Singh and Others Vs. Nirmal Gill and Others Etc., and
connected matter26 and in the case of Sri Lakhi Baruah
and Others Vs. Sri Padma Kanta Kalita and Others27
to fortify his argument that the certified copies of such
conveyances, under which the suit schedule properties
were alienated are more than 30 years old and as such, a
presumption is to be raised.
48. We are not impressed by this argument
inasmuch as the documents produced are certified copies,
which were obtained recently. Hence, Section 90 of the
Evidence Act has no applicability.
49. He also submitted that ordinarily, the suit for
partial partition is not maintainable but when was queried
to show such a pleading in the written statement,
admitted that no such plea was taken. However, he
maintains that in the absence of all the properties put
into the suit schedule, the Doctrine of Equity, which
ordinarily obtains in law of partition, cannot be pressed
into service. In this regard, he has placed
reliance on paras 16 and 17 of a Single Bench decision of
26
AIR 2021 SC 899
27
AIR 1996 SC 1253
51 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
this Court, in the case of K.R. Ravishankar and another
Vs. Smt. Vijayamma.28
50. He further submitted that in OS No.64/2000,
(Ex.D31), there was an injunction granted against the
plaintiff. Therefore, the plaintiff was not in possession of
the property and as such, it has to be construed that
plaintiff is ousted from the property and therefore,
appropriate ad-valorem court fee has to be paid to seek
possession. He also points out that the report of the Court
Commissioner in the appeal clearly shows that there is an
apartment complex constructed over Sy.No.37 and
therefore, at no stretch of imagination, it can be held that
the plaintiff is in joint possession of the property.
51. The learned counsel Sri K. Satish, appearing for
LRs., of defendant No.1 (appellant No.1) adopting the
arguments of learned counsel Sri P.D. Surana, submits
that plaintiff sold the property in favour of one Venkatappa
under Exs.D13 and D27 and Venkatappa having died in the
year 1997, the name of his wife Jayamma, came to be
entered in the revenue record in respect of Sy.No.37 as
28
RFA No.345/2019 DD 26-10-2023
52 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
mentioned in Ex.P2. He has drawn our attention to para
8(A) of written statement of defendant Nos.1 and 2 and
despite a contention that the said Jayamma is the holder
of the property is taken, the plaintiff has not impleaded
her. The RTC shows that name of Jayamma appears for 05
Acres 02 Guntas. He also submits that plaintiff has not
challenged the sale deed in favour of Venkatappa, who is
the husband of Jayamma and therefore, the said sale deed
holds good.
52. Regarding the court fee to be paid by the
plaintiff, by refuting the contentions of learned Senior
counsel Sri S.P. Shankar, he submits that the decree in OS
No.64/2000 was passed after having served the summons
on the plaintiff. The address in the decree in OS
No.64/2000 and OS NO.7127/1990 are one and the same
and therefore, the plaintiff remaining unentered and
unrepresented in the injunction suit cannot be avoided by
the plaintiff. He also pointed out that the partition deed
between defendant No.1 and his sons refers to the sale
deed dated 4-6-1970 (Ex.D18) and points out that the
53 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
plaintiff has not sought for any declaration regarding the
sale deed.
53. Per contra, learned Senior counsel
Sri S.P. Shankar, appearing for the plaintiff/cross-objector
in Crob.1/2015 submits that when appellant No.2/
defendant No.2 has restricted his appeal only in respect of
Sy.No.37, measuring 06 Acres 16 Guntas, and has not
pressed any claim in respect of the remaining properties,
the suit has to be decreed. He points out that the
arguments of the appellants that Sy.No.37 was divided as
Sy.No.37/1 and Sy.No.37/2 and was subject matter of the
sale under Ex.D27 and Ex.D28 is not based on oral or
documentary evidence. He submits that there is a
suggestion made in the evidence of the plaintiff that his
father was known as Chikka Chinnanna son of Nanjunda
Reddy based on the entries made in revenue records. He
submits that in Ex.P79 and Ex.P81, the name of one
Krishnappa son of Chikka Chinnanna is shown and Chikka
Chinnanna is the son of Nanjundappa. Therefore, the said
Krishnappa is different from Krishna Reddy, the father of
the plaintiff. Therefore, suggestion to the said effect by
54 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
the defendants in the cross-examination of PW1 which is
an essential requirement of law as laid down in
A.E.G.Carapiet Vs.A.Y.Derderian29 in para 10, which is
endorsed by the Hon’ble Supreme Court in Sarwan Singh
Vs. State of Punjab30 at para 9, is not available. He
further submits that when there is no positive evidence
with the production of the sale deed said to be executed
by the father of the plaintiff, K. Srinivasa Reddy, it is
impermissible to hold that he had sold the land under
Exs.D27 and D28, while it is signed by one Krishnappa,
who is a stranger. Alternatively, he submits that if the
vendor under Exs.D27 and D28 named as Krishnappa had
transferred some area, such area has to be deducted from
suit schedule ‘A’, which is not the case here. Therefore,
Ex.D27 has no consequence. Similarly, he also points out
by referring to the documents produced under Order 41
Rule 27 of CPC to demonstrate that the defendants are
trying to avoid lawful decree for partition on untenable
grounds.
29
(1961) AIR (Calcutta) 359
30
2003(1) SCC 240
55 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
54. In support of his submissions, he also relied on
the decision in the case of Thamma Venkata
Subbamma (Dead) by L.R Vs. Thamma Rattamma
and Others31 to contend that coparcener can dispose of
his undivided interest in the coparcenary by a Will but he
cannot make a gift of such interest. Based on this decision,
learned counsel submit that the alienations made by
defendant Nos. 1 and 2 or their ancestors do not bind the
plaintiff and as such, the plaintiff is entitled for share in the
coparcenary property. We are unable to accept the
applicability of this proposition, for the alienations were
made not only by the father of defendant Nos. 1 and 2 but
also by the propositus Chinnappa Reddy during his life
time. No such pleadings are available seeking to ignore the
alienations made by Chinnappa Reddy in the plaint.
55. In conclusion, he submitted that the identity of
Chinnappa Reddy as Chikka Chinnanna @ Chikka
Chinnaiah, Dodda Chinnanna, Krishnaiah, Krishna Reddy
and Krishnappa all add to inconclusive evidence in that
regard. Therefore, the contentions of the defendants are
31
AIR 1987 SC 1775
56 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
unsustainable and since there is no proof of oral partition
and as such the suit to be decreed.
56. The learned Senior Counsel Sri Rajesh Mahale,
appearing for defendant No.3 adopts the arguments by
learned Senior Counsel Sri S.P. Shankar and submits that
plaintiff had taken a plea that there was no partition
between the family and therefore, defendant Nos.1 and 2
were not entitled to alienate any property involved in the
suit. If they have alienated, it would be to their peril as
such, transactions would be hit by the Doctrine of lis
pendens.
57. In reply, learned counsel Sri P.D. Surana,
submits that under the Mysore Land Record of Rights Act,
1927, Section 13 is in parimateria with Section 133 of the
Karnataka Land Revenue Act, 1964 and therefore, the
entries made in the revenue records have a presumptive
value and such presumption should be raised with respect
to the Mortgage Deed dated 20-06-1927 and such other
documents produced.
57 RFA No.1433/2014
C/W RFA NO.1525/2014,
RFA CROB NO.1/2015
Analysiss and Conclusions:
58. This takes us to the analysis of evidence
regarding the name of Chinnappa Reddy @ Chinnanna @
Chikka Sinnanna @ Chinnappa. According to appellants,
Chinnappa Reddy, Chinnaiah, Chikka Sinnanna are one
and the same. The perusal of Ex.P1, the genealogy as
stated by the plaintiff shows the father of Muniswami
Reddy and Krishna Reddy as Chinnappa Reddy. Ex.P45,
Ex.P57 and Ex.P81, which happen to be the Index
(Tippan) of the Land dated 26-04-1958 show that, at the
time of resurvey of Sy.No.37, Chikka Sinnanna son of
Nanjundappa and Krishnappa son of Chikka Sinnanna were
present. Obviously, the survey was in respect of the entire
land bearing Sy.No.37 and none others had any right, title
or interest in the same, except the said Chikka Sinnanna.
This fact is also borne out of the Record of Rights at Ex.P2
which is for the entire survey number. These documents
also establish that entire Survey Number measures 10
Acres 09 Guntas, including 09 Acres 21 Guntas of
cultivable land and 28 Guntas Kharab land.
58 RFA No.1433/2014
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RFA CROB NO.1/2015
59. PW1, K.Srinivasa Reddy, the plaintiff in the
cross-examination dated 14-02-2011, (Page No.94 of
Paper Book Volume I), states that his father was called by
the name Krishnappa also. He denies that portion of ‘A’
schedule property i.e., Sy.No.37 was also sold by his
father in the year 1967. However, Exs.D13 and D27,
which pertain to Sy.No.37 were not confronted to him.
Further, he admits that his grandfather’s father was
Nanjunda Reddy @ Nanjundappa. In the cross-
examination dated 15-3-2014, he states that his father
was usually called as Krishna Reddy @ Krishnappa. He
states that his father has not alienated any portion of
Sy.No.37.
60. The certified copy of the Mortgage Deed dated
16-06-1927 produced as an additional document by
defendants mention that Sy.No.37, measuring 09 Acres 21
Guntas was mortgaged infavour of Muniyappa @ Pillaiah,
by Chinnaiah son of Reddigara Gurrappa. The said
document mentions that Chinnaiah had purchased it under
a sale deed dated 11-06-1920 and he had deposited it
with mortgagee.
59 RFA No.1433/2014
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RFA CROB NO.1/2015
61. Therefore, it appears that Sy.No.37 owned by
Chinnappa Reddy @ Chinnaiah being not in dispute, it
cannot be said that Chinnappa Reddy and Chinnaiah are
different persons, though the name of the father differs in
mortgage deed. It is not the case of either the plaintiff or
the defendants that Sy.No.37 in the year 1920, was held
by anybody else than Chinnaiah. The discussions made by
us in the following paragraphs regarding the flow of title of
Sy.No.37 would show that Chinnappa Reddy @ Chinnaiah
@ Chikkasinnanna are one and the same. So also, Krishna
Reddy @ Krishnappa, son of Chinnaiah @ Chinnappa
Reddy are one and the same. The names of the parties
may slightly differ in the documents, but the flow of title
as mentioned in the revenue records would show that
there was no other person than Krishnappa @ Krishna
Reddy and Chinnappa @ Chinnappa Reddy @ Chinnaiah.
We are also aware that in villages the suffix ‘Aiah’ or
‘Appa’ is interchangeably used.
62. No doubt, the cross-examination do not make a
specific suggestion that Chikka Sinnanna and Chinnappa
Reddy @ Chinnaiah are one and the same, such
60 RFA No.1433/2014
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RFA CROB NO.1/2015
suggestion having not been put to PW1, defendants
cannot take advantage of the same. However, the revenue
documents having stood the test of time and not objected
to for more than 50 years are to be accepted. In a recent
judgment, the Apex Court in the case of State of
Haryana Vs. Ameen Lal32 has observed that the revenue
records are public documents maintained by Government
officials in regular course of duties and carry a
presumption of correctness under Section 35 of the Indian
Evidence Act, even though they do not per-se confer title
but they are admissible as an evidence of possession and
can support the claim of ownership when corroborated by
other evidence. We are aware of the law laid down in the
case of A.E.G.Carapiet Vs.A.Y.Derderian, refered supra.
Therefore, the other corroborative material which is
discussed in the below paragraphs regarding flow of title
would show that the revenue records are believable and
Chinnappa Reddy @ Chinnaiah was also called as Chikka
Sinnanna.
63. The next question that needs to be addressed is
whether Sy.No.37 standing in the name of defendant No.1
32
SLP (Civil) No.25213/2024 DD 19-11-2024
61 RFA No.1433/2014
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RFA CROB NO.1/2015
Gopal Reddy, had remained to be the ancestral property.
It is settled proposition of law that though there is a
presumption that a joint hindu family exists unless there is
proof of severance, but there is no such presumption that
the property is the joint family property. A person seeking
the partition has to establish that the property is an
ancestral joint family property. The primary burden of
proving that it is the joint family property is on the person
seeking partition. The Apex Court in the case of D.S.
Lakshmaiah and another Vs. L. Balasubramanyam
and another and in the case of Appasaheb Peerappa
Chamdgade Vs. Devendra Peerappa Chamdgade and
others referred supra and in catena of decisions laid down
the above principle. Therefore, it is the plaintiff who has
to establish that the properties are the joint family
properties.
64. Though there is no conclusive evidence
regarding the partition between Muniswami Reddy and
Krishna Reddy sons of Chinnappa Reddy @ Chinnaiah, it is
evident that Chinnappa Reddy @ Chikka Sinnaiah@
Chinnaiah, who was the sole owner of Sy.N.37 in its
62 RFA No.1433/2014
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RFA CROB NO.1/2015
entirety to the extent of 09 Acre 21 Guntas had
mortgaged it to Muniyappa. Later, as per the sale deed
dated 04-09-1951, the sole owner of Sy.No.37 Chikka
Sinnanna sold 06 Acres of land to Muniyamma. The
certified copy of the sale deed produced as an additional
documents No.3 would be supportive of the revenue
entries. There is nothing on record that Chikka Sinnanna,
who sold 06 Acres to Muniyamma is a different person and
he had sold 06 Acres out of larger extent of land. The total
extent of land in Sy.No.37 was only 10 Acres 09 Guntas
including kharab land of 28 Guntas.
65. The additional document No.5 which is the
certified copy of the sale deed dated 20-09-1965 would
show that Muniyamma had sold 01 Acre 20 Guntas to
Krishna Reddy @ Dodda Gurreddy, who is a stranger to
the family of the plaintiff and defendant Nos. 1 to 3. This
document also mentions that Muniyamma had purchased
it from Chikka Chinnanna on 06-09-1951.
66. Later, as per additional document No.6 which
is the certified copy of sale deed dated 19-3-1968
Muniyamma had sold 04 Acres 36 Guntas in favour
63 RFA No.1433/2014
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RFA CROB NO.1/2015
Narayana Shetty. In this document, it is stated that she
had purchased it from Chikka Chinnanna on 17-09-1951.
Though these two sale deeds dated 20-09-1965 and
19-02-1968 referred to the earlier sale deeds dated
06-09-1951 and 17-09-1951, but they failed to relate it to
the date 04-09-1951, mentioned in sale deeds the
certified copy of which is produced. Nevertheless, sans the
dates, the transaction to the extent of 06 Acres by Chikka
Sinnanna in favour of Muniyamma is established.
67. This takes us to the fact that Chikka Sinnanna @
Chinnappa Reddy had left with only 03 Acres 21 Guntas in
Sy.No.37. Ex.D13 and D27 which are the sale deeds dated
29-3-1967 and 31-8-1967 show that Krishnappa son of
Chinnappa, who happens to be the father of plaintiff had
sold 01 Acres 26 Guntas each (Totally 03 Acres 12
Guntas) in favour of Venkatappa son of Doddanna, with
specific boundaries mentioned therein. This obviously
indicates he was in specific portion of the property.
68. It is relevant to note that the RTC for year
2004-2005 to 2006-2008 produced at Exs.P2, P3, P18, 19,
P 31 and 21, Ex.P3 22-23 would show that the name of
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Jayamma wife of Venkatappa is appearing in the records.
Therefore, the transaction that took place in favour
Venkatapa by the father of the plaintiff Sri Krishnareddy@
Krishnappa son of Chinnappa was duly entered and reflected
in the revenue records. There is absolutely no explanation
offered by the plaintiff in this regard. Neither he seek voidance
of Exs. D13 and 27 which relates to Sy.No.37.
69. Coming to the lands held by Muniyamma, the
additional document No.6, the certified copy of the sale
deed dated 19-3-1968, would show that 04 Acres 36
Guntas in Sy.No.37 comprising of the Hissa Nos.1 and 3,
was sold to Narayana Shetty as observed above. The said
Narayana Shetty has sold 03 Acres 24 Guntas in
Sy.No.37/1 in favour of defendant No.1, Gopal Reddy
under the sale deed at Ex.D18 and Ex.D34. Thus, 03 Acres
24 Guntas held by defendant No.1 Gopal Reddy has come
to him from Muniyamma and Narayanashetty through the
sale deed dated 4-09-1951 and 19-3-1968.
70. The land purchased by Krishna Reddy son of
Dodda Gurreddy (a stranger to the family) under sale deed
dated 20-09-1965 from Muniyamma was sold to defendant
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No.1, Gopal Reddy under the sale deed dated 24-06-1971
which is at Ex.D33. Another copy of this document is
produced at Ex.D35 also. Therefore, Gopal Reddy got 01
Acre 20 Guntas through Ex.D33, the sale deed dated
20-09-1965 executed by Muniyamma. In other words,
Gopal Reddy is the owner of the property to the extent of
05 Acres 04 Guntas through Narayana Shetty and Krishna
Reddy son of Doddagurreddy.
71. Defendant No.2 contends that he acquired 02
Acres of land in the family partition dated 05-07-2003
which is at Ex.D45. A perusal of Ex.D45 would disclose
that he had obtained it in a partition with his brother
defendant No.1 Gopal Reddy; Gopal Reddy had purchased
it from Narayana Shetty and G.Krishna Reddy under a sale
deed dated 04-06-1970 which are at Exs. D18 and D33.
The total extent of the land partitioned between them i.e.,
Gopal Reddy, Krishna Reddy (defendants No. 1 and 2) and
his sons is 6 Acres 12 Guntas.
72. It is relevant to note that defendant No.2,
Krishna Reddy is the brother of defendant No.1. He had
02 Acres of land in Sy.No.37, which he entered into a Joint
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Development Agreement (JDA) with defendant No.4. Out
of 02 Acres, 01 Acre was sold under a sale deed dated
15-11-2005 and another 01 Acre was the subject matter
of JDA. Later, defendant Nos.2 and 4 entered into Joint
Development Agreement with defendant No.9, M/s Manar
Developers (P) Ltd.
73. But on the other hand, the land sold to Gopal
Reddy from Narayana Shetty and Krishna Reddy son of
Doddagurreddy is 1.20 Acres and 3.24 Acres i.e., 5.04
Acres. There is an excess land which has been partitioned
to the extent of 1.08 Acres. It is necessary to note that
though there was a mismatch of the extent of the lands
which have been partitioned between them and lands
purchased by Gopal Reddy. The flow of title of an extent of
about 06 Acres from Chinnaiah @ Chinnappa Reddy, who
was also called as Chikka Chinnanna is clear. We must
also observe that the sale deed dated 04.09.1951
(Additional document No.3) describes the property sold as
“approximately 06 Acres”. There are certain other
mutation entries which depict that the said Gopal Reddy
and Krishna Reddy (Defendant Nos.1 and 2) had gifted a
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portion of the property in favour of their sister as may be
found from the Encumbrance Certificates produced as
additional documents under Order 41 Rule 27 CPC.
74. This takes us to consider the entries found in
the Encumbrance Certificates which are produced as
additional evidence.
The first Encumbrance Certificate was for the period
from 01-07-1924 to 14-02-1951 i.e., for a period of 23
years. This document issued by the Sub-Registrar shows
that Sy.No.37 was mortgaged on 18-06-1927 for a sum of
Rs.300/- by Chinnaiah in favour of Muniyellappa. The
extent of the land was 09 Acres 21 Guntas.
74(a).The second entry shows that 06 Acres of land
in Sy.No.37 was sold on 04-09-1951 for Rs.500/- by the
Chikka Sinnanna in favour of Muniyamma. This refers to
the sale deed which we have referred supra.
75. The second Encumbrance Certificate produced
at Sl.No.9 of the list pertains to the period from
15-2-1957 to 31-3-1975 i.e., for a period of 19 years.
The first entry of this document shows that Sy.No.37/2
measuring 03 Acres 05 Guntas was mortgaged on 02-05-
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1958 for a sum of Rs.1,500/- by Krishnappa and
Muniswami to MPCS Madiwala. The second entry shows
that in the said Survey number, an area measuring 01
Acre 26 ½ Guntas was sold on 29-03-1957 for a sum of
Rs.3,000/- by Krishnappa to Venkatappa. Another sale is
also recorded which pertains to 01 Acre 26 Guntas dated
19-8-1967 for a sum of Rs.2,000/-. Further, the next
entry shows that Sy.No.37/2 measuring 03 Acres 24
Guntas was sold on 19-03-1968 for Rs.3,000/- by
Muniyamma in favour of Narayan Shetty. On 04-06-1970,
an area measuring 03 Acres 24 Guntas and 01 Acre 12
Guntas was sold for Rs.3,000/- and Rs.2,000/- by Narayan
Shetty in favour of Gopal Reddy, i.e., defendant No.1.
There appears to be some discrepancy in respect of phodi
Hissas, i.e., the Sub- Division Nos. 1 and 3. Thereafter,
on 24-06-1971, an area measuring 01 Acre 20 Guntas was
sold by Krishna Reddy son of Doddagurreddy in favour of
Gopal Reddy. It is relevant to note that the sale deed
dated 20-09-1965, in respect of sale by Muniyamma in
favour of Krishna Reddy for a sum of Rs.1,500/- is not
mentioned in this Encumbrance Certificate.
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76. Therefore, it is evident that the Encumbrance
Certificates clearly depict the transactions of the sale
deeds which have been produced by the plaintiff. This also
shows that defendant No.1, Gopal Reddy had purchased
the land measuring 05 Acres 04 Guntas in two pieces of 03
Acres 24 Guntas and 01 Acre 20 Guntas, but later they
had partitioned 06 Acres 12 Guntas under the Partition
Deed dated 05-07-2003 which is at Ex.D-29. It is relevant
to note that Ex.D29 and D45 are one and the same
document. Similarly, Exs.D34, D35 and D36 are sale
deeds and repeated at Exs.D-18, D33 and D44.
77. A careful perusal of the RTCs which have been
produced by the plaintiff reflect these transactions;
however, with some small variance in respect of the
extent of the lands. It is also pertinent to note that the
lands purchased by Venkatappa are now standing in the
name of Jayamma and others. Obviously, said Jayamma is
not a party to the present suit. Though a contention is not
taken up by the defendants that Jayamma was also a
necessary party in their pleadings, nevertheless, the fact
remains that when the plaintiff is seeking partition in
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respect of the entire 10 Acres 09 Guntas of land in
Sy.No.37, it was incumbent upon the plaintiff to include all
the parties whose name appears in the revenue records.
Though the plaintiff has also produced certain documents
which show the alienations made in favour of Jayamma
prior to filing of the suit, in favour of Venkatappa and his
LRs., it was incumbent upon him to array them as parties.
78. From the above documents, it is clear to us that
the plaintiff is unable to establish the fact that an area
measuring 10 Acres, 10 Guntas was available for partition
in Sy.No.37. An area measuring 06 Acres had been
transferred by Chinnaiah, who is none else than the
propositus, in favour of Muniyamma under a sale deed
dated 04-09-1951. It is not the case of the plaintiff that
Sy.No.37 was measuring more than 10 Acres at any point
of time. When 06 Acres was sold by Chinnanna under a
sale deed dated 04-09-1951, what remained was only
about 04 Acres of land. If that is so, the plaintiff should
have explained as to how an area measuring 10 Acres 10
Guntas is available for partition. It is the case of the
plaintiff that Sy.No.37 measuring 10 Acres 10 Guntas was
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owned by Chinnappa Reddy @ Chinnaiah. Under these
circumstances, the revenue records being clear in showing
that Sy.No.37 measures 09 Acres, 21 Guntas, and karab
land of 28 Guntas, the transaction in favour of
Muniyamma would show that 10 Acres, 10 Guntas never
devolved upon the sons of Chinnappa Reddy.
79. It is also relevant to note that, after the sale of
06 Acres of land in favour of Muniyamma, it has changed
the hands of one Krishna Reddy son of Gurreddy and one
Narayan Shetty and thereafter, it came in the hands of
the defendant No.1,Gopal Reddy, who represented himself
and his brother, defendant No.2. Under Ex.D13 & Ex.D27,
the father of the plaintiff had sold 03 Acres 21 Guntas,
with specific boundaries in favour of Venkatappa. Though
the sale deeds do not trace the origin of the title of
Krishna Reddy, or any partition, specific boundaries are
indicative of separation. There are absolutely no pleadings
by the plaintiff as to the above transactions made by his
father Krishna Reddy. It is worth to note that the revenue
entries were never challenged by any of the parties on the
ground that the Krishnappa @ Krishna Reddy and
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Chinnappa @ Chikka Sinnanna are different and the
unauthorized parties have alienated them to third parties.
There is no reason to believe that the revenue entries are
either false or fraudulent.
80. The question whether a presumption is to be
drawn under Section 90 of the Evidence Act, in respect of
certified copies of sale deeds which are more than 30
years old pales into insignificance since we have only
referred to them as a supportive documents for the
unquestioned revenue records. However, it is a settled
proposition that such presumption under Section 90
applies only in respect of the original documents. It is not
necessary for us to go into the proof of the contents of the
conveyance deeds as the revenue entries have remained
unchallenged for a long time. For this reason, we hold that
the judgment in the case of Gafarsab @ Sati Gafar Sab
Vs. Ameer Ahamed33 relied on by the learned counsel
for plaintiff which lays down that proper foundation has to
be laid for not producing primary evidence also become
inapplicable.
33
AIR 2006 KAR 95
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81. Under these circumstances, it is not possible to
hold that the joint family of the plaintiff and defendant
Nos.1 to 3 exists and continue to hold the properties as
the joint family properties. The transactions from 1951
show the property at Schedule ‘A’ had been changed
hands in bits and pieces and at present, the extent of 10
Acres 09 Guntas is not available for partition. Therefore,
we hold this point in the negative.
Re.Point No.4:
Whether ‘B’,’C’,’D’ and ‘E’ properties are the joint
family properties?
82. It is also pertinent to note that, with regard to
Sy.No.36 and Sy.No.29/2A are concerned, there appears
to be some contradictions in the plaint itself. A perusal of
the plaint would show that, in para 4, the plaint avers the
properties which were sought to be partitioned in the
earlier suit i.e., in OS No.7127/1990 are not the
properties involved in the present suit. But the properties
at Sl.No.x in the earlier suit pertains to: Sy.No.29/18
measuring 10 Guntas” which is schedule ‘D’ property in the
present suit. The property at Sl.No. (a) of the earlier suit
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is described as Schedule ‘E’ in the present suit. Therefore,
there appears to be certain contradictions while the
plaintiff said that he is not claiming any partition in respect
of the properties which he had enlisted in the earlier suit
OS No.7127/1990. Similar is the statement made by him
in his affidavit evidence filed in the present suit.
83. Be that as it may, Sy.No.36/4, which is
schedule ‘B’ property is concerned, the RTCs pertaining to
Sy.No.36 produced at Exs.P4 to P13, P15, P25, P27, show
that they pertain to Sy.No.36/3 and Sy.No.36/1. The RTC
of Sy.No. 36/4 is not produced. The mutation entries
would show that, in fact, Sy.No.36/3 had belonged to one
Gurreddy and Sy.No.36/4 belonged to Chinnaiah son of
Nanjundappa. There was some discrepancy in mentioning
the sub-division numbers and therefore, it was rectified by
an order of Assistant Commissioner on 25-07-1995 as per
Exs.P58 and P60; they were interchanged. It is relevant to
note that Exs.P60 and P62 which are Survey Tippan are
incomplete documents. They do not depict a complete
scenario. Therefore, the documents produced by the
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plaintiff do not show that Sy.No.36/4, in fact, belonged to
the joint family of the plaintiff and the defendants.
84. Coming to Sy.No.29/2A, which is the Schedule
‘E’ property, Exs.P16, P28, P32, P36, P39, P40, P41, P70,
P71 to P77, P78 and P79 are the revenue records. These
documents show that, the said property stands in the
name of Kodanda Rama Reddy and others. But none of
these documents show the names of defendant Nos. 1 and
2 in the same. The evidence of plaintiff also does not show
how and when Sy.No.29/2A was owned by Chinnappa
Reddy, the ancestor of the plaintiff. Curiously, Exs.P39 and
P40, which are the Encumbrance Certificates show that the
plaintiff, K. Srinivasa Reddy had sold about 10 Guntas of
land in favour of one Ravichandra. Sy.No. 29/2A is sold
by the plaintiff and the said sale deed is produced at
Ex.D41. This document shows that 11 Guntas was sold to
one Ravichandra and others, stating that it is his absolute
property. The plaint or PW1 do not explain how he had
sold it, claiming that it is his absolute property, in favour
of the said Ravichandra. Therefore, the extent of the land
having not been conclusively established, the portion of
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the land was sold by a sale deed under Ex.D41 to
Ravichandra and this fact is not explained by the plaintiff
either in the plaint or in the affidavit evidence before the
trial Court.
85. So far as schedule ‘C’ property (Sy.No.59/1) is
concerned, the RTC at Ex.P14 and Ex.25 show that they
were standing in the name of Chinnappa and Venkatappa
till 1984-85 and thereafter, the property stands in the
name of Bangalore Development Authority(BDA). It is not
brought on record as to how and who transferred and for
what consideration. Therefore, the said property is not
amenable for partition. There is no pleading or proof in
this regard.
86. So far as Sy.No.29/18 which is schedule ‘D’
property is concerned, it is relevant to note that Krishna
Reddy son of Muniswami, who is none else than defendant
No.2, had also sold it in favour of one Govind Reddy,
Vasudeva, son of Krishna Reddy, to the extent of 05
Guntas, as may be found from Ex.P36, Encumbrance
Certificate. This is also not explained by the plaintiff while
the plaintiff seek partition in respect of Sy.No.29/2A which
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is totally measuring 08 Acres 17 Guntas according to him.
Under these circumstances, the very existence of
Sy.No.29/2A, measuring 08 Acres being contradictory to
Exs.D28 to D32 RTCs which state the measurement of the
property to be 07 Acres 21 Guntas and a portion of it
having been sold by the plaintiff to one Ravichandra, such
explanation being not offered by him, it cannot be said
that he is entitled for a partition in the same.
87. Another aspect which needs to be considered is
regarding the oral testimony of the witnesses. DW1 in his
cross-examination dated 13-03-2013, has stated that he
does not know whether his uncle and his father had
entered into a partition. However, this statement being
contrary to the partition of the year 2003 depicted as per
Ex.D29, is not of much relevance. Similarly, the oral
admissions, stray in character, sans admissions in
pleadings, pale into insignificance in the face of
documentary evidence. Therefore, the decision in the
case of Nagindas Ramdas Vs. Dalpatram Ichharam Alias
Brijram and Others34 relied by learned counsel for the
plaintiff is inapplicable as the admissions cannot be held to
34
1974 AIR (SC) 471
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be true in the background of the documentary evidence
available on record.
88. DW.2- B.Govinda Reddy was aged about 69
years when he filed his affidavit evidence dated
08-01-2014. Similarly, the affidavit evidence of DW3-
Dasarath G, was also filed on the said date 8-1-2004.
They had stated that they were aged 69 and 55 years
respectively. This would show that they were born in or
about 1935 and 1949 respectively and if the partition had
taken place somewhere between 1965 to 1970, DW2 was
capable of understanding such partition. The trial Court
says that they were aged about 7 to 8 years and
therefore, their evidence is discarded in limine. The cross-
examination of DW2 would show that he was suggested
that grandfather of the plaintiff and defendant Nos.1 to 3
is called as Chinnappa @ Chinnappa Reddy @ Chikka
Chinnanna. It being a suggestion on behalf of the plaintiff
is to be accepted. He admits that Chinnappa Reddy @
Chikka Chinnanna was also called as Chinnappa. He also
admits in cross-examination by the learned counsel for the
plaintiff that after death of Chinnappa @ Chinnappa
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Reddy, the suit schedule property had fallen to the share
of his two sons. He states that he was present when there
was a partition between the plaintiff and defendant Nos. 1
to 3.
89. A perusal of the judgment of the trial Court in
para 16 would show that, it opines that ‘D’ schedule
property was standing in the names of defendant Nos.1
and 2 on the death of Muniswami Reddy. The trial Court
relied on Exs.P17 and P18, the mutation entries. Exs.P17
and P18 are the RTCs. Ex.P17 is in respect of Sy.No.29/18
and it show the name of Hanumakka, Gopal Reddy,
Krishna Reddy and Parvathamma. However, Ex.P18 is
pertaining to Sy.No.37/1 and therefore, when Ex.P18 does
not pertain to Sy.No.29/18, the observations by trial Court
in para-16 appears to be perverse. Therefore, it is not
possible to hold that Ex.P17 would indicate that it is the
joint family property. However, as noted above, the
Sy.No.29/18 was sold by defendant No.2 in favour of
Govind Reddy. Under these circumstances, the plaint
having not explained as to how Sy.No.29/18 was acquired
by the joint family and under what circumstances a portion
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of Sy.No.29/2A was sold by the plaintiff in favour of
Ravichandra, it appears that the existence of joint family
and the devolution of the properties has not been properly
explained and established by the plaintiff. Under these
circumstances, it is not possible to subscribe to the views
of the trial Court that schedule ‘D’ property was also
amenable for partition. Hence we hold the point raised in
the negative.
Re.Point No. 5:
Regarding Partial Partition:
90. We need to observe that the decision in the
case of Kalloomal Tapeswari Prasad (HUF) Vs. CIT35
and also in the case of Apoorva Shantilal Shah Vs.
CIT,36, the Apex Court has held that, it is open to a party
who alleges that the partition has been sought partially
either as to persons or as to the properties, has to
establish it. In B.R. Patil Vs. Tulsa Y. Sawkar and
others37, it was observed as below:
“It is true that the law looks with disfavor upon
properties being partitioned partially. The principle that
35
(1982) 1 SCC 447
36
(1983) 2 SCC 155
37
2022 SCC OnLine SC 240
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It admits of exceptions. In Mayne’s ‘Treatise on Hindu
Law & Usage’ 17th Edition, Paragraph 487, reads as
follows:
“487. Partition suit should embrace all property –
Every suit for a partition should ordinarily embrace
all joint properties. But this is not an inelastic rule
which admits circumstances of a particular case or
the interests of justice so require. Such a suit,
however, may be confined to a division of property
which is available at the time for an actual division
and not merely for a division of status. Ordinarily a
suit for partial partition does not lie. But, a suit for
partial partition will lie when the portion omitted is
not in the possession of coparceners and may
consequently be deemed not to be really available
for partition, as for instance, where part of the
family property is in the possession of a mortgagee
or lessee, or is an impartible Zamindari, or held
jointly with strangers to the family who have no
interest in the family partition. So also, partial
partition by suit is allowed where different portions
of property lie in different jurisdictions, or are out
of British India. When an item of property is not
admitted by all the parties to the suit to be their
joint property and it is contended by some of them
that it belongs to an outsider, then a suit for
partition of joint property excluding such item does
not become legally incompetent of any rule against
partial partition.”
91. Though the plaint states that the plaintiff has
reserved his rights to seek partition in respect of the
properties which were involved in the earlier suit, there is
no explanation as to why he is seeking partial partition.
The plaint also does not explain why the properties stated
in the earlier suit are left out. Had the plaintiff succeeded
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in the suit, non-inclusion of all the properties would have
posed a major impediment to consider the equities. Hence,
we hold the suit suffers from non-joinder of all the
properties. Consequently, the point raised is answered in
the affirmative.
Conclusions
This Court having come to the conclusion that the
independent transactions made by defendant Nos.1 and 2
and the fact that they had purchased the property which
was sold by their grandfather Chinnaiah, it appears that
there was no such joint family of the plaintiff and
defendant Nos.1 to 3 which was in existence. The
transactions were made independently not only by
defendant Nos.1 and 2, but also by the plaintiff and his
father. The plaintiff admits that he had sold 11 Guntas of
land to one Ravichandra. When plaintiff had also entered
into a transaction independently in favour of Ravichandra,
it is necessary for him to explain the same before the
Court. In our view, the trial Court erred in holding that
schedule ‘A’ and ‘D’ properties were amenable for
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partition. Clearly the trial Court has erred to look into the
flow of title in respect of Sy.No.37 and Sy.No.29/18.
92. Sofar as the cross-objection is concerned, it is
evident that the suit schedule ‘B’, ‘C’ and ‘E’ properties are
not shown to be the joint family properties which were
held by Chinnaiah @ Chinnappa Reddy. Though the
relationship is admitted between the parties, there is
insufficient evidence on behalf of the plaintiff to show that
‘B’, ‘C’ and ‘E’ properties were held by Chinnappa Reddy
@ Chinnaiah and they devolved upon plaintiff and
defendant Nos. 1 to 3. The plaint did not explain as to how
the property came into the fold of the joint family.
Therefore, suit deserves to be dismissed.
93. As a consequence, the appeals deserve to be
allowed and the cross- objection deserves to be dismissed.
Hence, the following:
ORDER
(i) I.A.No.1/2023 filed under Order 41 Rule 27 CPC
is allowed.
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(ii) RFA No.1433/2014 filed by defendant Nos. 1
and 2 (represented by their LRs) and RFA No.1525/2014
filed by defendant No.9 are allowed.
(iii) RFA Crob No.1/2015 filed by plaintiff is
dismissed. Consequently, OS No. 7702/2004 filed by the
plaintiff stands dismissed.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
tsn*