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HIGH COURT OF KARNATAKA
N. KUMAR & B. SREENIVASE GOWDA, JJ.
Smt. Nagarathnamma & Others
Versus
B. Rudriah & Others
RFA.No.271 of 1998 C/w RFA.No.275 of 1998
Decided On : 16-12-2011
CODE OF CIVIL PROCEDURE, 1908 - Order 20, Rule 18 and Order 1, Rule 10: [N. Kumar & B. Sreenivase Gowda, JJ] Suit for partition -Necessary parties - Alienees from co-parceners are parties to suit - Suit can-not be dismissed on ground that subsequent purchasers are not made parties - Those persons could be made parties in final decree proceedings - Direction can be passed by Court to implead those persons as par-ties in final decree proceedings before any adverse order is passed against such alienees. Hindu Law - Joint family property-Partition - Suit for - Necessary parties.
Certainly. Based on the provided legal document, here are the key points:
The suit is for partition and possession of joint family properties, specifically the schedule lands, which are in the possession of the plaintiffs and their family members (!) (!) .
The properties in question were originally inam lands, vested with the government, and later re-granted jointly to the plaintiffs and the 11th defendant after legal proceedings, which have attained finality (!) (!) (!) (!) .
The plaintiffs have established their entitlement to a 1/3rd share in the properties through the regrant orders, and the title of the plaintiffs to this extent is not in dispute (!) (!) (!) (!) .
The suit for partition is maintainable despite prior proceedings and is not barred by res judicata because the cause of action has arisen anew after the final regrant orders, and the properties are still jointly held (!) (!) (!) .
The suit is not barred by limitation, as the right to seek partition is continuous and subsists as long as the joint family property remains undivided, and the suit was filed within a reasonable period after the re-grant orders (!) (!) (!) .
The non-joinder of all alienees or purchasers from the original co-sharers does not render the suit invalid; such purchasers can be added in final decree proceedings to effect complete partition and settlement of rights (!) (!) (!) .
The defendants' claim of adverse possession is not substantiated because their possession was lawful, based on tenancy or sale transactions made by persons who did not have absolute title, and their possession was not hostile or exclusive for the statutory period (!) (!) (!) .
The conduct of the defendants, including putting up constructions and seeking regularization, does not extinguish the plaintiffs' rights or establish adverse possession, especially since such actions were taken during the pendency of legal proceedings and without lawful title (!) (!) (!) .
The suit for permanent injunction and for demolition of constructions is deferred to the final decree stage, where all legal and equitable considerations, including the legality of constructions and the rights of the parties, will be examined (!) (!) (!) .
The order of re-grant, which has attained finality, confers a valid title to the plaintiffs for their 1/3rd share, and subsequent alienations by the original co-sharers are valid only to the extent of their respective shares, with excess beyond such shares being void (!) (!) .
The legal representatives of deceased parties, including the 11th defendant, who was a co-sharer, continue to be bound by the final re-grant order and the subsequent proceedings, and the suit for partition remains valid (!) (!) .
The suit is properly valued for court fee purposes, and the plaintiffs are entitled to their share of the properties, with the final decree to determine the exact partition and possession (!) (!) .
The principles of estoppel and acquiescence do not bar the plaintiffs from asserting their rights, especially since they have actively participated in proceedings and have not waived their rights through conduct (!) (!) .
The court has the authority to direct the addition of necessary parties, including alienees and purchasers, in the final decree proceedings to ensure complete and effective adjudication of the rights and properties involved (!) (!) .
The suit for partition and possession is thus decreed, with the plaintiffs and the 11th defendant each entitled to a 1/3rd share in the properties, and the question of mandatory injunction will be decided in subsequent final decree proceedings (!) (!) .
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1. These two appeals arise out of judgment and decree dated 17.02.1998 passed in O.S.No.10311/1983 by the II Addl. City Civil Judge, Bangalore, dismissing the suit as not maintainable and also on the ground that it is barred by Order 9 Rule 9 CPC.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. Before setting out the case of each party, it is necessary to set out the events which transpired from the date of institution of the suit till the date of commencement of trial, in order to properly appreciate the controversy between the parties.
FACTUAL MATRIX
4. The plaintiffs initially filed a suit in O.S.No.10311/83 for the relief of permanent injunction restraining the defendants-1 to 11 or anybody claiming under them from putting up any construction or continuing the same in any portion of the land described in the schedule attached to the plaint and for mandatory injunction directing the defendants to pull down the constructions erected on the lands mentioned in the schedule and in the event of their failure to do so, direct demolition of the same through Court at the cost of the defendants. The subject matter of the suit as on the date of institution of suit, was only Sy.No.62 and Sy.No.55 of Saneguruvanahalli village. Subsequently, by way of an amendment some more items of properties came to be included to the schedule to the plaint and a prayer of partition was included. By an order dated 15.11.1990 passed on I.A.16, the suit came to be converted into a suit for partition and separate possession. Thus, in all, the suit consists of six items of properties. Similarly, from time to time, several applications were filed for impleading those persons who have purchased the suit properties in bits, which were allowed. Though initially, there were 11 defendants, in the end, the total number of defendants became 27. Additional issues have been framed twice. It is in this background, we have to appreciate the pleadings in the case.
5. The father of the first plaintiff viz., one Narasaiah @ C. Narasaiah was the propositus of the family. He had three sons namely Narasaiah, Narasimha Murthy and Lakshminarasappa and two daughters. Narasaiah and Narasimha Murthy, sons of C. Narasaiah are no more. The first plaintiff is the son of Lakshminarasappa and the second plaintiff is the son of Narasaiah. The propositus, i.e., Narasaiah’s wife predeceased him. His two daughters are also no more. His another son Narasimha Murthy died leaving behind him, his wife Kittamma, the 11th defendant in the suit.
6. The land bearing Sy.No.62 measuring 1 acre 21 guntas and Sy.No.55 measuring 3 acres 24 guntas and items 3 to 6 of the plaint schedule are all lands attached to the office of the Shanbog of Saneguruvanahalli village and Shivanahalli Village. Except Sy.No.1 which is situated at Shivanhaalli, all other Sy.Nos are situated at Saneguruvanahalli village. After the death of C. Narasaiah, the holder of the aforesaid office, his sons continued as members of undivided Hindu Joint Family. They were in possession of the suit schedule lands apart from other lands belonging to the joint family. On the passing of the Karnataka Village Officer’s Abolition Act, 1961, (for short, hereinafter referred to as “the Act”), all the village offices were abolished and all incidents including the right to hold office and emoluments attached thereto, the right to levy customs fee or perquisites in money etc., pertaining to the aforesaid office were extinguished subject to Sections 5, 6 and 7 of the Act.
7. The plaintiffs filed an application for regrant of the aforesaid lands under the Act claiming 1/3rd share. However, the husband of the 11th defendant, Late, Narasimha Murthy filed an application claiming regrant of the entire land in his favour. All the applications were clubbed and after enquiry, the aforesaid lands came to be re-granted in the joint names of three brothers in HOM.155/68-69 by an order
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