Karnataka High Court
Sri.V. Huligeppa S/O V.Lingappa vs Sri.V. Bheema S/O Late V.Basappa on 28 July, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
1
RFA No. 100259 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
REGULAR FIRST APPEAL NO. 100259 OF 2015 (PAR/POS)
BETWEEN:
SRI.V. HULIGEPPA S/O V.LINGAPPA
SINCE DECEASED BY HIS LRS
1. SMT. V.VASANTHAMMA
W/O LATE V.HULIGEPPA
AGE:62 YEARS
OCC:HOUSEHOLD
R/O:NAGALA CHERUVU,
NEAR HANUMAN TEMPLE
HOSAPETE ROAD,
BALLARI 583 101
2. SRI.V.H.SRINIVASULUI S/O LATE V.HULIGEPPA
AGE:40 YEARS, OCC:AGRICULTURE
R/O:NAGALA CHERUVU,
NEAR HANUMAN TEMPLE
HOSAPETE ROAD,
BALLARI 583 101
3. SRI.V.H.KRISHNA MURTHY
S/O LATE V.HULIGEPPA
AGE:35 YEARS, OCC:DRIVER
R/O:NAGALA CHERUVU,
NEAR HANUMAN TEMPLE
HOSAPETE ROAD
BALLARI 583 101
2
RFA No. 100259 of 2015
4. SMT.SHANTI W/O GANGARAJU
D/O LATE V.HULIGEPPA
AGE:33 YEARS,
OCC:HOUSEHOLD WORK,
R/O:NAGALA CHERUVU,
NEAR HANUMAN TEMPLE
HOSAPETE ROAD,
BALLARI 583 101
5. SRI.V.H.SHIVALINGAPPA
S/O LATE V.HULIGEPPA
AGE:31 YEARS
OCC:AGRICULTURE,
R/O:NAGALA CHERUVU,
NEAR HANUMAN TEMPLE
HOSAPETE ROAD
BALLARI 583 101
6. SRI.V.H.RAMU
S/O LATE V.HULIGEPPA
AGE:27 YEARS, OCC:NIL
R/O:NAGALA CHERUVU,
NEAR HANUMAN TEMPLE
HOSAPETE ROAD
BALLARI 583 101
7. SMT.V.JAMBAMMA
W/O LATE V.RAMUDU
AGE:57 YEARS
OCC:SINECURE
R/O:NAGALKERE,
HANUMAN TEMPLE
HOSAPETE ROAD, COWL BAZAAR,
BALLARI 583 101
8. SMT.V.GIRIJA W/O NAGARAJ
D/O LATE V.RAMUDU
AGE:39 YEARS
OCC:AGRICULTURE
R/O:NAGALKERE, HANUMAN TEMPLE
HOSAPETE ROAD, COWL BAZAAR,
BALLARI 583 101
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RFA No. 100259 of 2015
9. SRI.V.HAMPANNA
S/O LATE V.RAMUDU
AGE:37 YEARS
OCC:COOLIE WORK
R/O:NAGALKERE, HANUMAN TEMPLE
HOSAPETE ROAD, COWL BAZAAR,
BALLARI 583 101
10. SRI.V.DIWAKAR S/O LATE V.RAMUDU
AGE:35 YEARS
OCC:LABOUR
R/O:NAGALKERE, HANUMAN TEMPLE
HOSAPETE ROAD, COWL BAZAAR,
BALLARI 583 101
11. SRI.V.GOVINDU
S/O LATE V.RAMUDU
AGE:33 YEARS, OCC:PAINTER
R/O:NAGALKERE, HANUMAN TEMPLE
HOSAPETE ROAD, COWL BAZAAR,
BALLARI 583 101
12. SMT.V.NEELAVATHI W/O RAMU
D/O LATE V.RAMUDU
AGE:31 YEARS
OCC:SENECURE
R/O:NAGALKERE, HANUMAN TEMPLE
HOSAPETE ROAD, COWL BAZAAR,
BALLARI 583 101
13. SRI.V.NARAYAN
S/O LATE V.RAMUDU
AGE:29 YEARS
OCC:AGRICULTURE
R/O:NAGALKERE, HANUMAN TEMPLE
HOSAPETE ROAD, COWL BAZAAR,
BALLARI 583 101
14. SMT.HULIGEMMA W/O HANUMANTHU
D/O LATE V.LAXMANNA
AGE:43 YEARS, OCC:SINECURE
R/O:NEW DAROJI TQ:SANDUR
DIST:BELLARI 583 101
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RFA No. 100259 of 2015
15. SMT.V.BUJJI @ HANUMAKKA
W/O ERANNA D/O V LAXMANNA
AGE:37 YEARS
OCC:SINECURE
R/O:GADANG STREET, COWL BAZAR
BALLARI 583 101
16. SRI.V.PARASHURAM
S/O LATE V.LAXMANNA
AGE:35 YEARS, OCC:PAINTER
R/O:HULIGI,
DIST:KOPPAL 583 229
17. SRI.V.LINGAPPA S/O LATE V.LAXMANNA
AGE:33 YEARS
OCC:WORKING IN INDIAN GAS CO.
R/O:RAMANAGAR,
OPP INDIAN GAS GODOWN,
BALLARI 583 101
18. SRI.V.HULIGANNA S/O LATE ERANNA
AGE:52 YEARS, OCC:CONTRACTOR
R/O:KOLAGAL VILLAGE
TQ:DIST:BALLARI 583 101
19. SMT. V. ACHHAMMA W/O HONNURA
D/O LATE ERANNA
AGE:45 YEARS, OCC:SENECURE
R/O:KOLAGAL VILLAGE
TQ:DIST:BALLARI 583 101
...APPELLANTS
(BY SMT. PALLAVI S. PACHHAPURE,
SRI. SRINAND A PACHHAPURE &
SRI. RAJENDRA R. PATIL, ADVOCATES)
AND:
1. SRI.V. BHEEMA S/O LATE V.BASAPPA
SINCE DECEASED BY HIS LRS.
1A. SMT. V. GANGAMMA W/O. V. BHEEMA
AGE: 52 YEARS, OCC: HOUSEWIFE,
R/O. 5TH WARD, JANATHA COLONY- 583101
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RFA No. 100259 of 2015
GUGGARHATTI VILLAGE,
TAL & DIST: BALLARI
1B. SRI. RAMAKRISHNA S/O. V. BHEEMA
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O. 5TH WARD, JANATHA COLONY- 583101
GUGGARHATTI VILLAGE,
TAL & DIST: BALLARI
2. SRI.V.HULUGANNA S/O LATE V.BASAPPA
SINCE DECEASED BY HIS LRS.,
2A. SMT. ANJINAMMA W/O. V. HULUGANNA
AGE:47 YEARS
OCC:HOUSE WIFE
R/O: WARD NO.1, NEAR MYSORE BANK,
JANATHA COLONY, TORANGAL VILLAGE
TQ:SANDUR, DIST:BALLARI 583 101
2B. SRI. V. RAVI S/O. V. HULUGANNA
AGE:47 YEARS, OCC:COOLIE,
R/O: WARD NO.1, NEAR MYSORE BANK,
JANATHA COLONY, TORANGAL VILLAGE
TQ:SANDUR, DIST:BALLARI 583 101
2C. SRI. PRAKASH S/O. V. HULUGANNA
AGE:35 YEARS, OCC:COOLIE,
R/O: WARD NO.1, NEAR MYSORE BANK,
JANATHA COLONY, TORANGAL VILLAGE
TQ:SANDUR, DIST:BALLARI 583 101
2D. SMT. ANURADHA W/O. SHIVARAJ,
D/O. V. HULUGANNA,
AGE:31 YEARS, OCC:HOUSEHOLD WORK
R/O: WARD NO.1, NEAR MYSORE BANK,
JANATHA COLONY, TORANGAL VILLAGE
TQ:SANDUR, DIST:BALLARI 583 101
2E. MISS. SHRIDEVI D/O. V. HULUGANNA
AGE:23 YEARS, OCC:HOUSEHOLD WORK,
R/O: WARD NO.1, NEAR MYSORE BANK,
JANATHA COLONY, TORANGAL VILLAGE
TQ:SANDUR, DIST:BALLARI 583 101
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RFA No. 100259 of 2015
3. SMT.V.MANGAMMA W/O LATE V.SANNAPPA
AGE:67 YEARS,
OCC:SINECURE
R/O:H.NO:228/2, WARD NO.13,
GOLDSMITH STREET, KALAMMA STREET,
BALLARI 583 101
4. SRI.KRISHNA @ V.HULUGUNNA
S/O LATE V.SANAPPA
AGE:37 YEARS, OCC:ATUO DRIVER,
R/O:GUGGARAHATTI VILLAGE
TQ:DIST:BALLARI 583 101
5. SMT.V.SANJEEVAMMA
S/O LATE V.HANUMANTHAPPA
AGE:67 YEARS,
OCC:SINECURE
R/O:KOLAGAL VILLAGE-583101
TQ:DIST:BALLARI
SRI.V.HULUGANNA
S/O LATE V.HANUMANTHAPPA
SINCE DECEASED BY HIS LRS
6. SMT.RAMPUR LAXMI
W/O LATE V.HULUGANNA
AGE:59 YEARS
R/O:BEHIND SUBRAMANYAM HOUSE
ALLIPUR, BALLARI-583101
7. SRI.GOPAL S/O LATE V.HULUGANNA
AGE:34 YEARS,
R/O:BEHIND SUBRAMANYAM HOUSE
ALLIPUR, BALLARI-583101
8. SRI.HANUMANTHA
S/O LATE V.HULUGANNA
AGE:26 YEARS
R/O:BEHIND SUBRAMANYAM HOUSE
ALLIPUR, BALLARI-583101
9. SMT.DHANAMMA
D/O LATE V.HULUGANNA
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RFA No. 100259 of 2015
AGE:37 YEARS
R/O:BEHIND SUBRAMANYAM HOUSE
ALLIPUR, BALLARI-583101
10. SMT.VIJAYA @ VIJJI
D/O LATE V.HULUGANNA
AGE:31 YEARS
R/O:BEHIND SUBRAMANYAM HOUSE
ALLIPUR, BALLARI-583101
11. SMT.YERRAMMA
D/O LATE V HULUGANNA
AGE:28 YEARS
R/O:BEHIND SUBRAMANYAM HOUSE
ALLIPUR, BALLARI-583101
12. SRI.V.RAMANNA
S/O LATE V.HANUMANTHAPPA
AGE:52 YEARS, OCC:MAISTRI
R/O:ARALIGANUR VILLAGE
TQ:SIRUGUPPA
DIST:BALLARI-583101
13. SRI.V.THIMMAPPA
S/O LATE V.HANUMANTHAPPA
AGE:47 YEARS, OCC:MAISTRI
R/O:KOLAGAL VILLAGE
TQ:DIST:BALLARI-583101
14. SRI.V.THIMMA RAJU
S/O LATE V.HANUMANTHAPPA
AGE:45 YEARS, OCC:MAISTRI
R/O:KOLAGAL VILLAGE
TQ:DIST:BALLARI-583101
15. SRI.V.RAMANJINI
S/O LATE V.HANUMANTHAPPA
AGE:46 YEARS
OCC:PLOT COMMISSION AGENT
R/O:KATEGUDDAM,
OPP RAGHAVA KRISHNA COMPLEX,
K.C.ROAD, BALLARI-583101
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RFA No. 100259 of 2015
16. SMT. V.DURGAMMA THIMMA RAJU
S/O LATE V.HANUMANTHAPP
AGE:42 YEARS, OCC:SINECURE
R/O:KOLAGAL VILLAGE
TQ:DIST:BALLARI-583101
17. SRI.R.KODANDA RAMUDU
S/O DADDA VENKATA SWAMY
MAJOR
R/O:GODEHAL CROSS,
PARAMADEVANAHALLI POST,
TQDIST:BALLARI-583101
18. SRI.RAJEEV RANJAN SINGH
S/O PUSHKAL SINGH
AGE:34 YEARS
OCC:AGRICULTURE
R/O:HARIPUR VILLAGE,
SUKHPUR POST-277001
DIST:BALLIA, UTTAR PRASEDH STATE
19. SMT.K.VIJAYASHREE
W/O VENKANNA GOUDA
MAJOR
OCC:AGRICULTURE
R/O:D.NO:24/B, 2ND LINK ROAD,
PARVATHI NAGAR, BALLARI-583101
20. SMT.KURSHEEDA BEGUM
D/O MASTAN SAB
MAJOR
OCC:AGRICULTURE
R/O:1ST CROSS, SHASTRI NAGAR,
BALLARI-583101
21. SRI.GOPAL REDDY
S/O M.HUCHHAPPA REDDY
SINCE DECEASED BY HIS LRS.
21A. SMT. ROOPA MADHURI
W/O. RAJESH REDDY,
D/O. GOPAL REDDY,
AGE: 35 YEARS, OCC: HOUSEWIFE,
9
RFA No. 100259 of 2015
R/O:FLAT NO.E/203,
LEGEND ORNATE APARTMENT,
SY.NO.85/2B,
DEVARA CHIKARA HALLI ROAD,
HONGASANDRA, BENGALURU- 560068
21B. SMT. SHILPA MADHURI
D/O. GOPAL REDDY,
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O. FLAT NO.A1/110,
ELITE PRONENADE,
J. P. NAGAR, 7TH PHASE,
BENGALURU - 560078
21C. SMT. PRIYANKA MADHURI
D/O. GOPAL REDDY,
AGE: 28 YEARS, OCC: HOUSEWIFE,
R/O:FLAT NO.E/203,
LEGEND ORNATE APARTMENT,
SY.NO.85/2B, DEVARA CHIKARA HALLI ROAD,
HONGASANDRA,
BENGALURU- 560068
22. SRI.V.THIMMA RAJU
S/O V.HUCHHAPPA
MAJOR, OCC:AGRICULTURE
R/O:SANJAY GANDHI NAGAR,
BALLARI-583101
23. SRI.H.Y.ARUN KUMAR
S/O Y.ANJINAPPA
MAJOR, OCC:AGRICULTURE
R/O:INDIRA NAGAR,
BALLARI-583101
24. SMT.M.SULOCHANA
W/O M.GURUSIDDANA GOUDA
AGE:MAJOR,
OCC:AGRICULTURE
R/O:NAGAPPA STREET,
RUPANAGUDI VILLAGE
TQ:DIST:BALLARI-583101
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RFA No. 100259 of 2015
25. SRI.S.B.PAMPA PAATHY
S/O KARI BASAPPA
AGE:MAJOR,
OCC:AGRICULTURE
R/O:INDIRA NAGAR,
BALLARI-583101
26. SMT.G.UMA DEVI
W/O G.SHIVA KUMAR
MAJOR,
OCC:AGRICULTURE
R/O:KURIHATTI, SIRUGUPPA ROAD,
BALLARI-583101
27. SRI.K.P.VISHWANATH
S/O PULAKESH GOUDA,
AGE:19 YEARS
OCC:AGRICULTURE
R/O:DOOR NO.24/B,
2ND LINK ROAD,
PARVATHI NAGAR,
BALLARI-583101
28. SRI.ALLI PEERA S/O FAKRUDDIN
MAJOR, R/O:WARD NO.15,
GADDE KELAGE AREA, MILLERPET,
BALLARI-583101
29. SMT.P.MANGAL GOWRY
D/O NEELAMMA
MAJOR, R/O:GLASS BAZAAR,
BALLARI-583101
30. SRI.V.BHEEMA
S/O LATE V.ERANNA
SINCE DECEASED BY LRS.
SMT. ERAMMA
30.A W/O. V. BHIMA
AGE:40 YEARS OCC:HOUSEWIFE,
R/O:KOLAGAL VILLAGE
TQ:DIST:BALLARI-583101
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RFA No. 100259 of 2015
30.B SRI. SURI S/O. V. BHIMA
AGE: 22 YEARS, OCC: MESTRI
R/O:KOLAGAL VILLAGE
TQ:DIST:BALLARI-583101
30.C SMT. UMADEVI W/O. U. NAGARAJ,
AGE: 19 YEARS, OCC: HOUSEWIFE,
R/O. GADANG STREET, COWL BAZAR-583101,
1ST GATE, BALLARI, TAL& DIST: BALLARI,
30.D KUMAR ERANNA S/O. V. BHIMA,
AGE: 15 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY
HIS NATURAL MOTHER MINOR GUARDIAN,
RESPONDENT NO.30.A.
31 SPECIAL LAND ACQUISITION OFFICER,
NATIONAL HIGHWAYS AUTHORITY OF INDIA
(NH-63), HOSAPETE, OFFICE AT H.NO.158/C
WARD NO.25, SUDHA CROSS, BALLARI-583101
32 SRI. MUDIYAM RAJESWAR REDDY
S/O. PEDDA NARAYANA REDDY
AGE: 44 YEARS, R/O. H. NO. 1-90,
KONDUPALLE VILLAGE, UYYALAVDA,
(MANDAL), DIST: KURNOOL,
ANDHRA PRADESH STATE -518001
33 SMT. BOMMIREDY PRAMEELA DEVI
W/O. RAMAMOHAN REDDY,
AGE: 40 YEARS, R/O. H. NO. 3-5/2,
KOTTAPALLI VILLAGE,
NANDYAL (MANDAL), DIST: KURNOOL,
ANDHRA PRADESH STATE -518001
34 SRI. KALVA PRAVEEN KUKAR
S/O. K. VENKATA SUBBAIAH
AGE: 33 YEARS, R/O. H.NO.28-203,
NOONEPALLI MAIN ROAD,
NANDYAL TOWN AND MANDAL,
DIST: KURNOOL,
ANDHRA PRADESH STATE 518001
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RFA No. 100259 of 2015
35 POLISETTY HARIKA D/O. P. SATHYANARAYANA
AGE: 31 YEARS, R/O. PLOT NO. 64,
KAILASH NAGAR, SANATH NAGAR, HYDERABAD,
ANDHRA PRADESH STATE - 500001
36 SRI. MALEPATI NAGESWARA RAO
S/O.N. SESAIAH AGE: 75 YEARS,
R/O. H.NO.3-110, MAEM STREET,
CHAGALMARRY, DIST: KURNOOL,
ANDHRA PRADESH STATE - 518001
37 SRI. SRIRAM RAJA NANDHA KISHORE
S/O. S. VIJAYA MOHAN GUPTA
AGE: 26 YEARS, R/O. H. NO. 6-10-131/1,
SAI NAGAR COLONY, BEHIND VENKATESHWARA
SWAMY TEMPLE, BALANAGAR, KUKATPALLI,
HYDERABAD, ANDHRA PRADESH STATE 500001
...RESPONDENTS
(BY SRI. SHIVANAND MALASHETTY, ADV., FOR R1(A), R1(B),
R2(A) TO R2(E) & R15;
SRI. B. CHIDANAND, ADV., FOR R30(A) TO R30( D);
SRI. SHIVASAI M. PATIL & SRI. SREENATH V. K. ADV., FOR R31;
SRI. PRAKASH BADIGER, ADV., FOR R18;
R3, R4, R6 TO R11, R13, R14, R17, R19, R21(A), R21(C), R24,
R28, R33, R34 - NOTICE SERVED;
R20- DELETED VIDE ORDER DATED 28.06.2017;
R6 & R16 ARE TREATED AS LRS. OF DECEASED R5;
R12, R15, R16, R21(B), R22, R23, R25 TO R27, R29, R31, R32,
R34 TO R37 - SERVICE HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 28.08.2015
PASSED IN O.S. NO.43/2008 ON THE FILE OF THE FIRST
ADDITIONAL SENIOR CIVIL JUDGE AT BALLARI, DISMISSING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
13
RFA No. 100259 of 2015
JUDGMENT
The plaintiffs in O.S.No.43/2008 on the file of the I- Additional Senior Civil Judge, Ballari (for short, 'the Civil Court') have impugned the Civil Court's judgment and decree dated 28th August 2015. The civil Court by this impugned judgment has dismissed the appellants' suit for partition of the suit schedule properties by metes and bounds and for declaration that they will be entitled to 2/5th share in the compensation awarded and deposited in the proceedings under the Land Acquisition Act, 1894 in LAC No.17/1990 on the file of the Senior Civil Judge, Ballari.
2. The parties, for reasons of convenience, are referred to as they are arrayed before the civil Court. The relationship amongst the parties is not disputed. The parties claim under one Sri Vade Huligeppa S/o Bheemappa. The plaintiffs are the legal heirs of the two sons of Sri. Vade Huligeppa from his first wife, Sri.V.Lingappa and Sri.V.Bhimappa. The contesting defendants (the family 14 RFA No. 100259 of 2015 members) claim as the legal heirs of sons of Sri.Vade Huligeppa from his second wife (Sri.V.Basappa, Sri.V.Sannappa & Sri.V.Hanumanthappa). The relationship inter se is best explained by genealogy which, as pleaded1, would read as mentioned hereafter:
1 The genealogy of the family members is mentioned in Schedule 'A"
appended to the plaint 15 RFA No. 100259 of 2015
3. The dispute in this suit is between the plaintiffs and defendants who are family members and the others who have purchased the properties mentioned in the plaint either as Schedule 'B' or Schedule 'C' or Schedule 'D' from the family members. The movables are described in Schedule 'E'. The suit schedule properties are admittedly transferred and are no longer with the family members. The details of the suit schedule properties, the date of sale by the family members and the purchasers who are arrayed as defendants are as follows:
Date of Property Sold By Purchased by
Sale Deed
01.03.96 V. Hanumanthappa Kodandaram
Sy.No.894B- 9 - this vendor's LRs are
acre 39 cents D5 - D11
03.12.04 Kodandaram Rajeev Ranjan
Singh - D 13
20.05.96 Sy.No.881 V. Mangamma Y. Anjinappa
1 acre 50 cents Sangappa - D3
20.05.96 Sy.No.881B V. Mangamma W/o. M. Sulochanamma
25 ½ acres Sannappa - D3
20.05.96 Sy.No.881B V. Mangamma - D3 S.B.Pampapathy
1 acre 50 cents
20.05.96 Sy.No.881B V. Mangamma - D3 V. Thimmappa
1 acre 25 ½
gunta
20.05.96 Sy.No.881B V. Mangamma - - D3 M. Gopalareddy
1 acre cents
06.04.96 Sy.No.799B V. Bheemappa & V. K. P. Vishwanath
4 Acres 04 cents Huligeppa - the LRs of S/o. P.
these two brothers are Palakshigouda by
Plaintiffs minor guardian
aunt Smt.
Vijayshri
06.04.96 Sy.No.799B V. Bheemappa & V. K. Vijayashri W/o.
0.38 acres Huligeppa - the LRs of K. Venkanagouda
16
RFA No. 100259 of 2015
these two brothers are
Plainitffs
06.04.96 V. Mangamma - D3 Mastansab's
Sy.No.799/B3 daughter
0.50 Acres Khurseeda Begum
10.09.03 Mastansab's daughter Umadevi W/o. G.
Shivakumar
28.07.03 D.No.228(2) Ramanjineyalu Alipeer
30.11.06 Ali Peer Mangalagouri
12.07.74 D.No.228(1) Basappa, Sannappa & Hanumakka W/o.
Hanumanthappa - the Shindigeri Upparu
LRs of these brothers Venkatappa
are D1- D11
21.02.50 Sy.No.894 Hulagappa S/o. Gadilingappa
18 Acre 78 cents Bhimappa, Basappa,
Sannappa,
Hanumanthappa - the
LRs of these are P13-
15
29.11.77 D.No.228(1) & Basappa, Sannappa & Hanumakka W/o.
228(2) Hanumanthappa the Hanumanthappa
LRs of these brothers
are D1- D11
4. The plaintiffs contend that Sri Vade Huligappa [the propositus] and his brother, Sri Thimappa, partitioned the different ancestral properties under a registered partition deed executed on 13th August 1922. The properties allotted to Sri Vade Huligappa's share in such partition are described in Schedule 'B' & 'C' of the plaint, and the properties purchased by him after the partition are described in Schedule 'D'. Sri Vade Huligappa's sons from the second wife and their family members2 have transferred 2 The first to eleventh defendants the legal heirs of Sri V Huligappa's sons from the second wife.
17RFA No. 100259 of 2015 certain properties described in the suit schedules without their knowledge. These defendants/the family members have also contested an inter se suit in O.S. No.5/1990 on the file of the Principal Civil Judge (Senior Division), Ballari and proceedings in L.A.C. Nos.17 and 22 of 1990 for grant of compensation and vindication of their rights thereto without impleading them as parties. The first to eleventh defendants have appropriated the sale proceedings without giving them their legitimate share. They are entitled together for 2/5th share in the suit schedule properties notwithstanding the transfers thereof in favour of the purchasers/defendants.
5. The plaintiffs further contend that they were not interested in continuing in the joint family and therefore, they raised a demand for partition of the 2/5th share in the suit schedule properties, but in vain. The plaintiffs have adverted to the acquisition of certain lands mentioned in the plaint leading to proceedings in LAC No.17/1990 in the plaint. The plaintiffs, insofar as the cause of action, have contended that the cause of action for the suit accrued inter alia when they orally demanded partition of the suit 18 RFA No. 100259 of 2015 schedule properties, when panchayats were convened and when the defendants declined to partition the suit schedule properties by metes and bounds. The plaintiffs assert that because there is no partition amongst the five sons of Sri Vade Huligappa, the suit schedule properties, which are ancestral properties, must be partitioned with the legal heirs of the two sons to 2/5th share being allotted to them because they are sons of Sri Vade Huligappa from the first wife, Sri Lingappa and Sri Bhimappa, with the first to eleven defendants, who are the three sons of Sri Vade Huligappa from the second wife [Sri V Basappa, Sri Sannppa and Sri V Hanumanthappa], being allotted the remaining 3/5th share.
6. The first to eleventh defendants, who are the family members, have resisted the suit without disputing the relationship but contending that Sri Vade Huligappa's sons from the first wife, Sri. Lingappa and Sri. Bhimappa, had filed a suit against their father in O.S. No.585/1928 on the file of the District Munsiff, Ballari. This suit is dismissed in the year 1932 and thereafter both, Sri Lingappa and Sri Bhimappa, have executed an agreement relinquishing their 19 RFA No. 100259 of 2015 shares in the suit schedule properties and as such, they do not have any locus standi to assert a share. These defendants also contend that with the judgment in the subsequent suit in O.S. No.5/1990, the sons of Sri. Vade Huligappa from the second wife viz., Sri.V.Basappa, Sri. V.Sannappa, Sri. V.Hanumanthappa, and persons claiming under them, have been declared as the sons of the suit schedule properties. The plaintiffs have known about the suit, and until the judgment and decree in the suit in O.S. No.5/1990 are set aside or cancelled, the plaintiffs cannot assert any share.
7. These defendants refer to the suit commenced by Sri V. Siddappa and Sri Eranna through Smt. Hanumakka in O.S. No.645/1936. Sri Eranna s/o V.Bhimappa 3, as could be seen from the genealogy, is the son of Sri Vade Huligappa's second son from the first wife. These defendants assert that the suit is decreed but the appeal in 3 Sri. Eranna's sons and daughter are arrayed as plaintiffs No.13 to 15 20 RFA No. 100259 of 2015 R.A. No.71/1940 is allowed and only certain sites have been allotted to Sri. Eranna and Sri V.Siddappa4.
8. The pleadings have been amended by the parties with the plaintiffs seeking additional relief of declaration insofar as the compensation payable in terms of the award in LAC No.17/1990. The civil Court, in the light of the rival pleadings as aforesaid and the pleadings by the defendants- purchasers denying the plaintiff's share over the respective properties, has framed the following issues:
1. Whether plaintiffs prove that suit properties are available for partition.
2. Whether the first to eleven defendants prove that the plaintiffs have no locus standi to file this suit because of the decree in O.S. No.585/1928 and Sri Lingappa and Sri V Bheemappa, who are sons of Sri Vade Hulugappa, relinquishing their share .
4 Sri V Sidappa's is Sri V Lingappa's eldest son, and Sri V Lingappa is Sri V Huligappa's son from the first wife 21 RFA No. 100259 of 2015
3. Whether the first to tenth defendants further prove that, by virtue of judgment and decree in O.S. No.05/1990, the plaintiffs have no right to claim any share in the suit schedule properties.
4. Whether the twelfth to twenty fourth defendants prove that they have become absolute owners of item No.1 of 'B' schedule property.
5. Whether the suit is barred by limitation.
9. The plaintiffs have examined one of them V.H.Srinivasulu, who is brought on record on the demise of the first plaintiff, as P.W.1. This witness has reiterated the plaint averments and he has marked Exs.P.1 to P.150. These are essentially the transfer [sale] deeds for the suit schedule properties by the defendants - the family members in favour of the defendants-purchasers. The details of the sale deeds, the corresponding revenue and survey records are detailed in the tabular column first mentioned. Apart from these documents, this witness has marked partition deed 13.08.1922 and lease agreement dated 09.08.1954 (Exs.P.1 and P.141) with the corresponding 22 RFA No. 100259 of 2015 translations/transcriptions. The plaintiffs have also examined two other witnesses [P.W.2 and P.W.3]. These witnesses, even according to their testimony in chief, are not familiar with the transfers affected by the family members for the suit schedule properties but have spoken about the relationship and the plaintiffs' assertion over 2/5th share in the suit schedule properties.
10. On behalf of the defendants, one Sri. V.Ramanjineyulu (one of the sons of Sri. Hanumanthappa, the third son of Sri Vade Huligeppa from the second wife) is examined as D.W.1. On behalf of the purchasers, D.W 2 and D.W 3 are examined. Smt. K.P.Rajeshwari [D.W.2] is the Power of Attorney Holder for the purchasers of one of the suit schedule properties viz., a portion of item No.3 of Schedule 'B'. Smt. P.Mangala Gowri [D.W.3] is the purchaser of item No.2 of Schedule 'C'. The defendants have marked Exs.D.1 to D.44 and the chief, amongst these documents, are the registered partition deed dated 19.04.1974, a copy of the sale deed dated 12.07.1974, a copy of the sale deed dated 29.11.1977, a certified copy of 23 RFA No. 100259 of 2015 the judgments is in O.S. No.5/1990 and O.S. No.69/1992 and the corresponding appeals in R.A. No.1/2004 and R.A. No.56/2007.
11. At this stage, this Court must record the details of the proceedings in O.S. No.5/1990 and O.S. No.69/1992 and the corresponding appeals as also the proceedings in L.A.C. Nos.17 and 22 of 1990. The details of these proceedings are as follows:
11.1 O.S No. No.5/1990: This suit is filed by the defendants i.e., the sons/legal heirs of Sri Vade Huligappa from the second wife against Sri Balaram, who is the son of Sri Vade Huligappa's brother, Sri Timappa, and the State for declaration that they are the absolute owners of the property measuring 22 acres 50 cents in Sy.No.285 & 286 of Belagal village, Ballari Taluk [the suit Item No.4 of Schedule B]. The plaintiffs in this suit have contended that Sri Vade Huligappa was the absolute owner in possession of the aforesaid two lands and they would be entitled for declaration. The defendant, Sri. Balram, has contested the 24 RFA No. 100259 of 2015 suit referring to the civil proceedings commenced during the lifetime of his father, Sri. Thimmappa, and his brother Sri Vade Huligappa in O.S. No.109/1921. This suit is decreed declaring that they are the absolute owners of the aforesaid land.
11.2 Sri. Balram's legal heirs of have carried this judgment successfully in appeal in R.A. No.1/2004. The appellate court has decreed that the plaintiffs in such suit could only claim ownership of half portion of the suit schedule properties and are entitled to recover 50% of the compensation determined and deposited in LAC Nos.17/1990 and 22/1990 on the file of the Civil Judge (Senior Division), Ballari.
11.3 O.S. No.69/1992: This suit is commenced during the pendency of the suit in OS No. 5/1990 by Sri. V.Balaram and his brother Sri. V. Huligappa for partition of different lands in Kolagal Village in Ballari Taluk. They have also included residential properties situated in Alipura Village. Significantly, the fourth son of Sri. Vade Huligappa's 25 RFA No. 100259 of 2015 eldest son from the first wife, Sri. V.Lingappa, is arrayed as one of the defendants in this suit. The first to twelfth plaintiffs claim under him.
11.4 Sri. V.Lingappa is served with the suit summons in this suit in OS No. 69/1992 but he has not contested the suit. The dispute in these suits is between Vade Huligappa's brother's family members and his sons from the second wife/their family members [some of the first to eleventh defendants]. This suit is based on the partition deed executed and registered on 13.08.1922. The aforesaid plaintiffs have carried this judgment in O.S. No.69/1992 in appeal in R.A. No.56/2007. The appeal is dismissed. As such, the claim by Sri Timappa's sons against the sons/legal heirs of Sri Vade Huligappa's sons through second wife [some of the defendants herein] is not accepted either on the original side or in the appeal.
12. This Court must observe that if the suit in O.S. No.5/1990 relates to the lands in Sy.No.285 and Sy.No.286 26 RFA No. 100259 of 2015 of Belgal village, Ballari Taluk, the suit in O.S. No.69/1992 relates to different set of lands and the lands in these subsequent suits are distinct and separate from the properties mentioned in the present suit except insofar as the extent of land in Sy.No.808 of Kolagal village, Ballari Taluk as described in O.S.No.69/1992.
13. The civil Court, while answering the Issues as aforesaid, has concluded that Sri. V.Lingappa [the eldest son of Sri Vade Huligappa through his first wife] and Sri Bassappa [the eldest son of Sri Vade Huligappa through the second wife] are parties to the registered partition dated 19.04.1974, and with this partition deed the suit schedule properties ceased to remain joint ancestral properties and the plaintiffs will not be entitled for a share. The civil Court has thus concluded not just because of the terms of the partition deed dated 19.04.1974 but also because of the prior proceedings in O.S. No.5/1990 and 69/1992, and the fact that legal heirs of the sons of the second wife in the immediate proximity of partition deed have executed sale 27 RFA No. 100259 of 2015 deeds (Exs.D.2 to D.4) transferring certain suit schedule properties.
14. The civil Court, while answering the Issue on whether the purchasers are bona fide purchasers for value without notice of the corresponding properties, has opined that the family members of the sons of Sri. Vade Huligappa from the second wife have executed respective sale deeds as the absolute owners, and because of the partition deed dated 19.04.1974, the plaintiffs cannot assert any share in the suit schedule properties. The civil Court has also considered the question of limitation and has opined that because the sale deeds have been executed by some of the defendants during the year 1996 and the suit is commenced in the year 2008, after twelve years, the suit would be barred by limitation because of the provisions of Section 109 of the Limitation Act, 1963.
15. Smt Pallavi S. Pachhapure, the learned counsel for the plaintiffs - the appellant, canvasses as follows: 28 RFA No. 100259 of 2015
15.1 On Partition Deed dated 19.04.1974: The civil Court has erred in placing reliance upon the terms of the partition deed dated 19.04.1974. The family members-
defendants have filed written statement contending that after the dismissal of the suit in O.S. No.585/1928 commenced by Sri Lingappa and Sri Bhimappa against Sri Vade Huligappa, these two brothers have executed a deed relinquishing their share in the properties. These defendants have not adverted to any partition deed executed after the demise of the aforesaid two brothers, and if these defendants could succeed on the strength of the aforesaid partition deed, it could only be if it is supported by necessary pleadings.
15.2 The plaintiffs cannot deny that the four sons of the eldest son, Sri. V. Lingappa [under whom the plaintiffs claim], are parties to this partition deed dated 19.04.1974, but this is for partition of the properties that are not subject matter of the partition deed dated 13.08.1922. The properties mentioned in the plaint are those properties which are mentioned in the partition deed on 13.08.1922. If 29 RFA No. 100259 of 2015 there is no partition in respect of these properties, which should be the only reasonable conclusion because of lack of material, the plaintiffs would undoubtedly be entitled for the share in the suit scheduled properties. These circumstances have been overlooked by the Civil Court in weighing the evidence on the record and therefore, the Civil Court's conclusion that the subject properties are not available for partition with the execution of the partition deed dated 19.04.1974 cannot be sustained in law.
15.3 On the decisions in O.S. No.5/1990 and O.S. No.69/1992: Neither the children of Sri Lingappa nor the children of his brother Sri Bhimappa [the plaintiffs herein], are arrayed as defendants in these suits, in O.S. No.5/1990 and O.S. No.69/1992 and even if one of them is arrayed, it is as a purchaser and not as a family member. The question that will have to be decided inter se the plaintiffs and the contesting defendants in this suit was not a matter for decision in the aforesaid two proceedings. 30 RFA No. 100259 of 2015
15.4 On Sri Vade Huligappa and his sons being members of undivided family: Sri Vade Huligappa and the sons from the first and second wives are parties to the registered lease deed dated 09.08.1954 [Ex.P.140]. If there was any relinquishment as contended by the defendants, there would have been no occasion for execution of this lease deed dated 09.08.1954 jointly by all the sons with the father. This document establishes the fact that the father, Sri Vade Huligappa and his five sons [both from the first and second wives] were together even as of 1955. The learned counsel emphasizes that there is nothing on record to indicate that there is any such circumstance after 1954, except the partition deed dated 19.04.1974, to show there is partition.
15.5 On the Sale Deed executed after the partition deed dated 19.04.1974 and bonafides of purchasers:
The defendants have executed sale deed in the year 1974 for some of the properties would be of no consequence because the plaintiffs are able to demonstrate that they did not have 31 RFA No. 100259 of 2015 notice of the sale until the date of commencement of the proceedings. If the Civil Court's finding that the properties were not available is set aside, as it should be for the reasons canvassed, in view of the settled proposition that if a person as a coparcener or a co-owner transfers a share which is much wider than the share he or she is entitled to, the sale would be effective only to the extent of the transferors right. Therefore, even if the purchasers could assert any right in the properties transferred in their favor, it would be limited to the extent of 3/5th share executed by the defendants who are the family members.
15.6 On Limitation: The plaintiff's case, notwithstanding the averment in para No 12 of the plaint, is that the defendants who are family members have dealt with the suit scheduled properties without notice to the plaintiffs and behind their back. The plaintiffs have come to know about such transactions only in the year 2007. As such, the limitation for the purpose of deciding question of the suit being barred by limitation, should necessarily be reckoned 32 RFA No. 100259 of 2015 form the year 2007 in the view of the Article 110 of the Limitation Act, 19635.
15.7 When the ancestral properties are alienated without information to other members of the family/ coparceners, there will be exclusion, and if exclusion is established, the date of knowledge of the exclusion would be the relevant date for the purpose of deciding the limitation.
In any event the civil Court could not have decided the question of limitation on the basis of the provisions of Article 109 of the Limitation Act because Article 109 would get attracted only when the sale by the father is called in question, and in this case sale is by the other members of the family. The plaintiffs' witness [PW-1] is consistent in his evidence that neither he nor any other member of the family, including Sri. V. Lingappa or his brother Sri. V.Basappa, knew about the transfers of the subject property. Until just before the commencement of the suit. Therefore, this Court 5 The learned counsel relied upon a Division Bench judgment of this Court in RFA No.689/2016 and other connected matters which are disposed of on 19.08.2021 33 RFA No. 100259 of 2015 must intervene with the civil Court's order that the suit is barred by the limitation and grant shares as asserted by the plaintiff.
16. In the present proceedings some additional parties have been impleaded as respondents. It is submitted that a portion of the land in Sy.No.894/B, measuring 9 acres 39 cents, a property that is transferred initially in favor of defendant No.12 and subsequently in favor of the thirteenth defendant, is notified for acquisition by the National Highways Authorities of India (the thirty first respondent). This property is also subject matter of certain agreements by the thirteenth defendant in favor of parties who are now added as the third second to thirty seventh respondents. If the plaintiffs succeed in this appeal this Court may have to pass necessary orders moulding relief as permissible under Order VII Rule 7 of CPC.
17. Amongst the family members/ defendants, only the tenth defendant and the legal representatives of the first and second defendants contest the appeals. The arguments 34 RFA No. 100259 of 2015 on behalf of these defendants is led by Sri Shivanand Malashetty supported by the learned counsel who appear for one of the purchasers (the thirteenth defendant).
18. Sri Shivanand Malashetty submits that the civil Court is justified in placing reliance upon the partition deed dated 19.04.1974. The defendants have taken the specific plea, as part of the additional written statement filed on 21.09.2013, that all the ancestral and joint family properties are partitioned with the execution of the partition deed dated 19.04.1974 and therefore, the contention that there is no pleading insofar as the partition is not factually correct. The parties to this partition deed are categorical that the family does not have any other property that should be divided. The plaintiffs, who cannot deny or dispute the terms of this partition deed, cannot contend that the suit schedule subjected properties must be partitioned.
19. Sri Shivanand Malashetty draws the attention of this Court to the evidence of PW.1 to contend that this witness has admitted not only the sale of the suit schedule 35 RFA No. 100259 of 2015 properties at the relevant time but also the possession of the corresponding transferees. This witnesses, it is canvassed, has also admitted that the revenue records are mutated consequent to the transfer deeds executed and none of his family members have called in question the revenue entries in any revenue proceedings. He argues that the plaintiffs cannot feign ignorance of the transfers until just before the date of commencement of the suit and every statement in that regard in the evidence is unsupported by pleadings and will not save the limitation for the plaintiffs. However he does not contest that given that there are sale deeds, the applicable provisions for the purposes of limitation would be Airtcle110 of the Limitation Act, 1963.
20. Sri Shivanand Malashetty further submits that the purchasers have dealt with the property and in fact one of the purchasers has constructed a residential property after the transfer deed transferred in her favor (the twenty- fourth defendant). These circumstances come together to indicate undeniable partition of sale transactions 36 RFA No. 100259 of 2015 immediately thereafter and therefore the appeal must be dismissed.
21. In the light of the rival submissions the points that would arise for consideration are as under:
i. Whether the Civil Court has erred in concluding that the suit schedule properties are partitioned with the execution of the partition deed dated 19.04.1974.
ii. Whether the Civil Court has erred in concluding that the suit is barred by limitation because of the provisions of Article 109 of the Limitation Act, 1963.
iii. Whether the purchasers - defendants can protect their purchase as bona fide purchasers for value without notice even if the plaintiffs succeed in establishing that the suit scheduled properties must be partitioned.
Reg. Question No.1:
22. It is undisputed that Sri Vade Huligappa and his brother, Sri V.Timmappa, after conclusion of original proceedings in OS NO.109/1921 have joined in execution 37 RFA No. 100259 of 2015 and registration of a partition deed in the year 1922, and in this partition the suit schedule properties are allotted to Sri Vade Huligappa. The present controversy is between the sons of Sri Vade Huligappa from his first wife [the plaintiffs] and his sons from the second wife [the defendants-family members]. The plaintiffs contend that the properties allotted in such partition to Sri Vade Huligappa (the suit scheduled properties) are not partitioned during the lifetime of Sri Vade Hulugappa or his sons.
23. However, the first line of defense of the defendants, who claim under the sons of Sri Vade Huligappa from the second wife, is that the Sri Vade Huligappa's sons from the first wife, Sri Lingappa and Sri Bhimappa, commenced suit for partition in the year 1928. After the dismissal of the suit, because they were allotted certain sites, they have executed agreement relinquishing the rights in the suit schedule properties. This Court need not detain itself on this defense because admittedly, such agreement is not part of the record.
38RFA No. 100259 of 2015
24. The defendants' other contention is that Sri V Lingappa [the eldest son of Sri Vade Hulagappa from the first wife] and Sri Basappa [the eldest son of Sri.V.Huligappa from the second wife] have executed partition deed dated 19.04.1974, and with this partition, there is complete severance and the plaintiffs cannot claim any share in the properties partitioned. On behalf of the plaintiffs, though it is not specifically pleaded, it is now contended, placing reliance upon Ex.P141, a registered lease deed executed by Sri Vade Hulagappa and all his five sons [that is, sons from both the first and second wives] that the jointness in the family is established by fact that all have executed this deed, asserting that this would not have been if there was any severance.
25. The next segment of the plaintiff's case in this regard is that the partition deed dated 19.04.1974 is only insofar as those properties which are not mentioned in the partition deed dated 13.08.1922 and it is thus limited to four properties partition therein and therefore, there is no evidence of any severance after 1954. There is also reliance 39 RFA No. 100259 of 2015 upon the proposition that there is presumption about the existence of the joint family, and that the onus of establishing severance must be on the defendants and they have failed to establish the same.
26. The civil Court has relied upon the terms of this partition deed dated 19.04.1974 to arrive at its conclusion against the plaintiff. This partition deed, which is not contested but is rather explained as a partition of only four movable properties mentioned therein, is also about a specific acknowledgment that there are no joint movable or immovable partition between the two branches. The relevant clause in this partition reads as under:
".........E£ÀÄß £ÁªÀÅ ºÀAaPÉƼÀîvÀPÀÌ AiÀiÁªÀ ¹ÜgÀ ZÀgÁ¹ÜUÀ¼ÄÀ EgÀĪÀÅ¢®è. E£ÀÄß ªÀÄÄAzÉ AiÀiÁgÁågÀ ¸ÀA¥Á¢¹PÉƼÀÄîªÀ zsÀ£À-IÄuÁ¢üUÀ½UÉ ¹ÜgÀ ZÀgÁ¹ÜUÀ½UÉ CªÀgÀ CªÀgÀ ¸ÀAvÀwAiÀĪÀgÀÄ ¸ÀA¥ÀÆtð ºÀPÀÄÌUÀ½AzÀ C£ÀĨsÀ«¹PÉƼÀî®Ä zÁ£À «PÀæAiÀiÁ¢UÀ½UÀÆ ¸ÀA¥ÀÆtðªÁV ºÀPÀÄÌ EgÀÄvÀÛzÉ. ........."
The explanation now offered that the partition deed dated 19.04.1974 is a limited partition confined to those properties mentioned therein is belied by this statement and also the 40 RFA No. 100259 of 2015 fact that this explanation is not part of the evidence. The learned counsel for the plaintiff cannot point out from the deposition of PW1 that any explanation is offered or that this explanation is put to the defendants' evidence.
27. The law on the presumption associated with the joint family is clear and settled. The presumption is about the existence of the joint family, and in the absence of proof of partition, the legal presumption continues and if a defence based on severance or otherwise is taken, the onus would be on the person who takes up such defence to establish the same6. In the present case, the defendants contend that there was a partition between the two rival branches of the family as aforesaid, and have placed on record the partition deed dated 19.04.1974 which contain an unequivocal and unambiguous acknowledgment that no other property is available for partition inter se.
28. This Court is of the considered opinion that this evidence should prevail especially when the transactions 6 Adveappa v. Bhimappa (2017) 9 SCC 586 41 RFA No. 100259 of 2015 relied upon by the plaintiffs are in the years 1922 and 1954 without any evidence on the different transactions that have taken place during this period. In fact, a feeble effort was made by the learned counsel for the plaintiff to contend that the family was in the habit of transferring certain properties by executing sale deed instead executing mortgage deeds and later obtaining re-conveyance. However, the learned counsel concedes when queried, that there is no material on record to substantiate the same.
29. Therefore, the civil Court's finding that after the partition deed dated 19.04.1974, the plaintiffs cannot contend that the suit schedule properties are available for partition would be unexceptional. At this stage, this Court must also consider that though it is contended that none from the branch of the sons of the first wife of Sri Vade Hulagappa is arrayed as a defendant in the two proceedings in O.S. No.5/1990 and O.S. No.69/1992 as a member of the family to contest the defendant's case that they absolutely owned certain properties, the fact that one of the sons of Sri 42 RFA No. 100259 of 2015 Vade Hulagappa is arrayed as a defendant in O.S. No.69/1992 is not disputed. This suit relates to certain declaration insofar as properties which are not part of the suit schedule except for one property. The plaintiffs cannot plead ignorance and contend that there was no cause for them until the present suit.
30. This Court must opine that a certain design is obvious in not making a claim against those properties that are subject matter of the suit in O.S. No.69/1992 but limiting the claim to the compensation payable for acquisition of lands in Sy. Nos.285 and 286 of Belagal Village, Ballari which is admittedly acquired in the years 1984-86 and the proceedings in O.S. No.5/1990 relates to such property. The claim for compensation for acquisition of the land in Sy. No.798 measuring 3 acres 25 cents of Kollagallu Village, Ballari, as adjudicated in LAC No.17/1990 must also be necessarily considered in the light of the selective claim made only insofar as these two lands referring to the compensation that are subject matter of the 43 RFA No. 100259 of 2015 suit in O.S. No.69/1992 and the proceedings for enhancement in LAC No.22/1990 without bring on record all circumstances.
31. This Court for the foregoing, is not persuaded to opine that the civil Court has erred in concluding that after the partition deed dated 19.04.1974, the plaintiffs cannot contend that the suit schedule properties are available for partition.
Reg. Question Nos.2 and 3:
32. The plaintiffs are categorical in para 12 of their plaint as regards the cause of action which reads as under:
"The cause of action for the purpose of suit accrues and arose against the defendants when the late Vade Huligappa partitioned the suit properties in the year 1922 and when the 1st plaintiff grand father died and also when the father of the 1st plaintiff and plaintiff No.13 to 15 died leaving behind the plaintiffs as their legal heirs and when the plaintiffs demanded for partition and separate possession of suit properties orally and on the dates of panchayaths and when defendants declined to divide the suit properties by 44 RFA No. 100259 of 2015 metes and bounds and continuing the same within the jurisdiction of this Hon'ble Court at Bellary."
33. The cause of action pleaded is the demand made for partition and the refusal of such demand in the panchayat convened. The pleading is silent about the corresponding dates, and even according to the learned counsel for the plaintiffs, the evidence is also silent. The learned counsel endeavoured to contend that the cause of action is not just mere demand and refusal, but also the sale by certain family members and the knowledge thereof in the year 2007. This contention is sought to be justified on the basis of certain references to the sale and the knowledge as is pleaded in the plaint and deposed to by the witness PW1. It is based on this contention, it is contended that Article 110 of the Limitation Act, 1963 would apply asserting that in which event, the limitation could be twelve [12] years from the date of knowledge and the suit which is filed in the year 2008 cannot be barred by limitation.
45RFA No. 100259 of 2015
34. A Division Bench of this Court7 has referred to both Articles 109 and 110 of the Limitation Act, while considering the question whether in the facts and circumstances of the case should Articles 110 or 113 of the Limitation Act should apply. This Division Bench has held that what is central to invoke Article 110 of the Limitation Act, 193 is exclusion and such exclusive can be when there is a demand and refusal. If exclusiion is demanded, then it would be 12 years from the date of refusal. A useful reference could be made to the enunciation by the Division Bench in paragraphs 45(a) to 45(e) which reads as under:
The law on Article 110 of the Schedule to the Limitation Act could be culled out as under:
(a) Article 110 of the Schedule to the Limitation Act does not apply to a suit where the plaintiff is a stranger, e.g., a purchaser of a share in the joint family property and not a member of the joint family. It also does not apply to a suit for possession of immovable property by a right of inheritance. This Article contemplates a suit by a member of the family against other members thereof to be restored to joint enjoyment. Article 7 A decision relied upon by Smt. Pallavi C Pachahapure and referred to supra 46 RFA No. 100259 of 2015 110 is applicable only when the joint family property is partitioned. This Article pre-supposes the existence of a joint family and joint family property and can be invoked only when the suit is brought to enforce a right to a share therein by a person excluded from such property. Also, the said Article applies where the suit is filed "to enforce the right" and "not to establish a right" vide Krishnajee Annajee vs. Annajee Dhondajee [AIR 1930 Bom.
61] (Krishnajee Annajee).
(b) The word "exclusion" implies a previous inclusion, i.e., there must be a previous participation in the enjoyment of the joint property. It is not sufficient to show that one member did not participate in the enjoyment of the property for twelve years or more; for mere non-participation is not "exclusion" within the meaning of this article. For exclusion to operate as a bar there must be an entire exclusion. In other words, it is necessary that the plaintiff knowing of his exclusion did not sue for twelve years, i.e., limitation begins to run only after he came to know of the exclusion.
Exclusion must be distinct and known to that member, in fact, an adverse title inconsistent with the common management and enjoyment on behalf of the family must be set up and proved by the defendant. Mere mutation of names is not sufficient 47 RFA No. 100259 of 2015 to prove ouster or exclusion, vide Kishenlal vs. Satya Prakash [AIR 1952 All 105].
(c) The exclusion that is contemplated under the article is a conscious and deliberate act amounting to denial of the right of a particular member concerned to a share in the property analogous to ouster and it must also have been brought home to him. Thus, there must be a positive act or conduct by which the exclusion from joint family property becomes known to the plaintiff. Article 110 applies only if the suit is filed after twelve years from the date of exclusion. Only because the plaintiff was residing in her matrimonial home, it cannot be held that she was excluded from the joint possession of suit land. In such circumstances, the suit is not barred under Article 110 of the Limitation Act, 1963 vide Durgavva vs. Annapoornavva [AIR 2017 Kar 38] (Durgavva).
(d) To bar the plaintiff under Article 110, three questions will have to be considered, namely, (i) whether the claimant to a share was excluded from the joint family property; (ii) if so excluded, when the exclusion, took place; and (iii) when the exclusion, if any, became known to the claimant. As to the meaning of the expression exclusion, it 48 RFA No. 100259 of 2015 may be observed that, there can be no exclusion without the denial of the coparcener's right to the share and such a denial may be expressed or implied. When partition is demanded and refused, or if the coparcener is expelled from the joint family, that would be clear exclusion. Once the party establishes his claim to a share in the joint family properties by showing that the family was joint and that he/she was a coparcener entitled to a share in its properties the onus is on the opposite party to establish exclusion to the coparcener's knowledge for over twelve years prior to the suit for partition, vide Marudanayagam Pillai vs. Sola Pillai [AIR 1965 Mad 200] (Marudanayagam Pillai).
(e) Where there is no specific demand for partition of share in the property and no refusal or denial by defendant, the period of limitation does not start. Mere non-assertion of right in the property will not amount to exclusion, vide Kishore N alias H Shah vs. Prakash N Shah [2001(2) Bom.LR 1 (9) (Bom)] (Kishore N alias H Shah); Vasanti P Shetty vs. Nagaveni J Shetty [(1996)1 LJ 970 (Bom)] (Vasanti P Shetty)."
35. Further, the Division Bench has exposited that Article 113 of the Limitation Act is general provision which contemplates three years as the limitation from the day the 49 RFA No. 100259 of 2015 right to sue accrues, and a right to sue for partition is a continuing right and hence there is no bar of limitation and the limitation for filing of a suit for partition could be on the basis of exclusion. It could follow from this exposition that a demand and refusal would amount to exclusion and if exclusion is established, limitation for suit for partition would be twelve [12] years as contemplated under Article 110 of the Limitation Act. 1963.
36. However, the Hon'ble Supreme Court in Krishna Pillai Rajasekharan Nair vs. Padmanabha Pillai (D) by LRs. and others8 has held that a demand and refusal would constitute accrue of right to sue and in that event, Article 120 of the Limitation Act which corresponds to Article 113 of the Limitation Act would apply. The decision by the Hon'ble Supreme Court is while examining the question whether a co-mortgagor which obtains redemption of the mortgage from out of his own funds could claim exclusion of the rights of the other co-mortgagors. The decision of the Hon'ble Supreme Court on the question of limitation reads as under:
8 (2004) 12 SCC 754 50 RFA No. 100259 of 2015 "22. In our opinion, the suit filed in the present case being a suit for partition primarily and predominantly and the relief of redemption having been sought for only pursuant to the direction made by the High Court in its order of remand, the limitation for the suit would be governed by Article 120 of Limitation Act, 1908. For a suit for partition the starting point of limitation is - when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. In such a suit, the right of the redeeming co-mortgagor would be to resist the claim of non-redeeming co-mortgagor by pleading his right of contribution and not to part with the property unless the non-redeeming co-mortgagor had discharged his duty to make contribution. This equitable defence taken by the redeeming co-mortgagor in the written statement would not convert the suit into a suit for redemption filed by the non-redeeming co- mortgagor."
37. In the present case even if the application of Article 110 of the Limitation Act is to be considered, it is seen that the sale deeds are executed in the year 1996-97 for all the suit schedule properties with further transfers in the case of some of the properties in favour of subsequent transferees. The revenue records have been mutated admittedly after such sale by the family members and even 51 RFA No. 100259 of 2015 after subsequent transfers. The plaintiffs have not called in question these revenue entries. Significantly, the transactions are registered transactions, and the plaintiffs cannot avoid the consequences of constructive notice of such registered transactions.
38. The plaintiffs' case on limitation, which is put forth for the first time in this appeal for the purposes of limitation, that they learnt about the multiple transaction for all the properties only in the year 2007 cannot be accepted. This Court must opine that in the circumstances of the case, the claim that the plaintiffs learnt about the transfers in the year 1996-97 only in the year 2007, which is not event part of the pleadings, is too contrived to be accepted. Therefore, even if it could be opined that the civil Court has erred in rejecting the suit testing the question of limitation with reference to Article 109 of the Limitation Act, for the aforesaid reasons, this Court must say that if Article 110 of the Limitation Act is also applied, the suit is barred by limitation. For completion, even if the application of Article 113 of the Limitation Act is considered, in the 52 RFA No. 100259 of 2015 absence of the details of the demand and refusal, this Court must opine that the plaintiffs have not brought the suit for partition in time.
39. The purchasers from a coparcener who has executed the deeds, and if the other coparceners demonstrate that the transfer was by a coparcener with a limited right, they could be entitled for working out of equities to protect the purchases and to this extent, the defence of being a bona fide purchaser for a value would be significant. However, as in the present case, it is concluded that the plaintiffs have failed to establish that they could seek partition of the suit schedule properties after the partition deed dated 19.04.1974 and that their suit is not by limitation, no further finding be recorded in this regard.
For the foregoing, the appeal stands dismissed.
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JUDGE