Karnataka High Court
Narashalli Kempanna And Ors. vs Narasappa And Ors. on 17 March, 1987
Equivalent citations: AIR1989KANT50, ILR1988KAR179, AIR 1989 KARNATAKA 50, ILR 1988 KANT 179
JUDGMENT
1. This appeal is preferred against the judgment and decree dt. 3-111976 passed by the I Additional Civil Judge, Kolar, in R.A. No. 103/1972 confirming the decree dt. 24-6-1972 passed by the Munsiff, Chintamani in O.S. No. 7/1971. Thus the plaintiff is the appellant and the respondents are the defendants. The parties in this judgment will be referred to with reference to the position they occupied in the trial Court.
2. The suit properties are the agricultural lands bearing S. No. 195/ 1, measuring 2 acres 15 guntas and S. No. 109/3, measuring 2 acres 4 guntas, situated in Kothanur village, Siddlaghatta Taluk, Kolar District.
3. The plaintiff claims to have purchased the suit properties from the first defendant under a registered sale deed dt. 12-1-1950. He has filed the present suit for the following reliefs.
(a) To declare that he is the owner of one-sixth share in the suit schedule properties.
(b) For partition of the suit schedule properties by metes and bounds into six shares and the possession of one-sixth share to the plaintiff.
(c) For a decree for Rs. 75/- being the past mesne profits against the defendants.
(d) For enquiry into future mesne profits under O. 20, R. 12, C.P.C. from the date of suit to the date of delivery of possession.
(e) For Court costs, current interest and such other reliefs as the Court deems fit to giant."
4.1.The case of the plaintiff is that pursuant to (he sale, he was put in possession of the suit properties and as defendants 2 to 6 tried to interfere with his possession, he filed O.S. No. 169/1950-51 in the Court of the Munsiff, Chikkaballapur, for permanent injunction.Subsequently, the suit came to be amended and a declaration that the plaintiff is the owner of the suit property was also sought. In that suit it was held by the trial Court that the plaintiff was the owner of the share of the 6th defendant in that suit, who is first defendant in the present suit. But the suit was dismissed on the ground that the plaintiff failed to prove his possession of the suit properties. There was an appeal preferred against the decree passed in O.S. No. 169/1950-51, in R.A. No. 27/52-53 and in that the decree passed in the suit was confirmed by the lower appellate ,Court. Accordingly, the appeal was dismissed. \1 ' 4.2. Thereafter the plaintiff filed another ,suit in O. S. No. 299/1955 for a declaration of this title to the suit properties and for possession of the same from present defendants 2 to 5. The Vendor of the plaintiff was also a party to that suit as defendant 1. The cause of action pleaded in that suit as may be gathered from the judgment in R. A. No. 269/56 produced as Ex. D-7 which arose out of the decree passed in O.S. No. 299/55, was the dispossession of the plaintiff of the suit properties subsequent to the dismissal of the suit-O.S. No. 169/50-51 and R.A.No. 27/52-53. It was held that the plaintiff was entitled to the share of his Vendor. But the suit was dismissed on the ground that he was not entitled to seek possession of the specific portions of the suit properties and he could get possession of the share of his Vendor only by way of partition. In the appeal preferred by the plaintiff being R.A, No.269/56, the lower appellate Court confirmed the decree of the trial Court.
4.3. Therefore, the case of the plaintiff is that he has filed the present suit for partition and separate possession of the share of the first defendant, who is the vendor of the suit; properties.
5. Defendants2 to 5 resisted the suit. The 1 first defendant-Vendor of the plaintiff remained absent throughout and did not resist the suit and as such he, was placed ex parte, Defendants 2 to 5 who have resisted the suit also denied that the first defendant was entitled to any share in the properties of the family. They further pleaded that the first defendant was, refused partition when demanded after the death of their father Muniswamy which took place in the month: of November, 1947. They also contended that the first defendant was not entitled to 1/6th share but was only entitled to 1/8th share. They further contended that the defendants had two sisters by name Muniakkaiyamma and Chikka Akkalamma; that they have a share in the suit schedule properties; hence, they are also necessary parties to the suit .They also pleaded that the suit was barred by res judicata in view of the decisions in the i~ previous suits and appeals i.,e. O.S. 169/50-1 51, R.A. 27/52-53 and OS. 21919/55, R.A. 269/56. There was also a plea that the suit was barred by O. 2, R. 2 of the C. P. Code.
6. The following issue's were raised by the trial Court:
(1) Whether the plaintiff is a purchaser of the undivided share of the first defendant in the suit properties?
Is he entitled to partition, and possession of one six share?
(2) Is the plaintiff entitled to pay mesne profits of Rs. 75/- and to future mesne profits?
(3) Whether the suit is bad fornon-joinder of parties?
(4) Is the suit barred by time?
(5). Are the defendants entitled to mesne profits under S. 4 of the Partition Act if so 1 what is the value to be assessed to the share which the plaintiff is entitled?
(6) To what reliefs are the plaintiff is entitled.
Additional Issue -
I(7) Whether the suit barred by res judicata under Sec. 11 of C.P.C. in view of the decision rendered in O.S. No. 259/55, R.A. 269/56 and under O. 2, R, 2, C.P.C.?
7. It may also be stated here that the plaintiff amended the plaint, claiming half share in the suit properties. The amendment was allowed on 6-1-1972. The contesting defendants filed an additional written statement. Therefore, additional issue No. 8 was also framed in the following terms "Do defendants prove that the value of the share (half share in the suit schedule property) claimed by the plaintiff is beyond the pecuniary jurisdiction of this Court?"
8.1. The trial Court held that O.S. No. 299/55 was for a declaration of title to a specific portion of the suit properties; that having regard to the provisions contained O. 2, R. 2, C.P.C., the relief for partition and possession wbich ought to have been asked for in th e previous suit could not be granted in the present suit; that as the relief for possession was expressly refused in the previous suit, it operated, as res judicata. Therefore, it answered issue No. 1 in the negative and issue. No.1 in the affirmative.
8.2. Having, regard to the findings recorded on Issues 1 and 7, it was held that Issues2, and 5 did not arise.
8.3. On Issue No. 3, it was held that the suit was not bad for non-joinder of parties because there was nothing on record to show asto when the marriages of, the two daughters of Muniswamy by name "'Muniakkaiyamma and Chikka Akkalamma took place in order to determine as to whether they were entitled to a share In the joint family properties. Accordingly, this issue was held in the negative.
8.4. Issue 4 relating to limitation was answered in favour of the plaintiff and it was held that the suit was not barred by time I since it was a suit for declaration, partition and possession. Therefore, it was held that the question of limitation did not arise.
8.5. Issue 8 relating to the pecuniary jurisdiction of the Court was answered in the negative. Consequently the suit was dismissed by the judgment grid decree dt. 24-6-1972.
9. The plaintiff went up in appeal against the aforesaid judgment and decree in R. A 103/1972. In & appeal, the defendants did not canvass the correctness of the findings recorded by the trial Court on Issues 3 and 4. They only concentrated on the contention that the suit was barred by the provisions of O. 2 ,R.2 C.P.C. The lower appellate Court by its judgment and decree held that the present suit was barred by virtue of O. 2, R. 2,C.P.C. in view of the fact that the suit in O.S. No; 299/1955 was dismissed and that Decree was confirmed in A.A. No. 269/56.
10. In this appeal having regard to the contentions urged, the following point arise for consideration (1) Whether the lower appellate Court is justified in law in holding that the present suit O.S. No. 7/71 is barred by virtue of the bar contained in O. 2, R. 2, C.P.C. ?
(2) Whether the suit for partition is maintainable in the absence of the two daughters of Muniswamy?
(3) What is the share of the Vendor of the plaintiff ?
11. POINT I:- In this case, it is not necessary to examine whether the present suit is barred by virtue of the bar* contained in O. 2, R. 2, C.P.C., with reference to O.S. No. 169/1950-51. In the judgment dt. 31-8 11957 passed in R.A. No. 269/56 produced as Ex. D-7 which arose out of the suit O.S. No. 299/1955, the lower appellate Court has held that the cause of action for the previous suit O.S. No. 169/50-51 was different from the cause of action on which O.S. 299 of 1955 was founded. Therefore it was not hit by the bar contained in O. 2, R. 2 of the Civil P.C. Before me also no such contention is urged. In R.A. No. 269/66 it has been held as follows "There is no evidence that at any time the 6th defendant was divided from defendants 1to 4 and at any such division specific portions sold under Ex. P- 1were allotted to the share i of 6th defendant and the remaining half share to defendants 1 to 4. Kothanur Muniswamy died about 8 or 9 years ago. Plaintiff has not adduced any evidence to show that 6th defendant and Kothanur Muniswamy got divided during the lifetime of the latter. On, the other hand, there is convincing evidence let in on behalf of the defendants to show that even till today defendants I to 6 are members of a joint Hindu family. There is no evidence to show that plaintiff got possession of the suit schedule portions under the sale deed Ex. P-1. The previous suit in O.S. No. 169/50- 51 was originally only for permanent injunction. Subsequently it was converted to one for declaration of title and permanent injunction. Ex. P-3 is a copy of the judgment in that suit.The judgment was confirmed in R.A. 27/52-53. The finding of the trial Court in O. S. No. 169/50-51 was that plaintiff is the owner of the suit schedule properties to the extent of 6th defendant's right, title and interest. But the previous suit was dismissed as plaintiff failed to prove that he was in possession. At any rate if it was found in the previous suit that plaintiff was out of possession, his suit regarding permanent injunction could have been dismissed and his relief regarding declaration of title to the extent of 6th defendant's share could have been decreed. But somehow it confirmed in appeal. In view of the judgment it is clear that 4t no time plaintiff was in possession and enjoyment of the suit schedule portions in pursuance of the sale deed Ex. P-1. Defendants 1 to 4 and 6th defendant have continued to be in possession of this entire, suit survey numbers they being the joint family properties. The 6th defendant was not in possession of any definite share in the suit survey numbers as belonging to hirn. The ownership of coparcenery property is in the whole body of coparceners and over every inch of property. No individual member of the family can assert while undivided that he has a definite share in such coparcenery property. It is only on a partition of the property that he becomes entitled to a definite share. A coparcener has no right to alienate as his undivided interest any specific property of the joint family. But what is sold under Ex. P-1 is the western half of the suit Item 1 and southern half of suit Item 2. Plaintiff is not entitled to become the owner of these specific portions. He is only entitled to the, right, title and interest of the 6th defendant and ho has to work out of the same by means of a regular partition suit. But the present suit is not one for partition. It is a suit for declaration of title and possession of the specific portions purchased by plaintiff under Ex. P-1. Plaintiff cannot sue to be put in possession of the specific portions until partition. He has no right even for a joint possession much less to recover future mesne profits until partition The previous suit was originally for permanent injunction and was then converted to one for declaration and permanent injunction. The present suit is for a declaration of title and possession on the ground the plaintiff was dispossessed subsequent to the disposal of the previous suit. The cause of action for these two suits are different and hence O. 2, R. 2 is no bar.
Though the previous suit was dismissed on the ground that plaintiff was out of possession, a finding was given that plaintiff was entitled to the right, title and interest of the, 6th defendant. The present suit is again for declaration of title of the specific portions, and is not one for partition. The question of plaintiffs title cannot be agitated over and over again and is barred by res judicata.
In the result, I have no reason to interfere with the findings, judgment and decree of the lower Court. They are confirmed. There is no substance in the appeal and it is dismissed with costs. Pleader's fee of Rs. 20/-."
12. Though the plea relating to O. II,R. 2,C.P.C. was raised by way of amendment and an-'additional issue No. 7 was raised in this regard, but the defendants did,not produce the pleadings of the previous suits. In order to establish that the suit is barred by O. II,R. 2, C.P.C. the pleadings of the previous suit are necessary. The defendants 2 to 5 ought to have produced the pleadings of the previous suit. The principle embodied in O. II, R. 2,C.P.C. is that every suit shall include whole of the claim which the plaintiff is entitled to make in respect of (he cause of action. But the plaintiff may relinquish any portion of his claim in order to bring the suit within the! jurisdiction of any Court. If the plaintiff omits': to sue 'in respect of, or intentionally relinquishes any portion of his claim, he shall not be entitled to sue afterwards in respect of the portion so omitted or relinquished. It also further provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of the reliefs, but if he omits to sue for all such reliefs without obtaining leave of the Court for the same, he is precluded from suing for any such relief/s omitted without the leave of the Court. Thus the very basis for attracting the bar contained in O. II, R. 2, C. P.C. is the identity of the causes of action. If, on the basis of the cause of action pleaded in the previous suit, the plaintiff was entitled to the relief claimed in the subsequent suit and he had not obtained the leave of the Court for omitting to claim that relief in the previous suit, he is precluded to claim that relief on the very same-cause of action in the subsequent suit. The cause of action referred to in O.II,R.2,C.P.C.is the one pleaded by the plaintiff in the previous suit and not the one which the Court can infer on reading the other evidence on record other than the plaint in the previous. Therefore, it is necessary to produce the pleadings of the previous suit to prove the identity of cause of action pleaded, in the previous and the present suit. In Gurbux Singh v. Bhooralal, while considering the plea of bar under O. II, R. 2, C.P.C. and the proof thereof, the Supreme Court has held thus:
"6. In order that a plea of a bar under O. 2,R. 2(3), Civil Procedure Code should succeed" the defendant who raised the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for, unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which. is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule, As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that we consider that plea. of a bar under, O. 2, R. 2, C.P.C. can be established only if the defendant files in evidence ,the pleadings of the previous suit and thereby proves to the i Court the identity of the cause of action in the two suits .........
7 . Justas in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under O. 2, R. 2, C.P.-C. cannot be made except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits, the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction, what those facts might be with reference to the reliefs which were then claimed his impossole that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words mesne, profits therefore one need not necessarily infer that the possession of the defendant was alleged Ito be wrongful. It is also possible that the expression 'mesne profits' has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which f hat, relief was sought. It is because of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced."
13. In the instant case, no doubt defendants2 to 5 had not produced the pleadings of the previous two suits in the trial Court but nevertheless they did file two applications for production of the pleadings of the previous suits i.e., O.S. No. 169/1950-51 and O.S. No. 299/55 before the lower appellate Court. It is not disputed before me that the appeal was not heard with reference to the pleadings of the previous suits. The learned appellate Judge allowed two applications filed by defendants 2 to 5 for production of the pleadings during the course of the judgment and considered the effect of the pleadings on the present suit The lower appellate Court acted illegally in allowing, the application for production of the pleadings of the previous suits during the course of the judgment and in taking them into consideration even th6ugh.the appeal was not heard with reference to those documents i.e., pleadings of the aforesaid two previous suits. On the basis of those pleadings, the lower appellate Judge has dismissed the appeal. The procedure followed by the lower appellate Judge is neither proper nor legal. No doubt additional evidence in the appeal under O. 41, R. 27, C.P.C. can be allowed if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or the party seeking to produce additional evidence establishes that in spite of exercise of due diligence such evidence was not within his knowledge or could not be produced by him at the time when the decree appealed against was passed, or when the appellate Court itself, requires such evidence to enable it to pronounce the judgment or for any other substantial cause including allowing witness to be examined. But it cannot allow the additional evidence to be brought on record without hearing the other side in that regard. In the instant case, the lower appellate Court has allowed t he additional evidence during the course of the judgment and decided the appeal on that basis. The lower appellate Court did not hear the appeal with reference to the additional evidence. The plaintiff-appellant was not heard with reference to additional evidence. After the appeal was decided, the lower appellate Court allowed the party who had produced the additional evidence i.e., pleadings of the previous suits, to take back the same without even keeping the copies of the same. Wh6n this appeal came up for hearing on 16-2-1987, on going through the original records, it was noticed that the pleadings in the previous suit which were filed before the lower appellate Court as additional evidence had been allowed to be taken back by defendants 2 to 5 without even keeping the copies of the same. As the defendants had not refiled those pleadings, after the second appeal was admitted, in order to afford an opportunity to defendants 2 to 5 to produce them in this Court so as to consider the plea raise under O. II, R. 2, C.P.C. the following order was passed-on 16-2-1987 -.
"The case mainly turns upon the application of O. 2, R. 2, C.P.C. The defendants who have taken up this defence did not produce the pleadings of O.S. No. 169/50-51 and O.S. 299/55 but they made two applications: before the lower appellate Court to produce the pleadings in the aforesaid two suits. Along with the said applications, they also produced those pleadings. But curiously enough- the lower appellate Court has allowed those applications while writing the judgment and has decided the appeal on the basis of the said pleadings.
Thereafter on 16-6-1977, the defendants have taken back those documents as per the orders of the lower appellate Court which' are found at pages 32 and 33 of the records of the lower appellate Court.
As these pleadings are necessary for the purpose of deciding this appeal, the' respondents are directed to produce the same within two weeks from today failing which the appeal would be proceeded on the basis that the respondents have not produced the pleadings. Having regard to the fact that they have taken back the pleadings, on the admission of this appeal, they ought to have produced the same, as it is they who rely upon them, for their defence under O. II, R. 2, C. P. C. Call, on 2-3-1987."
Defendants 2 to 5 even to this day have not refiled the pleadings. Therefore, this Court has to consider the point on the basis of the finding recorded in the judgment in R.A. No. -269 of 1956, dt. 31-8-1957, which is produced as Ex. D-7 and the finding recorded by the lower appellate Court in the judgment under appeal. The relevant portion of the judgment R.A. No. 269 of 1956 has already been reproduced. As per Ex. D-7 the cause of action for the suit O.S. No. 299/55 was the dispossession of the plaintiff from the suit properties after the previous suit was disposed of. In para 2 of the judgment in R.A. No. 269/56 the case of the plaintiff in O. S. No. 299/55 has been summarised thus:
"The case of the plaintiff is briefly as follows:
The sixth defendant was formerly the absolute and sole owner of the suit properties .He sold the suit properties to plaintiff under a registered sale deed dt. 12-1-1950. Plaintiff got into possession under the sale deed. As defendants 1 to 5 disturbed the plaintiffs possession, plaintiff filed a suit for declaration of his title and permanent injunction against defendant in O.S. No. 169/50-51. In that case, the Court held that plaintiff had acquired only the rights of the 6th defendant but as he was not in possession of the suit properties, the suit was dismissed after the dismissal of the previous suit defendants 1 to 5 have taken possession of the suit properties and are once again denying the plaintiffs title to the suit properties. Hence the suit"
Thus the cause of action stated by the plaintiff in the previous suit was dispossession and denial of title. He sought for declaration of title and possession. It was also further held that the vendor of the plaintiff was not inpossession of the suit properties and had no definite share in the suit properties and were not shown as exclusively belonging to him, inasmuch as the ownership of coparcenary property would be in the whole body of the coparceners and. no individual member of the joint family could assert that he had a definite share in such coparcenary property; that it was only on a partition of the joint family properties he would become entitled to a definite share; that the vendor had no right to alienate his undivided interest in any specific property of the joint family, that what was sold under Ex. P-1 (which is marked as Ex. P-4 in the present suit) was the western half of the suit item No. 1 and southern half of suit Item 2; that the, plaintiff was not entitled to become the owner of these specific portions; that he was only entitled to the right, title and interest of h is vendor which he could work out by means of a regular suit for partition; but the present suit not being the one for partition, as it was for a declaration of title and possession of the specific portions purchased by the plaintiff; that he could not sue for possession of the specific portion until the partition was effected. Thus the dismissal of O.S. No. 299 of 1955 was confirmed in the aforesaid appeal.
14. It was thereafter the present suit for partition was filed, From the finding recorded in R.A. No. 269/1956 and the cause of action disclosed in the plaint filed in O.S. No. 299/5S, it is clear that the present suit is not barred by reason of the bar contained under O. II, R. 2, C.P.C. It is very pertinent to notice that in R. A. No. 20/56, it was held that the plaintiff i was to seek possession of the suit properties in an appropriate suit for partition. On that ground, the suit for possession was dismissed The lower appellate Court has held in para 30 of its judgment that this cannot be construed as giving rise to a separate and fresh cause of action. It is not right in holding so. It has also to be remembered that the plea of bar of suit based on O. II R. 2 is a highly technical plea. It tends to defeat justice and deprive the party of his or her legitimate right. Therefore, care must be taken to see that complete identity of cause of action is established. If in a case where the previous suit is dismissed on the ground that the proper remedy is to file a suit for partition and separate possession, the relief as to partition and possession of the suit properties must be held to have been kept open and leave of the Court for such relief must be held to have been granted as otherwise in such a case in the very suit itself a decree for partition and separate possession could be passed. Instead of that, if the Court dismisses the suit stating that the relief has to be sought in a suit for partition, such a decree amounts to permitting the plaintiff to file a separate suit for partition and possession. In such a situation the bar contained in O. II, R. 2, C.P.C. is not attracted because the dismissal of the suit on that ground not only gives rise to a fresh cause of action but also, ,as already pointed out, amounts to granting leave for filing another suit f6r such relief. That being so the cause of action for both the suits cannot be held to be identical. ,
15. The lower appellate Court also failed to notice that the plaintiff claimed absolute ownership and exclusive possession over the suit properties, sold to him under Ex. P-1 (Ex. P-4 in the present suit) by one of the coparceners. It was only after the decision in O.S. No. 169/50-51 in which it was held that the vendor of the plaintiff was only entitled to 1/6th share in the suit properties, it became clear to the plaintiff that he was not entitled to exclusive ownership of the properties sold to him under Ex. P- 1 (Ex. P-4 in the present suit) and was only entitled to the share of his vendor. The previous suit O.S. 299/55 was filed for possession on the ground of dispossession and as absolute owner. That suit as already pointed out was dismissed on the ground that the plaintiff was not entitled to exclusive possession of the specific portions of the suit properties but only to the share of his vendor that too in a suit for partition. The cause of action pleaded in O.S. No. 169/5051 and O.S. No. 299/55 is not available to the Court because the pleadings are not refiled in spite of the fact that a specific opportunity was given by the Court to the defendants to produce the same. The burden to establish this issue is on the defendants which they could discharge only on production of the pleadings. In addition to this, I am of the view that having regard to the findings recorded in R.A. 269/56 to which sufficient reference has already been made, the present suit cannot be held to have been filed on the same cause of action on which the previous suit O.S.No.299/55 was filed. The lower appellate Court has not even referred to the cause of action as pleaded by the plaintiff in the previous suit. The lower appellate Court, in para 29 of its judgment has proceeded on the footing that the basis for the cause of action for the suit O.S. No. 299/55 and for the present suit is the sale deed marked as Ex. P-4 in the present suit which was marked as Ex. P- 1 in the earlier suit. Therefore, the lower 'appellate Court holds that "in view of the fact that both the suits are filed on the basis of Ex. P-4, the sale deed, it cannot be doubted that the cause of action for both the suits is identical and accrued on the same, date." On the basis of this reasoning, the lower appellate Court holds that the present suit is not maintainable by reason of the bar contained in O. II R. 2, C.P.C. It is sufficient to observe that in view of the conclusions already reached, this reasoning does not hold good and it also does not accord with the conception of 'cause of action' and the finding recorded in R.A. No. 269/56 which arose out of the suit O.S. No. 299/55 and which finding is binding on both sides. For the reasons stated above, point No. 1 is answered in the negative, against defendants 1 to 6 and in favour of the plaintiff.
POINT NO. 2:
16. Regarding non-joinder of necessary parties, the trial Court held this issue against the defendants. No evidence whatsoever was placed on record as to whether the two daughters of Muniswamy who were born through his second wife were entitled to any share in the suit properties at the time when Muniswamy died in 1947. No evidence is placed on record whether the two daughters were minors and unmarried at the time of the death of Muniswamy. No grievance also was made before the lower appellate Court by the defendants with regard to the finding recorded by the trial Court on Issue No. 3. Therefore, there is no reason whatsoever to disagree with the finding recorded by the trial Court on Issue No. 3. Accordingly Point No. 2 is answered in the affirmative.
POINT NO. 3:
17. It is pertinent to notice that in O.S. 169/50-51 to which the present defendants were parties, it was held that the Vendor of the plaintiff was entitled to 1/6th share in the suit properties. That has become final and conclusive and on that basis R.A. No. 269/56 was dismissed. It is not in dispute that at the time of the death of Muniswamy, there were five brothers and Narasamma, the mother of defendants 2 to 5. Therefore, the share of the vendor of the plaintiff was 1/6th and not half as claimed by him. Point No. 3 is answered accordingly.
18. For the reasons stated above, the appeal is allowed. The judgment and decree of the Courts below are set aside. There shall be a preliminary decree for partition of 1/6th share of the vendor of the plaintiff in the suit properties to which the plaintiff is entitled to. The suit schedule properties are partitioned by metes and bounds awarding 1/6th share to the plaintiff subject to the provisions of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. There shall be an enquiry into future mesne profits as per O. 20, R. 18, C.P.C. The plaintiff is also entitled to costs.
19. Appeal allowed.