Bangalore District Court
Parameshwara S/O Papanna vs Munireddy S/O Late Gowdara Venkatappa on 24 March, 2016
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS
JUDGE,BANGALORE CITY.
(CCH.NO.2)
Dated, this the 24th day of March 2016.
PRESENT :
Sri. RAVI M. NAIK,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S. NO.9209/1999
PLAINTIFF 1. Parameshwara s/o Papanna, aged about 24
years,
2. Venkatesh Reddy, s/o Papanna, aged about
22 years,
3. Ambarisha S/o Papanna, aged about 19
years,
4. Papanna S/o late Gowdara Venaktappa,
aged about 58 years,
All are r/a no.10/1, Challakere Village,
K.R.Puram Hobli, Banaswadi Post,
Bangalore.
(By Sri.P.T.Srinivas reddy-Advocate)
- V E R S U S -
DEFENDANTs Munireddy S/o late Gowdara Venkatappa-
since deceased by LRs:
1(a). Smt.Kalyanamma W/o late
Munireddy, aged about 75 years,
1(b). Ashwathnarayana Reddy, S/o late
Munireddy, aged about 50 years,
2 O.S.No.9209/1999
1(c). Suresh Babu S/o late Munireddy,
aged about about 32 years,
1(a) to 1(c) are r/a no.15, Ramaiah
Reddy layout, Ramamurthynagar main
road, Dooravaninagar post, Bangalore -
16.
1(d) Smt.Kamakshi W/o G.Shankar Reddy,
aged about 47 years, r/a no.120/2,
Garden House, 2nd cross, Ashirvad
Colony, Horamavu main road,
Kalyananagar post, Bangalore - 43.
1(e). Smt.Vimala W/o shreedhar, no.8/2,
next to Jain Departmental stores and
Krishna condiments, Pipeline road,
Yeshwanthapura, Bangalore.
1(f). Smt.Bharathi W/o Nagaraj, C/o Ex.
Councilor Ramesh, no.761, Behind Sri
Sairam, Auto service station, ring
road, Marathahalli, Bangalore - 37.
(By Sri.K.N.Manjunath- Advocate)
Date of institution of the suit : 15.12.1999
Nature of the suit (suit on Suit for partial partition
pronote, suit for declaration and
possession suit for injunction,etc) :
Date of the commencement of 18.4.2015
recording of the evidence :
Date on which the Judgment was 24.3.2016
pronounced :
Total duration Year/s Month/s Day/s
16 03 09
(RAVI M. NAIK),
I Addl.City Civil & Sessions Judge,
3 O.S.No.9209/1999
Bangalore.
J U D G M E N T
The plaintiffs have filed the suit against the defendants for partition and separate possession of the plaintiffs share in the properties allotted to the share of the defendant i.e. 'B' schedule in the compromise decree dated 4.2.1998 and direct the defendants to allot 1acre 8guntas of land in lieu of their share of land lost to the defendant and cost of the suit and such other reliefs.
2. The brief averments of the plaint are that, one Goudara Venkatappa had two sons i.e. Munireddy, the 1st defendant herein and Papanna 4th plaintiff. The plaintiffs nos.1 to 3 are the sons of 4th plaintiff, the 1st defendant and his family members and all the plaintiffs constitute a joint family during the life time of Goudara Venkatappa. Due to difference in the family members they started to live separately in the same house and separately cooking under the same roof. In para 3 of the 4 O.S.No.9209/1999 plaint the plaintiffs have stated that properties are owned by the joint family.
3. It is further stated that the plaintiff no.4 was not worldly wise man and keeping out without looking the best welfare of the plaintiff. The plaintiffs no.1 to 3 filed a suit for partition in O.S.No.3630/1996 against the 1st and 4th plaintiff and in the said suit a compromise petition was filed and the said suit came to be decreed in terms of compromise. In the said compromise 'A' schedule properties were given to the share of the plaintiffs' and 'B' schedule properties were given to the share of the defendants. Sy.no.54/2 of Challakere Village measuring 2acre 16guntas, 1 acre 8guntas each has been divided as per the said compromise petition among the plaintiffs and defendants in that suit.
4. After the said compromise decree, the final decree proceedings has not taken place. The plaintiffs have got their names incorporated in the mutation register and RTC registers in column nos.10 & 12. Thereafter they 5 O.S.No.9209/1999 started to put up fencing to their share, at that time some of the persons came and stated that they have purchased the sites from the defendant. After enquiry, the plaintiffs came to know that the 1st defendant has secretly sold the suit land by creating documents. Said land is an agricultural land and not a converted land and in para no.6 of the plaint, the plaintiffs have stated that to whom the said land is sold. It is further stated that that the 1st defendant has wantonly suppressed the sale and deceived the plaintiffs. Hence, the plaintiffs constrained to file the present suit.
5. In pursuance of the suit summons the 1st defendant appeared through his counsel and filed written statement. The sum and substance of his contention in the written statement is that the suit is not maintainable Under Order 2 Rule 2 of CPC and also Under Order 23 Rule III(A) of CPC. There is no bonafide on the part of the plaintiff in filing the suit. The plaintiffs played fraud and misrepresentation. In the earlier suit i.e., O.S.No. 6 O.S.No.9209/1999 3630/1996 compromise petition came to be filed and Sy.No.54/2 of Chellakere Village was the absolute self acquired property of the defendant, it was neither blended with the joint family properties nor the same is the out come of the common nucleus of joint family. It is further contended that 1st defendant has come to know about the inclusion of said survey number in question was first time in the fraudulent compromise petition in the earlier suit, when the 1st defendant has received the suit summons in this suit. The 1st defendant has already taken necessary steps to challenge the said fraudulent compromise petition by resorting to necessary remedy and measures. It is further contended that the severance of the joint family takes effect ipso facto. Hence, filing another suit for partition in respect of the said property is totally alien to the law. It is further contended that the extent in Sy.No.54/2 exclusively belongs to the 1st defendant, it has already been disposed as earlier as in the year 1989. The 1st defendant has disposed off said 7 O.S.No.9209/1999 lands to various persons for construction of residential sites. In view of the serious onslaught of urbanization in the neighborhood and when it had become impossible for the 1st defendant to cultivate the land profitably. It is further contended that the entire land in Sy.No.54/2 absolutely belonged to the 1st defendant. Therefore the alleged partition is a fraudulent, plaintiffs have not acquired any right in the said property. It is further contended that the suit is not properly valued, the plaintiffs are liable to pay the court fee on the market value of the suit property, hence the defendant no.1 has prayed for dismissal of the suit.
6. The defendant no.1(b) has filed additional written statement in line with the written statement filed by his father. In addition to the written statement of his father, he has contended that the plaintiffs have not sought for setting aside the compromise decree in O.S.no.3630/1996. Said decree has attained finality. The plaintiffs are the parties to the said decree and 8 O.S.No.9209/1999 therefore the terms of the decree is binding on them. It is further contended that the present suit is hit by principles of resjudicata as contemplated Under Section 11 of CPC and prayed for dismissal of the suit.
7. Earlier this court by its order on preliminary issue i.e., additional issue no.1 by its order dated 16.12.2006 has held that the suit of the plaintiff is not maintainable and accordingly suit came to be dismissed. Against the said order, the plaintiffs preferred RFA no.560/2007 before the Hon'ble High Court of Karnataka and Hon'ble High Court of Karnataka in the said RFA remitted back the matter to this court for fresh consideration in accordance with law. On the basis of the pleadings of both the parties, this court has framed the following issues and additional issues:-
ISSUES :
1. Whether the plaintiffs proves that they are entitled for partial partition and separate possession of their share in the suit properties allotted to the share of the defendants i.e. 'B' schedule property 9 O.S.No.9209/1999 in the compromise petition dated4.2.1998 in O.S.No.3630/1996?
2. Whether the defendant proves that the compromise petition and decree passed in O.S.No.3630/1996 dated 4.2.1998 is fraudulent and is liable to be set aside?
3. To what reliefs are the parties entitled?
4. To what Order or Decree?
Additional Issue/Preliminary issue
1. Whether the suit of the plaintiff is maintainable in law?
Additional Issue dated 28.3.2015 :
2. Whether the defendant no.1(b) proves that the present suit is barred under sec.11 and under order 2 rule 2 of CPC ?
8. The plaintiffs in order to prove their case have got examined the 1st plaintiff as PW-1 and got marked Ex.P.1 to Ex.P.13 documents. On the other hand the defendants have got examined legal heirs of 1st defendant Ahswathanaraya Reddy i.e. defendant no.1(b) as DW-1 and got marked Ex.D.1 to D.7 documents.
10 O.S.No.9209/1999
9. The learned counsel for the plaintiffs has relied on the following decisions:
1. AIR 1965 Mysore, 5 - Veerabhadrappa & others Vs. Lingappa & others.
2. AIR 1976 SC 1 - Ratnam Chettiar & others. Vs. S.M.Kuppuswami Chettiar & others.
3. AIR 1987 Supreme Court page 2179- Vinod Kumar Arora Vs. Smt. Surjit Kaur.
4. AIR 1961 SC.1268- Malleshappa Bandeppa Desai and another Vs. Desai Mallappa alias Mallesappa and another.
5. 1951 The Mysore High Court Reports page (371)54 Balegar Thammayya alias Parva Setty Vs. Ramalingam and another.
6. AIR 1964 S.C 1385 Balmukund Vs. Kamala Wati and others and AIR 1983 S.C page 355 Bhagwan Swapoor vs. Mool Chand.
10. The learned counsel for the legal heirs of defendant no.1, i.e. defendant no.1(a) to defendant no.1(c) has relied on the following decisions:
1. AIR 2006 S.C.2628(1)- Pushpa Devi Bhagat (D) by LRs v. Rajinder Singh and others.
2.AIR 1933 S.C. 1139(1) Banwari Lal, V. Smt. Chando Devi (through L.R.) and another.11 O.S.No.9209/1999
3. ILR 2009 Karnataka page 510 Syed Yusuff vs. Fathimabi,
4. AIR 2008 Supreme Court 2187 Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and another.
5. 2003 S.C. 3800 D.S.Lakshamaiah and another Vs. L.Balasubramanayam and others.
11. My findings on the above issues are as follows :
Issue nos.1 & 2 : In the negative Issue no.3 : Not entitled for any reliefs Addl.Issue no.1 : In the negative Addl.Issue no.2 : In the affirmative Issue no.4 : As per final Order for the following:
REASONS
12. Before answering the issues, I would like to state the admitted facts of this case. The interse relationship between the parties is not disputed. The propositus of the family Gowdara Venkatappa had two sons i.e. deceased 1st defendant Munireddy and 4th plaintiff Papanna. Plaintiffs no.1 to 3 are the children of 4th plaintiff Papanna. Defendant no.1(a) is the wife and defendant no.1(b) and defendant no.1(c) are the sons defendant no.1(d), 1(e) and 1(f) are the daughters of 12 O.S.No.9209/1999 deceased defendant no.1. (But in the amended plaint they have been wrongly shown as defendants no.1 to 6 instead of defendants No.1(a) to 1(f) and in the cause title of the judgment, it is corrected accordingly.
13. Issue nos.1 & 2 :- According to the plaintiffs they are entitled for their share in the suit properties allotted to the share of the defendants i.e. 'B' schedule property in the compromise petition dated 4.2.1998 in O.S.no.3630/1996. Ex.D.1 is the certified copy of the order sheet in O.S.no.3630/1996. Ex.D.2 is the joint memo of compromise in the said suit. Ex.D.3 is the certified copy of the application filed Under Order 23 Rule 3(A) in the said suit. Undisputedly the 4th plaintiff herein and defendant No.1 are the parties to the said suit. On careful perusal of the said compromise petition i.e., Ex.D.2, sl.no.IV of the 'A' schedule discloses that out of Sy.no.86/4 which totally measures 1 acre 31 guntas, 30guntas of land is allotted to the branch of the Papanna i.e., the 4th plaintiff and the schedule 'B' at sl.no.IV 13 O.S.No.9209/1999 discloses that 31guntas of land is allotted to the branch of the deceased 1st defendant Munireddy. The 4th plaintiff herein and father of the defendants herein Munireddy were parties to the said compromise petition. In the cross examination of PW.1 at page-19 & 20 para- 16, he has clearly admitted that he, his brothers and his father had gone through the contents of the said compromise petition and understood the contents and signed the same. The learned counsel for the plaintiffs contended that 2 acres 16 guntas in Sy.no.54/2 of Challakere village was joint family property. Despite the same, the defendants sold the said land. But, nevertheless, the defendants had put 1 acre 08 guntas in the said survey number to the plaintiffs' share fraudulently and as such, the plaintiffs are entitled for the proportionate extent in schedule properties allotted to the share of defendants in earlier compromise petition. He further drew the attention of this Court to the cross examination of DW.1 at page-12 para-6 and contended 14 O.S.No.9209/1999 that other than the suit property, their family had agricultural joint family properties. He further contended that under Ex.P.11, 3 acres 20 guntas of joint family land was sold for Rs.7,000/- on 29.12.1966 by plaintiffs' grand father to which the plaintiffs' father and uncle have signed as witnesses. He further drew the attention of this Court to the cross examination of DW.1 at page-13 para-7 and contended that in the said para DW.1 has stated that under Ex.D.5, 2 acres 16 guntas of land was purchased for Rs.4,000/- on 2.1.1967 and the Records of Rights Ex.P.12 stands in the name of Goudar Venkatappa the grand father of plaintiffs. He further drew the attention of this court to the cross examination of DW.1 at page-13 para-6 and contended that DW.1 has admitted that his father was looking after the family affairs. He further contended that through the sale deeds Exs.P.3 to P.5 executed by the original defendant Munireddy alienated portion of Sy.No.54/2 as sites. His sons are witnesses to the said sale deeds which go to 15 O.S.No.9209/1999 show that they are joint family properties. He drew the attention of this Court to the cross examination of DW.1 at page-18 wherein DW.1 has stated that his father has sold the land in the entire Sy.No.54/2 by forming sites. He further contended in Ex.P.3, there is a recital that said property is inherited by the vendors' ancestors and his two sons including DW.1 have signed the same as witnesses. Thus, his bone of contention is that the plaintiffs have established that their family was an agriculturist family having only agricultural income and on 2.1.1967, 2 acres 16 guntas in Sy.No. 54/2 was purchased the family had received Rs.7,000/- from the sale of family property under Ex.P.11. Therefore, the said 2 acres 16 guntas is a joint family property purchased out of joint family funds.
14. On the other hand, the learned counsel for the legal heirs of the first defendant has contended that Sy.No.54/2 is the self acquired property of the deceased first defendant i.e., Munireddy and it was purchased by 16 O.S.No.9209/1999 deceased Munireddy out of the income from milk vending business.
15. The heavy burden is on the plaintiffs to establish that Sy.No.54/2 is the joint family property. It is pertinent to note that said survey number is a subject matter of compromise petition in O.S.no.3630/1996. In the said compromise petition, out of 2 acres 16 guntas in Sy.No.54/2, exactly half i.e., 1 acre 08 guntas was allotted to the present plaintiffs and remaining 1 acre 08 guntas was allotted to the deceased defendant no.1. The said property was not only the subject matter in that suit, the other joint family properties were also the subject matter in the said suit. Under these circumstances, the present suit for partial partition is not maintainable in the eye of law.
16. The bone of contention of the plaintiffs that the property which was allotted to them in Sy.No.54/2 in the compromise petition, has been sold by the defendants. DW.1 in his cross examination at page-18 has clearly 17 O.S.No.9209/1999 admitted that his father has sold the entire Sy.No.54/2 by forming sites. That aspect is further corroborated by the recitals of Ex.P.3 i.e., sale deed dated 11.12.1997 under which deceased first defendant sold the site No.2 formed in Sy.No.54/2 to one Balesh. In Ex.P.3 itself, to which the deceased first defendant is a party, at sheet No.2, it is clearly stated that the property sold to said Balesh is inherited by the ancestors of the deceased first defendant. No doubt, the compromise petition in O.S.no.3630/1996 is subsequent to the formation of sites and sale of sites in Sy.no.54/2. If there is any alleged fraud practiced by the first defendant at the time of filing Ex.P.2 compromise petition that cannot be adjudicated in an independent suit. It is pertinent to note that the deceased first defendant herein had filed an interim application as per IA.no.4 under order 23 rule 3(A) of CPC, contending that item no.5 i.e., Sy.No.54/2 of Challakere village was not available for partition. Said property is a self acquired property of the first defendant. 18 O.S.No.9209/1999 The present plaintiffs and the 2nd defendant in O.S.No.3630/1996 played fraud on the deceased first defendant herein and got included the said property. That application was resisted by the present plaintiffs herein and the learned Principal City Civil & Session judge in the said suit, rejected the said application reserving the liberty to the first defendant herein to urge all those contentions in the present suit. Under these circumstances, it is clear that both the present plaintiffs and the deceased defendant no.1 have partially disputed the compromise petition in O.S.no.3630/1996. Even if it is presumed that Sy.No.54/2 is the joint family property, as contended by the plaintiffs herein. The plaintiffs have to work out their remedy by filing an application in the very same suit i.e., the suit O.S.No.3630/1996 seeking to set aside the compromise petition. The learned counsel for the legal heirs of the deceased defendant no.1 has relied on a decision reported in ILR 2009 KAR 510 19 O.S.No.9209/1999 wherein the Hon'ble High Court of Karnataka has held as under:
"Code of Civil Procedure, 1908 - Section 100
- Regular Second appeal - Compromise decree - Whether a separate suit between the same parties is maintainable for setting aside the earlier compromise decree - Order 23 Rule 3A - Bar to suit - HELD, No independent or separate suit can be filed for setting aside a compromise decree, the course of action which is open to an aggrieved person is to invoke section 151 CPC questioning the legality or validity of the compromise and the court concerned can entertain an application under sec.151 of CPC - O.S.No.523/1990 shall stand dismissed due to bar under Rule 3A of Order 23 CPC."
In the said decision at page-518, the Hon'ble High Court of Karnataka has observed as under:
"In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act.
17. In the instant case, the plaintiffs ought to have seek the remedy before the court in which the compromise petition came to be filed. The object of order 23 rule 3(A) of CPC is to bar a second suit on the ground 20 O.S.No.9209/1999 that the compromise on which the decree in the first suit was based not lawful. Thus, viewing from any angle, the prayer of the plaintiffs seeking partial partition as prayed in the plaint is not permissible under law. Likewise, a separate suit i.e., present suit is not maintainable in view of order 23 rule 3(A) of CPC.
18. The learned counsel for the plaintiffs has relied on a decision reported in AIR 1965 Mysore 5 wherein the Hon'ble High Court of Mysore at Head Note C, has held as under:
"Hindu Law - Partition - Division of family property - One coparcener getting larger share - Division done on just and equitable considerations with consent of all coparceners - Absence of fraud or unfair dealing in such division - Such partition is not open to attack.
19. He further drew the attention of this Court to the para-58 and 61 of the said decision and argued that if there is bonafide partition made on the basis of common consent of coparceners, it must be respected and irrevocable.
21 O.S.No.9209/1999
20. He has also relied on a decision reported in AIR 1976 SC 1 wherein the Hon'ble Apex Court at Head Note- C has held as under:
"Hindu Law - Partition - Reopening of - Minors.
A partition effected between the members of the Hindu Undivided Family by their own violition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud coercion misrepresentation or undue influence. In such a case the court should require a strict proof of facts because an act inter vivos cannot be lightly set aside."
21. In the instant case, the plaintiffs herein are the parties to the compromise petition in O.S.No.3630/1996. They are seeking 1 acre 08 guntas of land in lieu of their share in the property allotted to the first defendant in the said compromise petition. Unless the said compromise petition is reopened, the relief cannot be granted to the plaintiffs. More so, when the first defendant also contemplates that there was a fraud played on him while entering into compromise petition in the said suit. Therefore, the ratios laid down in the aforesaid decisions 22 O.S.No.9209/1999 of the Hon'ble High Court of Mysore and Hon'ble Apex Court are not applicable to the facts of the case on hand.
22. The learned counsel for the plaintiffs has relied on another decision reported in AIR 1987 SC 2179, wherein the Hon'ble Apex court has held as under:
"(B) Civil P.C.(5 of 1908), O.6 R.2 - Variance between pleadings and proof - effect.
The pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case.
23. In the light of the ratio laid down in the aforesaid decision, he contended that regarding legal necessity there is no pleading by the defendants. Hence, without pleadings, the defendants cannot set up and propound a new and different case. In the instant case, the defendant No.2 i.e., DW.1 has clearly stated that Sy.No.54/2 was sold and he has been cross-examined by the learned counsel for the plaintiffs at length. Therefore, with regard to the sale of the said property, the ratio laid 23 O.S.No.9209/1999 down in the aforesaid decision is not applicable to the facts of the case on hand.
24. The learned counsel for the plaintiffs has relied on a decision reported in AIR 1960 SC 1268 wherein the Hon'ble Apex Court at Head Note-B has held as under:
"Hindu Law - Joint family - Manager - Acquisition by, of immovable property with his separate funds - Onus of proof. Where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners."
25. He further relied on a decision reported in 1951(54), Mysore High Courts 371, wherein the Hon'ble High Court of Mysore has held as under:
"Held by a majority of the Full Bench(Venkata Ramaiya) J.) dissenting, that in a joint Hindu family consisting of adults and minors, governed by the Mitakshara Law, express or implied consent of the adult members capable of giving consent, is necessary for an alienation of the joint family property by the manager of the joint family, even if it is for legal necessity or benefit, so 24 O.S.No.9209/1999 as to make the alienation binding on the adult members; such as alienation, for legal necessity or benefit, is valid as against the minor coparceners."
26. He further relied on a decision reported in AIR 1964 SC 1385, wherein the Hon'ble Apex Court has held as under:
"Hindu Law - Benefit to the family - What constitutes - Depends upon facts of each case - Manager agreeing to sell property of joint family - Transaction whether of benefit to the family - All adult members must be consulted - transaction held was not for benefit of family - Purchaser was however entitled to benefit of S.15 Specific Relief Act."
27. In the instant case, even if it is considered that Sy.No.54/2 is the joint family property, since said property is also a subject matter of compromise petition in O.S.No.3630/1996, unless the said compromise is reopened, with regard to the acquisition of the said property, cannot be decided in the present suit. Hence, the ratios laid down in the aforesaid decision of the Hon'ble Apex court relied on by the plaintiffs are not applicable to the case on hand.
25 O.S.No.9209/1999
28. The learned counsel for defendants has contended that the Ex.P.2 i.e., compromise petition and decree based on the said petition in O.S.No.3630/1996 is fraudulent. The same analogy as discussed supra is also applicable to the case of the defendants. No doubt, the recitals of Ex.D.3 disclose that the deceased first defendant filed an application under order 23 rule 3(A) in O.S.No.3630/1996. The recitals of Ex.D.1 i.e., order sheet dated 31.8.2006 discloses that the said application came to be rejected. Both the plaintiffs and defendants could file the application in O.S.No.3630/1996 seeking appropriate remedy. Hence, the contention of the defendants that the compromise petition and decree passed in O.S.No.3630/1996 is fraudulent does not hold good in the present separate suit. In view of my foregoing discussion, this court is of the opinion that the plaintiffs have failed to establish that they are entitled for partial partition and separate possession of their share in the suit properties allotted to the share of the defendants i.e., 26 O.S.No.9209/1999 suit 'B' schedule properties in the Ex.P.2 compromise petition. The defendants have also failed to establish that Ex.P.2 compromise petition is fraudulent and is liable to be set aside. Hence, I answer both the issue nos.1 & 2 in the negative.
29. Addl.Issue No.2 : The contention of the defendant No.1(b) is that in O.S.No.3630/1996 a compromise decree came to be passed. The subject matter in this suit is also the subject matter in the said compromise petition. Hence, present suit is hit by sec.11 and order 2 rule 4 of CPC. On the other hand, the learned counsel for the plaintiffs has contended that the present suit is filed for reopening of the earlier partition and for reassessment of share necessitated as a result of the fraud played by the defendants, therefore, the aforesaid provision is not applicable to the facts of the case on hand. Undisputedly the present plaintiffs and the deceased defendant no.1 herein are parties to the earlier suit O.S.No.3630/1996 and all of them have signed the 27 O.S.No.9209/1999 said compromise petition. In the certified copy of the order sheet dated 4.2.1998 i.e., Ex.D.1, it is specifically stated that the both the counsels and the parties to the compromise petition were present at the time of compromise petition. The contention of the compromise petition was read over and explained to them. They have admitted the contents of the compromise petition as true and correct. lt is further stated that the compromise was voluntary. Thereafter the court accepted the compromise petition. Under these circumstances, the present suit between the parties to the said compromise petition, in respect of the same subject matter, is not maintainable. Accordingly I answer Addl.Issue No.2 in the affirmative.
30. Addl.Issue No.1: The defendants have contended that suit for partial partition is not maintainable. The plaintiffs in the present suit have sought to allot 1 acre 08 guntas of land in Sy.No.86/4 and 89/4 which was given to the share of the first defendant. Unless the entire compromise petition 28 O.S.No.9209/1999 reopened, the equity cannot be made by granting relief to the plaintiffs. More so, when the first defendant also contended that fraud has been played on him while entering into the compromise petition. Unless all the properties of the joint family are brought to the common hotchpotch, the partial partition in respect of two items of the properties cannot be made. Generally, the partial partition is unknown to Hindu law. While making partition, the partition must be equal among the members of the coparcenary. Under these circumstances, unless the earlier partition entered into between the parties by way of compromise petition is not reopened, the present suit for partial partition is not maintainable. Accordingly I answer Addl.Issue no.1 in the negative.
31. Issue no.3 : In view of my foregoing discussion, the plaintiffs are not entitled for any relief as prayed by them. Accordingly I answer Issue No.3 in the negative.
32. Issue No.4 : In the result, I proceed to pass the following :
29 O.S.No.9209/1999
ORDER The suit of the plaintiffs is dismissed.
Considering the relationship between the parties, no order as to costs.
(Dictated to the JW on computer, typed by her and then taken out the print out, read over, corrected and then pronounced by me on this the 24th day of March 2016) (RAVI M.NAIK) I ADDL.CITY CIVIL &SESSIONS JUDGE, BENGALURU.
Annexure List of Witness examined on behalf of the plaintiffs :
PW.1 P.Parameshwara List of Documents marked on behalf of the plaintiffs;
Ex.P.1 Certified copy of order sheet in OS 3630/1996 Ex.P.2 Certified copy of compromise petition in OS no.3630/1996 Ex.P.3 certified copy of sale deed dated 11.12.1997 Ex.P.4 certified copy of sale deed dated 18.2.1998 Ex.P.5 certified copy of sale deed dated 3.4.1989 Ex.p.6 certified copy of sale deed dated 3.4.1989 Ex.P.7 to Record of rights 30 O.S.No.9209/1999 P.9 Ex.P.10 Certified copy of amendment plaint in OS 3630/1996 Ex.P.11 Certified copy of sale deed dated 29.12.1966 Ex.P.11(a) Typed copy of Ex.P.11 Ex.P.12 Certified copy of record of rights Ex.P.13 Certified copy of written statement in Os 3630/1996 List of Witnesses examined on behalf of defendants :
DW.1 Ashwathanarayan Reddy List of Documents marked on behalf of the defendants:
Ex.D.1 Certified copy of order sheet in OS 3630/1996 Ex.D.2 Certified copy of joint memo of compromise Ex.D.3 Certified copy of compromise application under order 23 rule 3(A) of CPC Ex.D.4 Death certificate Ex.D.5 Certified copy of the sale deed Ex.D.6 Certified copy of Judgment & decree in OS 2621/1999 Ex.D.7 Certified copy of written statement (RAVI M.NAIK) I ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.