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10. He further argued, that in the paragraph 11 of the plaint itself, the plaintiff has stated that the other properties are not known, but the other various properties will be included in the suit subsequently, but it was not included. Except the suit schedule property, the other properties are not subject matter for the purpose of partition. Therefore, the suit is not maintainable for the partial partition. He further contended at paragraph 12, the PW12 in the evidence she has stated, that she do not know about other properties and in the cross examination also admitted there are some other properties in the name of the father. Defendant No.5 also taken the contention that the partial partition is not maintainable, but the Trial Court proceeded to pass the decree which is not correct. He further contended, the suit for possession, is not maintainable without declaring the sale deed as null and void, unless the sale deed is cancelled, the partition cannot be granted. The Trial Court did not consider the court fee paid and suit valuation made under Section 35 (2) of KCFSV Act. Even though the plaintiff is not in position of the property. Therefore the judgment of the Trial Court is not sustainable and liable to be set aside. In support of his argument, he has relied upon the various judgments.

1) Whether the suit filed by the plaintiff for partial partition is maintainable?

2) Whether the plaintiff proves that defendant Nos.1 to 3 have no absolute right to sell the suit schedule property in favour of the defendant Nos.5 and 6, by sale deed dated 11.4.2003?

           proves      that    they        are    bonafide
           purchasers     of     the       suit   schedule
           property?

14. On perusal of the evidence of this witness and admission made by her, which clearly reveals the suit filed by the plaintiff is for only one property that is Sy.No.15/3, even though there were other several property and house property held by her father, but suit is filed only for one property but not included all other properties in the schedule. Even though the plaintiff reserved the right for adding some other properties during the pendency of the suit, but they have not included any of the other properties. On the other hand, the appellants main contention that suit for partial partition is not maintainable and they are successful in proving that the other properties are not included by the plaintiff in the suit for partition. The same was stated by the defendant in the evidence at paragraph 2 that G.A.Ramaiah owned house at Gottigere village and the plaintiff also residing in the Gottigere village. This evidence of the DW1 not been disputed by the plaintiff and defendant also stated at paragraph 1 of the examination chief that there was one more property at Sy.No.97 at Gottigere village measuring 1 acre and 16 guntas and 2 guntas of kharab in the name of defendant No.1 Ramakka and the plaintiff purposely suppressed the same while filing the suit. In support of his case, the defendant DW1 got marked Ex.D17 which is a RTC in respect of Sy.No.97 of gottigere village which stands in the name of Ramakka, the wife of Ramaiah the defendant No.1 herein. The Exs.D18 to D29 and the RTCs showing the Sy.No.97 stands in the name of Ramakka and Ex.D30 upto 2014 stands in the name of Ramaiah. These properties are not included by the plaintiff, even after examination of DW1 by seeking any amendment to the schedule property. Ex.D31 is another RTC which shows Sy.No.37/1 of Gottigere village measuring 0.18 guntas also stands in the name of Ramaiah and after his demise, stands in the name of defendant Nos.1 to 3 and this RTC reveals both Sy.Nos.37/1 and 15/3 which stands in the name of defendant Nos.1 to 3, which clearly reveals there are other landed properties, Sy.No.97 and Sy.No.37/1 apart from the house property at Gottigere village were all joint family properties, which were not included by the plaintiff in the suit schedule property. Thereby the defendant Nos.5 and 6 was successful in proving the suit field by the plaintiff is a partial partition and intentionally suppressing all other properties. Hence the suit for plaintiff partial partition is not maintainable.

15. In this regard, learned counsel for appellant relied upon the judgment of the Division bench of this Court reported in MANU/KA/1562/2010 in the case of G.M. Mahendra Vs G.M. Mohan, in a similar situation, the Division Bench has held at paragraph 18 as under:-

"18. When he contends that he has become the absolute owner of 50% of the joint family property, and if he has filed a suit for partition he has to file a suit for partition in respect of all the properties wherever they are situated. For the reasons best known to the plaintiff in O.S. No. 2/83, he did no include the present suit property. Similarly he also did not include other joint family properties. Similarly, he also did not crave leave the Court to institute a suit in respect of the property not included in the said suit to treat the said suit as a suit for partial partition only. There is no proper explanation by the plaintiff in this regard. When he has omitted to include plaint schedule property as the cause of action in the present suit was also there as on the date of institution of the suit in view of the law laid down by is Court in Sri Tukaram v. Sri Sambhaji, ILR 1998 KAR 681 which is as hereunder:xxxxxxxxxxxxxxxxxxxxxxxxxx partition The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpot, the suit for partition of the share of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld.xxxxxxxxxxxxxxxxxxxxxxxx The finding given by the Trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non- joinder of necessary properties to be included in the suit has to be upheld."