OFFICIAL LIQUIDATOR OF M/S KIRLOSKAR INVESTMENTS vs. CHIEF COMMISSIONER OF INCOME TAX

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

1 IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 19TH DAY OF DECEMBER, 2024 PRESENT THE HON'BLE MR JUSTICE KRISHNA S DIXIT AND THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 1433 OF 2014 (PAR/POS) C/W REGULAR FIRST APPEAL NO.1525 OF 2014 (PAR), REGULAR FIRST APPEAL CROB NO. 1 OF 2015

IN RFA NO.1433/2014: BETWEEN:

1(A) GOPAL REDDY, S/O LATE MUNISWAMY REDDY, DEAD BY HIS LRS.

SMT. LAKSHMAMMA, W/O LATE M.GOPAL REDDY, AGED ABOUT 66 YEARS.

1(B) KUM.VINODA, D/O LATE M.GOPAL REDDY AGED ABOUT 45 YEARS.

1(C) SMT.SHYAMALA, D/O LATE M.GOPAL REDDY, AGED ABOUT 42 YEARS.

1(D) NAGESHA REDDY, S/O LATE M.GOPAL REDDY, AGED ABOUT 39 YEARS.

1(E) SMT.SHOBHA,

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

2 D/O LATE M.GOPAL REDDY, AGED ABOUT 36 YEARS.

ALL ARE R/AT: SOMASANDRAPALYA, ARALAKUNTE VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK.

2(A)

2(B)

2(C)

2(D)

M.KRISHNA REDDY, S/O LATE MUNISWAMY REDDY, AGED ABOUT 64 YEARS, R/AT NO.431, PIPELINE SUNKADAKATTE, VISHWANIDUM POST, BANGALORE – 560 091. SINCE DEAD BY LR’S.

SMT. GOWRAMMA, W/O LATE KRISHNA REDDY, AGED ABOUT 55 YEARS.

S.K.GURU MURTHY, S/O LATE KRISHNA REDDY, AGED ABOUT 35 YEARS.

K MURALIDHAR, S/O LATE KRISHNA REDDY, AGED ABOUT 33 YEARS.

SMT.K MANJULA, D/O LATE KRISHNA REDDY, AGED ABOUT 38 YEARS.

ALL ARE R/AT: SOMASANDRAPALYA, ARALAKUNTE VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 034. ...APPELLANTS (BY SRI SATISH K, ADVOCATE FOR SRI PRASHANTH G FOR APPELLANT NOS. 1 (A) TO (E); SRI P D SURANA, ADVOCATE FOR APPELLANT NOS. 2(A) TO (D))

AND:

1 . K SREENIVASA REDDY, S/O M.KRISHNA REDDY,

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

3 AGED ABOUT 54 YEARS, R/AT NO.1206, HEBBAGODI VILLAGE, BANGALORE-562 158.

2(A)

2(B) K.NARAYANA REDDY, S/O LATE KRISHNA REDDY, AGED ABOUT 59 YEARS, R/AT MADURANAGAR, VARTHUR BANGALORE SOUTH TALUK PIN: 560 087. (DEAD)

SMT. SARASAMMA, W/O LATE NARAYANA REDDY, AGED ABOUT 60 YEARS.

SMT. KALAVATHI, D/O LATE NARAYANA REDDY, AGED ABOUT 38 YEARS.

BOTH ARE R/AT NO.400, MADURA NAGARA, 2ND STAGE, MUUTHSANDRA MAIN ROAD, BENGALURU-560 087.

3 . N.D.DEVELOPERS (P) LTD NO.398, 1ST ,2ND AND 3RD FLOOR, 7TH CROSS, MICO LAYOUT, BTM 2ND STAGE, BANGALORE-560 076.

4 . SMT.PARVATHAMMA, W/O LATE A.MUNIREDDY, AGED ABOUT 65 YEARS, R/AT SOMASANDRAPALYA, ARALAKUNTE VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, PIN:560 034.

5 . SMT.KALYANAMMA W/O ABBANNA REDDY, MAJOR IN AGE, R/AT ILLALAGI GRAMA, ATTIPALYA HOBLI, ANEKAL TALUK, BANGALORE RURAL DISTRICT, PIN:562 107.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

4 6 . PADMAMMA, W/O BALAKRISHNA REDDY, MAJOR IN AGE, R/AT 3112, VIJAPURA, SANNAKALLU BEEDHI, NEARS YELLAMMA TEMPLE, DEVANAHALLI TALUK, PIN:562 132.

7 . M/S. MANAR DEVELOPERS (P) LTD., OFFICE AT NO.1210, 16TH MAIN ROAD, BTM 2ND STAGE, BANGALORE-560 076. REP. BY ITS DIRECTOR, MRS. SHAHEDA DURRANI.

8 . MR. ACHAL SHRIDHAR, S/O R.P.SHARMA, AGED ABOUT 55 YEARS.

9 . MRS. ALKA SHRIDHAR, W/O MR.ACHAL SHRIDHAR, AGED ABOUT 52 YEARS.

RESPONDENTS NO.8 & 9 ARE R/AT NO.84, 1ST FLOOR, 17TH C MAIN ROAD, 11TH CROSS, HBR LAYOUT, SECTOR-4, BANGALORE-560 102. …RESPONDENTS (BY SRI S P SHANKAR, SENIOR COUNSEL A/W SRI M K SHIVARAJU, FOR R-1; SRI RAJESH MAHALE, SENIOR COUNSEL A/W SRI JAGADISH K AND SMT. MEGHANA RANI K.M FOR R-2; SRI PONNANNA M B, ADVOCATE FOR SRI RAHUL CARIAPPA K S, ADVOCATE FOR R-3 & R-7; SRI B N UMESH, ADVOCATE FOR R-4; SRI T R RAMESH, ADVOCATE FOR R-6; SRI ARVIND B REDDY, ADVOCATE FOR R-10 TO R-20, R-22 & R-23; SMT. M V ANUPAMA, ADVOCATE FOR R-21; V/O DATED 09/09/2015, NOTICE TO R-5, R-8 & R-9 ARE HELD SUFFICIENT)

THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.07.2014 PASSED IN O.S.7702/2004 ON THE FILE OF THE XVIII-ADDL. CITY CIVIL

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

5 AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

IN RFA NO.1525/2014:

BETWEEN:

M/S. MANAR DEVELOPERS (P) LTD., OFFICE AT NO. 1210, 16TH MAIN ROAD, BTM 2ND STAGE, BANGALORE-560 076. REP. BY ITS DIRECTOR, MRS. SHABEDA DURRANI …APPELLANT (BY SRI PONNANNA M B, ADVOCATE FOR SRI RAHUL CARIAPPA K S, ADVOCATE)

AND:

1 . MR. SREENIVASA REDDY, S/O LATE KRISHNA REDDY, AGED ABOUT 54 YEARS, R/AT NO. 1206, HEBBAGODI VILLAGE, BANGALORE-562 158.

2(A)

MR. M. GOPALA REDDY, S/O LATE MUNISWAMY REDDY, DEAD BY HIS LRS.

MRS. LAKSHMAMMA, W/O LATE M GOPAL REDDY, AGED ABOUT 66 YEARS.

2(B) KUM . VINODA, D/O LATE M GOPAL REDDY, AGED ABOUT 45 YEARS.

2(C) MRS. SHYAMALA, D/O LATE M GOPALA REDDY, AGED ABOUT 42 YEARS.

2(D) MR. NAGESHA REDDY, S/O LATE M GOPALA REDDY, AGED ABOUT 29 YEARS.

2(E) MRS. SHOBHA,

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

6 D/O LATE M GOPALA REDDY, AGED ABOUT 26 YEARS,

ALL ARE R/AT SOMASANDRAPALYA, ARALAKUNTE VILLAGE, BEGUR HOBLI-571 109. BANGALORE SOUTH TALUK.

3(A)

3(B)

3(C)

3(D) MR. M. KRISHNA REDDY, S/O LATE MUNISWAMY REDDY, AGED ABOUT 54 YEARS, SINCE DEAD BY LRS

SMT. GOWRAMMA, W/O LATE M KRISHNA REDDY, AGED ABOUT 60 YEARS.

SRI S.K.GURU MURTHY, S/O LATE M KRISHNA REDDY, AGED ABOUT 43 YEARS.

SRI K MURALIDHAR, S/O LATE M KRISHNAREDDY, AGED ABOUT 41 YEARS.

SMT. MANJULA, D/O LATE M KRISHNAREDDY, AGED ABOUT 46 YEARS.

ALL ARE R/O SOMASANDRAPALYA, ARALAKUNTE VILLAGE, BEGUR HOBLI, BENGALURU SOUTH TALUK – 560 039.

4(A)

4(B) MR. K. NARAYANA REDDY, S/O LATE KRISHNA REDDY, DEAD BY HIS LRS.

SMT. SARASAMMA, W/O LATE NARAYANA REDDY, AGED ABOUT 60 YEARS.

SMT. KALAVATHI, D/O LATE NARAYANA REDDY, AGED ABOUT 30 YEARS.

BOTH ARE R/AT NO.400,

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

7 MADHURA NAGARA, 2ND STAGE, MUUTSANDRA MAIN ROAD, BENGALURU–560 087.

N D DEVELOPERS (P) LTD., NO. 398, 1ST 2ND AND 3RD FLOOR, 7TH CROSS, MICO LAYOUT, BTM 2ND STAGE, BANGALORE-560 076.

DEFENDANT NO.9 AND 10 ARE R/AT NO. 84, 1ST FLOOR, 17TH MAIN ROAD, 11TH CROSS,

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

8 HBR LAYOUT, SECTOR-4 BANGALORE-560 102. …RESPONDENTS (BY SRI S P SHANKAR, SENIOR COUNSEL A/W SRI M.K SHIVARAJU, ADVOCATE FOR R-1; SRI P D SURANA,ADVOCATE FOR R-2(B) AND R3 (A) TO (D); SRI SATISH K, ADVOCATE FOR SRI PRASHANTH G, ADVOCATE FOR R-2 (D) SRI RAMESH MAHALE, SENIOR COUNSEL A/W SMT. MEGHANA RANI K M, ADVOCATE FOR R-4(A) & (B); SRI T R RAMESH, ADVOCATE FOR R-8; SRI ARVIND B REDDY, ADVOCATE FOR R-11 TO R-20 & R-22 TO R-24; SMT. M V ANUPAMA, ADVOCATE FOR R-23; R-2(A), R-2(C), R-2(D), R-2(E) & R-5 ARE SERVED AND UNREPRESENTED; V/O DATED 20.01.2023, APPEAL AGAINST R-6, R-7, R-9 & R-10 STANDS DISMISSED)

THIS RFA IS FILED U/SEC 96 R/W ORDER 41 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 21.7.2014 PASSED IN O.S.NO.7702/2004 ON THE FILE OF XVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

IN RFA CROB NO.1/2015:

BETWEEN:

SHRI K SREENIVASA REDDY, S/O LATE KRISHNA REDDY, AGED ABOUT 54 YEARS, R/AT NO.1206, HEBBAGODI VILLAGE, BANGALORE-562 158. ...CROSS OBJECTOR

(BY SRI S P SHANKAR, SENIOR COUNSEL A/W SRI M K SHIVARAJU, ADVOCATE FOR CROSS OBJECTOR)

AND:

SHRI M GOPAL REDDY, SINCE DECEASED BY HIS LRS.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

9 1(A) SMT. LAKSHMAMMA, W/O LATE M.GOPAL REDDY, AGED ABOUT 66 YEARS.

1(B) SRI VINODA, D/O LATE M.GOPAL REDDY, AGED ABOUT 45 YEARS.

1(C) SMT.SHAMALA, D/O LATE M.GOPAL REDDY, AGED ABOUT 42 YEARS.

1(D)SRI NAGESHA REDDY, S/O LATE M.GOPAL REDDY, AGED ABOUT 39 YEARS.

1(E) SMT.SHOBHA, D/O LATE M.GOPAL REDDY, AGED ABOUT 36 YEARS.

ALL ARE R/AT SOMASANDRAPALYA, ARAKAKUNTE VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK.

2(A)

2(B)

2(C)

2(D)

SRI M.KRISHNA REDDY, S/O LATE MUNISWAMY REDDY, AGED ABOUT 64 YEARS. SINCE DEAD BY HIS LR’S.

SMT. GOWRAMMA, W/O LATE KRISHNA REDDY, AGED ABOUT 58 YEARS.

S.K.GURU MURTHY, S/O LATE M KRISHNA REDDY, AGED ABOUT 39 YEARS.

K MURALIDHAR, S/O LATE M KRISHNA REDDY, AGED ABOUT 36 YEARS.

SMT.K MANJULA, D/O LATE KRISHNA REDDY, AGED ABOUT 41 YEARS.

* *Deleted vide chamber's order dated 12.03.2025*

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

10 ALL ARE R/O SOMASANDRAPALYA, ARALAKUNTE VILLAGE, BEGUR (H), BENGALURU SOUTH (T). AMENDMENT CARRIED OUT AS PER COURT ORDER DATED 20.01.2023

3(a)

3(b) SHRI K. NARAYANA REDDY, S/O LATE KRISHNA REDDY. DEAD BY HIS LR'S.

SMT. SARASAMMA, W/O LATE NARAYANA REDDY, AGED ABOUT 60 YEARS.

SMT. KALAVATHI, D/O LATE NARAYANA REDDY, AGED ABOUT 38 YEARS.

BOTH ARE R/AT NO.400, MADHURA NAGARA, 2ND STAGE, MUUTSANDRA MAIN ROAD, BENGALURU–560 087. AMENDED CARRIED OUT AS PER COURT ORDER DATED 17.11.2022.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

11 BANGALORE – 560 076. REP. BY ITS DIRECTOR, MRS. SHAHEDA DURRANI.

NO.9 & 10 ARE R/AT NO. 84, 1ST FLOOR, 17TH 'C' MAIN ROAD, 11TH CROSS, HBR LAYOUT, SECTOR-4, BANGALORE-560 102. …RESPONDENTS

(BY SRI SATISH K, ADVOCATE FOR SRI PRASHANTH G, ADVOCATE FOR R-1(D); SRI P D SURANA, ADVOCATE FOR R-2(A) TO (D); SRI RAMESH MAHALE, SENIOR COUNSEL A/W SMT. MEGHANA RANI K M, ADVOCATE FOR R3 (A) & (B); SRI T R RAMESH, ADVOCATE AND SRI T MANJUNATH, ADVOCATE FOR R7; R1(A),(B),(C),(E), R-4 & R-5 ARE SERVED & UNREPRESENTED; NOTICE TO R-6, R-9 & R-10 ARE DISPENSED WITH V/O DATED 26/08/2022)

THIS RFA.CROB IN RFA NO.1433/2014 IS FILED U/O 41 RULE 22 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 21.7.2014 PASSED IN O.S.7702/2004 ON THE FILE OF XVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

THE REGULAR FIRST APPEALS AND THE RFA CROB. HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, C M JOSHI J., PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and HON'BLE MR JUSTICE C M JOSHI

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

12 CAV JUDGMENT

(PER: HON'BLE MR JUSTICE C M JOSHI)

Being aggrieved by the judgment and decree passed by the learned XVIII Additional City Civil Judge, Bangaluru City (CCH No.10) on 21-07-2014 in OS No.7702/2004, defendant Nos.1 and 2 (represented by their LRs) have approached this Court in RFA No. 1433/2014; defendant No.9 has approached this Court in RFA No.1525/2014 and plaintiff has approached this Court in RFA cross- objection No.1/2015. 2. The factual matrix of the case as may be found from the pleadings of the plaintiff is as below:

The Plaintiff and defendant No.3 are the sons of late Krishna Reddy. Defendant Nos.1 and 2 are the sons of Muniswami Reddy. Krishna Reddy and Muniswami Reddy are brothers and were born to Chinnappa Reddy @ Chinnaiah. The said Chinnappa Reddy @ Chinnaiah had also a daughter by name Gurramma. Chinnappa Reddy @ Chinnaiah died long back and thereafter, his sons Krishna Reddy and Muniswami Reddy died leaving behind the plaintiff and defendant Nos.1 to 3 as their legal heirs.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

13 Plaintiff and Defendant Nos.1 to 3, being the members of the joint family, inherited the properties owned by Chinnappa Reddy @ Chinnaiah, who had several immovable properties. The joint family properties were not partitioned between the members of the family and the said Chinnappa Reddy @ Chinnaiah died intestate. The genealogical tree of the family as narrated in the plaint is as below: Family Tree Nanjunda Reddy (Dead)

Chinnappa Reddy (Dead) Gullamma (Dead)

Gurramma Muniswamy Reddy (Dead) Nanjundappa (Dead) Narayana Reddy (Dead) Krishna Reddy(Dead) (Dead) Hanumakka Unmarried Unmarried Eramma

M.Gopal Reddy M.Parvathamma K.Narayana Reddy K.Padmamma K.Srinivasa Reddy Defendant 1 Defendant 5 Defendant 3 Defendant 7 Plaintiff

M Krishna Reddy K.Kalyanamma Defendant 2 Defendant 6

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

14 No.72/2003 was filed for restoration of the said suit, which was also dismissed for non-prosecution. Later, another Miscellaneous Petition No.616/2006 was filed seeking the restoration of Miscellaneous Petition No.72/2003, which came to be withdrawn by a memo as per Ex.P53. 4. The plaintiff, K. Srinivasa Reddy, filed the present suit i.e., O.S.No.7702/2004, seeking partition of 'A' to 'E' schedule properties, which were not involved/ included in the earlier suit bearing O.S.No.7127/1990. The description of the suit schedule 'A' to 'E' properties is mentioned as below: SCHEDULE 'A' All that piece and parcel of the land bearing Sy.No.37 situated at Aralukunte Village, Somasandrapalya, Begur Hobli, Bangalore South Taluk, Bangalore measuring 10 Acres 10 Guntas including kharab land 30 Guntas and bounded on: East by : Road West by : Kere North by: Road South by: Fertilizer Factory

SCHEDULE 'B' All that piece and parcel of the land bearing Sy.No.36/4 situated at Aralukunte Village, Somasandrapalya, Begur Hobli, Bangalore South Taluk, Bangalore measuring 3 Acres 20 Guntas including 1 Acre 1 Gunta Kharab land and bounded on: East by : Balappa's land

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

15 West by : Chinnappa Reddy's land North by: Graveyard South by: Gurumurthy Reddy's land

SCHEDULE 'C' All that piece and parcel of the land bearing Sy.No.59/1 of Aralukunte Village, Somasandrapalya, Begur Hobli, Bangalore South Taluk, Bangalore measuring 2 Acres 32 Guntas including 1 Guntas Kharab land bounded on: East by : Raju Kaluve West by : Road North by: K.B Land South by: Kerekatte

SCHEDULE 'D' All that piece and parcel of the land bearing Sy.No.29/18 of Aralukunte Village, Somasandrapalya, Begur Hobli, Bangalore South Taluk, measuring 10 Guntas bounded on: East by : Hanumantha Reddy's land West by : Chinnappa Reddy's land North by : Pilla Reddy's land South by : Balappa's land

SCHEDULE 'E' All that piece and parcel of the land bearing Sy.No.29/2A of Aralukunte Village, Somasandrapalya, Begur Hobli, Bangalore South Taluk, measuring 8 acres 17 guntas including 1 gunta including kharab land 37 guntas,: East by : Chinnapppa Reddy's land West by : Kaludari North by : Parasada Reddy's land South by : Gurumurthy Reddy's land

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

16 entries stood in the name of the grandfather of plaintiff and whereas, the entries in respect of the land bearing Sy.No.36/3 situated at Aralukunte village, which is 'B' schedule property, were in the name of the grandfather of the plaintiff and now the same has been changed in favour of the third parties who are not at all connected with the family. The other properties i.e., Sy.No.59/1 measuring 02 Acres 32 Guntas and Sy.No.29/18 measuring 10 Guntas, which are 'C' and 'D' schedule properties, are also the joint family properties and they too were not the subject matter of the suit filed earlier. These facts came to the knowledge of the plaintiff recently and therefore, he filed the suit for partition of these properties. 6. The plaintiff also avers that defendant Nos.4 and 5 are not the parties to earlier proceedings and the relief now claimed is only in respect of the suit schedule properties and he reserves his right to seek necessary relief in respect of the properties involved in the earlier suit. It was contented that defendant Nos.1 and 2 are not entitled to alienate the suit schedule properties, create charge etc., since the plaintiff also has a share in the

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

17 same. It was also contended that in the earlier suit, defendant Nos.1 and 2 had admitted the relationship, but had taken the contention that there was an oral partition in the family and there was already a division. But however, there is no document to show such oral partition. It was contended that even if it is assumed that there was an oral partition, defendant Nos.1 and 2 are bound to prove such oral partition. Therefore, the plaintiff contended that the suit schedule properties are liable to be partitioned and he is entitled for his legitimate 1/4th share in the same. The plaintiff further contended that defendant Nos. 1 and 2 have sold portion of the properties in favour of defendant Nos.4 and 5 and the alienation is not sustainable in the eye of law and therefore, the alienations will not bind the plaintiff and other family members in any way. It was further contended that the plaintiff requested defendant Nos.4 and 5 not to put up any construction in the suit schedule properties and in spite of it, they are proceeding with construction. On these grounds, the plaintiff sought for the following reliefs: "a) for declaration declaring that the suit schedule properties are the joint family properties of the plaintiff and the defendants No.1 to 3;

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

b) for partition and separate possession of the scheduled properties by metes and bounds and to allot 1/4th share to the plaintiff in the schedule properties; c) for permanent injunction restraining the defendants or their agents, servants, administrators, henchmen or any other persons claiming under or through them from alienating the schedule property; d) for permanent injunction restraining the defendants 4 and 5 or their agents servants, administrators, henchmen or any other persons claiming under or through them form alienating the nature of the schedule property; e) grant cost of this suit; f) grant such other relief/s as this court deems fit under the circumstances of the case."

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

19 village. The demand made by the plaintiff for a share in the suit schedule properties is denied. It was contended that as there was a partition, the question of partition of the suit schedule properties again will not arise. It was contended that the plaintiff and his brother have no manner of right title or interest over the properties which were mentioned in the earlier suit and also the suit schedule properties. They also denied that the plaintiff had sought for a partition. 8. Further, it was contended that the land mentioned in ‘A’ schedule property exclusively belongs to first defendant as the same is his self-acquired property and in this regard, the plaintiff has suppressed the decree passed in favour of first defendant. It was contended that Krishna Reddy and Muniswami Reddy had effected a partition among the properties and Krishna Reddy, as per the registered sale deed dated 31-08-1967 (Ex.D27), had sold the land in Sy.No.37/2 in favour of one Venkatappa and further he sold 02 Acres 12 Guntas of land in Sy.No.36/1 in favour of Annayappa and others under a registered sale deed dated 16-12-1961 (Ex.D28).

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

20 9. It was further contended that defendant No.1, Gopal Reddy purchased 04 Acres 36 Guntas of land in Sy.No.37 under a registered Sale Deed dated 04-06-1970 ('A' schedule property) from one Narayan Shetty and 01 Acre 20 Guntas in the same Survey number from one Krishna Reddy on 24-06-1971. Defendant Nos.1 and 2 were in possession and enjoyment of the same and subsequently, during the lifetime of defendant No. 1-Gopal Reddy, he and defendant No.2-Krishna Reddy partitioned the same as per the registered partition deed dated 05- 07-2003. Defendant No.2, out of his share, sold a portion of Sy.No.37/1 and executed a Joint Development Agreement in favour of defendant No.4, M/s. N.D. Developers (P) Limited. Therefore, the said land was fully developed and there is no vacant land. In respect of the portion allotted to the share of Gopal Reddy, it was converted into non-agricultural purpose and after death of Gopal Reddy, his wife and children have executed a Joint Development Agreement of the same. Therefore, the plaintiff has no manner of right, title or interest over the suit schedule properties and the suit is liable to be dismissed. When there was an illegal attempt by the

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

21 plaintiff to interfere with the possession, an injunction suit was filed in OS No. 64/2000 which came to be decreed on 16-01-2004. 10. Defendant No.5 in his written statement contends that the genealogy and the relationship as depicted in the plaint is not correct. He contends that taking advantage of the fact that name of grandfather of the plaintiff is Chinnappa Reddy @ Chinnaiah, the plaintiff has included all these survey numbers standing in the name of Chinnappa Reddy @ Chinnaiah, of Somasundara Palya, Aralukunte Village and said Chinaniah @ Chinnappa Reddy has no relationship with the plaintiff in any manner. There are other Chinnappa Reddy @ Chinnaiah numbering about 4 to 5 in the said village and therefore, the properties standing in their names are also brought in and claimed as properties of the grandfather of the plaintiff. He further contends that the property in Sy.No.36/3 measuring 03 Acres 20 Guntas including 01 Acre 01 Gunta kharab was ancestral property of 5th defendant and it was acquired by him and later it was divided between 5th defendant and his elder brother Narayana Reddy. The

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

22 said survey number measuring 03 Acres 20 Guntas was registered in the name of Chinnaiah son of Nanjundappa and Sy. No.36/4 measuring 02 Acres 39 Guntas was in the name of Gurreddy son of Nagareddy. The 5th defendant and son of Chinnaiah, namely, S.C. Krishna Reddy approached the Revenue Authorities for change of Hissa numbers to their respective holdings. Accordingly, by an interchange, Sy.No.36/4 was mutated in the name of Chinnaiah son of Nanjundappa, who is father of Krishna Reddy; Sy.No.36/3 was entered in the name of Gurreddy son of Nagareddy. It was contended that the plaintiff mistakenly, taking advantage of the name of Chinnaiah, father of S.C. Krishna Reddy has claimed share in Sy.No.36/3, which is ‘B’ schedule property. It is denied that defendant Nos.4 and 5 purchased the property from defendant Nos.1 and 2. On the other hand, the 5th defendant and his brother on their own rights which they acquired from their ancestors are in lawful possession and enjoyment of Sy.No.36/3 and as such, plaintiff is a stranger to Sy.No.36/3 and therefore, defendant No.5 is not a necessary party to the suit.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

23 11. Defendant No.9, M/s. Manar Developers (P) Ltd, in its pleadings contended that the plaintiff has included certain properties which do not in any manner whatsoever belong to the joint family of the plaintiff and defendant Nos.1 to 3. It was contended that the present suit is not maintainable since an earlier partition suit in OS No.7127/1990 was filed and it came to be dismissed for non- prosecution. It was stated that schedule ‘C’ and ‘D’ properties were also the properties involved in the earlier suit. This defendant has restricted its contention only in respect of Sy.No.37, which is 'A' schedule property. It was the case of defendant No.9 that Sy.No.37/1 measuring 05 Acres 04 Guntas and Sy.No.37/3 measuring 01 Acre 12 Guntas, totally measuring 06 Acres 16 Guntas was purchased in the name of defendant No.1, he being elder brother of defendant No.2 as a Karta, from one Narayana Shetty under sale deed dated 04-06-1970. Another portion in Sy.No.14/8 was also purchased from G Krishna Reddy on 24-06-1971. Later, the said property was partitioned between defendant Nos.1 and 2 and also the sons of defendant No.2, Gurumurthy and Muralidhar under a registered partition deed dated 05-07-2003. As per the

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

24 said partition, 03 Acres 32 Guntas came to the share of defendant No.1; and 02 Acres 20 Guntas came to the share of defendant No.2. Out of 02 Acres 20 Guntas falling to the share of defendant No.2 and his sons, 02 Acres of land was converted for residential and commercial purposes. Out of such 02 Acres, 01 Acre was purchased by defendant No.4 under a sale deed dated 15-11-2005 and the remaining 01 Acre was the subject matter of a Joint Development Agreement with defendant No.4. Later, defendant No.4, and owner of remaining 01 Acre i.e., defendant No.2 and his sons assigned all their rights to defendant No.9 under deeds dated 12-09-2008 and 15-12-2008. In the said 02 Acres of land, an Apartment has been constructed and has been sold to prospective buyers. Defendant No.9 also contends that some others had filed suit in OS No.1674/2011 and the same came to be rejected. 12. Apart from these contentions, defendant No.9 also contended that Sy.No.29/2A belonged to one Gurreddy, and it was partitioned later among his brothers. The said property no way relates to the plaintiff. A portion

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

25 of it has also been developed by defendant No.4 by entering into the Joint Development Agreement with its owners and purchasing the portion of it. Another portion has been developed by M/s.Aban Developers. In substance, defendant No.9 contends that Sy.No.37 was the absolute property of defendant Nos.1 and 2 and neither the plaintiff nor defendant No.3 had any share, right, title or interest in the same. On these grounds, defendant No.9 has sought for dismissal of the suit. 13. On the basis of the above pleadings, the following issues were framed by the trial Court: 1. Whether the plaintiff proves that suit properties are the joint family properties as pleaded? 2. Whether the defendants 1 and 2 prove the partition between plaintiffs father and their father referred in Para-3 of their written statement? 3. Whether the plaintiff proves the alienation of suit schedule properties by the defendants 1 and 2 in favour of defendants 4 and 5 as pleaded? 4. Whether the defendant No.5 proves that second item of suit property is acquired by him from his ancestors as contended? 5. Whether the plaintiff proves that he is in joint possession of the suit properties as pleaded? 6. What is the effect of dismissal of the suit in O.S.No. 7127/1990 on 19.12.2002? 7. Whether the plaintiff is entitled to 1/4th share in the suit schedule properties?

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

26 8. Whether the plaintiff is entitled for the relief of perpetual injunction as prayed? 9. To what relief? 14. The plaintiff deposed as PW1 and Exhibits P1 to P83 were marked. Defendant No.2 deposed as DW1 and two witnesses were examined on his behalf as DWs.2 and 3. Defendant No.9 examined its Managing Director as DW4 and Exhibits D1 to D53 were marked on their behalf. 15. After hearing the arguments, the trial Court answered issue Nos. 1,5,7 and 8 partly in the affirmative; issue No. 3 in the affirmative; Issue No.2 in the negative and decreed the suit only in respect of Schedule 'A' and 'D' properties awarding 1/4th share to the plaintiff, while holding that the dismissal of OS NO.7127/1990 will not have any effect on the present suit. 16. Being aggrieved by the said judgment, defendants No.1 (by LRs) and defendant No. 2 filed RFA No.1433/2014; defendant No.9 has filed

RFA No.1525/2014 and plaintiff has filed Cross objection in RFA CROB.No.1/2015. 17. On issuance of notice, in RFA No.1433/2014 respondent No.1/plaintiff, respondent Nos.2,3 and 7, 4, 6,

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

27 7, 10 to 20, 22 and 23 and respondent No.21 appeared through their respective counsel. However, service of notice to respondent Nos.5, 8 and 9 is held sufficient. During the pendency of the appeal, appellant No.2-M. Krishna Reddy and respondent No.2-K.Narayana Reddy died and their LRs were brought on record. 18. In RFA No.1525/2014, respondent Nos.1, R2(b), 2(d); respondent Nos.3(a) to (d); respondents 4 (a) and (b); respondent Nos.8,11 to 20 and 22 to 24 and respondent No.23 have appeared through their respective counsel. However, despite service of notice, respondent Nos.2(a), 2(c), 2(d), 2(e) and 5 served and unrepresented and appeal against respondent Nos. 6, 7, 9 and 10 stands dismissed. 19. In RFA CROB No.1/2015, respondent No.1(d); respondent Nos. 2(a) to (d); respondent Nos. 3(a) and (b); respondent No.7 appeared through their respective counsel. Respondent Nos.1(a),(b),(c), (e),4 and 5 served and unrepresented and notice to respondents 6,9 and 10 are dispensed with.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

28 20. The appellants, (LRs of defendant Nos.1 and 2) in RFA No.1433/2014 have filed an application under Order 41 Rule 27 of CPC seeking to introduce 09 documents as additional evidence. The affidavit filed in support of the application states that, in para 14 of the impugned judgment the trial Court had taken note of the RTC extracts to conclude that 'A' schedule property is the joint family property. But it had failed to notice that the corresponding sale deeds as Ex.D18 and Ex.D33 were not appreciated properly, so as to link them to the transactions depicted in the RTC. It is stated that the case was fought by his father before the trial Court during his life time and the various sale deeds and other revenue entries could not be traced by his father at that time. Now, the appellants have made efforts in tracing old documents which are more than 30 years old in the Revenue Offices and have obtained the certified copies of the same. The affidavit narrates the flow of the title in respect of land in Sy.No.37, which has changed many hands while it finally landed in the hands of defendant Nos.1 and 2. Therefore, at the time of leading evidence in the trial Court, the appellants could not produce these

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

29 documents since their uncles could not trace them. It is stated that these documents will throw light on the flow of title and would be of immense help for the Court to pronounce the judgment. The documents sought to be produced include certified copies of the 02 mortgage deeds, 03 sale deeds, index of the lands and 03 encumbrance certificates.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

(2) Whether the Suit is not maintainable on account of the dismissal of earlier suit in OS No.7127/1990 for partition? (3) Whether the schedule 'A' property is the joint family property of the plaintiff and defendants No. 1 to 3 and as such, is amenable for partition? (4) Whether the schedule 'B','C','D' and 'E' properties are the joint family properties of the plaintiff and defendant Nos. 1 to 3?

(5) Whether the suit being only for 5 properties, suffer from non-inclusion of all the properties.? Re.Point No.1 -IA No.1/2023 filed under Order 41 Rule 27 CPC:

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

31 appeal are: that their uncles were fighting the case and the applicants were unaware of their diligence. Secondly, these documents are of immense importance for just decision in the case.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

32 1. Jagdish Prasad Patel (Dead) Through Legal Representatives and Another Vs. Shivnath and Others1 2. Union of India Vs. K.V Lakshman and Others2 3. Shyam Gopal Bindal and Others Vs. Land Acquisition Officer and Another3 4. Lachhman Singh (Deceased) Through Legal Representatives and Others Vs. Hazara Singh (Deceased) Through Legal Representatives and Others4 5. North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by L.Rs5 6. Billa Jagan Mohan Reddy and Another Vs. Billa Sanjeeva Reddy and Others6 7. K Venkataramiah Vs. A Seetharama Reddy and Others7

1 (2019) 6 SCC 82 2 (2016) 13 SCC 124 3 AIR 2010 SC 690 4 (2008) 5 SCC 444 5 AIR 2008 SC 2139 6 (1994) 4 SCC 659 7 AIR 1963 SC 1526

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

33 28. On a careful consideration of the contentions raised in respect of application filed under Order 41 Rule 27 CPC, we are of the view that the documents sought to be produced are either the public documents or the private documents registered with public authorities. This Court must observe that the documents which are public in nature can very well be looked into and relied by the court if necessary. Such documents would definitely throw light on the circumstances that existed in a case. Such documents maintained by the public authorities in due course of business partake the character of documents of title if they remain unobjected, undisputed for continuously long time. The Hon’ble Supreme Court in the case of The State of Haryana and another vs. Amin Lal (since deceased) through his LRs and others8 has observed that, “if the revenue entries remain undisputed for long time, they can very well indicate the title to the property”. Para 8.2 reads as below: “8.2 The plaintiffs relied on jamabandi entries to establish their ownership. The jamabandi for the year 1969-70 (Exhibit P1) records the name of Shri Amin Lal as owner to the extent of half share. Revenue records are public documents

8 SLP (Civil) No.25213/2024 DD 19-11-2024

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

34 maintained by government officials in the regular course of duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. While it is true that revenue entries do not by themselves confer title, they are admissible as evidence of possession and can support a claim of ownership when corroborated by other evidence.”

(a) XXX (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.”

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

36 laid down by the Apex Court in various decisions relied by the learned counsel for the appellants. The law concerning Order 41 Rule 27 CPC is elaborately considered and laid by the Apex Court in the case of Union of India Vs. Ibrahim Uddin and another 9. 32. The Apex Court in the case of Appaiya Vs. Andimuthu alias Thangapandi and others10, regarding the admissibility and proof of contents of certified copies of the sale deed and such other documents, after a thorough discussion, holds as below: "30…….Thus, the cumulative effect of the aforementioned sections of the Evidence Act and Section 57(5) of the Registration Act would make the certified copy of the sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti, produced as Ext.A1 admissible in evidence for the purpose of proving the contents of the said original document. When this be the position in the light of the specific provisions referred hereinbefore under the Evidence Act and the Registration Act, we have no hesitation to hold that the finding of the High Court that the certified copy of Ext.A1 owing to the failure in production of the original and proving through an independent witness is inadmissible in evidence, is legally unsustainable…………."

Therefore, the certified copies of the sale deeds and the revenue records are admissible in evidence and when

9 (2012) 8 SCR 35 10 2023 SCC Online SC 1183

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

37 they throw light on the transactions involved in respect of the schedule properties in this suit, they deserve to be permitted to be produced. More so, when these documents lend a link to the flow of title of the suit schedule properties. 33. The discussion made in the following paragraphs would show that the documents now sought to be produced by the appellants would only link the flow of title of Sy.No.37, which is ‘A’ schedule property in the present suit. If we take into consideration the documents produced, the jigsaw fits in and the flow of title is established. The documents being public documents, they have to be considered. The certified copies of the sale deeds do not require the formal proof since they only depict the flow of title in respect of Sy.No.37 and lend support to the revenue records. The revenue records being public documents kept in due course of business by the Government officials, are permissible to be considered without the formal proof. Therefore, the application under Order 41 Rule 27 of CPC is allowed and the following

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

38 documents are permitted to be produced as additional evidence: 1) The certified copy of the Index of Lands of Sy.No.37 of Aralakunte Village showing the entries made on 20.06.1927 certified copy of the Record of Rights. 2) The certified copy of the Deed of Mortgage Deed dated 16.06.1927 executed by Sri Chinnaiah S/o. Reddigara Gurappa in favour of Sri Muniyappa alias Pillaiah S/o. Muniyappa mortgaging 09 Acres 21 Guntas of land in Sy.No.37 of Aralakunte Village. 3) The certified copy of the Sale Deed dated 04.09.1951 executed by Sri Chikka Chinnanna @ Chinnanna @ Chinnappa @ Chinnaiah in favour of Smt. Muniyamma W/o Late Nanjappa in respect of 06 Acres of land in Sy No.37 of Aralakunte Village. 4) The certified copy of the Deed of Mortgage dated 02.05.1958 executed by Sri Krishnappa and Sri Muniswami both sons of Sri Chikka Chinnanna @ Chinnanna @ Chinnappa @ Chinnaiah in respect of 03 Acres 05 Guntas of land in Sy.No. 37/2 of Aralakunte Village along with 02 Acres 12 Guntas of land in Sy.No.36/1. 5) The certified copy of the sale deed dated 20.09.1965 executed by Smt. Muniyamma W/o Late. Nanjappa in favour of Sri Krishna Reddy S/o Dodda Gureddy relating to 1 Acre 20 Guntas of land in Sy.No.37/1 of Aralakunte Village. 6) The certified copy of the sale deed dated. 19.03.1968 executed by Smt. Muniyamma W/o Late.Nanjappa in favour of Sri Narayana Sheety in favour of Sri. Hanumantha Shetty in respect of 03 Acres 24 Guntas of land in Sy.No.37/1 and 1 Acre 12 Guntas of land in Sy.No.37/3 of Aralakunte Village. 7) Nil Encumbrance certificate (in Form No.16) of Sy.No.37 (new No.37/1, 37/2 and 37/3) of Aralakunte Village for the period from 01.04.1920 to 30.06.1924. 8) Encumbrance certificate of Sy.No.37 (New No.37/1, 37/2 & 37/3) of Aralakunte Village for the period from 01.07.1924 to 14.02.1957.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

9) Encumbrance certificate of Sy.No.37 (New No.37/1, 37/2 & 37/3) of Aralakunte Village for the period from 15.2.1957 to 31.03.1975.

Point No.2: Re maintainability:

11 ILR 2012 KAR 4129

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

40 becomes invokable. In this regard, he relies on the judgment in the case of Krishna Pillai Rajasekharan Nair (dead) by LRs. Vs. Padmanabha Pillai (dead) by LRs. and others12. We are unable to accept the applicability of this case since the factual matrix in that case involved the question of redemption of a mortgage by one of the member of the family and the question of subrogation was also raised. But in the case at our hands, it is a simple suit for partition and therefore, the cause of action is only in respect of the partition of the properties. Therefore, there is no necessity of considering the reliance placed by the learned counsel for the plaintiff that the judgment in the case of State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another13 is applicable. 36. Learned Counsel Sri P.D. Surana, also relied on the judgment in the case of Des Raj and others Vs. Bhagat Ram (deceased by LRs) and others14 to contend that though the successive suits for partition being on the premise that there would be continuous cause

12 (2004) 12 SCC 754 13 (1991) 4 SCC 139 14 2007 AIR SCW 1560

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

41 of action, but it is equally well settled that the pendency of a suit does not stop running of limitation. It was a case wherein the issue regarding adverse possession was involved and in the back ground of such issue, the above view was expressed by the Apex Court. We are unable to accept the applicability of this judgment as it can be distinguished on facts. 37. Per contra, learned Senior Counsel Sri S.P.Shankar, appearing for respondent No.1/plaintiff submits that the right to seek partition is inherent in every coparcener and such right is never get extinguished and could be exercised till the partition is effected. He submits that the cause of action is recurring one and not one time event. He submits that the earlier suit in OS No.7127/1990 was dismissed for non-prosecution and it was not decided on merits. Though there were attempts by the plaintiff to resurrect the same by filing Miscellaneous Petitions invoking order 9 of CPC, there were also unsuccessful and ultimately, the second Miscellaneous petition No.616/2006, which was filed to restore Miscellaneous Petition No.72/2000 was withdrawn as per memo at Ex.P53 dated

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

42 30.3.2009. In this regard, he relies on the judgment of a Co-ordinate Bench of this Court in the case of Smt. Gangamma and others vs. Smt.Tholasamma and others15 wherein, by relying on two other judgments of this Court, it was held that “the right to sue for partition survives till the properties are divided by metes and bounds and there is recurring cause of action for the party claiming partition.” 38. Learned Senior Counsel Sri.S.P.Shankar by relying on the judgment in the case of The Commissioner of Income-tax, Gujarat Vs. Keshavlal Lallubhai Patel16 and also V.N Sarin Vs. Ajit Kumar Poplai17 submits that the partition involves only the identification of the specific property in a joint holding and the right to seek partition would continue till the shares are bifurcated. He also relied on a judgment of this Court in the case of Sri Aralappa Vs. Sri Jagannath and Others18 which also lay down same principle. He further buttressed his argument by saying that DW.1 had admitted that there is no documentary evidence to prove

15 RFA No.1300/2022 DD 19-6-2024 16 AIR 1965 SC 866 17 AIR 1966 SC 432 18 ILR 2007 KAR 339

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

43 the partition and therefore, the question of bar of limitation for the second suit for partition does not arise. 39. He also submitted that a second suit for partition is maintainable since the principles of res-judicata will not apply. It is submitted that the principle underlying in Order XXIII Rule 1 of CPC was considered in the case of Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others19 and it was held that bar of second lis is based on public policy and the present suit is only in respect of the rights between the siblings. In fact, in the memo for withdrawal of the miscellaneous petition, the plaintiff had mentioned that he had already filed a comprehensive suit for partition. On this ground, learned Senior Counsel Sri S P Shankar, submits that the second suit for partition is maintainable when the earlier suit was not decided on merits. 40. It is relevant to note that in yet another judgment in the case of Sri Srinivas and others Vs. Sri M.C. Narayanaswamy and others20 a Co-ordinate

19 (1987) 1 SCC 5 20 RFA No.946/2018 DD 26-07-2024

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

44 Bench of this Court, of which one of us was a Member, by relying on three other judgments viz., of High Court of Himachal Pradesh, High Court of Madras and that of the Apex Court (in the case of Ganesh Prasad Vs. Rajeshwar Prasad and others21 came to the conclusion that “the right to seek partition is not extinguished till such time the right in the property is determined.” It concluded that the cause of action in a partition suit is a recurring one. It had also relied on the judgment in the case of Kumari Geetha D/o Late Krishna and others Vs. Nanjundasway and others22 rendered by Apex Court. 41. From the above expositions, we are of the clear view that the contention of the appellants that the second suit for partition was not maintainable is bereft of any merits. The cause of action in a partition suit is a recurring one but not a continuing cause of action. It is also relevant to note that plaint in OS No.7127/1990, in para 8, narrates the cause of action as below: “ 8. The cause of action for the Suit arose after the death of father of the Plaintiffs and on 21.11.90,

21 SLP (c) No. 28377/2018 DD 14-3-2023 22 Civil Appeal No.7413/2023 DD 31-10-2023

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

45 when the partition demanded through legal notices and subsequently within the jurisdiction of this Hon’ble Court.”

The present suit i.e. OS No. 7702/2004 states the cause of action in para 20 as below: “The cause of action for the above suit on 08.10.2004, 09.10.2014, 10.10.2004 and on all subsequent dates and the same is within the jurisdiction of this Hon’ble Court.”

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

46 Re.Point No.3: Whether the suit schedule properties are joint family properties? 43. Learned counsel appearing for the appellants Sri P.D.Surana, submits that although there is presumption of the joint family among Hindus, such presumption will not extend to the property being the joint family property. In the absence of evidence to show that the property is the joint family property, a suit for partition should fail. In this regard, he relied on the judgment in the case of D.S.Lakshmaiah and another Vs. L. Balasubramanyam and another23. He also relied on the judgment in the case of Appasaheb Peerappa Chamdgade Vs. Devendra Peerappa Chamdgade and Others24 and in the case of T.S Subbaraju Vs. T.A. Shivarama Setty and Others25 to contend that the existence of the Hindu Undivided Family will not automatically result in a presumption that property is joint family property and there was sufficient nucleus to purchase the property by a member of the joint family. It

23 AIR 2003 SC 3800 24 (2007) 1 SCC 521 25 AIR 2004 KARNATAKA 479

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

47 was observed in the above decisions that the primary burden of proving that the property held by a member of the joint family is on the plaintiff; and a self serving statement by plaintiff that there was sufficient nucleus would not be sufficient to discharge the burden. He contended that the propositus Chinnappa Reddy had alienated 06 acres of land in Sy. No.37 in the year 1951 and later there were several alienations of the property in bits and pieces, which is indicative of the partition. 44. He further submits that, Sy.No.37 which was measuring 10 Acres 09 Guntas, including 28 Guntas of kharab land was earlier owned by Chinnappa Reddy is not in dispute. He submits that the said land was the subject matter of an oral partition and the two sons of Chinnappa Reddy, namely, Krishna Reddy and Muniswami Reddy had separated and were enjoying their lands separately. They had brothers by name Nanjundappa and Narayana Reddy who died without any marriage. Their sister Gurramma also died as a spinster. It is contended that Chinnappa Reddy @ Chikka Sinnanna himself had sold 06 Acres of land to one Muniyamma. He submits that 03 Acres 05

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

48 Guntas of remaining land in Sy.No.37 was mortgaged by Krishna Reddy and Muniswami Reddy in the year 1958. Later, Krishna Reddy had sold the lands to one Venkatappa under Ex.D13 and Ex.D27. Obviously, it was subsequent to the oral partition between Muniswami Reddy and Krishna Reddy. Later, the property which was sold by Chinnappa Reddy was purchased by Narayana Shetty and one Krishna Reddy; and thereafter purchased by the appellant No.1 Gopal Reddy under Ex.D33 and Ex.D18. Therefore, he contends that the Sy.No.37 had been divided long back and it never remained to be the joint family property.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

49 property clearly indicate that it was sold during the life time of Chinnappa Reddy and later, 06 Acres 16 Guntas was purchased by Gopal Reddy and therefore, the said property is not the joint family property and as such, it is not available for partition.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

50 Singh and Others Vs. Nirmal Gill and Others Etc., and connected matter26 and in the case of Sri Lakhi Baruah and Others Vs. Sri Padma Kanta Kalita and Others27 to fortify his argument that the certified copies of such conveyances, under which the suit schedule properties were alienated are more than 30 years old and as such, a presumption is to be raised. 48. We are not impressed by this argument inasmuch as the documents produced are certified copies, which were obtained recently. Hence, Section 90 of the Evidence Act has no applicability.

26 AIR 2021 SC 899 27 AIR 1996 SC 1253

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

51 this Court, in the case of K.R. Ravishankar and another Vs. Smt. Vijayamma.28

28 RFA No.345/2019 DD 26-10-2023

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

52 mentioned in Ex.P2. He has drawn our attention to para 8(A) of written statement of defendant Nos.1 and 2 and despite a contention that the said Jayamma is the holder of the property is taken, the plaintiff has not impleaded her. The RTC shows that name of Jayamma appears for 05 Acres 02 Guntas. He also submits that plaintiff has not challenged the sale deed in favour of Venkatappa, who is the husband of Jayamma and therefore, the said sale deed holds good.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

53 plaintiff has not sought for any declaration regarding the sale deed.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

54 the defendants in the cross-examination of PW1 which is an essential requirement of law as laid down in A.E.G.Carapiet Vs.A.Y.Derderian29 in para 10, which is endorsed by the Hon’ble Supreme Court in Sarwan Singh Vs. State of Punjab30 at para 9, is not available. He further submits that when there is no positive evidence with the production of the sale deed said to be executed by the father of the plaintiff, K. Srinivasa Reddy, it is impermissible to hold that he had sold the land under Exs.D27 and D28, while it is signed by one Krishnappa, who is a stranger. Alternatively, he submits that if the vendor under Exs.D27 and D28 named as Krishnappa had transferred some area, such area has to be deducted from suit schedule ‘A’, which is not the case here. Therefore, Ex.D27 has no consequence. Similarly, he also points out by referring to the documents produced under Order 41 Rule 27 of CPC to demonstrate that the defendants are trying to avoid lawful decree for partition on untenable grounds.

29 (1961) AIR (Calcutta) 359 30 2003(1) SCC 240

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

55 54. In support of his submissions, he also relied on the decision in the case of Thamma Venkata Subbamma (Dead) by L.R Vs. Thamma Rattamma and Others31 to contend that coparcener can dispose of his undivided interest in the coparcenary by a Will but he cannot make a gift of such interest. Based on this decision, learned counsel submit that the alienations made by defendant Nos. 1 and 2 or their ancestors do not bind the plaintiff and as such, the plaintiff is entitled for share in the coparcenary property. We are unable to accept the applicability of this proposition, for the alienations were made not only by the father of defendant Nos. 1 and 2 but also by the propositus Chinnappa Reddy during his life time. No such pleadings are available seeking to ignore the alienations made by Chinnappa Reddy in the plaint.

31 AIR 1987 SC 1775

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

56 unsustainable and since there is no proof of oral partition and as such the suit to be decreed.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

Analysiss and Conclusions:

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

58 59. PW1, K.Srinivasa Reddy, the plaintiff in the cross-examination dated 14-02-2011, (Page No.94 of Paper Book Volume I), states that his father was called by the name Krishnappa also. He denies that portion of ‘A’ schedule property i.e., Sy.No.37 was also sold by his father in the year 1967. However, Exs.D13 and D27, which pertain to Sy.No.37 were not confronted to him. Further, he admits that his grandfather's father was Nanjunda Reddy @ Nanjundappa. In the cross- examination dated 15-3-2014, he states that his father was usually called as Krishna Reddy @ Krishnappa. He states that his father has not alienated any portion of Sy.No.37. 60. The certified copy of the Mortgage Deed dated 16-06-1927 produced as an additional document by defendants mention that Sy.No.37, measuring 09 Acres 21 Guntas was mortgaged infavour of Muniyappa @ Pillaiah, by Chinnaiah son of Reddigara Gurrappa. The said document mentions that Chinnaiah had purchased it under a sale deed dated 11-06-1920 and he had deposited it with mortgagee.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

59 61. Therefore, it appears that Sy.No.37 owned by Chinnappa Reddy @ Chinnaiah being not in dispute, it cannot be said that Chinnappa Reddy and Chinnaiah are different persons, though the name of the father differs in mortgage deed. It is not the case of either the plaintiff or the defendants that Sy.No.37 in the year 1920, was held by anybody else than Chinnaiah. The discussions made by us in the following paragraphs regarding the flow of title of Sy.No.37 would show that Chinnappa Reddy @ Chinnaiah @ Chikkasinnanna are one and the same. So also, Krishna Reddy @ Krishnappa, son of Chinnaiah @ Chinnappa Reddy are one and the same. The names of the parties may slightly differ in the documents, but the flow of title as mentioned in the revenue records would show that there was no other person than Krishnappa @ Krishna Reddy and Chinnappa @ Chinnappa Reddy @ Chinnaiah. We are also aware that in villages the suffix ‘Aiah’ or ‘Appa’ is interchangeably used. 62. No doubt, the cross-examination do not make a specific suggestion that Chikka Sinnanna and Chinnappa Reddy @ Chinnaiah are one and the same, such

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

60 suggestion having not been put to PW1, defendants cannot take advantage of the same. However, the revenue documents having stood the test of time and not objected to for more than 50 years are to be accepted. In a recent judgment, the Apex Court in the case of State of Haryana Vs. Ameen Lal32 has observed that the revenue records are public documents maintained by Government officials in regular course of duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act, even though they do not per-se confer title but they are admissible as an evidence of possession and can support the claim of ownership when corroborated by other evidence. We are aware of the law laid down in the case of A.E.G.Carapiet Vs.A.Y.Derderian, refered supra. Therefore, the other corroborative material which is discussed in the below paragraphs regarding flow of title would show that the revenue records are believable and Chinnappa Reddy @ Chinnaiah was also called as Chikka Sinnanna. 63. The next question that needs to be addressed is whether Sy.No.37 standing in the name of defendant No.1

32 SLP (Civil) No.25213/2024 DD 19-11-2024

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

61 Gopal Reddy, had remained to be the ancestral property. It is settled proposition of law that though there is a presumption that a joint hindu family exists unless there is proof of severance, but there is no such presumption that the property is the joint family property. A person seeking the partition has to establish that the property is an ancestral joint family property. The primary burden of proving that it is the joint family property is on the person seeking partition. The Apex Court in the case of D.S. Lakshmaiah and another Vs. L. Balasubramanyam and another and in the case of Appasaheb Peerappa Chamdgade Vs. Devendra Peerappa Chamdgade and others referred supra and in catena of decisions laid down the above principle. Therefore, it is the plaintiff who has to establish that the properties are the joint family properties. 64. Though there is no conclusive evidence regarding the partition between Muniswami Reddy and Krishna Reddy sons of Chinnappa Reddy @ Chinnaiah, it is evident that Chinnappa Reddy @ Chikka Sinnaiah@ Chinnaiah, who was the sole owner of Sy.N.37 in its

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

62 entirety to the extent of 09 Acre 21 Guntas had mortgaged it to Muniyappa. Later, as per the sale deed dated 04-09-1951, the sole owner of Sy.No.37 Chikka Sinnanna sold 06 Acres of land to Muniyamma. The certified copy of the sale deed produced as an additional documents No.3 would be supportive of the revenue entries. There is nothing on record that Chikka Sinnanna, who sold 06 Acres to Muniyamma is a different person and he had sold 06 Acres out of larger extent of land. The total extent of land in Sy.No.37 was only 10 Acres 09 Guntas including kharab land of 28 Guntas. 65. The additional document No.5 which is the certified copy of the sale deed dated 20-09-1965 would show that Muniyamma had sold 01 Acre 20 Guntas to Krishna Reddy @ Dodda Gurreddy, who is a stranger to the family of the plaintiff and defendant Nos. 1 to 3. This document also mentions that Muniyamma had purchased it from Chikka Chinnanna on 06-09-1951. 66. Later, as per additional document No.6 which is the certified copy of sale deed dated 19-3-1968 Muniyamma had sold 04 Acres 36 Guntas in favour

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

63 Narayana Shetty. In this document, it is stated that she had purchased it from Chikka Chinnanna on 17-09-1951. Though these two sale deeds dated 20-09-1965 and 19-02-1968 referred to the earlier sale deeds dated 06-09-1951 and 17-09-1951, but they failed to relate it to the date 04-09-1951, mentioned in sale deeds the certified copy of which is produced. Nevertheless, sans the dates, the transaction to the extent of 06 Acres by Chikka Sinnanna in favour of Muniyamma is established. 67. This takes us to the fact that Chikka Sinnanna @ Chinnappa Reddy had left with only 03 Acres 21 Guntas in Sy.No.37. Ex.D13 and D27 which are the sale deeds dated 29-3-1967 and 31-8-1967 show that Krishnappa son of Chinnappa, who happens to be the father of plaintiff had sold 01 Acres 26 Guntas each (Totally 03 Acres 12 Guntas) in favour of Venkatappa son of Doddanna, with specific boundaries mentioned therein. This obviously indicates he was in specific portion of the property. 68. It is relevant to note that the RTC for year 2004-2005 to 2006-2008 produced at Exs.P2, P3, P18, 19, P 31 and 21, Ex.P3 22-23 would show that the name of

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

64 Jayamma wife of Venkatappa is appearing in the records. Therefore, the transaction that took place in favour Venkatapa by the father of the plaintiff Sri Krishnareddy@ Krishnappa son of Chinnappa was duly entered and reflected in the revenue records. There is absolutely no explanation offered by the plaintiff in this regard. Neither he seek voidance of Exs. D13 and 27 which relates to Sy.No.37. 69. Coming to the lands held by Muniyamma, the additional document No.6, the certified copy of the sale deed dated 19-3-1968, would show that 04 Acres 36 Guntas in Sy.No.37 comprising of the Hissa Nos.1 and 3, was sold to Narayana Shetty as observed above. The said Narayana Shetty has sold 03 Acres 24 Guntas in Sy.No.37/1 in favour of defendant No.1, Gopal Reddy under the sale deed at Ex.D18 and Ex.D34. Thus, 03 Acres 24 Guntas held by defendant No.1 Gopal Reddy has come to him from Muniyamma and Narayanashetty through the sale deed dated 4-09-1951 and 19-3-1968. 70. The land purchased by Krishna Reddy son of Dodda Gurreddy (a stranger to the family) under sale deed dated 20-09-1965 from Muniyamma was sold to defendant

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

65 No.1, Gopal Reddy under the sale deed dated 24-06-1971 which is at Ex.D33. Another copy of this document is produced at Ex.D35 also. Therefore, Gopal Reddy got 01 Acre 20 Guntas through Ex.D33, the sale deed dated 20-09-1965 executed by Muniyamma. In other words, Gopal Reddy is the owner of the property to the extent of 05 Acres 04 Guntas through Narayana Shetty and Krishna Reddy son of Doddagurreddy. 71. Defendant No.2 contends that he acquired 02 Acres of land in the family partition dated 05-07-2003 which is at Ex.D45. A perusal of Ex.D45 would disclose that he had obtained it in a partition with his brother defendant No.1 Gopal Reddy; Gopal Reddy had purchased it from Narayana Shetty and G.Krishna Reddy under a sale deed dated 04-06-1970 which are at Exs. D18 and D33. The total extent of the land partitioned between them i.e., Gopal Reddy, Krishna Reddy (defendants No. 1 and 2) and his sons is 6 Acres 12 Guntas. 72. It is relevant to note that defendant No.2, Krishna Reddy is the brother of defendant No.1. He had 02 Acres of land in Sy.No.37, which he entered into a Joint

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

66 Development Agreement (JDA) with defendant No.4. Out of 02 Acres, 01 Acre was sold under a sale deed dated 15-11-2005 and another 01 Acre was the subject matter of JDA. Later, defendant Nos.2 and 4 entered into Joint Development Agreement with defendant No.9, M/s Manar Developers (P) Ltd. 73. But on the other hand, the land sold to Gopal Reddy from Narayana Shetty and Krishna Reddy son of Doddagurreddy is 1.20 Acres and 3.24 Acres i.e., 5.04 Acres. There is an excess land which has been partitioned to the extent of 1.08 Acres. It is necessary to note that though there was a mismatch of the extent of the lands which have been partitioned between them and lands purchased by Gopal Reddy. The flow of title of an extent of about 06 Acres from Chinnaiah @ Chinnappa Reddy, who was also called as Chikka Chinnanna is clear. We must also observe that the sale deed dated 04.09.1951 (Additional document No.3) describes the property sold as "approximately 06 Acres". There are certain other mutation entries which depict that the said Gopal Reddy and Krishna Reddy (Defendant Nos.1 and 2) had gifted a

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

67 portion of the property in favour of their sister as may be found from the Encumbrance Certificates produced as additional documents under Order 41 Rule 27 CPC. 74. This takes us to consider the entries found in the Encumbrance Certificates which are produced as additional evidence. The first Encumbrance Certificate was for the period from 01-07-1924 to 14-02-1951 i.e., for a period of 23 years. This document issued by the Sub-Registrar shows that Sy.No.37 was mortgaged on 18-06-1927 for a sum of Rs.300/- by Chinnaiah in favour of Muniyellappa. The extent of the land was 09 Acres 21 Guntas. 74(a).The second entry shows that 06 Acres of land in Sy.No.37 was sold on 04-09-1951 for Rs.500/- by the Chikka Sinnanna in favour of Muniyamma. This refers to the sale deed which we have referred supra. 75. The second Encumbrance Certificate produced at Sl.No.9 of the list pertains to the period from 15-2-1957 to 31-3-1975 i.e., for a period of 19 years. The first entry of this document shows that Sy.No.37/2 measuring 03 Acres 05 Guntas was mortgaged on 02-05-

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

68 1958 for a sum of Rs.1,500/- by Krishnappa and Muniswami to MPCS Madiwala. The second entry shows that in the said Survey number, an area measuring 01 Acre 26 ½ Guntas was sold on 29-03-1957 for a sum of Rs.3,000/- by Krishnappa to Venkatappa. Another sale is also recorded which pertains to 01 Acre 26 Guntas dated 19-8-1967 for a sum of Rs.2,000/-. Further, the next entry shows that Sy.No.37/2 measuring 03 Acres 24 Guntas was sold on 19-03-1968 for Rs.3,000/- by Muniyamma in favour of Narayan Shetty. On 04-06-1970, an area measuring 03 Acres 24 Guntas and 01 Acre 12 Guntas was sold for Rs.3,000/- and Rs.2,000/- by Narayan Shetty in favour of Gopal Reddy, i.e., defendant No.1. There appears to be some discrepancy in respect of phodi Hissas, i.e., the Sub- Division Nos. 1 and 3. Thereafter, on 24-06-1971, an area measuring 01 Acre 20 Guntas was sold by Krishna Reddy son of Doddagurreddy in favour of Gopal Reddy. It is relevant to note that the sale deed dated 20-09-1965, in respect of sale by Muniyamma in favour of Krishna Reddy for a sum of Rs.1,500/- is not mentioned in this Encumbrance Certificate.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

69 76. Therefore, it is evident that the Encumbrance Certificates clearly depict the transactions of the sale deeds which have been produced by the plaintiff. This also shows that defendant No.1, Gopal Reddy had purchased the land measuring 05 Acres 04 Guntas in two pieces of 03 Acres 24 Guntas and 01 Acre 20 Guntas, but later they had partitioned 06 Acres 12 Guntas under the Partition Deed dated 05-07-2003 which is at Ex.D-29. It is relevant to note that Ex.D29 and D45 are one and the same document. Similarly, Exs.D34, D35 and D36 are sale deeds and repeated at Exs.D-18, D33 and D44. 77. A careful perusal of the RTCs which have been produced by the plaintiff reflect these transactions; however, with some small variance in respect of the extent of the lands. It is also pertinent to note that the lands purchased by Venkatappa are now standing in the name of Jayamma and others. Obviously, said Jayamma is not a party to the present suit. Though a contention is not taken up by the defendants that Jayamma was also a necessary party in their pleadings, nevertheless, the fact remains that when the plaintiff is seeking partition in

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

70 respect of the entire 10 Acres 09 Guntas of land in Sy.No.37, it was incumbent upon the plaintiff to include all the parties whose name appears in the revenue records. Though the plaintiff has also produced certain documents which show the alienations made in favour of Jayamma prior to filing of the suit, in favour of Venkatappa and his LRs., it was incumbent upon him to array them as parties. 78. From the above documents, it is clear to us that the plaintiff is unable to establish the fact that an area measuring 10 Acres, 10 Guntas was available for partition in Sy.No.37. An area measuring 06 Acres had been transferred by Chinnaiah, who is none else than the propositus, in favour of Muniyamma under a sale deed dated 04-09-1951. It is not the case of the plaintiff that Sy.No.37 was measuring more than 10 Acres at any point of time. When 06 Acres was sold by Chinnanna under a sale deed dated 04-09-1951, what remained was only about 04 Acres of land. If that is so, the plaintiff should have explained as to how an area measuring 10 Acres 10 Guntas is available for partition. It is the case of the plaintiff that Sy.No.37 measuring 10 Acres 10 Guntas was

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

71 owned by Chinnappa Reddy @ Chinnaiah. Under these circumstances, the revenue records being clear in showing that Sy.No.37 measures 09 Acres, 21 Guntas, and karab land of 28 Guntas, the transaction in favour of Muniyamma would show that 10 Acres, 10 Guntas never devolved upon the sons of Chinnappa Reddy. 79. It is also relevant to note that, after the sale of 06 Acres of land in favour of Muniyamma, it has changed the hands of one Krishna Reddy son of Gurreddy and one Narayan Shetty and thereafter, it came in the hands of the defendant No.1,Gopal Reddy, who represented himself and his brother, defendant No.2. Under Ex.D13 & Ex.D27, the father of the plaintiff had sold 03 Acres 21 Guntas, with specific boundaries in favour of Venkatappa. Though the sale deeds do not trace the origin of the title of Krishna Reddy, or any partition, specific boundaries are indicative of separation. There are absolutely no pleadings by the plaintiff as to the above transactions made by his father Krishna Reddy. It is worth to note that the revenue entries were never challenged by any of the parties on the ground that the Krishnappa @ Krishna Reddy and

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

72 Chinnappa @ Chikka Sinnanna are different and the unauthorized parties have alienated them to third parties. There is no reason to believe that the revenue entries are either false or fraudulent. 80. The question whether a presumption is to be drawn under Section 90 of the Evidence Act, in respect of certified copies of sale deeds which are more than 30 years old pales into insignificance since we have only referred to them as a supportive documents for the unquestioned revenue records. However, it is a settled proposition that such presumption under Section 90 applies only in respect of the original documents. It is not necessary for us to go into the proof of the contents of the conveyance deeds as the revenue entries have remained unchallenged for a long time. For this reason, we hold that the judgment in the case of Gafarsab @ Sati Gafar Sab Vs. Ameer Ahamed33 relied on by the learned counsel for plaintiff which lays down that proper foundation has to be laid for not producing primary evidence also become inapplicable.

33 AIR 2006 KAR 95

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

73 81. Under these circumstances, it is not possible to hold that the joint family of the plaintiff and defendant Nos.1 to 3 exists and continue to hold the properties as the joint family properties. The transactions from 1951 show the property at Schedule 'A' had been changed hands in bits and pieces and at present, the extent of 10 Acres 09 Guntas is not available for partition. Therefore, we hold this point in the negative. Re.Point No.4: Whether 'B','C','D' and 'E' properties are the joint family properties?

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

74 is described as Schedule ‘E’ in the present suit. Therefore, there appears to be certain contradictions while the plaintiff said that he is not claiming any partition in respect of the properties which he had enlisted in the earlier suit OS No.7127/1990. Similar is the statement made by him in his affidavit evidence filed in the present suit. 83. Be that as it may, Sy.No.36/4, which is schedule ‘B’ property is concerned, the RTCs pertaining to Sy.No.36 produced at Exs.P4 to P13, P15, P25, P27, show that they pertain to Sy.No.36/3 and Sy.No.36/1. The RTC of Sy.No. 36/4 is not produced. The mutation entries would show that, in fact, Sy.No.36/3 had belonged to one Gurreddy and Sy.No.36/4 belonged to Chinnaiah son of Nanjundappa. There was some discrepancy in mentioning the sub-division numbers and therefore, it was rectified by an order of Assistant Commissioner on 25-07-1995 as per Exs.P58 and P60; they were interchanged. It is relevant to note that Exs.P60 and P62 which are Survey Tippan are incomplete documents. They do not depict a complete scenario. Therefore, the documents produced by the

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

75 plaintiff do not show that Sy.No.36/4, in fact, belonged to the joint family of the plaintiff and the defendants. 84. Coming to Sy.No.29/2A, which is the Schedule ‘E’ property, Exs.P16, P28, P32, P36, P39, P40, P41, P70, P71 to P77, P78 and P79 are the revenue records. These documents show that, the said property stands in the name of Kodanda Rama Reddy and others. But none of these documents show the names of defendant Nos. 1 and 2 in the same. The evidence of plaintiff also does not show how and when Sy.No.29/2A was owned by Chinnappa Reddy, the ancestor of the plaintiff. Curiously, Exs.P39 and P40, which are the Encumbrance Certificates show that the plaintiff, K. Srinivasa Reddy had sold about 10 Guntas of land in favour of one Ravichandra. Sy.No. 29/2A is sold by the plaintiff and the said sale deed is produced at Ex.D41. This document shows that 11 Guntas was sold to one Ravichandra and others, stating that it is his absolute property. The plaint or PW1 do not explain how he had sold it, claiming that it is his absolute property, in favour of the said Ravichandra. Therefore, the extent of the land having not been conclusively established, the portion of

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

76 the land was sold by a sale deed under Ex.D41 to Ravichandra and this fact is not explained by the plaintiff either in the plaint or in the affidavit evidence before the trial Court. 85. So far as schedule 'C' property (Sy.No.59/1) is concerned, the RTC at Ex.P14 and Ex.25 show that they were standing in the name of Chinnappa and Venkatappa till 1984-85 and thereafter, the property stands in the name of Bangalore Development Authority(BDA). It is not brought on record as to how and who transferred and for what consideration. Therefore, the said property is not amenable for partition. There is no pleading or proof in this regard. 86. So far as Sy.No.29/18 which is schedule 'D' property is concerned, it is relevant to note that Krishna Reddy son of Muniswami, who is none else than defendant No.2, had also sold it in favour of one Govind Reddy, Vasudeva, son of Krishna Reddy, to the extent of 05 Guntas, as may be found from Ex.P36, Encumbrance Certificate. This is also not explained by the plaintiff while the plaintiff seek partition in respect of Sy.No.29/2A which

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

77 is totally measuring 08 Acres 17 Guntas according to him. Under these circumstances, the very existence of Sy.No.29/2A, measuring 08 Acres being contradictory to Exs.D28 to D32 RTCs which state the measurement of the property to be 07 Acres 21 Guntas and a portion of it having been sold by the plaintiff to one Ravichandra, such explanation being not offered by him, it cannot be said that he is entitled for a partition in the same. 87. Another aspect which needs to be considered is regarding the oral testimony of the witnesses. DW1 in his cross-examination dated 13-03-2013, has stated that he does not know whether his uncle and his father had entered into a partition. However, this statement being contrary to the partition of the year 2003 depicted as per Ex.D29, is not of much relevance. Similarly, the oral admissions, stray in character, sans admissions in pleadings, pale into insignificance in the face of documentary evidence. Therefore, the decision in the case of Nagindas Ramdas Vs. Dalpatram Ichharam Alias Brijram and Others34 relied by learned counsel for the plaintiff is inapplicable as the admissions cannot be held to

34 1974 AIR (SC) 471

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

78 be true in the background of the documentary evidence available on record. 88. DW.2- B.Govinda Reddy was aged about 69 years when he filed his affidavit evidence dated 08-01-2014. Similarly, the affidavit evidence of DW3- Dasarath G, was also filed on the said date 8-1-2004. They had stated that they were aged 69 and 55 years respectively. This would show that they were born in or about 1935 and 1949 respectively and if the partition had taken place somewhere between 1965 to 1970, DW2 was capable of understanding such partition. The trial Court says that they were aged about 7 to 8 years and therefore, their evidence is discarded in limine. The cross- examination of DW2 would show that he was suggested that grandfather of the plaintiff and defendant Nos.1 to 3 is called as Chinnappa @ Chinnappa Reddy @ Chikka Chinnanna. It being a suggestion on behalf of the plaintiff is to be accepted. He admits that Chinnappa Reddy @ Chikka Chinnanna was also called as Chinnappa. He also admits in cross-examination by the learned counsel for the plaintiff that after death of Chinnappa @ Chinnappa

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

79 Reddy, the suit schedule property had fallen to the share of his two sons. He states that he was present when there was a partition between the plaintiff and defendant Nos. 1 to 3. 89. A perusal of the judgment of the trial Court in para 16 would show that, it opines that ‘D’ schedule property was standing in the names of defendant Nos.1 and 2 on the death of Muniswami Reddy. The trial Court relied on Exs.P17 and P18, the mutation entries. Exs.P17 and P18 are the RTCs. Ex.P17 is in respect of Sy.No.29/18 and it show the name of Hanumakka, Gopal Reddy, Krishna Reddy and Parvathamma. However, Ex.P18 is pertaining to Sy.No.37/1 and therefore, when Ex.P18 does not pertain to Sy.No.29/18, the observations by trial Court in para-16 appears to be perverse. Therefore, it is not possible to hold that Ex.P17 would indicate that it is the joint family property. However, as noted above, the Sy.No.29/18 was sold by defendant No.2 in favour of Govind Reddy. Under these circumstances, the plaint having not explained as to how Sy.No.29/18 was acquired by the joint family and under what circumstances a portion

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

80 of Sy.No.29/2A was sold by the plaintiff in favour of Ravichandra, it appears that the existence of joint family and the devolution of the properties has not been properly explained and established by the plaintiff. Under these circumstances, it is not possible to subscribe to the views of the trial Court that schedule ‘D’ property was also amenable for partition. Hence we hold the point raised in the negative. Re.Point No. 5: Regarding Partial Partition:

35 (1982) 1 SCC 447 36 (1983) 2 SCC 155 37 2022 SCC OnLine SC 240

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

81 there cannot be a partial partition is not an absolute one. It admits of exceptions. In Mayne's 'Treatise on Hindu Law & Usage' 17th Edition, Paragraph 487, reads as follows:

"487. Partition suit should embrace all property - Every suit for a partition should ordinarily embrace all joint properties. But this is not an inelastic rule which admits circumstances of a particular case or the interests of justice so require. Such a suit, however, may be confined to a division of property which is available at the time for an actual division and not merely for a division of status. Ordinarily a suit for partial partition does not lie. But, a suit for partial partition will lie when the portion omitted is not in the possession of coparceners and may consequently be deemed not to be really available for partition, as for instance, where part of the family property is in the possession of a mortgagee or lessee, or is an impartible Zamindari, or held jointly with strangers to the family who have no interest in the family partition. So also, partial partition by suit is allowed where different portions of property lie in different jurisdictions, or are out of British India. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such item does not become legally incompetent of any rule against partial partition."

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

82 in the suit, non-inclusion of all the properties would have posed a major impediment to consider the equities. Hence, we hold the suit suffers from non-joinder of all the properties. Consequently, the point raised is answered in the affirmative. Conclusions

This Court having come to the conclusion that the independent transactions made by defendant Nos.1 and 2 and the fact that they had purchased the property which was sold by their grandfather Chinnaiah, it appears that there was no such joint family of the plaintiff and defendant Nos.1 to 3 which was in existence. The transactions were made independently not only by defendant Nos.1 and 2, but also by the plaintiff and his father. The plaintiff admits that he had sold 11 Guntas of land to one Ravichandra. When plaintiff had also entered into a transaction independently in favour of Ravichandra, it is necessary for him to explain the same before the Court. In our view, the trial Court erred in holding that schedule 'A' and 'D' properties were amenable for

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

83 partition. Clearly the trial Court has erred to look into the flow of title in respect of Sy.No.37 and Sy.No.29/18. 92. Sofar as the cross-objection is concerned, it is evident that the suit schedule ‘B’, ‘C’ and ‘E’ properties are not shown to be the joint family properties which were held by Chinnaiah @ Chinnappa Reddy. Though the relationship is admitted between the parties, there is insufficient evidence on behalf of the plaintiff to show that ‘B’, ‘C’ and ‘E’ properties were held by Chinnappa Reddy @ Chinnaiah and they devolved upon plaintiff and defendant Nos. 1 to 3. The plaint did not explain as to how the property came into the fold of the joint family. Therefore, suit deserves to be dismissed. 93. As a consequence, the appeals deserve to be allowed and the cross- objection deserves to be dismissed. Hence, the following: ORDER (i) I.A.No.1/2023 filed under Order 41 Rule 27 CPC is allowed.

RFA No.1433/2014 C/W RFA NO.1525/2014, RFA CROB NO.1/2015

84 (ii) RFA No.1433/2014 filed by defendant Nos. 1 and 2 (represented by their LRs) and RFA No.1525/2014 filed by defendant No.9 are allowed. (iii) RFA Crob No.1/2015 filed by plaintiff is dismissed. Consequently, OS No. 7702/2004 filed by the plaintiff stands dismissed.

Sd/- (KRISHNA S DIXIT) JUDGE

Sd/- (C M JOSHI) JUDGE tsn*