Partly allowed

Banobaiah v. Rudranna

Karnataka HC23 Apr 2024RFA/873/2014

Case brief

AI extract

What is this about?

This High Court of Karnataka dismissed a partition appeal and allowed a cross-objection holding the underlying suit barred by limitation due to a prior sale by the plaintiffs' father, while rejecting claims regarding joint family status and necessary parties.

What did the court decide?

RFA No.873/2014 dismissed; Cross Objection No.4/2016 allowed in part; suit dismissed as barred by limitation.

Banobaiah Vs Rudranna — Partition | Karnataka HC (2024)

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NC: 2024:KHC:16161 RFA No. 873 of 2014 C/W RFA.CROB No. 4 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 873 OF 2014 (PAR) C/W

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RFA CROSS OBJECTION NO. 4 OF 2016 (PAR)

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IN RFA NO.873/2014

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BETWEEN:

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BANOBAIAH, S/O LATE PATHRAIAH AGED ABOUT 67 YEARS.

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NANGI MUTHAIAH, S/O LATE PATHRAIAH, AGED ABOUT 55 YEARS.

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Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA

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BOTH THE APPELLANTS NO.1 AND 2 ARE AGRICULTURIST, R/O KATANAYAKANAHALLI, MOLAKALMUR TALUK, CHITRDURAGA DISTRICT - 577 501.

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…APPELLANTS

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(BY SRI. NATARAJ BALLAL, ADVOCATE)

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AND:

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RUDRANNA, S/O OBAIAH @ PAMPAIAH, AGED 57 YEARS.

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OBANNA S/O OBAIAH @ PAMPAIAH AGED ABOUT 50 YEARS.

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BASAIAH, S/O LATE KHAZI BHEEMAIAH AGED ABOUT 61 YEARS. SINCE DEAD BY HIS LRS.

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3(A) SMT. HANUMAKKA S/O LATE BASAIAH, AGED MAJOR R/O KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT - 577 501.

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3(B). SRI. BORANNA S/O LATE BASAIAH, AGED MAJOR R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT - 577 535.

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MARANNA, S/O LATE KHAZI BHEEMAIAH, AGED ABOUT 82 YEARS.

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PENNAMMA, W/O LATE NALLAOBAIAH, AGED ABOUT 77 YEARS.

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BADAOBAIAH, W/O LATE NALLAOBAIAH, AGED 65 YEARS.

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OBANNA, S/O LATE NALLAOBAIAH, AGED ABOUT 52 YEARS.

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BHEEMANNA, S/O LATE NALLAOBAIAH AGED ABOUT 47 YEARS.

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MALLAIAH, S/O LATE NALLAOBAIAH

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AGED ABOUT 45 YEARS.

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RUDRANNA S/O LATE NALLAOBAIAH AGED ABOUT 40 YEARS.

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DODDASIDDANNA S/O LATE BHEEMAIAH AGED ABOUT 45 YEARS.

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SUBBANNA @ SIDDANNA S/O LATE BHEEMAIAH AGED ABOUT 45 YEARS.

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SHIVANNA, S/O LATE BHEEMANNA, AGED ABOUT 40 YEARS.

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BHEEMAIAH S/O LATE ERABASAIAH AGED ABOUT 55 YEARS.

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OBAKKA W/O SIDDANNA AGED ABOUT 55 YEARS.

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NAGANNA W/O LATE SIDDANNA AGED ABOUT 32 YEARS

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OBANNA S/O LATE ERABASAIAH AGED ABOUT 52 YEARS

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BHEEMAIAH S/O LATE KONDIAH AGED ABOUT 75 YEARS. SINCE DEAD BY HIS LRS.

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18(A) OBAVVA S/O LATE BHEEMAIAH

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AGED ABOUT 60 YEARS R/O KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577 535.

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18(B) OBANNA

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S/O LATE BHEEMAIAH AGED ABOUT 55 YEARS R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT - 577 535.

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18(C) BASANNA S/O LATE BHEEMAIAH AGED ABOUT 50 YEARS R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577 535.

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18(D) GANGAMMA, S/O GUNDUMUTHU AGED ABOUT 45 YEARS R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT - 577 535.

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18(E) SIDDANNA S/O LATE BHEEMAIAH AGED ABOUT 42 YEARS R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577535.

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BOOMAKKA W/O LATE BASAIAH AGED ABOUT 65 YEARS.

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20. SIDDANNA S/O LATE BASAIAH AGED ABOUT 42 YEARS

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GUNDUMUTHU S/O LATE KONDAIAH AGED ABOUT 65 YEARS. SINCE DEAD BY HIS LRS.

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21(A) GOVINDAMMA W/O LATE GUNDUMUTHU AGED ABOUT 65 YEARS R/O KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501

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21(B) OBANNA

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S/O GUNDUMUTHU AGED ABOUT 55 YEARS R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577 501.

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21(C) RUDRANNA S/O GUNDUMUTHU AGED ABOUT 50 YEARS R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501.

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21(D) ANJANAYA S/O GUNDUMUTHU AGED ABOUT 45 YEARS R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501.

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21(E) BHAGYAMMA

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D/O GUNDUMUTHU AGED ABOUT 40 YEARS R/AT KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501.

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OBAIAH S/O LATE BASAIAH AGED ABOUT 57 YEARS

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THE RESPONDENTS NO.1 TO 22 ARE AGRICULTURIST, R/O KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT - 577 501. SINCE DEAD BY HIS LRS.

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22(A) GOWRAMMA

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W/O LATE OBAIAH AGED ABOUT 62 YEARS R/O KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501.

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22(B) RATHNAMMA

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D/O OBAIAH AGED ABOUT 40 YEARS GOSAMUDHRA, CHALKERE TALUK, CHITRADURGA DISTRICT-577501

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22(C) NANJAVARAKKA

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D/O OBAIAH AGED ABOUT 38 YEARS R/O KATANAYAKANAHALLI MOLAKALMURTALUK, CHITRADURGA - 577 501.

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22(D) ANJANAMMA D/O OBAIAH AGED ABOUT 36 YEARS R/O UCHANGIDURGA MOLAKALMUR TALUK, CHITRADURGA, CHITRADURGA DIST-577501

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22(E) SANTHAMMA

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D/O OBAIAH, AGED ABOUT 34 YEARS R/O MATHASHNA HALLI KUDLIGI TALUK, BELLARI DISTRICT - 577 501.

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22(F) PARVATHI D/O OBAIAH AGED ABOUT 32 YEARS R/O KATANAYAKANA HALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501

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22(G) MARAKKA D/O OBAIAH AGED ABOUT 30 YEARS R/O KAMALAPURA HOSAPETA TALUK, BELLARI DISTRICT - 577 501.

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22(H) OBANNA S/O OBAIAH AGED ABOUT 28 YEARS R/O KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501.

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…RESPONDENTS (BY SRI. B.M. SIDDAPPA, ADVOCATE FOR R1 TO R3(A AND B), R4 TO R17, R18(A TO E), R19 TO R20, R21(A TO D); V/O DATED:21.01.2020, APPEAL AGAINST R22 STANDS ABATED;

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MR. B.S. VISWANATH, ADVOCATE FOR R22 (A TO H); R21 (E) IS SERVED)

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THIS RFA IS FILED UNDER SEC 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.4.2014 PASSED IN O.S.NO.36/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHALLAKERE DISMISSING THE SUIT FOR PARTITION & SEPARATE POSSESSION.

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IN RFA.CROB NO.4/2016

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BETWEEN:

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SRI. RUDRANNA. S/O OBAIAH @ PAMPAIAH. AGED ABOUT 59 YEARS.

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OBANNA S/O OBAIAH @ PAMPAIAH, AGED ABOUT 57 YEARS.

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SMT. HANUMAKKA W/O LATE BASAIAH AGED MAJOR

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SRI. BORANNA S/O LATE BASAIAH AGE ABOUT 61 YEARS.

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SRI. MARANNA S/O LATE KHAZI BHEEMAIAH AGED ABOUT 61 YEARS.

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SMT. PENNAMMA W/O LATE NALLAOBAIAH AGED ABOUT 84 YEARS

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BADAOBAIAH S/O LATE NALLOBAIAH AGED ABOUT 49 YEARS

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OBANNA S/O LATE NALLOBAIAH AGED ABOUT 54 YEARS

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BHEEMANNA S/O LATE NALLOBAIAH AGED ABOUT 49 YEARS

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MALLAIAH S/O LATE NALLOBAIAH AGED ABOUT 47 YEARS

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RUDRANNA S/O LATE NALLOBAIAH AGED ABOUT 42 YEARS

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DODDASIDDANNA S/O LATE BHEEMAIAH AGED ABOUT 47 YEARS

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B SUBBANNA S/O LATE BHEEMAIAH AGED ABOUT 42 YEARS

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SHIVANNA S/O LATE BHEEMAIAH AGED ABOUT 42 YEARS

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BHEEMAIAH S/O LATE ERABASAIAH AGED ABOUT 62 YEARS

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16. OBAKKA W/O SIDDANNA AGED ABOUT 34 YEARS

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NAGANNA S/O LATE SIDDANNA AGED ABOUT 48 YEARS

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OBANNA S/O LATE ERABASAIAH AGED ABOUT 54 YEARS

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BHEEMAIAH S/O LATE KONDAIAH DEAD BY LRS.

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19(A) SMT.OВАККА D/O. LATE BEEMAIAH AGED ABOUT 60 YEARS.

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19(B) OBANNA

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S/O. LATE BEEMAIAH AGED ABOUT 55 YEARS.

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19(C) GANGAMMA D/O. LATE BEEMAIAH AGED ABOUT 62 YEARS.

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19(D) BASANNA S/O. LATE BEEMAIAH AGED ABOUT 50 YEARS.

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19(E) SIDDANNA S/O. LATE BEEMAIAH AGED ABOUT 47 YEARS.

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BOOMAKKA W/O LATE BASAIAH AGED ABOUT 67 YEARS

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SIDDANNA S/O LATE BASAIAH AGED ABOUT 44 YEARS

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GUNDUMUTHU S/O LATE KONDAIAH DEAD BY LRS.

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22(A). OBANNA S/O GUNDUMUTHU AGED ABOUT 55 YEARS.

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22(B) RUDRANNA S/O GUNDUMUTHU AGED ABOUT 50 YEARS.

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22(C) ANJANAYA S/O GUNDUMUTHU AGED ABOUT 45 YEARS.

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22(D) BHAGYAMMA D/O GUNDUMUTHU AGED ABOUT 40 YEARS.

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ALL ARE AGRICULTURIST RESIDENTS OF KATANAYAKANAHALLI MOLAKALMURU TALUK CHITRADURGA DISRICT -577535.

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…CROSS OBJECTORS

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(BY SRI. SIDDAPPA B.M., ADVOCATE)

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AND:

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BANOBAIAH S/O LATE PATHRAIAH AGED ABOUT 69 YEARS

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NANGI MUTHAIAH S/O ALTE PATHRAIAH AGED ABOUT 57 YEARS

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3 OBAIAH S/O LATE BASAIAH SINCE DEAD BY HIS LRS.

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3(A) GOWRAMMA W/O LATE OBAIAH AGED ABOUT 62 YEARS R/O KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501.

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3(B) RATHNAMMA D/O OBAIAH AGED ABOUT 40 YEARS GOSAMUDHRA, CHALKERE TALUK,

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CHITRADURGA DISTRICT-577501

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4(C) NANJAVARAKKA

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D/O OBAIAH AGED ABOUT 38 YEARS R/O KATANAYAKANAHALLI MOLAKALMURTALUK, CHITRADURGA - 577 501.

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5(D) ANJANAMMA

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D/O OBAIAH AGED ABOUT 36 YEARS R/O UCHANGIDURGA MOLAKALMUR TALUK,

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CHITRADURGA, CHITRADURGA DIST-577501

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6(E) SANTHAMMA D/O OBAIAH, AGED ABOUT 34 YEARS R/O MATHASHNA HALLI KUDLIGI TALUK, BELLARI DISTRICT - 577 501.

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7(F) PARVATHI D/O OBAIAH AGED ABOUT 32 YEARS R/O KATANAYAKANA HALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501

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8(G) MARAKKA D/O OBAIAH AGED ABOUT 30 YEARS R/O KAMALAPURA HOSAPETA TALUK, BELLARI DISTRICT - 577 501.

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9(H) OBANNA S/O OBAIAH

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AGED ABOUT 28 YEARS R/O KATANAYAKANAHALLI MOLAKALMUR TALUK, CHITRADURGA DISTRICT-577501.

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…RESPONDENTS

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(BY SRI. NATARAJA BALLAL, ADVOCATE FOR R1 & R2, R3(A TO H);

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V/O DATED 05.01.2023 PROPOSED LRS OF DECEASED R3 ARE ALREADY IN RECORD IN RFA 873/2014, IA'S ALLOWED R3(A) TO R3(H))

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THIS RFA CROB IN RFA IS FILED UNDER ORDER 41 RULE 22 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 25.04.2014 PASSED IN OS.NO.36/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE CHALLAKERE, DISMISSING THE SUIT FOR PARTITION.

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THIS RFA AND RFA.CROB, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the plaintiffs is arising from the

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judgment and decree in O.S.No.36/2012 on the file of the Senior Civil Judge, Challakere. In terms of the said judgment and decree, the suit of the plaintiffs is dismissed.

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RFA. CROB. No.4/2016 is filed by defendants No.1 to 22 in the said suit challenging the findings on issues No.4 to 6.

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The suit is filed in respect of two immovable properties, namely Sy.No.32 measuring 12 acres 39 guntas and

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Sy.No.29 measuring 16 acres 25 guntas of Guddadahalli village, Molakalmuru Taluk. The suit is filed for relief of partition and separate possession. Admittedly, the propositus of the family was one Mr. Ragiseeme Bheemaiah @ Boraiah. He had three sons, namely Gundaiah, Nungimuthaiah and Gundaiah alias Bheemaiah. The plaintiffs are the sons of Nungimuthaiah alias Pathraiah, who is the second son of propositus Ragiseeme Bheemaiah.

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The properties referred to above were purchased in the name of Bagaraiah under the Registered sale deed dated 30.06.1939. Bagaraiah is the son of Gundaiah who is the third son of propositus Ragiseeme Bheemaiah.

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It is also necessary to refer to some of the earlier suits between the parties. O.S.No.125/1979 was filed by the plaintiffs' father. The suit was later withdrawn. O.S.No.311/1979 on the file of Munsiff Court, Chithradurga was filed in respect of Sy.No.29 measuring 7 acres. The said suit was filed by Bagaraiah, who is the son of Gundaiah, the third son of the propositus Ragiseeme Bheemaiah. The said suit was decreed. One of the defendants in the said suit filed RA.No.59/1983 against the said judgment and decree and said

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appeal is also dismissed. The plaintiffs claim that they are not parties to the said proceedings and the judgment is not binding on them.

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O.S.No.3/1991 is filed on the file of the Civil Judge, Chitradurga by Bonnabaiah, who was the son from the Patraiah, the son of Nungimuthaiah @ Patraiah. The said suit was filed in respect of Sy.No.32 measuring 12 acres 27 guntas and Sy.No.29/P measuring 11 acres 29 guntas. The said suit was decreed granting half share to the plaintiffs. FDP.No.1/1992 is filed and katha is changed pursuant to the final decree to the said proceeding.

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Ten years later O.S.No.7/2002 is filed on the file of the Senior Civil Judge, Challakere challenging the judgment and decree in O.S.No.3/1991 referred to above. The said suit is decreed and the judgment and decree in O.S.No.3/1991 are set aside. Aggrieved by the decree in O.S.No.7/2002 RFA.No.282/2003 was filed. The said appeal is partly allowed. The decree cancelling the decree passed in O.S.No.3/1991 is confirmed. The decree for permanent injunction granted is setaside.

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O.S.No.44/2012 is filed by Bagaraiah, the last son

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of Gundaiah, who is the elder son of Ragiseeme Bheemaiah. The said suit is dismissed with an observation that the plaintiff is not the absolute owner of the property covered under the sale deed dated 30.06.1939.

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It is relevant to note that in the said suit, the other

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sons of Gundaiah were also the parties as defendants.

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The plaintiffs filed the suit in the backdrop of above mentioned proceedings and claimed that there was a oral partition in the family. The property bearing Sy.Nos.32 and 29 were partitioned among the three children of the propositus. It is further pleaded that Sy.No.32 measuring 12 acres 32 guntas, was allotted to the share of elder son Gundaiah. Sy.No.29 measuring 7 acres 33 guntas out of total extent of 15 acres 12 guntas, was allotted to the share of Nungimuthaiah @ Pathraiah, the second son and remaining 7 acres 33 acres in the Sy.No.29 is allotted to the share of third son Gundaiah @ Bheemaiah. In Para No.4 of the plaint, the plaintiffs have averred that Nungimuthaiah sold 7 acres 33 guntas allotted to him to Gundaiah for Rs.90/-. It is further stated that in the year 1926, Gundaiah who purchased the property, effected

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partition in respect of Sy.Nos.29 and 32 among his sons. The remaining paragraphs in the plaint would refer to the judgments referred to above and based on the observations made in the aforementioned judgments, the plaintiffs have filed a suit for partition and separate possession.

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The suit was contested by the defendants. Defendants No.1 to 21 filed written statement opposing the plaint and defendant No.22 filed a separate written statement. The Trial Court framed the following issues.

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"1. Whether the plaintiffs prove that suit schedule properties are ancestral and joint family properties of the defendants and themselves?

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2. Whether the plaintiffs are entitled for 1/2 share in the suit schedule properties?

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3. Whether the defendants prove that suit is nonjoinder of necessary parties?

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4. Whether the defendants prove that the suit is not maintainable in law as contended in para (c) and (k) of the written statement?

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5. Whether the defendants prove that suit is barred by law of imitation?

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6. Whether the defendants prove that the suit is hit by principles of res-judicata?

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7. What Order or decree?"

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The Trial Court has concluded that the plaintiffs

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have not established that the suit properties are the joint family

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properties. However, issue Nos.4, 5 and 6 relating to resjudicata and limitations have been answered against the defendants. Against the said findings, defendants No.1 to 21 have filed cross-objection. The plaintiffs have filed the aforementioned appeal.

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Sri. Nataraja Ballal, the learned counsel appearing for the appellants would urge that the suit properties are the joint family properties and there is a finding by this Court in RFA.No.282/2003 in terms of the judgment dated 04.09.2012. It is also his submission that in O.S.No.44/2012, while answering issue No.1, the Court has given a finding that Obaiah, the son of Bagaraiah is not the absolute owner of the property bearing Sy.No.29 measuring 7 acres 33 guntas. Thus, he would contend that the suit ought to have been decreed.

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It is also his submission that the finding of the Trial Court that the last son of propositus, namely Gundaiah @ Bheemaiah is survived by his daughters and grand children and the suit without impleading those daughters and grand children is not maintainable is erroneous, in as much as, the Trial Court ought to have directed the plaintiffs to implead those persons

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as parties to the proceedings. It is his submission that the suit for partition could not have been dismissed on the ground that the necessary parties are not impleaded in the suit. It is also his further submission that no documents are placed before the Court to establish the partition.

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The learned counsel for respondents No.1 to 21 would urge that the plaintiff themselves have admitted the partition that has taken place in the Trial Court and according to the plaintiffs, Sy.No.29 measuring 7 acres 33 guntas, was allotted to the share of the plaintiffs father Nungimuthaiah @ Pathraiah and he has sold the property to his brother in the year 1926 for a consideration of Rs.90/- and this being the pleading, the Trial Court is justified in dismissing the suit for partition and the plaintiffs themselves have admitted that there was a partition in the family of their father.

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It is the further submission of the learned counsel appearing for respondents No.1 to 21 that in O.S.No.44/2012, the finding on issue No.1 cannot be construed as the finding to hold that the plaintiffs have got share in the suit properties. It is his submission that the claim of the plaintiffs that they have share in the suit properties is to be independently proved by

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leading evidence. It is also his further submission that the finding in RFA.No.282/2003 cannot be construed as the finding that the suit properties are joint family properties. He would urge that in RFA.No.282/2003, this Court has categorically held that there is no material to hold that the properties are either partitioned or not partitioned.

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The learned counsel appearing for respondent No.22, would urge that the title of father of respondent No.22 is already declared in O.S.No.311/1979 in respect of Sy.No.29 and the said judgment is tested in RA.No.59/1983 and the appeal is dismissed. Thus, he would contend that the suit in respect of Sy.No.29 is hit by principles of res-judicata.

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Sri. Nataraja Ballal, the learned counsel appearing for the appellants would contend that the judgment in O.S.No.311/1979 is not binding on the plaintiffs as neither the plaintiffs nor the predecessors in title of the plaintiffs were parties to the said proceedings.

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This Court has considered the contentions raised at the bar and perused the records.

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The following points arise for consideration:

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"(i) Whether the appellants are able to establish that the suit properties are the joint family properties?

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(ii) Whether the Trial Court is justified in dismissing the suit on the premise that the suit is bad for nonjoinder of necessary parties?

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(iii) Whether the Cross Objectors have made out the case that the finding on issues No.4 to 6 are erroneous?

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(iv) Whether the suit is required principles of res judicata?

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(v) Whether the suit is barred by limitation?".

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Though the suit is for partition, the pleadings do not support the prayer relating to the partition. The plaintiffs have clearly stated that there was a partition in the family among the plaintiffs' father and his two brothers. It is further stated that the plaintiffs' father was allotted 7 acres 33 guntas in Sy.No.29 and thereafter, the plaintiffs father sold the property for Rs.90/- to one of his brothers. In addition to that the plaint would also reveal that the purchaser, who was the brother of the plaintiffs father, effected partition in respect of the properties purchased by him in the year 1926. This being the

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position, the plaintiffs cannot contend that they are entitled to a share in the suit properties.

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This is well settled principle of law that any relief sought in the plaint is to be supported by a pleading as well as evidence. That the pleading itself is to the effect that there is already a partition in the family, and the plaintiffs' father sold the property allotted to his share way back in the year 1926, the plaintiffs cannot seek partition in respect of the same property.

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The claim of the plaintiffs, if it is to be gathered from the averments made in the plaint, it is evident that the plaintiffs are basing their claim on the basis of the judgments rendered in earlier proceedings, which are referred to above.

¶214

It is to be noticed that in the earlier proceedings, there is no specific finding is recorded holding that the suit properties are the joint family properties. In RFA.No.282/2003, this Court has not given any finding that the suit properties are the joint family properties. This Court has observed that there are no materials to give a finding as to whether the properties are partitioned or not partitioned. Thus, in RFA.No.282/2003, the issue relating to the partition is not adjudicated.

¶215

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¶216

NC: 2024:KHC:16161 RFA No. 873 of 2014 C/W RFA.CROB No. 4 of 2016

¶217

RFA.No.282/2003, arose from the judgment in O.S.No.3/1991 and this Court has set aside the decree for injunction and has confirmed the declaration granted in O.S.No.3/1991. The said judgment cannot be construed as the judgment declaring that the suit properties are the joint family properties.

¶218

Though, the learned counsel appearing for respondent No.22 would contend that the finding in O.S.No.311/1979, operates as res-judicata , the said contention cannot be accepted for the simple reason that the plaintiffs or their predecessors in title were not parties to O.S.No.311/1979. Though, in the said judgment there is a finding holding that the father of defendant No.22 is the owner of the suit schedule property bearing Sy.No.29 in O.S.No.311/1979, the said judgment cannot be used against the present appellants, as the present appellants are not parties to the said proceedings. However, this Court makes it clear that the said judgment operates against the persons, who were parties to the said judgment.

¶219

As far as O.S.No.44/2012 is concerned indeed it is true, that issue No.1 is held against the plaintiff in the said suit, who made a claim that he is the absolute owner and in

¶220

24 - NC: 2024:KHC:16161 RFA No. 873 of 2014 C/W RFA.CROB No. 4 of 2016

¶221

possession of the properties bearing Sy.No.29 measuring 7 acres 33 guntas. However, that findings cannot be construed as a finding relating to the claim made by the plaintiffs, that the suit property is the joint family property of the plaintiffs and the defendants.

¶222

The additional issues No.1 to 3 in the aforementioned suit in O.S.No.44/2012 would record a finding that the suit of the plaintiffs is hit by principles of res-judicata. Though, the Court in O.S.No.44/2012, while answering additional issues has said that the suit of the plaintiffs is hit by principles of res judicata , the Court is unable to accept how the principles of res judicata would apply in a situation where there is no finding in the earlier suit relating to the previous partition. However, that does not mean that the plaintiffs have established the claim for partition especially in a situation, when the plaintiffs themselves have pleaded in the plaint that there is already a partition in their family and after partition, the plaintiffs' father has sold the property to his brother in the year 1956 and furthermore in a situation that the plaintiffs themselves plead that after the sale the purchaser has effected a partition amongst his children.

¶223

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¶224

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¶225

This being the position, this Court does not find any error in the judgment of the Trial Court, which has held that the suit properties are not the joint family properties.

¶226

As far as the finding of the Trial Court that the suit is also bad for non-joinder of necessary parties. It is to be noticed that in the cross-examination it is admitted that last son of propositus Ragiseeme Bheemaiah @ Boariah namely Gundaiah @ Bheemaiah had a daughter and daughter is no more and her children are not made parties. Thus, the finding that the suit is bad for non-joinder of necessary parties is also a correct finding.

¶227

As far as the issue relating to the limitation is concerned, the Trial Court held that the suit is not barred by limitation. However, it is to be noticed that the plaintiffs themselves have pleaded that the partition has taken place long back and after the partition their father sold the property in 1926. And the present suit for partition is filed in the year 2012. The plea is not raised challenging the earlier partition set to have been made before 1926. There is no challenge to the sale made in the year 1926 by the plaintiffs' father.

¶228

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¶229

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¶230

This being the position, the suit is clearly barred by limitation. The Trial Court could not have held that the suit is in time.

¶231

This being the position, the finding that the suit is not barred by limitation is liable to be set aside by allowing the Cross Objection. Hence, the following:-

¶232

ORDER

¶233

i) RFA No.873/2014 is dismissed .

¶234

ii) CROB No.4/2016 in RFA No.873/2014 is allowed in part. The finding on Issue No.5 is set-aside and suit in O.S. No.36/2012 on the file of Senior Civil Judge, Challakere is held to be barred by limitation.

¶235

Sd/JUDGE

¶236

PHM/CHS

¶237

List No.: 1 Sl No.: 6

Banobaiah v. Rudranna

Case brief

What is this about?

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Banobaiah v. Rudranna

Case brief

What is this about?

What did the court decide?

What the court decided

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