Smt.Kusumavathi W/O. Satappa Khemalapure Vs Sri.Ramesh S/O. Satappa Khemalapure

SMT. SUNANDA W/O. JAYAKUMAR KHEMALAPURE, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O. BELLAD-BAGEWADI, TAL: HUKKERI, DIST: BELAGAVI, NOW AT NEAR JAIN BOARDING, MAHAVEER COLONY, SANGLI, MAHARASHTRA STATE-416416.

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SMT. GODAVARI W/O. NEMINATH KHEMALAPURE, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O. BELLADA-BAGEWADI, TAL: HUKKERI, DIST: BELAGAVI-591305.

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SRI. ABHIJIT @ APPASAB S/O. NEMINATH KHEMALAPURE, AGE: 38 YEARS, OCC: AGRICULTURE, R/O. BELLADA-BAGEWADI, TAL: HUKKERI, DIST: BELAGAVI-591305.

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SMT. NEETA W/O. BHUSHAN KULKARNI, AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O. GHATAPRABHA, TAL: HUKKERI, DIST: BELAGAVI-591306.

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SRI. NIRMALKUMAR S/O. ANNASAHEB PATIL, AGE: 72 YEARS, OCC: AGRICULTURE, R/O. SADALAGA VILLAGE, TQ: CHIKKODI, DIST: BELGAVI-591239.

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SRI. AKSHAY S/O. NIRAMALKUMAR PATIL, AGE: 39 YEARS, OCC: AGRICULTURE, R/O. SADALAGA VILLAGE, TAL: CHIKKODI, DIST: BELAGAVI-591239.

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…APPELLANTS

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(BY SRI. SANJAY S. KATAGERI, ADV. FOR A1, A3, A4 AND A5; SRI. SHIVARAJ S.BALLOLI, ADV. FOR A2, A6 AND A7)

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AND:

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SRI. RAMESH S/O. SATAPPA KHEMALAPURE SINCE DECEASED BY HIS LR’s., AS RESPONDENTS NO.1A, 1B(a), 1B(b), RESPONDENTS NO.1C TO 1F HEREIN.

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1(A). SMT. KUNDAN W/O. RAMESH KHEMALAPRUE AGE: 54 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O. BELLADA BAGEWADI, TAL: HUKKERI, DISTRICT: BELAGAVI-591305.

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1(B). SHRI. KUBER S/O. RAMESH KHEMALAPURE SINCE DECEASED BY HIS LR’s.

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1(B)(a). SMT. AISHWARYA S/O. KUBER KHEMALAPRUE, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O. BELLADA BAGEWADI, TAL: HUKKERI, DISTRICT: BELAGAVI-591305.

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1(B)(b). KUMARI. SANSKRUTI D/O. KUBER KHEMALAPURE, AGE: 10 YEARS, OCC: STUDENT, R/O. BELLADA BAGEWADI, TAL: HUKKERI, DISTRICT: BELAGAVI-591305. SINCE MINOR REPRESENTED BY HER NATURAL MOTHER MINOR GUARDIAN RESPONDENT NO.1(B)(a).

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1(C). SMT. SHWETA W/O. BAHUBALI KAGAWADE AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O. KABBUR, NOW AT ANKALI, TAL: CHIKKODI, DISTRICT: BELAGAVI-591213.

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1(D). SMT. SARIKA W/O. RAJENDRA DANDAGE AGE: 34 YEARS, OCC: HOUSEHOLD WORK R/O. KOTHALI-KUPPANWADI, TAL: CHIKKODI, DISTRICT: BELAGAVI-591287.

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1(E). KUMARI. SANDHYARANI D/O. RAMESH KHEMALAPURE, AGE: 32 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O. BELLADA BAGEWADI, TAL: HUKKERI, DISTRICT: BELAGAVI-591305.

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1(F). KUMARI. SONALI D/O. RAMESH KHEMALAPURE SINCE DECEASED AND HER LR’s. ARE ALREADY ON RECORD IN THIS AS RESPONDENTS NO.1A TO 1E.

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SRI. PADMASHRI W/O. MAHAVEER KHEMALAPURE, AGE: 56 YEARS, OCC: AGRICULTURE, R/O. KADAHATTI VILLAGE,

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TAL: HUKKERI, DIST: BELAGAVI-591309.

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SRI. SUNIL S/O. MAHAVEER KHEMALAPURE, AGE: 42 YEARS, OCC: AGRICULTURE, R/O. KADAHATTI VILLAGE, TAL: HUKKERI, DIST: BELAGAVI-591309.

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SMT. PRAGATI W/O. PRADEEP PATIL, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O. SADALAGA VILLAGE, TAL: CHIKKODI, DIST: BELAGAVI-591239.

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…RESPONDENTS

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(BY SRI. SANGRAM S.KULKARNI, ADVOCATE FOR R1(A), R1(B)(a), R1(C), R1(D), R1(E) & R2 TO R4; R1(B)(b) IS MINOR REPRESENTED BY R1(B)(a); R1(A) TO (E) ARE TREATED AS LR’s OF DECEASED R1(F))

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.09.2018 PASSED IN O.S.NO.2/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This appeal by the defendant Nos.1 to 7 in OS No.2/2014 is directed against the impugned judgment and decree dated 17.09.2018 passed by the Senior Civil Judge, Hukkeri¹ , whereby the said suit filed by the respondent Nos.1 to 3/plaintiffs for partition and separate possession of their alleged shares in the suit schedule immovable property was decreed in favour of the plaintiffs against the defendants.

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The respondent Nos.1 to 3 instituted the aforesaid suit for partition and separate possession against appellants/defendant Nos.1 to 7 and respondent No.4/defendant No.8 in relation to landed property bearing RS No.179 measuring 2 acres 27 guntas (Kharab 22 guntas) situated at Kadahatti Village, Hukkeri Taluk, District Belagavi² .

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1 For short, ‘the Trial Court’

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2 For short, ‘suit schedule property’

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The appellants/defendant Nos.1 to 7 filed their

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written statement and contested the suit.

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For the purpose of convenience, the parties are

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referred to by their respective ranks before the Trial Court.

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Before averting to the material on record, it is

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necessary to set out the genealogical tree of the parties, which is as under:

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Satappa (Dead)

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= Kusumavati (Df No.1)

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Sunanda Neminath Surekha Mahaveer Ramesh (Df.No.2) (Dead) (Dead) (Dead) (Pf No.1) = Godavari =Nirmalkumar =Padmashri (Df No.3) (Df No.6) (Pf No.2) Akshay Abhijeet @ Appasaheb Neeta (Df No.7) Sunil Pragati (Df No.4) (Df No.5) (Pf No.3) (Df No.8)

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As can be seen from the aforesaid genealogical

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tree of the parties, the original propositus, Satappa, having expired, the defendant No.1 Kusumavati, is his wife and they had five children comprising of two daughters and three sons. The plaintiff No.1 is the youngest son of Satappa and Kusumavati. While plaintiff No.2 is the wife of

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one more son of Satappa and Kusumavati i.e., Mahaveer; plaintiff No.3 is the son of Mahaveer and defendant No.8 is the daughter of the Mahaveer and plaintiff No.2. Similarly, the defendant No.2 is the daughter of Satappa and Kusumavati, while defendant Nos.3, 4 and 5 are the wife and children of one more son late Neminatha. Further, another daughter of Satappa and Kusumavati i.e., Surekha has expired. She was the widow of defendant No.6 and the defendant No.7 is her son.

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The plaintiffs instituted the aforesaid suit inter alia contending that, the suit schedule property was a joint family property and that the plaintiffs are entitled to their legitimate shares in the suit schedule property. It was also contended that the defendant Nos.1, 2, 5, 6 and 7 entered into a compromise in OS No.48/2013, through which they purported to partition and divide the suit schedule property among themselves. However, the plaintiffs were not included in either the said partition or compromise. As such, the compromise is not binding on the plaintiffs and does not

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affect their legitimate share in the suit schedule property. Under these circumstances, the plaintiffs filed the aforesaid suit seeking the following reliefs;

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“C) zÁªÁ D¹ÛAiÀÄ°èAiÀÄ ªÁ¢AiÀÄgÀ ¥ÉÊQ ªÁ¢ £ÀA. 1 EvÀ£À ¸ÀªÀiÁ¬ÄPÀ 1/6 »¸ÉìAiÀÄ£ÀÄß ªÀ PÁAiÉÄÝ²ÃIÄ »¸ÉìAiÀÄ£ÀÄß ºÁUÀÆ ªÁ¢ £ÀA. 2 ªÀÄvÀÄÛ 3 EªÀgÀ ¸ÀªÀiÁ¬ÄPÀ 1/6 gÀ°èAiÀÄ 2/3 »¸ÉìAiÀÄ£ÀÄß ªÀ PÁAiÉÄÝ²ÃgÀ »¸ÉìAiÀÄ£ÀÄß dªÁ¨ÁÝgÀ ¥ÀæwªÁ¢AiÀÄgÀ PÀqÉ¬ÄAzÀ ¥ÀæxÀPÀ ¥Á®Ä ªÀiÁr «AUÀr¹ PÉÆqÀ¨ÉÃPÁV «£ÀAw CzÉ.

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CC) ªÉÄ: ¹¤ÃAiÀÄgÀ ¹«¯ï dqÀØ ºÀÄPÉÌÃj EªÀgÀ £ÁåAiÀiÁ®AiÀÄzÀ C¸À® zÁªÁ £ÀA: 48/2013 £ÉÃzÀÝgÀ°è ¥ÀæwªÁ¢ £ÀA: 1, 2, 4, 5 ªÀÄvÀÄÛ 6 EvÀ£À ºÉAqÀw ºÁUÀÆ ¥ÀæwªÁ¢ £ÀA: 7 EvÀ£À vÁ¬Ä ªÉÄÊvÀ ¸ÀÄgÉÃSÁ EªÀgÀÄ ªÀiÁrPÉÆAqÀ C¥À¸ÁvÀ rQæÃ ªÁzÉÃgÀ ªÉÄÃ¯É CUÀgÀ ªÁzÉÃgÀ »¸ÉìÃUÀ¼À ªÉÄÃ¯É AiÀiÁªÀzÉÃ jÃw¬ÄAzÀ §AzsÀ£ÀPÁgÀPÀ EgÀÄªÀ¢¯Áè CAvÁ UÉÆvÀÄÛ¥Àr¸À¨ÉÃPÀÄ.

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(§) ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄPÉÌ ¸Àj PÀAqÀ ¨ÉÃgÉÆAzÀÄ zÁzÀÄ PÉÆr¸À¨ÉÃPÉAzÀÄ «£ÀAw EgÀÄvÀÛzÉ.

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(PÀ) ¸ÀzÀj zÁªÉAiÀÄ RZÀð£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀ PÀqÉ¬ÄAzÀ PÉÆr¸À¨ÉÃPÁV «£ÀAw CzÉ.

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(qÀ) ¥Àæ¸ÀAUÀ£ÀÄ¸ÁgÀ ¸ÀzÀj C¸À® CfðAiÀÄ£ÀÄß wzÀÄÝ¥Àr ªÀiÁqÀ®Ä ¥ÀgÀªÁtÂUÉ EgÀ¨ÉÃPÁV «£ÀAw CzÉ.

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--- F ¥ÀæPÁgÁ ºÀÄPÀÄÌA £ÁªÉÄ ªÀiÁqÀ¨ÉÃPÁV «£ÀAw CzÉ.”

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The appellants/defendants entered appearance

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and denied the various contentions urged by the plaintiffs. It was contended that the plaintiffs do not have any shares in the suit schedule property. It was contended that during the lifetime of Satappa, there was an earlier partition in the year 1983, under which the suit schedule property fell to the share of the defendants and accordingly, the plaintiffs would not be entitled to any share in the suit schedule property. It was further contended that since, the plaintiffs were not entitled to any share in the suit schedule property, they were not included in the earlier suit in OS No.48/2013, which was compromised between the defendants before the Lok Adalath. That the defendant Nos.1 to 7 seeking declaration that the said compromise decree is not binding upon them would not arise since, the plaintiffs themselves would not have any shares in the suit schedule property. That there were other joint family properties standing in the name of the plaintiff Nos.1 to 3 and their respective spouses and children which had not been included among the suit

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schedule property in the suit and in the event the Court came to the conclusion that the suit schedule property was a joint family property, the defendant Nos.1 to 7 would be entitled to a share as contented in paragraph Nos.11 and 15 of their written statement. It was also contended that all co-

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sharers had not been made parties to the suit and that a suit for partial partition filed without including all properties and without impleading all co-sharers was not maintainable and the suit was liable to be dismissed.

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Based on the aforesaid pleadings, the Trial Court framed the following issues:

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1) “Whether the plaintiffs prove that suit property is their and defendants ancestral joint family property? (Deleted)

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2) Whether suit is bad for non-joinder of necessary parties?

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3) Whether the suit is bad for non-inclusion of all properties of family?

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4) Whether suit maintainable in view of decree in O.S.No.48/2013 in respect of suit property by Lok Adalat?

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5) Whether plaintiffs are entitled shares in suit property?

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6) What order or decree?”

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The GPA holder of plaintiff No.1 was examined as

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PW1 and documentary evidence at Ex.P1 to P11 were marked. The defendant No.4 examined himself as DW1 and documentary evidence at Ex.D1 to D29 were marked.

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After hearing the parties and perusing the material on record, the Trial Court noticed that there was no dispute between the parties as regards to their inter-se relationship as well as the fact that the suit schedule property was a joint family property and accordingly, the Trial Court proceeded to delete issue No.1. Thereafter, the Trial Court took into account the various admissions made by DW1 during the cross examination, to the effect that non inclusion of all properties and non-joinder of all parties as contended by the defendants in their written statement would not be fatal to the claim of the plaintiffs since, DW1 himself had admitted that during his lifetime itself, the

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properties mentioned in the written statement vis-à-vis R.S.Nos.180, 127, 119, 120, 121, 126 and 108/3 and open space bearing No.461 had already been allotted to the plaintiffs and others, as a result of which the defendants would not be entitled to any share in these properties, which were the exclusive and absolute properties of the plaintiffs and Neminatha (son of Satappa and Kusumavati).

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Under these circumstances, the Trial Court came to the conclusion that non inclusion of the properties mentioned in the written statement would not affect the claim of the plaintiffs in any manner whatsoever since, the defendants did not have any right over the said properties mentioned in the written statement. Consequently, the Trial Court proceeded to answer issue Nos.2 and 3 in the negative against the defendants and upheld the claim of the plaintiffs. Insofar as, Issue No. 4 was concerned, the Trial Court came to the conclusion that the said property was a joint family property and though the same was purported to be divided between the defendant Nos.1 to 7, who were

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parties to OS No.48/2013 before the Lok Adalath, in which compromise award was passed, since the plaintiffs were not parties to the said suit, the said compromise award was not binding upon their shares in the suit schedule property. Accordingly, the claim of the plaintiffs was upheld by the Trial Court and decreed the suit in part in favour of the plaintiffs. Aggrieved by the impugned judgment and decree, the defendant Nos.1 to 7/appellants are before this Court by way of the present appeal.

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During the pendency of the present appeal, the appellants have filed an application in I.A.No.1/2018 under Order XLI Rule 27 of the Code of Civil Procedure, 1908³ , seeking production of one document said to be ‘Wardi’ dated 23.05.1683 given by the appellant/defendant No.1 to enter her name in the records to which all the appellants and respondent/defendant are said to have given their consent and signatures. The respondents/plaintiff Nos.1 to 3 have opposed the said application.

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3 For short, ‘CPC’

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The following points that would arise for

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consideration are as under:

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“i) Whether the application in I.A.No.1/2018 filed by the appellants under Order XLI Rule 27 of CPC deserves to be to be allowed?

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ii) Whether the Trial Court was justified in holding that the plaintiffs are entitled to their legitimate share in the suit schedule property?

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iii) Whether the impugned judgment and decree passed by the Trial Court warrants interference by this Court in the present appeal?”

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Regarding point No.(i):

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A perusal of the material on record will indicate that by way of additional evidence, the appellants/defendant Nos.1 to 7 seek permission to produce a document said to be a Wardi dated 23.05.1983 given by the appellant No.1 to enter her name in the records to which all the respondents and other defendants were given consent and signatures. In the affidavit filed in support of

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the application it is contended that, during his lifetime, Satappa effected partition under which he retained R.S.No.179 (suit schedule property) and gave consent for Khata to be mutated into the name of his wife, who is the appellant No.1-Kusumavati, in relation to the remaining joint family properties with the consent of their sons and daughters, who are the remaining parties to the instant suit.

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It was further contended that because of the said Wardi, Kusumavati (defendant No.1) became the absolute owner of the said suit schedule property and consequently, plaintiffs would not be entitled to any share in the suit schedule property and the impugned judgment and decree passed by the Trial Court decreeing the suit of the plaintiffs against appellant No.1-Kusumavati deserves to be set aside.

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Per contra, learned counsel for the plaintiffs would point out that the said Wardi being an unregistered relinquishment deed, would not effect the legitimate shares

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of the plaintiffs in the suit schedule property, upon the demise of Satappa, especially when the said property was undisputedly belonging to Satappa, after his lifetime, all the parties including the appellants and respondents would be entitled to their legitimate shares in the said property. It

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was further contended that the said document is not pleaded anywhere in the written statement of defendant No.1 and in the suit instituted in the year 2014, the defendants did not exercise due diligence in not producing the said document during the course of trial and neither valid nor sufficient ground/cause has been made out in the affidavit filed in support of the application so as to enable this Court to exercise its discretion and permit the appellants to produce the said document in evidence. It was contended that, in the light of the well settled position of law that a mere change of Khata pursuant to a Wardi does not extinguish the claim of the plaintiffs, the said document is neither relevant nor material for the purpose of disposing

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of the present appeal. Accordingly, I.A.No.1/2018 is liable to be dismissed.

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We have given our anxious consideration to the rival contentions of the parties and perused the material on records.

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As rightly contended by the learned counsel for the appellants, in the entire written statement, the appellants/defendants have not stated anything as regards the documents sought to be produced by way of additional evidence. In fact, the defendants do not even plead that Satappa had effected partition during his lifetime itself and retained the suit schedule property and after his lifetime the said partition was given effect to by changing the Khata by allotting the same with the knowledge and consent of all the parties including the plaintiffs.

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Further in the earlier suit in OS No.48/2013, appellant No.1-Kusumavati was also a party to the proceedings. However, she did not state anything in that suit regarding the subject property being exclusively

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allotted or given to her. So also, in the absence of any registered relinquishment deed, signed by all the children/grand-children of Kusumavati in her favour in relation to the suit schedule property, it cannot be said that mere change of mutation would have the effect of extinguishing or taking away the legitimate shares of the parties in the suit schedule property and conferring absolute title in the suit schedule property in favour of Kusumavati.

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Under these circumstances, we are of the considered opinion that the additional document sought to be produced by appellants is required to be received on record. The same does not materially or substantially alter the facts or the defense put forth by the appellants, nor would it have any bearing on the claim of the plaintiffs and consequently, since the said document is unregistered, it would neither be relevant nor material for the adjudication of the present appeal and as such, permitting the appellants to produce it as additional evidence and receiving it on record would serve no useful purpose.

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A perusal of the affidavit filed in support of application in I.A.No.1/2018 also indicates that the necessary parameters required for enabling this Court to exercise discretion under Order XLI Rule 27 of CPC are conspicuously absent from the said affidavit. In fact, the appellants have not stated anywhere as to how and why despite due diligence they could not produce the said document during the course of evidence before the Trial Court. In fact, except fastening/putting the blame on the counsel that he told the appellants that a Wardi was not required, no other reasons are forthcoming in the said affidavit so as to show any indulgence in favour of the appellants.

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Viewed from this angle also, we are of the considered opinion that the application in I.A.No.1/2018 filed by the appellants lacks merit and the same is liable to be dismissed. Accordingly, point No.1 is answered against the appellants and I.A.No.1/2018 is hereby dismissed.

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Regarding Point No.(ii):

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A perusal of the impugned judgment and decree will indicate that the Trial Court has recorded a finding based on pleadings and evidence of the parties that, the only suit schedule property was a joint family property having been inherited and succeeded by the parties upon the demise of Satappa. The Trial Court also answered in the negative contentions urged by the defendants by holding that since the properties mentioned in the counter claim are individual properties belonged exclusively to the plaintiff Nos.1 to 3 and Neminatha, there was no necessity to include those properties as additional properties in the suit and consequently, the claim of the defendants that the suit was one for partial partition was rejected by the Trial Court. The Trial Court also come to the conclusion that the entire family of Neminatha having been made parties to the suit, the suit cannot be said to be bad for non-joinder of necessary parties and rejected the claim of the defendants on this ground also. The Trial Court also took into account

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that, the plaintiffs were not parties to the earlier suit in OS No.48/2013, which was compromised between the defendants’ inter-se and the said compromise award of Lok Adalath was not binding upon the plaintiffs. While arriving at the said conclusions, the Trial Court in its judgment has held as under:

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“23. When the defendants have filed the suit bearing O.S.No.48/2013 on the file of this Court and wherein they have not arrayed as parties to the suit. Further the documentary evidence i.e. Ex.P7 to P9 speaks that the defendants of the present suit were not mentioned the names of plaintiffs and they have filed the suit only in respect to the property bearing R.S.No.179 of Kadahatti village. The para No.3 of Ex.P6 speaks that as per the earlier partition i.e. partition effected by the Satappa during his lifetime of their family properties divided and respective shares have been allotted to Neminath, Ramesh and Mahaveer. Based on these facts, the learned counsel representing for the plaintiff, argued in the present suit concerned there is no need to include all their family properties though the properties which not included in the present suit are purchased by Satappa out of joint nucleus of the family properties fund. Hence, these defendants have no local standy to

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raise question that the present suit in the present form in respect to suit schedule property alone not maintainable.

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24. On going through the evidence of DW.1, it appears that he has categorically admitted that plaintiffs are not party to an earlier suit. Though Ex.P6 speaks that there was earlier partition however, such pleadings were not put forthcoming in their written statement. Further no explanation put forth by the defendants why they have not includedtheir family properties in earlier suit. Further there was no explanation for the defendants that why they have not mentioned the name of plaintiffs in earlier suit. These facts clearly indicates that these defendants in collusion they have filed suit bearing O.S.No.48/2013 on the file of this Court and within period of of 1 ½ months plaintiff and defendants were entered into compromise and filed compromise petition and they have compromised the suit behind the back of the plaintiffs. Since there was no specific defence for the defendants that the suit schedule property was self acquired properties of the Satappa alone. These facts clearly amplifies from the contention of Ex.P6 to P9. Further the certified copy of sale deed i.e. Ex.P4, Ex.D8 to Ex.D12 speaks that Satappa alone has purchased the suit schedule property and other properties in his name. Though the defendants have taken such contention regarding

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earlier partition, they have not pleaded and proved in accordance with law.

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25. The PW.1 in her cross examination she has categorically admitted that R.S.No.180/1 stood in the name of her son Kuber, another property bearing R.S.No.190/3 stood in the name of plaintiffs' son and her husband and another property bearing R.S.No.126 stood in the name of Sunil Mahaveer Khemalapure, another property bearing R.S.No.121/2 stood in the name of Kundan Ramesh Khemalapure, R.S.No.127/1 stood in the name of Sunil Mahaveer Khemalapure and R.S.No.119 stood in the name of Sunil Mahaveer Khemalapure and the property bearing R.S.No.120 stood in the name of PW.1. All these revenue records marked herein as Ex.D1 to Ex.D7 through confrontation which reveals that the properties as mentioned in Ex.D1 to Ex.D7 purchased vide Ex.D9 to Ex.D12 however those properties are not a subject matter of the suit.

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26. Admittedly it is well settled principal of law that for equitable partition is concerned, all the family properties shall bring in common hotchpotch and it is necessary to implead persons were having right, interest over the joint family properties and in the absence of necessary parties and non inclusion of their family properties the suit for equitable partition is not maintainable.

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27. The defendants in Ex.P6 they have taken specific contention at para No.3 that there was an earlier partition and accordingly, all their family properties divided and suit schedule property alone left and thus the suit filed for partition. When the defendants have taken such a specific contention in the plaint in earlier suit thus in my view the inclusion of all other properties pertaining to family of the plaintiffs and defendants appears to be not necessary. There was a dispute between plaintiffs and defendants regarding the present property alone. Hence, in my view the contention taken by the defendants regarding non inclusion of the properties not sustainable.

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28. The defendants further relied the mutation extract and marked herein asEx.D13. Wherein the name of defendant No.1 entered into property bearing R.S.No.119, 126 and 127 along with defendants vide M.R.No.89/200607. Wherein it has been mentioned that the right in the property transferred vide relinquishment deed. However, the defendants were not produced the relinquishment deed in support of their Ex.D13. Ex.D14 speaks that vide Dairy No.1719 the property bearing R.S.No.119, 126, 127 mutated in the name of Sunil Mahaveer Khemalapure, Pragati Mahaveer Khemalapure, As per dairy No.1145 the property bearing R.S.No.179, 119, 120 and 180 were transferred in the name of Satappa Chintappa Khemalapure, Block No.179 measuring

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27Act5Gs. In block No.119 measuring 9Ac29Gs transferred in the name of Mahaveer Satappa Khemalapure. Block No.120 measuring 1Ac31Gs mutated in the name of Ramesh Satappa Khemalapure, R.S.No.180 measuring 8Ac6Gs and minor guardian Kusumavati. As per Ex.D15 the family properties of the plaintiffs and defendants were mutated vide Ex.D15 hwerein the blcok No.179 measuring 27Ac05Gs mutated in the name of Satappa Chintappa Khemalapure. Remaining property bearing R.S.No.119 measuring 9Ac29Gs mutated in the name of Mahaveer Satappa Khemalapure, remaining two lands were transferred in the name of Ramesh Satappa Khemalapure, his natural guardian Kusumavati.

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29. Ex.D16 the dairy No.1330 the property in R.S.no.126 and 125 were mutated in the name of propositus Satappa Chintappa Khemalapure. The plaintiffs were not challenged the mutation as affected by the revenue authority vide Ex.D13 to Ex.D16. The RTC pertaining to the suit schedule properties were marked herein as Ex.D 7 to Ex.D29 speaks that the name of plaintiffs and other defendants were entered into ROR in column No.9 and 12. The properties as mentioned in Ex.D17 to Ex.D19 of all are not a subject matter of the suit. The defendants earlier they have not included either family properties and the filed the suit in the absence

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of plaintiffs thus in the present suit the contention taken by the defendants not sustainable. Based on the facts and circumstances of the case and available evidence, I am of the view that defendants have miserably failed to prove that suit of the plaintiffs is bad for nonjoinder of necessary parties and not maintainable in the absence of included all their family properties. Thus issue No.2 and 3 answered in the negative.

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30. Issue No.4 : While discussing issue No.2 and 3, this Court opined that earlier the defendants have filed the suit in O.S.No.48/2013 on the file of this Court and the matter entered into compromise in between Surekha Kusumavati, Sunanda, Appasaheb @ Abhijeet and Neetha. Wherein the plaintiffs and defendants of earlier suit were not arrayed the plaintiffs as necessary parties to the suit. The para No.3 of Ex.P6 speaks that there was an earlier partition. Accordingly, the Stappa during his lifetime effected partition and allotted share to his son by name Mahaveer and Ramesh and thus they are not arrayed as party to the suit. When the DW.1 in his crossexamination he has categorically admitted that plaintiffs were not impleaded as a necessary parties in the suit and in their absence, the suit was decreed and where about the facts and circumstances and the reliefs as sought for by the present plaintiff in the present suit. When the Ex.P6

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to P9 as well as the oral testimony of PW.1 which amplifies that plaintiffs were not a party to the ealier suit. Further the witness categorically admitted thatin O.S.No.48/2013 the property bearing R.S.No.180, 127, 119, 120, 121 and 126 of Kadahatti village are not included. Further the witness categorically admitted that the property bearing VPC No.461 and other house properties were not included in O.S.No.48/2013 and wherein they have not submitted through written statement. Further the witness categorically admitted that O.S.No.48/2013 they have entered into compromise immediately after filing of the suit and wherein they have not included their family properties bearing R.S.No.108/2, 180/4 and 127/2.

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31. On going through the oral and documentary evidence it is crystal clear that the plaintiffs of the present suit not party to the earlier suit. When both the parties are admitted the nature of the properties in question with the suit schedule properties are ancestral properties and the said properties were purchased by Satappa through the funds of their joint family, under such circumstances, in my view the decree as marked for the plaintiffs i.e. Ex.P9 not binding towards the lawful right, interest of the plaintiffs. The contesting defendant No.4 who examined herein as DW.1 in his crossexamination he has categorically admitted that there was no

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severance of status in accordance with law. Further the witness categorically admitted that there was no partition by metes and bounds. Therefore, the decree of Court in between children of Satappa and Satappa. The facts as elicited through the mouth of DW.1 amplifies that there was no division of share in between children of Satappa and Satappa during his lifetime and after demise of Satappa. The DW.1 further categorically admitted that the Asst. Commissioner has rejected the appeal preferred by the plaintiffs and again the plaintiffs approached the Dy.Commissioner and the Dy.Commissioner has given stay order of mutation and the said stay order also been entered into revenue records/RTC. These facts clearly narrates that the defendants of the present suit were not try to grab the suit schedule property in the absence of the plaintiffs.

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32. The plaintiffs are also the legal heir of deceased Satappa. The DW.1 in his cross examination he has categorically admitted that defendant No.1 still she was fit and defendant No.1 has not executed any gift or will or testamentary dispossession or any documents in accordance with law in any favour. When such being the facts, the RTC as produced and marked for the plaintiffs i.e. Ex.P1 and Ex.P2 speaks that the suit schedule properties were stood in the name of defendants. As per the law laid down by Hon'ble High Court in aforementioned decision the

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decree in O.S.No.48/2013 is not binding to the right and interest of the plaintiffs in the present suit even though the decree / award passed in Lok Adalat. If the defendants able to prove that they have obtained the decree / award in O.S.No.48/2013 by including all their family properties and impleading all the necessary parties then the matter would be different.

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33. The learned counsel representing for the defendants No.1 to 5 based on the evidence of PW.1 and asper Ex.D1 to D7 argued that the plaintiffs were not having right, interest and title over the property bearing R.S.No.117 of Kadahatti village and thus after demise of Satappa, the property mutated in the name of defendant No.1 and thereafter the defendants were divided amicably as per the advise of the elderly persons. When the defendants themselves admits that the suit schedule properties are their family properties of the plaintiffs and defendants, under such circumstances, in the absence of the plaintiffs these defendants entered into compromise and got divided the suit schedule properties behind the back of the plaintiffs. In this regard the learned counsel representing for the plaintiff relying the decision reported in 2011 (4) K.L.J. 200, where in our Hon'ble High Court held that:

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The resultant position is that the remedy available to a party to the

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compromise decree to avoid such a consent decree is to approach the Court, which recorded the compromise arrangement by making the necessary petition in the same proceedings. However, if a person is not a party to the compromise decree and/or when it is not in a representative suit, his remedy, as held by the Division Bench in the case of Siddalingeshwar is to file a suit seeking the appropriate reliefs including declaration that the compromise decree as against him is not enforceable.

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In another decision reported in AIR 2003

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KAR 407, wherein our Hon'ble High Court held that:

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Any person affected by compromise decree and wherein he has not party he or she can file separate suit seeking appropriate relief of declaration or otherwise.

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The ratio as laid down by Hon'ble High Court in aforementioned decisions clearly applicable to the facts and circumstances of the present on case.

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34. On perusal of Ex.P6 to P9, the name of plaintiffs were not appeared thus it is crystal clear that the plaintiffs are not a party to the earlier suit and thus decree as marked vide Ex.D9 are not binding towards right and interest of the plaintiffs. The documentary evidence which relied by the plaintiffs primafacie speaks that in the absence of all the coparceners or cosharers the defendants alone colluded with and obtained the decree and such decree in my view and in the ambit and light of dictum mentioned in

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decision, the said suit not binding to the plaintiffs and the present suit in the present form is maintainable. Hence, the issue No.4 answered in the Affirmative.

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35. ISSUE No. 5: In this case, the plaintiff No.1 sought for partition and separate possession of 1/6th share of the plaintiff No.1, plaintiffs No.2 and 3 are sought for 2/3rd share in the suit schedule properties by metes and bounds. In this case the plaintiffs in order to prove the factum of joint family concerned, the plaintiffs placed reliable andcogent evidence. Further there was no dispute regarding the fact that the suit schedule properties are an ancestral properties of the plaintiffs and defendants. However, the contention taken by the defendants regarding the non joinder of necessary parties and the suit is bad for noninclusion of their family properties in common hotchpotch and based on the available material evidence in consonance of pleadings, this Court opined that the suit of the plaintiffs maintainable and the plaintiffs have included their family properties and they have impleaded all necessary parties to the suit. When the defendants are unable to prove their contention that the suit is bad for nonjoinder of necessary parties and the suit is bad for noninclusion of their family properties and the plaintiffs able to prove that the suit schedule properties are ancestral properties of the plaintiffs as well as the defendants.

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36. As per the findings records by this Court while answering issue No.4, the decree in O.S.No.48/2013 in respect to the suit schedule property was not binding towards the legitimate share of the plaintiffs. In this regard this Court opined that the suit of the plaintiffs is maintainable as the decree in O.S.No.48/2013 no way binding towards rights, interest and title of the plaintiffs over the suit schedule properties. In this regard, it is just and necessary to quote the facts as elicited through the mouth of DW.1 that the DW.1 in his cross examination he has categorically admitted that there was no partition regarding the suit schedule properties or their family properties in accordance with law or through the registered partition or through the Court decree. Further witness categorically admitted that as per their oral partition, their respective shares were not mutated in the revenue records.

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Upon re-consideration, re-appreciation and reevaluation of the entire material on record, we are of the considered opinion that the impugned judgment and decree passed by the Trial Court cannot be said to suffer from any illegality or infirmity, nor can the same said to be perverse

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or capricious, or contrary to facts or law and warrants

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interference in the present appeal. Accordingly, point No.(ii) is answered against the defendants and in favour of the plaintiffs.

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Regarding Point No.(iii):

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While dealing with point Nos.(i) and (ii), we have already come to the conclusion that the application in I.A.No.1/2018 filed by the appellants was liable to be dismissed and the Trial Court was fully justified in upholding the claim of the plaintiffs and rejecting the evidence of the defendants thereby declaring that the plaintiffs are entitled to their legitimate share in the suit schedule property. However, the quantification of the share of the parties is incorrect and in the light of the judgment of the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others⁴ , we are of the view that the impugned judgment and decree passed by the Trial Court deserves to be modified and the shares of the parties be quantified/allotted.

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4 (2020) 9 SCC 1

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In the light of Vineeta Sharma case (supra), the wife and children of Satappa would be entitled to 1/6^th share each in the suit schedule property and since, among the children of Satappa and Kusumavati vis-à-vis., Neminatha, Surekha, Mahaveer and Ramesh having expired, their respective branches would be jointly entitled to 1/6^th share in the suit schedule property and defendant No.1 and 2 are entitled to 1/6^th share each in the suit schedule property as hereunder:

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Rank of the parties	Names	Shares
Plaintiff No.1	Shri. Ramesh S/o. Satappa Khemalapure (since deceased by his LR’s.)
1(A)	Smt. Kundan W/o. Ramesh K	1/30
1(B).	Shri. Kuber S/o. Ramesh Khemalapure Since deceased by his LR’s.
1(B)(a).	Smt. Aishwarya W/o. Kuber Khemalapure	1/60
1(B)(b).	Kumari Sanskruti D/o. Kuber K	1/60
1(C).	Smt. Shweta W/o Bahubali Kagawade	1/30
1(D).	Smt. Sarika W/o. Rajendra Dandage	1/30

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1(E).	Kumari. Sandyarani D/o. Ramesh Khemalapure	1/30
1(F).	Kumari Sonali D/o. Ramesh Khemalapure Since dead rept. by her LR’s R1(A) to 1(E).
Plaintiff No.2	Smt. Padmashri W/o. Mahaveer Khemalapure	1/18
Plaintiff No.3	Shri. Sunil S/o. Mahaveer Khemalapure	1/18
Defendant No.8	Smt. Pragati W/o. Pradeep patil,	1/18
Defendant No.1	Smt. Kusumavathi W/o. Satappa Khemalapure,	1/6
Defendant No.2	Smt. Sunanda W/o. Jayakumar Khemalapure,	1/6
Defendant No.3	Smt. Godavari W/o. Neminath Khemalapure,	1/18
Defendant No.4	Sri. Abhijit @ Appasab S/o. Neminath Khemalapure,	1/18
Defendant No.5	Smt. Neeta W/o. Bhushan Kulkarni,	1/18
Defendant No.6	Sri. Nirmalkumar S/o. Annasaheb patil,	1/12
Defendant No.7	Sri. Akshay S/o. Niramalkumar patil,	1/12

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In view of the aforesaid facts and circumstances,

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upholding the impugned judgment and decree passed by the Trial Court on merits, we deem it just and appropriate to modify the impugned judgment and decree only to the limited/restricted extent of quantification/allotment of

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shares to the respective parties, as stated supra.

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In the result, we pass the following:

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ORDER

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(i) The appeal is hereby allowed in part;

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(ii) The impugned judgment and decree

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dated 17.09.2018 passed in OS No.2/2014 by

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the Senior Civil Judge, Hukkeri, is modified only to the limited/restricted extent of quantifying/allotting the shares of the parties as indicated as hereunder:

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Rank of the parties	Names	Shares
Plaintiff	Shri. Ramesh S/o. Satappa
No.1	Khemalapure (since deceased by his LR’s.)

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1(A)	Smt. Kundan W/o. Ramesh K	1/30
1(B).	Shri. Kuber S/o. Ramesh Khemalapure Since deceased by his LR’s.
1(B)(a).	Smt. Aishwarya W/o. Kuber Khemalapure	1/60
1(B)(b).	Kumari Sanskruti D/o. Kuber K	1/60
1(C).	Smt. Shweta W/o Bahubali Kagawade	1/30
1(D).	Smt. Sarika W/o. Rajendra Dandage	1/30
1(E).	Kumari. Sandyarani D/o. Ramesh Khemalapure	1/30
1(F).	Kumari Sonali D/o. Ramesh Khemalapure Since dead rept. by her LR’s R1(A) to 1(E).
Plaintiff No.2	Smt. Padmashri W/o. Mahaveer Khemalapure	1/18
Plaintiff No.3	Shri. Sunil S/o. Mahaveer Khemalapure	1/18
Defendant No.8	Smt. Pragati W/o. Pradeep patil,	1/18
Defendant No.1	Smt. Kusumavathi W/o. Satappa Khemalapure,	1/6
Defendant No.2	Smt. Sunanda W/o. Jayakumar Khemalapure,	1/6
Defendant No.3	Smt. Godavari W/o. Neminath Khemalapure,	1/18
Defendant No.4	Sri. Abhijit @ Appasab S/o. Neminath Khemalapure,	1/18