Saravana M Pethi Vs Ilango M Pethi

SMT. SENTHAMARI SAMPATH W/O G. SAMPATH AGED 53 YEARS R/AT NO.5, SURYAKIRAN APARTMENTS FLAT NO.3, GROUND FLOOR SULTANPALYA MAIN RAOD, BANGALORE - 560 032.

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(BY SRI. M.B. CHANDRA CHOODA, ADVOCATE)

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…APPELLANTS

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AND:

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ILANGO M. PETHI S/O LATE T.R. MUTHU SELVAM SINCE DEAD BY LRS

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1(A). SMT. THENMOZI ILLANGO W/O LATE ILLANGO M. PETHI AGED 50 YEARS

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1(B). SRI SRIRAM I. PETHI S/O LATE ILLANGO M. PETHI AGED 25 YEARS

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1(C). CUCHITRA I. PETHI

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D/O LATE ILLANGO M. PETHI AGED 22 YEARS ALL ARE R/AT ETA THE GARDEN B-305, BBMP NO.9/128 MAGADI RAOD, K.P.AGRAHARA BANGALORE - 560 023.

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T.R. BALASUBRAMANI S/O LATE C.P. RAMASWAMY SINCE DEAD BY LRS

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2(A). SMT B. KOUSALYA W/O T.R. BALASUBRAMANI AGED 60 YEARS.

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2(B). VELU B. PETHI S/O LATE T.R. BALASUBRAMANI AGED 50 YEARS

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RESPONDENT NO. 2(A) AND 2(B) ARE R/AT NO.209, 2ND CROSS, MAHALAXMI LAYOUT, BANGALORE - 560 086.

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2(C). SMT. B. MITHRA D/O LATE T.R. BALASUBRAMANI AGED 45 YEARS R/AT NO.13-C/1, KLAMPALYAM ROAD, TIRUPUR - 02.

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2(D). SMT. K. PRIYA W/O KISHORE AGED 40 YEARS R/AT NO.87, 5TH CROSS RAMACHANDRAPURAM BANGALORE - 21.

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2(E). SMT. B. NITYA W/O K BALAJI AGED 38 YEARS NO.55, OLD MARKET STREET, TIRUPUR - 04.

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2(F). SURYA B. PETHI

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D/O LATE T.R. BALASUBRAMANI AGED 36 YEARS NO.209, 2ND CROSS, MAHALAKSHMI LAYOUT BANGALORE - 560 086.

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SMT. VASANTHI SELVAM W/O LATE T.R. MUTHUSELVAAM AGED 62 YEARS NO.1147/E, UPSTAIRS 18TH 'B' MAIN ROAD, 5TH BLOCK RAJAJINAGAR, BANGALORE - 560 010.

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MANIARASU M. PETHI S/O LATE T.R. MUTHUSELVAAM AGED 51 YEARS NO.1147, 18TH B MAIN ROAD, 5TH BLOCK, RAJAJINAGAR, BANGALORE - 560 010.

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KATHIRAVAN M. PETHI S/O LATE T.R. MUTHUSELVAAM AGED 47 YEARS NO.1147/E, 18TH 'B' MAIN ROAD, 5TH BLOCK, RAJAJINAGAR, BANGALORE - 560 010.

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KUMARAN M. PETHI S/O LATE T.R. MUTHUSELVAAM NO.1147/E, UPSTAIRS, 18TH B MAIN ROAD, 5TH BLOCK RAJAJINAGAR, BANGALORE - 560 010.

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SMT. VENNILA D/O LATE T.R. MUTHUSELVAM AGED 46 YEARS J.J. NAGAR, MOGAPPAIR CHENNAI - 58.

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…RESPONDENTS

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(BY SRI. RAVISHANKAR A, ADVOCATE FOR R2(B); SRI. AKAM NAGARAJA GUPTA, ADVOCATE FOR R1; R1(A), R1(B), R1(C), R2(A)-B, R2(C)-D, R2(D), R2(E)-B, R2(F), R3, R4, R5, R6, R7 ARE SERVED AND UNREPRESENTED)

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THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.10.2010 PASSED IN O.S.2977/1997 ON THE FILE OF THE I-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR THE PARTITION AND SEPARATE POSSESSION.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful defendant Nos.5 and 8 assailing the dismissal of the partition suit filed in O.S.No.2977/1997.

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For the sake of brevity, the parties are referred to

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as per their ranking before the Trial Court.

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Facts leading to the case are as under:

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The plaintiff, Hango M. Pethi, instituted the suit seeking partition and separate possession, contending that the suit schedule properties are joint family ancestral properties and claiming entitlement to a 1/10th share therein.

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Defendant Nos.5 and 8, who are the appellants herein, entered appearance, filed a written statement, paid the requisite court fee, and sought allotment of their legitimate shares in the suit schedule properties. They

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substantially supported the pleadings and claim of the plaintiff.

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The remaining contesting defendants resisted the suit contending, inter alia, that the suit itself was not maintainable inasmuch as the suit schedule properties had

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already been acquired by the City Improvement Trust Board, Bengaluru, long prior to the institution of the suit.

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Upon completion of pleadings, the Trial Court framed appropriate issues and afforded opportunity to the parties to adduce oral and documentary evidence. While the plaintiff and defendant Nos.5 and 8 consistently asserted that the suit schedule properties are joint family ancestral properties entitling them to their respective shares, the contesting defendants produced documentary evidence in the form of Gazette Notifications marked as Exs.D2 to D4, evidencing acquisition of the suit schedule properties by the City Improvement Trust Board.

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The Trial Court, on appreciation of the pleadings and evidence on record, answered Issue No.5 in the affirmative, holding that the suit schedule properties had already been acquired under statutory acquisition proceedings. On that premise, the Trial Court concluded that a suit for partition was not maintainable and consequently dismissed the suit.

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The plaintiff has accepted the judgment and decree of dismissal and has not chosen to challenge the same. Defendant Nos.5 and 8, who had sought their independent shares by paying court fee and supporting the plaintiff’s case, are the appellants before this Court.

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This Court has heard the learned counsel appearing for defendant Nos.5 and 8 and the learned counsel for the contesting defendants. The records of the Trial Court, along with the judgment and decree impugned, have been carefully perused.

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In the light of the rival contentions urged, the

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following points arise for consideration in this appeal:

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i. Whether the plaintiff could have maintained a suit for partition when the suit schedule properties had admittedly vested in the City Improvement Trust Board pursuant to acquisition proceedings initiated on 06.04.1961?

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ii. Whether the finding recorded by the Trial Court under Issue No.5, holding that the lands were already acquired and that the partition suit is therefore not maintainable, suffers from perversity or legal infirmity?

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iii. Whether the suit for partition is barred by limitation?

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iv. What order?

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Finding on point Nos.(i) and (ii):

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The plaintiff along with defendant Nos.2 to 5 has sought partition and separate possession of the suit

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schedule properties. However, a careful scrutiny of the pleadings would clearly reveal that while instituting the partition suit in O.S. No.2977/1997, the plaintiff has consciously suppressed material and vital facts relating to the acquisition of the suit schedule properties by the City Improvement Trust Board as far back as in the year 1961. The plaint is conspicuously silent about the statutory acquisition proceedings, though the same had culminated decades prior to the institution of the suit.

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The contesting defendants, while resisting the suit, have placed on record cogent documentary evidence in the form of Gazette Notifications and Final Notifications, marked as Exs.D2 to D4, which unequivocally demonstrate that both the items of the suit schedule properties stood acquired at the instance of the City Improvement Trust Board, Bengaluru. A perusal of these documents leaves no manner of doubt that the acquisition proceedings had attained finality way back in the year 1961.

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The rebuttal evidence adduced by the contesting defendants further establishes that the plaintiff’s family as well as the family of defendant Nos.5 and 8 had completely lost all right, title and interest in the suit schedule properties pursuant to the said acquisition. The materials on record clearly indicate that physical possession of the acquired lands was taken over by the acquiring authority in accordance with law, thereby divesting the erstwhile owners of all proprietary rights.

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It is well-settled by a catena of decisions that once a final notification is issued under the land acquisition proceedings and possession is taken, the lands vest absolutely in the acquiring authority free from all encumbrances. Upon such vesting, the erstwhile owners cease to have any right, title or interest in the property, except the limited statutory right to seek compensation. In the present case, the issuance of the final notification in the year 1961 itself extinguished the very substratum of the plaintiff’s claim.

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In view of the admitted fact that the suit schedule properties stood acquired and vested in the acquiring authority more than three decades prior to the institution of the suit, the plaintiff and defendant Nos.5 and 8 could not have maintained a suit for partition. A partition presupposes subsisting joint ownership, which was wholly absent on the date of filing of the suit. Therefore, this Court finds that the finding recorded by the Trial Court while answering Issue No.5 in the affirmative, holding that the partition suit is not maintainable, is based on sound legal principles and does not suffer from any perversity or infirmity. Accordingly, Point Nos.(i) and (ii) are answered in the negative .

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Findings on Point No.(iii):

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It is not in dispute that the acquisition proceedings were completed in the year 1961, whereas the present suit came to be instituted only in the year 1997, after an inordinate delay of nearly 36 years. Once

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the lands were acquired and possession was taken by the acquiring authority, the plaintiff was left with no enforceable civil right in respect of the suit schedule properties so as to give rise to a cause of action for filing a partition suit.

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If at all the plaintiff or other family members were aggrieved by the acquisition proceedings, the cause of action to question the same arose in the year 1961 itself. Though the legality or validity of acquisition proceedings cannot be adjudicated in a civil suit, the prolonged and unexplained silence maintained by the plaintiff till the year 1997 clearly demonstrates that the present claim is hopelessly stale and barred by limitation.

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Strangely, the Trial Court has answered Issue No.4 relating to limitation in the negative, despite the overwhelming material on record indicating that the claims of the plaintiff and defendant Nos.5 and 8 were ex facie

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barred by limitation. This Court is of the considered view that the Trial Court erred in this limited aspect.

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Consequently, this Court holds that the suit is clearly barred by limitation and devoid of any subsisting cause of action. Accordingly, Point No.(iii) is answered in

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the affirmative .

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