MAHADEVAPPA HALKAI, SINCE DEAD BY HIS LR’S v. PARUTAPPA

SMT. SUSHILABAI W/O. VEERBASSAPPA WARAD, AGE: 50 YEARS, OCC: HOUSE HOLD, R/O. NALWAR, TQ: CHITTAPUR, DIST: GULBARGA. DIED BY LRS 1Ai. BASAMMA W/O. MALLANNA WARAD AGE: 38 YEARS, OCC: HOUSEHOLD, 1Aii. KUMARESH S/O. MALLANNA WARAD AGE: 20 YEARS, OCC: STUDENT, 1Aiii. SASHIDARI S/O. MALLANNA, AGE: 17 YEARS, MINOR (U/G OF R1(A)(i) 1Aiv. SHARANAMMA W/O. VEERANNA, AGE: 17 YEARS, OCC: HOUSEHOLD, - 8 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 1Av KORESH S/O. VEERANNA, AGE: 7 YEARS, MINOR U/G OF R1(A)(i) 1Avi. TRUPTI D/O. VERANNA AGE: 12 YEARS, U/G OF R1(A)(i) ALL R/O. NALWAR TQ: CHITTAPUR, DIST: KALABURAGI. 1B. SMT. MAHADEVI W/O. ANNARAO HALKAI, AGE: 48 YEARS, OCC: HOUSE HOLD, R/O. AURAD, TQ: DIST: GULBARGA. 1C. 1D. 1E. 1F. SMT. KASTURIBAI W/O. CHANDRASHEKHAR PATIL, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O. HODLUR TQ: ALAND DIST: GULBARGA. SMT. INDUBAI W/O. S.S. PATIL, AGE: 44 YEARS, OCC: HOUSEHOLD, R/O. AKRAM ROAD NEAR ENGINEERING COLLEGE, BIJAPUR. SRI. VEERANNA S/O. PARUTAPPA HALAKAI, AGE: 42 YEARS, OCC: LECTURER, R/O. SANGAMESHWAR COLONY, GULBARGA. DEVENDRAPPA S/O. PARUTAPPA AGE: 40 YEARS, OCC: AGRICULTURE, R/O. KONA HIPPARGA, TQ: JEWARGI, DIST: GULBARGA. 1G. SMT. CHANNAMMA W/O. PADMANGOUDA, AGE: 36 YEARS, OCC: HOUSEHOLD, - 9 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 R/O. BUDHANAL VILLAGE, TQ: JEWARGI, DIST: GULBARGA. AMBRESH S/O. PARUTAPPA AGE: 36 YEARS, OCC: BUSINEES, R/O.SANGAMESHWAR COMPLEX, BASAVESHWAR COLONY, GULBARGA. SMT. VEERAMMA W/O. LATE PARUTAPPA HALKAI, AGE: 72 YEARS, OCC: HOUSEHOLD, R/O: KONA HIPPARAGA, TQ: JEWARGI, DIST: GULBARGA. DIED LRS ARE ALREADY ON RECORD AS R1(A) TO R1(H) BABURAO S/O. SHARANAPPA HALKAI, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: HIPPARGA, TQ: JEWARGI, DIST: GULBARGA, SINCE DECEASED BY LRS SHARANAPPA S/O. LATE RAJASHEKHAR AGE: 49 YEARS, OCC: AGRICULTURE KAMALABAI D/O. LATE BABURAO AGE: 55 YEARS, OCC: HOUSEHOLD BOTH ARE R/O. KONA HIPPARGA TQ: JEWARGI, DIST: KALABURAGI. BHEEMRAO S/O. CHANNAPPA HALKAI, AGE: 65 YEARS, OCC: AGRICULTURE, R/O. HIPPARAGA KONA, TQ: JEWARGI, DIST: GULBARGA. DEAD BY LRS SMT. SHRDHABAI W/O. LATE BHEEMRAO AGED ABOUT 65 YEARS, OCC: HOUSEWIFE ESHWARAPPA S/O. LATE BHEEMRAO AGE: 48 YEARS, OCC: AGRICULTURE, BOTH R/O. KONA HIPPARGA, 1H. 1I.

2. 2A. 2B.

3. 3A 3B - 10 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 TQ: JEWARGI, DIST: KALABURAGI. BASAMMA W/O. LATE BHIMRAO AGE: 70 YEARS, OCC: HOUSEHOLD, PRAMILA W/O. RAVIKUMAR, AGE: 52 YEARS, OCC: HOUSEHOLD R/O. SHAHBAZAR, KALABURAGI. HANMANTH RAO S/O. LATE BHEEMRAO AGE: 48 YEARS, OCC: AGRICULTURE, KANYAKUMAR S/O. VEERBHADRAPPA AGE: 45 YEARS, OCC: AGRICULTURE, SUJATHA W/O. SHANTAKUMAR NIMBAL AGE: 42 YEARS, OCC: HOUSE-HOLD, R/O: GANDHI NAGAR, KALABURAGI. ANJANA W/O. GURUSHANTH UPPIN AGE:37 YEARS, OCC: HOUSE-HOLD, R/O: DUDDANI, TQ: AKALKOT, DIST: SOLAPUR. MAHADEVAPPA S/O. LATE ANNAPPA HALKAI, AGE: 65 YEARS, OCC: RETD. PROFESSOR S.S.L. LAW COLLEGE GULBARGA R/O. SHIVKRUPA BUILDING MILAN CHOWK H.NO.3-246, GAZIPURA, GULBARGA. BASAMMA W/O. LATE ANNAPPA HALKAI, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O. SHETTIGALLI, TQ: SHORAPUR, DIST: GULBARGA. DR. SHIVASHANKAR S/O. LATE ANNAPPA HALKAI, AGE: 53 YEARS, OCC: DOCTOR, (HKE SOCIETY) R/O. TANK BUND ROAD, SHARANANAGAR, BRAHMAPUR, GULBARGA. MALLINATH S/O. LATE ANNAPPA HALKAI, AGE: 49 YEARS, OCC: ASST. PROFESSOR PHARMACY COLLEGE OF HKE’S GULBARGA 3C 3D 3E 3F 3G 3H

7. - 11 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 R/O. INFRONT OF SSL. LAW COLLEGE, AIWAN-E-SHASHI AREA, GULBARGA. ….RESPONDENTS (BY SRI. ASHOK HARANHALLI, SENIOR COUNSEL SRI. MANVENDRA REDDY, ADVOCATE FOR R1 (B TO H), R2 (A&B) & R3 (B); SRI. G.V. CHANDRASHEKAR, SR. COUNSEL FOR SRI. V.K. NAYAK, ADVOCATE FOR R4; SRI. SANTOSH H. PATIL, ADVOCATE FOR R3 (C) AND R3 (D-H); SRI. SANTOSH BIRADAR, ADVOCATE FOR R5; R6 & R7 ARE SERVED AND UNREPRESENTED) (cid:1) (cid:1) (cid:1) FOR THIS RFA FILED U/S 96 OF CPC, PRAYING TO ALLOW THE ABOVE REGULAR 1ST APPEAL AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 16.12.2008 PASSED BY THE III ADDL. CIVIL JUDGE, SR. DIVISION GULBARGA IN O.S.NO.170/1986, AND DISMISS THE COUNTER CLAIM MADE BY THE DEFENDANTS/RESPONDENTS, IN THE ENDS OF JUSTICE AND EQUITY. IN RFA NO.200202/2023 BETWEEN:

1. MAHADEVAPPA HALKAI SINCE DEAD BY HIS LR’S 1(A) DR RAVINDRA HALKAI S/O LATE MAHADEVAPPA HALAKAI, AGED ABOUT 48 YEARS, OCC: DOCTOR, R/AT H.NO. 3-246/A, MILAN CHOWK, GAZIPUR, KALABURAGI-585101, TQ & DIST: KALABURAGI. 1(B) DR. SHAILAJA W/O. PRAVEEN KARKANNVAR, AGED ABOUT 45 YEARS, OCC: DOCTOR, R/AT H.NO. 3-246/A, - 12 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 MILAN CHOWK, GAZIPUR, KALABURAGI, TQ:& DIST:KALABURAGI. 1(C) SMT. KAMALA HALKAI, W/O. LATE MAHADEVAPPA HALAKAI, OCC: HOUSE WIFE, R/AT H.NO. 3-246/A, MILAN CHOWK, GAZIPUR, KALABURAGI-585101 TQ: & DIST KALABURAGI.

3. SRI. SHIVSHANAKAR HALKAI, S/O. LATE ANNEPPA HALKAI, AGED ABOUT 68 YEARS, OCC: DOCTOR, R/AT SHARAN NAGAR, BRAHMAPUR, KALABURAGI, DIST: KALABURAGI-585102. MALLINATH S/O. ANNEPPA HALKAI, AGED ABOUT 64 YEARS, OCC: RETIRED PROFESSOR, R/AT OPP. S.S.L LAW COLLEGE, AIWAN SHAHI, KALABURAGI, DIST: KALABURAGI-585102. (BY SRI. G.V. CHANDRASHEKAR, SENIOR COUNSEL FOR SRI.V. K. NAYAK, ADVOCATE) ...APPELLANTS AND: 1 PARUTHAPPA SINCE DEAD BY HIS LRS 1(A) SUSHEELABAI SINCE BY HER LR’S 1(A)(1) SMT. BASAMMA W/O. MALLANNA WARAD, AGED ABOUT 38 YEARS, OCC: HOUSE HOLD. - 13 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 1(A)(2) KUM KUMARESH S/O. MALLANNA WARAD, AGED ABOUT 22 YEARS, OCC: STUDENT, 1(A)(3) KUM SASHIDHAR S/O. MALLANNA WARAD, AGED ABOUT 17 YEARS, (UNDER GUARDIAN OF RESPONDENT NO.1(A)(2) 1(A)(4) SMT. SHARANAMMA W/O. VEERANNA, AGED ABOUT 34 YEARS, OCC: HOUSE HOLD, 1(A)(5) KUM KORESH S/O. VEERANNA, AGED ABOUT 8 YEARS, (UNDER GUARDIAN OF R1(A)(4) 1(A)(6) KUM TRUPTHI D/O. VERANNA, AGED ABOUT 13 YEARS, (UNDER GUARDIAN OF R1(A)(4) RESPONDENT NO.1(A)(1) TO 1(A)(6) ARE RESIDENT OF NALWAR VILLAGE, TALUKA CHITTAPUR, DISTRICT KALABURAGI.

3. SMT. MAHADEVI W/O. ANNARAO HALKAI, AGE: 85 YEARS, OCC: HOUSE HOLD, R/O: AURAD VILLAGE, TALUKA JEWARGI – 585301. DISTRICT KALABURAGI. SMT. KASTURI W/O. CHANDRASHEKAR PATIL, AGED ABOUT 87 YEARS, OCC: HOUSE HOLD, R/O: HODLUR VILLAGE, TALUKA ALAND - 585102 DISTRICT: KALABURAGI. - 14 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

8. SMT. INDUBAI W/O. MALLIKARJUN, AGED ABOUT 45 YEARS, OCC: HOUSE WIFE, R/O: AKARAMROAD NEAR ENGINEERING COLLEGE, VIJAYAPURA, TALUKA AND DISTRICT VIJAYAPURA. SRI. VEERANNA S/O. PARUTAPPA HALKAI, AGED ABOUT 79 YEARS, OCC: LECTURER, R/O: SANGAMESHWAR COLONY, KALABURAGI, TALUKA & DISTRICT KALABURAGI. SRI. DEVENDRAPPA S/O. LATE PARUTAPPA, AGED ABOUT 77 YEARS, OCC: AGRICULTURE, R/O: KONA HIPPARAGA VILLAGE, TALUKA: JEWARGI, DISTRICT: KALABURAGI. SMT. CHANNAMMA W/O. PADMANGOUDA, AGED ABOUT 37 YEARS, OCC:HOUSE HOLD, R/O: BUDHANAL VILLAGE, TALUKA: JEWARGI, DISTRICT: KALABURGI. SRI. AMBRESH S/O. LATE PARUTHAPPA, AGE ABOUT 37 YEARS, OCC: BUSINESS, R/O: SANGAMESHWAR COMPLEX, BASAVESHWAR COLONY, KALABURAGI.

9. BABU RAO S/O. SHARANAPPA HALKAI SINCE DEAD BY HIS LRS 9(A) SRI. SHANTHEPPA S/O. LATE RAJSHEKAR, - 15 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 9(B) AGED ABOUT 49 YEARS, OCC: AGRICULTURE, R/O: KONA HIPPARAGA VILLAGE, TALUK: JEWARGI, DISTRICT: KALABURAGI. SMT. KAMALABAI D/O. LATE BABURAO, AGED ABOUT 55 YEARS, OCC: HOUSE HOLD, R/O: KONA HIPPARAGA VILLAGE, TALUKA: JEWARGI, DISTRICT: KALABURAGI.

10. BHIM RAO S/O. SHARANAPPA HALKAI, SINCE DEAD BY HIS LRS 10(A) SMT. SHARADABHAI SINCE DEAD BY LRS. 10(B) 10(C) SRI. ESHWARAPPA S/O. LATE BHEEMRAO, AGED ABOUT 48 YEARS, OCC: AGRICULTURIST, SMT. BASSAMMA W/O. LATE BHIMRAO, AGED ABOUT 70 YEARS, OCC: HOUSE WIFE, 10 (D) SMT. PRAMILA W/O. RAVIKUMAR, OCC: HOUSEHOLD, 10 (E) SRI. HANMANTH RAO S/O. LATE BHIMRAO, AGED ABOUT 49 YEARS, OCC: AGRICULTURIST, 10(F) SRI. KANYKUMAR S/O. VEERBHADRAPPA, AGED ABOUT 46 YEARS, RESPONDENTS NO.10(A) TO 10 (F) ARE RESIDING AT KONA HIPPRAGHA VILLAGE, - 16 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 10(G) 10(H)

11. TALUKA: JEWARGI, DISTRICT: KALABURAGI. SMT. SUJATHA W/O. SHANTAKUMAR NIMBAL, AGED ABOUT 42 YEARS, OCC: HOUSE WIFE, R/O:GANGHI NAGAR, KALABURAGI. SMT.ANJANA W/O. GURSHANT UPPIN, AGED ABOUT 38 YEARS, OCC: HOUSE HOLD, R/O: DUDDAINI, TALUKA: AKKALKOT, DISTRICT: SOLAPUR - 413216 STATE MAHARASHTRA. SMT. BASSAMMA W/O. LATE APPASAB HALKAI, AGED ABOUT 87 YEARS, OCC: HOUSE HOLD, R/O:SHETTIGALLI VILLAGE, TALUKA: SHORAPUR, DISTRICT: YADGIRI.

12. SANGANNA S/O LATE ANNEPPA HALKAI, SINCE DEAD BY HIS LRS 12(A). VIJAYALAXMI W/O. LATE SANGANNA HALKAI, AGE ABOUT 68 YEARS, OCC: HOUSE WIFE, 12(B) GEETANJALI D/O. LATE SANGANNA HALKAI, AGE ABOUT 44 YEARS, OCC: HOUSE WIFE, 12(C) DR RAHUL S/O. LATE SANGANNA HALKAI, AGED ABOUT 42 YEARS, OCC: DOCTOR, - 17 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 12(D) JYOTI D/O. LATE SANGANNA HALKAI, AGED ABOUT 40 YEARS, OCC: HOUSE WIFE, RESPONDENTS NO.12(A) TO 12(D) ARE RESIDING AT PLOT NO. 14, 2ND FLOOR, SUPER MARKET, KALABURAGI, TALUKA AND DISTRICT KALABURAGI. ….RESPONDENTS (BY SRI. ASHOK HARANHALLI, SENIOR COUNSEL SRI. MANVENDRA REDDY, ADOVCATE FOR LRS OF DEFENDANTS NO.1 TO 3 AND R1(A)(1) TO R1(A)(6); SRI. R.S. SIDHAPURKAR, ADVOCATE FOR R11 (R24); SRI. SHIVAKUMAR KALLOR, ADVOCATE FOR R12A TO R12D) FOR -------- (cid:1) (cid:1) (cid:1) (cid:1) THIS REGULAR FIRST APPEAL IS FILED U/SEC.96 AND ORDER 41 RULE (1) OF CPC, PRAYING TO CALL FOR RECORDS IN O.S NO. 170/1986 ON THE FILE OF III ADDL. CIVIL JUDGE (SR.DN.) KALABURAGI AND SET ASIDE THE JUDGMENT AND DECREE DATED

16.12.2008 BY DISMISSING THE DECREE FOR COUNTER CLAIM BY THE DEFENDANTS/RESPONDENTS IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS COMING HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.11.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 18 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 ORAL JUDGMENT

1. Three Regular First Appeals, R.F.A.No.5025/2010, R.F.A.No.5030/2010 and R.F.A.No.200202/2023 are arising judgment and decree O.S.No.170/1986 on the file of III Additional Senior Civil Judge, Gulbarga.

2. For easy reference, the genealogy of the parties to the suit is provided as follows: Sharanappa Annappa Parutappa Baburao Bhimrao Pltf D1 D2 D3 Mahadevappa Sangappa Basamma Dr. Shivshanar Mallinath Appellant Appellant P3 P4 P5 RFA 5030/10 RFA 5025/10 P1 P2

3. The original plaintiff-Anneppa who instituted the suit in O.S.No.170/1986 died during the pendency of the suit. His four sons and one daughter have come on record as the legal representatives of the deceased Anneppa. - 19 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

4. Anneppa claimed partition and separate possession of 1/4th share in the suit properties against his three brothers Parutappa, Baburao and Bhimrao.

5. Anneppa filed the suit after the demise of the his father Sharanappa and mother Sharanamma, and claimed partition and separate possession in the properties allotted to his father’s share in the alleged oral partition of 1953. The other family properties were not included in the plaint as the plaintiff claimed all other properties are already partitioned in

6. The defendants, the brothers of the Anneppa, contested denied the alleged partition of 1953. Defendants claimed partition of all the suit schedule properties including those which the plaintiff asserted to have been portioned in 1953. The defendants furnished a list of properties along with the written statement for which they claimed partition. - 20 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

7. The Trial Court, relying on judgment O.S.No.95/1985, between the same parties, declined to grant the relief sought by the plaintiff. Thus, the Trial Court concluded that the plea of earlier partition of 1953, is held to be not proved in O.S. No.95/1985 and said judgment binds the plaintiff and rejected his claim applying the principle of res-judicata.

8. The Trial Court granted decree for partition of all the properties in the schedule annexed to the written statement.

9. Aggrieved by the dismissal of the suit and decree granting partition, Sangappa-one of the sons of the original plaintiff Anneppa, filed RFA No.5025/2010. Mahadevappa, another son of Anneppa filed RFA No.5030/2010. When these appeals were pending, RFA No.200202/2023 is filed by some of the other legal representatives of late Anneppa. - 21 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

10. Other relevant factors pleaded in the plaint are summarized as under:

10.1. Sharanappa, the propositus, in his lifetime effected an oral partition of all the joint family properties, in 1953. Two brothers of Anneppa the plaintiff, namely Baburao and Bhimrao, who allotted certain properties O.S.No.349/1/53-54 against present plaintiff Anneppa claiming right over certain properties based on oral partition of 1953.

10.2. In the partition of 1953, the property bearing Sy.No.69 measuring 32-Acres 28-Guntas was allotted to Parutappa, defendant No.1 in this suit. The plaintiff-Anneppa had purchased the said property from self-earnings in the name of Paruteppa-1st defendant. Thus, when Parutappa wanted his name to be entered in the property records, based on oral partition of 1953, the plaintiff objected, stating that the partition is - 22 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 inequitable. The plaintiff demanded ½ share in the property bearing Sy.No.69. The father Sharanappa realizing the plaintiff’s just claim allotted 16-Acre 23-Guntas in the southern portion of Sy.No.69 to the plaintiff, with the consent of Parutappa. The remaining ½ share was allotted to Parutappa.

10.3. Sharanappa, propositus

05.01.1973. The plaintiff and defendants allowed their mother Smt. Sharanamma is to enjoy the suit properties (properties allotted the share of Sharanappa in the alleged oral partition of 1953) till her life, with an understanding that after her demise properties are to be divided among the heirs. Smt.Sharanamma died on 13.07.1983. Hence, the suit is filed claiming 1/4th share and mesne profit in the suit properties. - 23 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

10.4. Defendants contested the suit. Defendants disputed the 1953 oral partition. It is contended that the family remained joint even after the death of the father in the year 1973 and the death of the mother in the year 1983. The defendants contended that certain properties were purchased after 1953 in the name of some of the parties to the proceeding, and all those properties are purchased from the joint family income, and all the properties are joint family properties though some of the properties are purchased in the names of some of the members of the family. The plaintiff has purchased some of the properties in his name from utilizing the joint family income and being the manager of the family is making a false claim that the properties standing in his name are his self-acquisition. - 24 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

10.5. A reference is made to O.S.No.95/1986 in the written statement. The defendants contend that in the said suit the plaintiff raised a false plea of partition.

10.6. The plaintiff filed a rejoinder to the written statement and took a stand that properties acquired after 1953 are his self-acquired properties. He also contended that the property at Gajipur, Gulbarga though purchased in the name of the defendants is his property and the transaction was a benami transaction and the defendants had no income to purchase the said property. The property bearing House No.3-246 and 3-246/A and the property bearing No.44 and the building standing thereon are the self- acquired properties of the plaintiff.

10.7. The plaintiff, in the rejoinder did not dispute the suit in O.S.No.95/1986, however, denied the - 25 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 allegation that he made a false claim in the said suit.

10.8. As already noticed, the suit is dismissed and decree for partition is granted in respect of all the written statement schedule properties rejecting the plea of the previous partition of

10.9. The Trial Court has rejected the plea of the previous partition on the premise that the partition of 1953 is already held to be not proved in an earlier suit in O.S.No.95/1985.

10.10.The Trial Court has noticed that the plaintiff has taken a stand that the properties acquired after 1953 in his name are self-acquired properties, and the properties purchased after 1953 in the name of some of the defendants are benami transactions wherein the plaintiff claims that he - 26 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 is the owner. The trial court has held that the plaintiff cannot apply dual yardsticks.

10.11.The Trial Court has also concluded that the existence of the joint family properties was very much established and those properties formed the nucleus to acquire other properties.

11. Aggrieved by the aforementioned judgment and decree, the present appeals are filed.

12. Sri G.V.Chandrashekar, learned Senior Counsel appearing for the plaintiffs/appellants contends that the suit is dismissed applying the principle of res-judicata without framing any issue relating to res-judicata. To give a finding and to dismiss the suit by applying the principle of res-judicata, there must be a proper pleading and issue. The evidence in support of the plea should also include the pleadings and issues in the earlier suit and the subject matter must be the same. - 27 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

13. It is urged that O.S. No.95/1985 is the suit filed by the plaintiffs seeking a declaration of title over a portion of Survey No.69. Said property is not the subject matter of the present suit. Hence the finding that the suit is hit by the principle of res-judicata has to be set aside.

14. Sri Ashok Haranhalli, the learned Senior Counsel for the respondents urged that there is no partition of joint family properties and the properties mentioned in the written statement are the family properties and those properties are to be partitioned among the sharers. All the properties were acquired by the father Sharanappa either in his name or in the names of his children utilizing the joint family funds. The claim of self-acquisition by the plaintiff and the partition of 1953 are disputed and denied by the defendants.

15. The plaintiff-Anneppa filed a suit in O.S. No.95/1986 making a false claim that there was a partition and - 28 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 re-adjustment of property allotted in the alleged partition of 1953. Said contention is negatived in O.S.No.95/1986. And judgment in O.S. No. 95/86 is affirmed in R.A.No.88/1989 and said finding having attained finality operates as res-judicata.

16. The Trial Court framed six issues initially and thereafter, issues have been recast and 12 issues have been framed as under. 1) There was an oral family arrangement partition between the parties to the suit and their father namely; Sharnappa on 10-10-53 and in that, they got properties to their share as mentioned in para No.2 of the plaint? 2) Whether again there was a re-opening of partition family arrangement in so far as land Sy.No.69 is concerned and the plaintiff was allotted the southern half of it measuring 16 acres 23 guntas? 3) Whether the suit properties only had remained without partition. 4) Whether the properties other than the suit property also Joint-family properties of the - 29 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 parties having been acquired by them from Joint family funds? 5) Whether the purchase of the house properties in Gazia Gulbarga in the name of the defendants are benami and made by the plaintiff actually? 6) Whether in the present suit, rights or claim of the parties over said other properties cannot be decided. 7) Whether partition of said other properties can also be made in this suit? 8) Whether the valuation made and court fee paid by defendants for said other properties are not properly correct. 9) Whether the plaintiff is entitled to have mesne profits? If so, at what rate and from which date? 10) Whether the plaintiff has a cause of action for the suit? 11) Whether the defendants also can be given reliefs as claimed by them? 12) To what reliefs the parties are entitled?” - 30 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

17. After hearing the learned Senior Counsel for both sides and considering the materials, the following points arise for consideration: i. Whether the appellants establish that the finding of the trial Court that the suit is hit by res judicata, without a plea and issue is erroneous? ii. Whether the finding in O.S. No. 95/1985 on the issue of the alleged partition of 1953 operates as res judicata? iii. Whether the appellants establish the oral partition of 1953? iv. Whether the respondents prove that the suit properties are joint family properties?

18. It is relevant to note that the plaintiff has sought partition on the premise that in the year 1953, there was a partition among his father and four sons of his father. The suit properties described in the plaint are allotted to the share of the plaintiff’s father. Plaintiff’s father died intestate in the 1973 and the - 31 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 mother died intestate in the year 1983. Thus, the plaintiff claimed a 1/4th share in the properties allotted to the share of the father. In other words, the plaintiff is claiming succession under Section 8 of the Hindu Succession Act 1956. If that is the case, the plaintiff Anneppa must implead his sisters as parties to the proceeding. Though nothing is pleaded by both parties as to how many daughters survived Sharanappa and Sharanamma, during the course of the hearing both sides submit that the propositus Sharanappa has daughters. In that event, the suit is defective as daughters of Sharanappa are also necessary parties to the suit.

19. The defendants have taken a stand that there was no partition in the family even during the lifetime of the father and mother or after the demise of the father and mother. In addition, they claimed a share in all the properties including the properties jointly held by the family before the alleged partition of 1953 - 32 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 asserted by the plaintiff. If there is no previous partition as contended by the defendants, then also the daughters of propositus Sharanappa would be necessary parties to the suit.

20. If the defendants’ plea that there is no partition either in the year 1953 or anytime thereafter is accepted, then such stand would enure the benefit of the daughters. If the plaintiff’s contention that there was already a partition in the year 1953 is accepted, then finding that there was already partition would affect the rights of the daughters to claim equal share in the properties of father-Sharanappa, in view of bar in Section 6 of the Hindu Succession Act,

1956. Thus, the issue relating to the previous partition cannot be adjudicated without daughters being made parties to the suit.

21. Since the Trial Court has held that 1953 partition is not established, and said finding enures to the benefit of daughters who are not parties to the suit, - 33 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 this Court has heard the appeal on merits with a clear understanding that in case the appellants establish that the finding of the trial Court is erroneous, then the matter requires to be remanded to the trial Court to try the issue relating to previous partition by impleading the daughters of Sharanappa.

22. As can be readily noticed, there is no issue relating to the res-judicata. The grievance of the appellant is that the suit has been dismissed as hit by res- judicata without any issue and evidence.

23. However, what is evident from the record is the judgment delivered in O.S.No.95/1985 is marked at Ex.D.84. The copy of the plaint in O.S. No. 95/1985 is marked at Ex.P207. Said suit was filed by the original plaintiff Anneppa as well as his son who is appellant in RFA No.5025/2010. All the defendants of this suit were defendants in the said suit. These facts are not in dispute. The suit in O.S. No. 95/1985 is dismissed. The appeal against the judgment and - 34 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 decree is also dismissed. The judgment and decree in the said suit has attained finality.

24. The said suit was filed for the relief of declaration injunction in respect of property bearing Sy.No.69/1A (southern half of Sy.No.69). The facts pleaded in the said suit are narrated in para No.2 of the judgment in O.S.No.95/1985 marked at Ex.D84. The relevant portion of the plaint, in the said suit as narrated in the judgment reads as under: “Plaintiff No.2 is the father of plaintiff No.1. Defendants No.1 to 3 are the divided younger brothers of plaintiff No.2. Defendant No.4 is the receiver of the entire land Sy.No.69 measuring 32 acres and 28 guntas appointed by the Sub- Divisional Magistrate Gulbarga who was in possession and management of the said land till 26.06.1985. The plaintiff No.2 and his three brothers vizi defendants 1 to 3 and their deceased father, one Sharanappa had originally constituted a joint Hindu family of which the father Sharanappa was the Manager or the Karta. That joint family owned vast - 35 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 properties both land and houses in three villages vizi Hipparga-Kona, Kudi Jewargi Taluka and Aurad K. in Gulbarga Taluka. That Sharnappa to avoid any further disputes between his 4 sons regarding the division of his family properties, by way of an oral family arrangement between himself and his four sons divided all his family lands between himself and his 4 sons on

10.10.1953 in the manner stated below.” Xxxxxxxxxxxxxxxxxx Xxxxxxxxxxxxxxxxx Xxxxxxxxxxxxxxxxxxxx In that family arrangement-partition, it was settled between the father and all his four sons that after the death of the father, the properties allotted to his father’s share should be divided between all his four sons. (Emphasis supplied)

25. On a reading of the plaint in O.S.No.95/1985 which is marked at Ex.207, it is evident that the narration in the judgment and O.S.No.95/1985 - 36 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 extracted above is exactly the same as averred in the plaint.

26. In para No.6 of the said plaint, the plaintiff has averred as under: “6. In the said family partition, the father Sharanappa had allotted the entire valuable land S.No.69 measuring 32 acres 28 guntas of Aurad village to the share of this defendant No.1 Parutappa though that land had been purchased by the plaintiff No.2 out of his own separate hard earnings in the name of his brother defendant No.1 while he was a minor and had not source of income, at the instance of his father Sharanappa. When the other two brothers Baburao and Bhimrao got a decree and wanted to get their names mutated to the lands allotted to their shares, the third brother Parutappa—defendant No.1 in this suit also wanted to get his name mutated or transferred to that land S.No.69 which had been allotted to his share by the father. But the plaintiff No.2 raised a dispute before his father and objected to the transfer of Patta of that whole land S.No.69 in the name of that Parutappa on the ground that it would - 37 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 be most unjust and inequitable to allot that whole land to the share of that Parutappa only and demanded at least half of that land to his (Plaintiff No.2’s) share as the entire land had been purchased by himself. Out of his own earnings when all the other 3 brothers were minors. The father Sharanappa realizing the genuiness of the plaintiff No.2’s claim for a share in that land reopened that original partition he had made and repartitioned the said S.No.69 as between plaintiff No.2 and Parutappa-defendant No.1 with the consent of that Parutappa himself and allotted the southern half of that land measuring 16 acres 23 guntas to the share of plaintiff No.2 and allotted the remaining northern half of that land to the share of that Parutappa-defendant No.1 and gave actual possession of that southern half of that land to plaintiff No.2 and the northern half to that Parutappa-defendant No.1.”

27. Thus, it is apparent that the plaintiff was conscious of the fact that to succeed in the said suit in O.S. No. 95/1985, he was required to establish that there was a partition earlier in the year 1953 as his prayer for - 38 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 declaration of title to the property bearing Sy. No.69/1A was based on the previous partition of 1953 and subsequent re-arrangement of allotment of portion of the property in Sy.No.69.

28. The defendants in the said suit pleaded that no such partition has taken place in the year 1953. This is apparent from the contentions extracted in the judgment in O.S.No.95/1985. The relevant portion of the contentions in the written statement would read as under: “Hence, the contention of the plaintiffs that there was an oral partition on

10.10.1953 cannot be accepted at all. When there is no partition, the question of allotting 716 acres and odd guntas of land to plaintiff No.2 by the father of plaintiff No.2 and defendant No.1 and repartition cannot be accepted at all. There was no repartition of the said land as contended by the plaintiffs. Defendants No.2 and 3 do not know the decree got created by plaintiff No.2 - 39 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 O.S.No.349/1/53-54 but the said decree is sham and bogus.”

29. The contention in the written statement in the said suit in O.S.No.95/1985 is further recorded in the said judgment as under: “Even after 1953-54 property and family of plaintiff No.2 and defendants No.1 to 3 and their father Sharanappa were joint. The said Sharanappa died in 1972 leaving behind him plaintiff No.2 and defendant No.1 to 3 as his legal heirs. After the death of said Sharanappa, plaintiff No.2 and defendants No.1 to 3 continued to live together enjoying joint family property jointly. Said arrangement continued till

1980.”

30. In the said suit, 13 issues are framed. However, issues No.1, 2 and 5 are relevant for discussion. They are as under:

1. Whether plaintiffs prove that there was division by way of family arrangement between plaintiff No.2, defendants 1 to 3 - 40 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 and their father in respect of their family properties on 10.10.1953 as alleged?

2. Whether plaintiffs prove that there was a repartition in respect of S.No.69 of Aurad village and that in that repartition suit land fell to the share of plaintiff No.2 as alleged?

5. Whether defendants 1 to 3 are estopped from contending that their family is still joint with plaintiffs and that there was no partition in view of the decree in OS No.349/1 of 1953-54 and declaration filed by defendant No.1 before Land Tribunal?

31. Issues No.1 and 2 in O.S. No.95/1985 are answered in the negative against the plaintiff and issue No.5 is answered in the negative and the said finding is in favour of the defendants. In the said case, the Court has concluded that in 1953, the partition has not taken place as alleged by the plaintiff. The Court has also held that re-allotment of share in so far as, Sy.No.69 has not taken place as contended by the plaintiff. It is also held that the defendants are not - 41 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 precluded from raising a defence that there was no partition in the year 1953.

32. The plaintiff in the said suit questioned the said judgment in R.A.No.98/1999. The said appeal is dismissed. Copy of the said judgment is produced as additional evidence before this Court.

33. The finding relating to the issue on previous oral partition of 1953 has attained finality. In suit in O.S. No.95/1985 the plaintiff to succeed had to establish that there was a partition in the family in the year 1953 and thereafter, there was readjustment of share in Survey No.69, as the plaintiff claimed title over portion of Survey No.69 based on 1953 partition and alleged readjustment. In the said suit, Court framed an issue relating to the disputed oral partition of 1953. The parties led evidence in support of their plea. The Court held that the oral partition has not taken place. The appellate Court in RA No.88/1989 confirmed the judgment. - 42 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

34. This being the position, even if there is no specific issue relating to res-judicata the plaintiff was put to notice about the judgment in O.S.No.95/1985 when the defendants pleaded about the said suit in the written statement. In addition, the plaintiff also filed a rejoinder to the said written statement and traversed averments relating to O.S. No.95/1985.

35. The learned Senior counsel appearing for the plaintiffs/appellants would contend that the plea relating res-judicata ought to have been specifically pleaded and there should have been a specific issue. Without such issue being raised the suit could not have been dismissed on the ground of re-judicata.

36. In support of his contention, learned senior counsel has cited judgments along with a memo dated

15.11.2023. On a specific query by the Court, learned senior counsel submitted that he would place - 43 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 reliance on 3 judgments of the Apex Court in Devaram and another V/s Ishwarchand and another(1995)6 SCC 733, V. Rajeshwari V/s T.C. Sharanabasawa (2004)1 SCC 551, Sayed Mohd. Salie Labbi and others V/s Mohd. Hanifa and others (1976)780.

37. By refereeing to these judgments, it is urged that to hold that the second suit is barred by res-judicata the following factors need to be proved. i. ii. iii. iv. That litigating parties must be the same; that subject matter of the suit must also be identical; That subject matter must be decided between the parties; That the suit must be decided by a Court of competent jurisdiction;

38. There is no dispute that the second suit O.S.No.176/1986 from which these appeals arise, is between the parties who were the parties in - 44 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 O.S.No.95/1985. Only additional party O.S.No.95/1985, was the Tahasildar. However, Tahsildar in the said suit was only a formal party. Contesting parties in both suits are the same.

39. The earlier suit in O.S.No.95/1985 was decided by the Court of competent jurisdiction. Even appeal is decided by the Court of competent jurisdiction.

40. The grievance of the appellants is that the subject matter of the said suit is different from the subject of the present suit. In the said suit only Sy.No.69/1A was the subject matter. However, in the present suit, in the plaint schedule, there are several properties other than Sy.No.69/1A.

41. In the case of V. Rajeshwari (supra), the Hon’ble Apex Court was dealing with a situation where the judgment in the previous proceeding was produced for the first time before the First Appellate Court that too by the plaintiff who had succeeded in the earlier - 45 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 suit. And in the said case, the title which was declared in the earlier suit was in respect of a part of the property and in the subsequent suit, larger extent of the property was involved.

42. The question is, whether the expression “subject matter” would mean only the “suit property” or also includes the issue. Before deciding the said question, it is necessary to refer to relevant portion of Section 11 of Code of Civil Procedure which deals with res- judicata. “11. Res-judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” - 46 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

43. On a reading of Section 11, it is evident that Section 11 of the Code of Civil Procedure is not just confined to the property involved in two suits. The provision deals with the matter directly or substantially in issue in former and subsequent suit. The word “matter” found in Section 11 is not just confined to the property involved in the case. It will include the property or any question relating to status or any other issue.

44. In the earlier suit in O.S. No.95/1985 the issue was on the disputed oral partition of 1953. The plaintiffs sought the declaration of title in the earlier suit on the basis of previous partition of 1953. In the instant case, plaintiff is claiming partition in respect of the properties alleged to have been allotted to the share of his father in the disputed oral partition of

1953. Obviously, the subject matter will be different as the earlier suit was for declaration of title on the premise that the suit property is allotted to his share. - 47 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 Present suit is for partition of the properties allotted to the share of the father, after the demise of the father in the alleged partition of 1953. This being the position, the core issue involved in the case is whether partition took place in the year 1953 or not.

45. Issue No.1 in O.S.No.95/1985 was relating to the plea of previous partition of 1953 set up by the plaintiff and issue No.5 was based on the defence of defendants who disputed previous partition. And in the present suit, the Court is called upon again to decide on the validity of previous partition of 1953 pleaded by the plaintiff and disputed by the defendants. Thus, the subject matter of both suits qua the issue relating to partition is one and the same.

46. Though the properties in the present suit are more or different and the property in the earlier suit was only one property, the issue relating to partition covers all the properties which are the subject matter of the - 48 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 present suit, in the sense the right to claim partition is dependent on the finding on the plea relating to previous partition of 1953. This being the position, the contention that subject matter of both suits are entirely different cannot be accepted. What really matters in this case is; whether the issue/s, is/ are one and the same.

47. In O.S. No. 95/1985 the Court has also held that the decree in O.S. No.349/1/1953-54 does not come in the way of the Court concluding that the there is no oral partition in 1953.

48. As far as the contention that there has to be a specific plea and issue relating to res-judicata is concerned, the plaintiff cannot raise a grievance in this behalf for the simple reason the defendants in the written statement have pleaded about the earlier suit in O.S.No.95/1985. Though the expression res- judicata is not mentioned in the written statement, the plaintiff was very much aware that he was - 49 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 required to prove that the said judgment O.S.NO.95/1985 does not operate as res judicata (does not come in the way at least) and for this reason he has produced the pleadings O.S.No.95/1985 and has led evidence in support of his claim. Thus, no prejudice is caused to the plaintiff for want of any specific issue. The plaintiff has also filed rejoinder to the written statement and has traversed the pleading relating to earlier suit in O.S.No.95/1985.

49. The contention is urged before this Court, that the plea relating to res-judicata cannot be decided only on the basis of the judgment in the earlier suit without a proper pleading and without reference to the pleadings in the earlier suit. It is also relevant to state that in the very judgment cited on behalf of the appellants, the Hon’ble Apex Court in the case of V. Rajeshwari (supra) has noticed the position of law and held that, - 50 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 “May be in a given case, only copy of judgment in the previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or requisite details of the statement of pleadings and issues which may be taken as proof. But as pointed in Syed Mohd.Salie Labbai Vs. Mohd.Hanifa the basic method to decide a question of res judicata is first to determine the case of the parties put forward in their respective pleadings of their previous suit and then to find out what had been decided by the judgment which operates as res judicata. It is risky to stipulate about the pleadings merely by a summary recitals of the allegations made the pleadings mentioned in the judgment”.

50. It is also stated the said judgment that the Court has to find out as to what was pleaded and decided in the earlier suit. As already noticed, pleading in the earlier suit is produced by the plaintiff himself and judgment in the earlier suit is produced by the defendants. It is not the case of the plaintiff that in the earlier suit there was no issue relating to the alleged oral - 51 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 partition of 1953. It is not the case of the plaintiff that the pleadings narrated in the judgment are inaccurate. More than anything else, the plaintiff himself has produced the plaint in the earlier suit.

51. This being the position, the appellants cannot contend that the finding of the Trial Court that the suit is hit by principle of res-judicata is erroneous for want of pleading and issues. It is well settled position of law that, even in the absence of specific issue that the parties go to the trial with a clear understanding as to what is required to be proved or disproved by them, then omission to frame the issue is not fatal.

52. At this juncture, it is also necessary to refer to Section 40 of the Indian Evidence Act, 1872. The said provision reads as under:

40. Previous judgments relevant to bar a second suit or trial.—The existence of any judgment, order or decree which by prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the - 52 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 question is whether such Court ought to take cognizance of such suit, or to hold such trial.

53. On a reading of Section 40, it is evident that the judgment in O.S.No.95/1985 would be a relevant document as it dealt with one of the issues in the present suit and it is between the same parties or claiming under them. When the said judgment which has attained finality, holds that there was no partition in the year 1953, it is not open to the Court to again permit the parties to lead evidence on the issue of alleged partition of 1953 on the premise that the pleadings in the subsequent suit did not specifically raise an issue of res-judicata and the Trial Court did not specifically frame an issue relating to res-judicata.

54. As already noticed, the plaintiff was put on notice of the judgment in O.S.No.95/1985 to which he was a party. The plaintiff himself has produced pleadings (Plaint in O.S. No. 95/1985, Ex. P-207) of - 53 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 the earlier suit. Thus, not framing a specific issue relating to res-judicata has not caused any prejudice to the plaintiff as he has led evidence to support his contention that there was a partition earlier and he has also allowed to urge a contention that the previous suit does not operate as res-judicata.

55. More than anything else Section 11 bars trial of any issue which is already decided between the parties. However in this case the Court did not prohibit the plaintiff from leading evidence in the suit in support of his plea of alleged oral partition.

56. It is also relevant to note that, Anneppa filed a suit in O.S.No.601/1989 claiming title and injunction over the residential house in Ghazipura village. The said suit is dismissed and appeal in R.A.No.194/2006 filed by Anneppa is also dismissed. In the said judgment, the Court has held that plaintiff (Anneppa) has failed to prove the partition or the sufficient income to purchase the property. - 54 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

57. O.S.No.602/1989 is also filed by Anneppa for declaration of title and injunction and the said suit is also dismissed and appeal in R.A.No.272/2006 against the said judgment is dismissed.

58. Another suit in O.S.No.59/1994 declaration of title and injunction. In the said suit, an issue is framed whether there was a partition on

10.10.1953. The suit is dismissed holding that the previous partition is not established. One more suit in O.S.No.170/1986 is filed by S/o. Anneppa is also dismissed wherein the Court has held that the partition of 1993 is not established. The aforementioned judgments are produced by the respondents along with application for production of additional documents. The appellants have not disputed the aforementioned judgments. Hence, they have been referred to in this judgment. The aforementioned judgments would also indicate that the previous partition of 1953 is not established. - 55 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

59. For the aforementioned reasons, this Court is of the view that it is not open for the plaintiff to contend that partition has already taken place in the family in the year 1953. It is not the case of the plaintiff that the partition has taken place thereafter. Hence, in the absence of any contention relating any partition after 1953, the Court has to presume that the family remained joint even after 1953.

60. Next question which requires consideration whether all the properties shown in the schedule to the written statement are the joint family properties. The burden to show that all the properties are joint family properties is on the defendants.

61. As far as the properties standing in the name of the defendants concerned, defendants themselves have pleaded that those properties are joint family properties. However, as far as the properties standing in the name of the plaintiffs are - 56 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 concerned, the defendants must establish that those properties are self-acquired properties.

62. The plaintiffs have contended that the properties standing in the name of the plaintiffs are self- acquired properties on the premise that income derived from the properties allotted to the share of plaintiffs in the partition of 1953 is used to acquire the properties in the name of the plaintiff and also in the name of some of the defendants by way of benami transaction. Thus, the plaintiffs claim relating to self-acquisition stems from the plea of previous partition.

63. The plaintiff in the instant suit has also admitted that there are no records to show that the partition took place on 10.10.1953. (Cross-examination dated

03.04.1992)

64. Since plea of previous partition is negatived, the plaintiff must establish independent income prior to - 57 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023

1953. No evidence is produced to show that he had independent income from the properties other than the ancestral properties.

65. The evidence on record would disclose that the family had vast extent of lands. The existence of joint family properties is established. Thus, the claim that the properties standing in the name of the plaintiffs are self-acquired properties cannot be accepted without there being any source of self earning for the plaintiff. Thus, the trial Court has rightly held that all the suit properties are joint family properties.

66. For the aforementioned reasons, the Court does not find any reason to interfere with the impugned judgment and decree, where the Court has held that previous partition of 1953 is not established. The finding of the trial Court that the properties mentioned in the schedule to the written statement - 58 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 are joint family properties is also logical and in sync with settled position of law.

67. As far as contention that the relief of partition sought by the defendants is not maintainable for not including all the properties standing in their name is concerned, this Court is of the view that no such plea is raised in the plaintiff’s rejoinder to the written statement. There was no such issue before the trial Court as there was no such plea. Hence, the said contention raised by the plaintiff cannot be accepted.

68. The plaintiff has also contended that existence of the movables described in the written statement is not established. The trial court has granted the decree in respect of movables described in the written statement. Since the trial court has granted the decree in respect of movables shown in the schedule to the written statement and the existence of those properties are not established the decree in respect of movables shown in the schedule to the written - 59 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 statement has to be set aside and accordingly, set aside.

69. For the aforementioned reasons, the Court does not find any reason to interfere with the impugned judgment and decree, where the Court has held that previous partition of 1953 is not established. The finding of the trial Court that the properties mentioned in the schedule to the written statement are joint family properties is also logical and in sync with settled position of law.

70. However, as already noticed, propositus Sharanappa is survived by daughters. Since the Court has taken a view that there is no partition in the family, the daughters also have equal share along with the sons of Sharanappa. However, the daughters are not made parties to the suit. Since, this Court has taken a view which is beneficial to the daughters, the daughters will not aggrieved by the judgment and on the other hand, will be the beneficiaries of the - 60 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 judgment. Hence, technically, though the suit is defective, instead of remanding the matter to implead the daughters, this Court is of the view that the impugned judgment and decree is to be modified awarding the share to the daughters as well. The daughters of Sharanappa should be permitted to come on record in Final Decree proceedings and they should be allotted equal share in the property of Sharanappa and Sharanamma.

71. It is also noticed that the defendants have sought for accounts (mesne profits). However, the decree is silent on the said prayer. As already noticed, the daughters are not made parties to the proceedings before the Trial Court. The contentions raised by the parties and the materials on record would indicate that the income from the properties might not have been shared with the daughters. This Court instead of directing trial, after impleading daughters, has permitted the daughters to come on - 61 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 record in Final Decree Proceeding as share is also declared in favour of daughters. In the aforesaid peculiar facts of the case, it would be just and proper to pass a decree for mesne profits as well. Each party to the proceedings before the Trial Court is permitted to make a claim towards mesne profits and accounts. In the said proceeding, there shall be an enquiry relating to mesne profits, if any, payable to any of the parties to the proceedings.

72. Since, daughters are permitted to participate in the final decree proceedings, it is open to the daughters or anybody claiming under them to file a suit for partition and separate possession of said properties which according to them are the joint family properties and not included in the present suit. If such suit is filed, same shall be considered in accordance with law. However, same shall not come in the way of prosecution of final decree proceeding pursuant to the decree passed by this Court or if any - 62 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 final decree proceeding is pending pursuant to the decree passed by the trial Court same shall be proceeded further as per the direction contained in this judgment.

73. Though there is no counter claim in the strict sense, since the suit is for partition and separate possession and it is well settled principle of law that in a suit for partition even the defendant can claim partition as if he is a plaintiff, the decree for partition is granted in favour of the plaintiff as well as defendants in respect of the immovable properties shown in the written statement.

74. Hence the following: ORDER The appeals are disposed of in the following terms: a. Impugned judgment and decree dated

16.12.2008 in O.S.No.176/1986 on - 63 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 the file of the III Addl. Civil Judge, Gulbarga, are modified. b. Each of the sons and daughters of late Sharanappa is entitled to equal share in the written statement schedule properties except the movables shown the schedule the written statement. c. The claim for partition in respect of the movables shown the written statement is dismissed. d. If the any of the sons or daughters of late Sharanappa is not surviving, share of such son or daughter will devolve on the heirs of deceased sons and daughters of Sharanappa. e. The final decree proceeding court shall implead the daughters of Sharanappa, the propositus, as parties to the proceedings and shall allot equal share to those daughters, as that of the sons of Sharanappa. - 64 - NC: 2024:KHC-K:9235 RFA No. 5030 of 2010 C/W RFA No. 5025 of 2010 RFA No. 200202 of 2023 f. The parties to the proceedings are also entitled to seek mesne profits and the Final Decree Court shall hold an enquiry relating to mesne profits and decide as to who is entitled to mesne profits from whom. g. No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE AM/RKM/GAB/CHS Ct:anb