Karnataka High Court

Sri. K.R. Ravishankar vs Smt. Vijayamma on 26 October, 2023

Bench: K.Natarajan

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 26TH DAY OF OCTOBER, 2023

                        BEFORE

       THE HON'BLE MR. JUSTICE K. NATARAJAN

         REGULAR FIRST APPEAL NO.345 OF 2019

BETWEEN:

1 . SRI. K.R. RAVISHANKAR
    S/O. SRI. K. C. RUDREGOWDA,
    AGED ABOUT 60 YEARS,

2 . SMT. ANITHA R
    W/O K. R. RAVISHANKAR,
    AGED ABOUT 56 YEARS,
     BOTH R/AT NO.64. 30TH MAING,
     JAYANAGAR, 4TH BLOCK,
     II PHASE, J P NAGAR,
     BANGALORE - 560 078.
                                        ... APPELLANTS
       (BY SRI. H.S. DWARAKANATH, ADVOCATE FOR
           SRI. R.A. CHANDRASHEKARA, ADVOCATE FOR
           A1;
           SRI. H.S. DWARAKANATH, ADVOCATE FOR
           SRI. S.K. MITHUN, ADVOCATE FOR A2)

AND:

1.   SMT. VIJAYAMMA
     W/O. LATE NARAYANAPPA,
     AGED ABOUT 60 YEARS,
     R/AT GOTTIGERE VILLAGE,
     UTTARAHALLI HOBLI,
                             2


     BENGALURU SOUTH TALUK - 560 061.

2.   SMT. SUNANDA
     W/O. KRISHNAPPA,
     AGED ABOUT 50 YEARS,
     R/AT BYAPPANAHALLI,
     OLD MADRAS ROAD,
     BENGALURU - 560 049.

3.   SMT. BABU
     W/O. SAMPANGI,
     AGED ABOUT 45 YEARS,
     R/AT NEDUVATTI,
     HOSAKOTE TALUK,
     BENGALURU RURAL DISTRICT - 562 114.

4.   SMT. JYOTHI
     W/O. MANJUNATH,
     AGED ABOUT 47 YEARS,
     R/AT TILAKNAGAR,
     JAYANAGAR EAST,
     BENGALURU - 560 041.

5.   SMT. RAMAKKA
     W/O. LATE. G. A. RAMAIAH,
     AGED ABOUT 81 YEARS,

6.   SRI. G. R. PRAKASH,
     S/O. LATE. G. A. RAMAIAH,
     AGED ABOUT 63 YEARS,

7.   SRI. G. R. LAKSHMIKANTH,
     S/O. LATE. G. A. RAMAIAH,
     AGED ABOUT 55 YEARS,

     NOS. 5 TO 7 ARE R/AT
                           3


     GOTTIGERE VILLAGE,
     UTTARAHALLY HOBLI,
     BANGALORE SOUTH TALUK - 560 061.

8.   SRI. K. LOKANATH
     S/O. K. PAPA NAIDU,
     AGED ABOUT 74 YEARS,
     R/AT NO.4,SMS LAYOUT,
     J. P. NAGAR, 5TH PHASE,
     BANGALORE - 560 078.
                                   ... RESPONDENTS
     (BY SRI. SHANKARNAG U., ADVOCATE FOR R5 AND
         R6;
         VIDE ORDER DATED 20.6.2022, NOTICE TO R7
         IS HELD SUFFICIENT;
         VIDE ORDER DATED 13.9.2023, APPEAL
         AGAINST R8 IS DISMISSED;
         SRI. A. SAMPATH KUMAR, ADVOCATE FOR R1
         TO R4)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC., 1908 AGAINST THE JUDGMENT
AND DECREE DATED 04.01.2019 PASSED IN OS
NO.965/2004 ON THE FILE OF THE IV ADDL.SENIOR CIVIL
JUDGE,   BENGALURU     [R]   DISTRICT   BENGALURU
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR HEARING JUDGMENT ON 11.10.2023
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:


                  JUDGMENT

This appeal is filed by the appellants who are the

defendant Nos.5 and 6 in the Trial Court under Section

96 of CPC, for setting aside the judgment and decree

passed by the Trial Court in favour of the respondent

Nos.1 to 4 in O.S.No.965/2004 dated 4.1.2019.

2. Heard the arguments of learned counsel for

the appellants and learned counsel for the

respondents.

and the respondents Nos.1 to 4 are the plaintiffs. The

plaintiffs and respondent Nos.6 to 8 are the defendant

Nos.1 to 3 in the Trial Court. The rank of the parties

before the Trial Court are retained for the sake of

convenience.

4. The case of the plaintiff before the Trial Court

is that they have filed the suit against the defendants

for partition of their 1/7th share each with separate

possession, by meets and bounds and to declare the

sale deed dated 11.4.2003 and the rectification deed

dated 17.4.2004 executed by the defendant Nos.1 to

3 in favour of defendant Nos.4 to 6 are not binding on

them. It is further contended that the plaintiff and

defendant Nos.2 and 5 are the children of one late

G.A.Ramaiah and the defendant No.1 is their mother

and they constitute Hindu Undivided Joint family.

Their father owned property land in Sy.No.15/3

measuring 2 acres purchased out of own earning

under registered sale deed dated 6.12.1990. The

plaintiffs and defendant Nos.1 to 3 are legal heirs.

That on 09.08.2004, they came to know the

defendant Nos.1 to 3 have sold the property to

defendant No.4 to 6 on 11.4.2003 in various sale

deeds, rectification deed and supplementary deed

dated 17.4.2004. They have sold entire extent of

property. Defendant Nos.4 to 6 are not bonafide

purchasers. The rectification deed dated 17.4.2004

which came to the knowledge of the plaintiff and they

demanded the share from defendant Nos.1 to 3 for

partition and separate possession and came to know

sale was made on 09.08.2004 itself. Hence, they

have filed the suit.

5. The defendant Nos.1 and 2 filed common

written statement by admitting that the property was

purchased by Ramaiah and the transaction was made

by them for meeting the family necessities.

Therefore, the rectification deed and sale deed was

executed, which is binding on the plaintiff. The

defendant Nos.1 to 3 sold the lands in favour of the

defendant No.5 and 6 and received the sale

consideration from the defendant No.4. The sale deed

in favour of the defendant No.5 and 6 is concerned,

those who have acted upon mutually and they agreed

to sell 1 acre 4 guntas to the defendant Nos.5 and 6

for Rs.13.20 lakhs by cheque. The defendants have

contended that defendant Nos.5 and 6 have made the

transaction by cheque in their favour, drawn on Bank

of Baroda, but sale deed was obtained fraudulently

and the amount was not paid. The complaint was also

lodged against defendant Nos.5 and 6. The cheques

were taken back by them, the sale deeds were

cancelled. Hence, the sale deed in favour of

defendant Nos.5 and 6 are null and void and illegal for

want of sale consideration. It is further contended,

the plaintiff were having knowledge about the sale

deed and receipt of sale consideration for the purpose

of their marriages. Therefore, they filed suit for

harassing the defendants. Hence, prayed for

dismissing the suit. The defendant No.4 filed separate

written statement contending that the plaintiffs are

not in possession of the schedule property and he is in

possession of 1 acre and 10 guntas of land under the

sale deed and rectification deed dated 17.4.2004. He

has paid entire sale consideration to the defendant

Nos.1 to 3. But the sale deed in favour of defendant

Nos.5 and 6 were not acted upon mutually to the

defendant Nos.1 to 3 and 5 and 6. Further

contended the defendant Nos.1 to 3 agreed to sell 1

acre 4 guntas to defendant No.5 and 6 for Rs.13.20

lakhs two cheques were issued for Rs.5 lakhs and Rs.8

lakhs each. The sale deed was fraudulently obtained,

later the cheques were not given, nor amount was

paid and the complaint was filed to the police.

Defendant Nos.5 and 6 taken back the cheques and

sale deed was cancelled. Therefore, the sale deed in

favour of defendant Nos.5 and 6 are null and void.

The sale deed of defendant No.4 is valid, hence

prayed for dismissing the suit.

6. The defendant Nos.5 and 6 also filed common

written statement contending that the property

belonged to one G.A.Ramaiah which is a self acquired

property purchased by him in 06.12.1990 and a

portion was sold to these defendants which was

purchased from defendant Nos.1 to 3. After the

purchase, khatha also transferred in their name, they

are paying taxes, compound has been erected,

electricity connection has been taken and also dugged

up bore well. The defendant No.5 also received notice

from the Karnataka Industrial Area Development

Board, (KIADB) on 03.06.1999. Later, a notification

was withdrawn on 11.8.2004 in respect of 2 acres of

land. Hence, the defendant Nos.5 and 6 are the

owner of the property, defendant Nos.1 to 3 are not

entitled and are not having any right title over the

property.

7. The defendant No.6 further contended that 2

acres 14 guntas of land has been mortgaged with

Union Bank of India for securing loan of Rs.23 lakhs,

the bank issued notice for the sale of the schedule

property by a notification on 30.4.2008 for a sum of

Rs.34.34 lakhs and the said amount has been paid by

these defendants. This matter has been suppressed

by the plaintiffs and defendant Nos.1 to 3 have tried

to interfere over the schedule property. A suit in

O.S.No.859/2004 and O.S.No.887/2004 are filed and

got status-quo order. One more suit was also filed at

the instance of the defendant No.4 and the defendant

No.4 is instigating all other person to file the suit,

these defendant are bonafide persons to spend more

than Rs.35 to 40 lakhs for purchasing schedule

property and hence prayed for dismissing the suit.

Based upon the pleadings the Trial Court framed 8

issues as under:-

"1. Whether the plaintiffs prove relationship with late G.A Ramaiah?

2. Whether they further proves that the defendant No.1 to 3 have in absolute right to sell the suit schedule property in favour of defendant No.4 to the extent of 1 acres, 10 guntas by virtue of registered sale deed (Rectification cum supplementary deed) dated. 17.04.2004?

3. Whether they further prove that the defendant No.1 to 3 have no absolute right to sell the suit schedule property in favour of defendant No.5 and 6 by virtue of register separate sale deed dated 11.04.2003?

4. Whether the defendant No.4 proves that is in possession of 1 acres, 10 guntas by virtue of registered sale (Rectification cum supplementary deed) dated 17.04.2004?

prove that they are bonafide purchasers in separate register sale dated 11.04.2003 as contended by them in their written statement?

6. Is the court fee paid insufficient?

7. To what relief the parties are entitled for?

8. What Decree or order?"

8. On behalf of the plaintiff, the plaintiff No.1

examined as PW.1 and got marked 8 documents and

on behalf of the defendant No.5, he himself examined

as DW.11 and got marked 8 documents in the cross

examination and other documents up to Ex.D.83. The

defendant No.1 was examined as DW.2 but no

documents marked. Defendant No.2 marked as DW.3

and from his side Genealogical Tree marked at

Ex.D.64 and FIR has been marked at Ex.D.65. After

hearing the arguments, Trial Court answered Issue

Nos.1 to 3 in affirmative, issued Nos.4 to 6 in negative

and issue No.7 in affirmative and finally decreed the

suit and impugned judgment holding that the plaintiff

are entitled for 1/7th share and the sale deed dated

11.4.2003 and the rectification deed 17.4.2004 are

not binding on plaintiff. Being aggrieved by same

defendant Nos.5 and 6 filed this appeal. The other

defendants have not filed any appeals.

9. Learned counsel for the appellants have

mainly argued on three grounds contending that the

suit for the partial partition is not maintainable. Also,

declaration and mandatory injunction for possession

and as per Section 34 of the Specific Relief Act, the

suit is not maintainable. Further contended, the

valuation made by the plaintiff under Section 35(2) of

the Karnataka Court Fee and Suits Valuation Act, 1958

(hereinafter referred to as 'KCFSV Act'), is not correct

but it must be valued under Section 35 (1) of KCFSV

Act. Therefore, without payment of the court fee, the

suit required to be dismissed.

10. He further argued, that in the paragraph 11

of the plaint itself, the plaintiff has stated that the

other properties are not known, but the other various

properties will be included in the suit subsequently,

but it was not included. Except the suit schedule

property, the other properties are not subject matter

for the purpose of partition. Therefore, the suit is not

maintainable for the partial partition. He further

contended at paragraph 12, the PW12 in the evidence

she has stated, that she do not know about other

properties and in the cross examination also admitted

there are some other properties in the name of the

father. Defendant No.5 also taken the contention that

the partial partition is not maintainable, but the Trial

Court proceeded to pass the decree which is not

correct. He further contended, the suit for possession,

is not maintainable without declaring the sale deed as

null and void, unless the sale deed is cancelled, the

partition cannot be granted. The Trial Court did not

consider the court fee paid and suit valuation made

under Section 35 (2) of KCFSV Act. Even though the

plaintiff is not in position of the property. Therefore

the judgment of the Trial Court is not sustainable and

liable to be set aside. In support of his argument, he

has relied upon the various judgments.

11. Per contra, respondent Nos.1 to 4 who are

the plaintiff before the Trial Court has contended the

plaintiffs are daughters, they are entitled for the share

under Section 8 of the Hindu Succession Act, 1956,

the property was in joint possession. The pre-existing

right of the plaintiff could not be alienated by

executing the sale deed. The sale deed of the

defendant Nos.1 and 2 and transfer of the property

not been acted upon. Defendant Nos.5 and 6 disputed

the relationship in the written statement and also

contending that the property is not the ancestral

property. The sale deed was executed in the year

2001 and it is not available for partition in view of the

amendment to the Hindu Succession Act as there is a

cut off date. The respondents also contended there is

no issue regarding partition suit, is not maintainable

and there is no pleadings and without pleadings the

evidence is not admissible and hence prayed for

dismissing the appeal. Upon hearing the arguments

and perusal of records, the point that arises for my

consideration are:-

1) Whether the suit filed by the plaintiff for partial partition is maintainable?

2) Whether the plaintiff proves that defendant Nos.1 to 3 have no absolute right to sell the suit schedule property in favour of the defendant Nos.5 and 6, by sale deed dated 11.4.2003?

           proves      that    they        are    bonafide
           purchasers     of     the       suit   schedule
           property?

4) Whether suit for mere declaration without seeking possession is not maintainable?

5) Whether suit is not maintainable in view of relief and the court fee calculated under Section 35 (2) of the KCFSV Act?

6) Whether the judgment and decree passed by Trial Court calls for interference?"

12. The plaintiff has contended in the plaint,

that the suit schedule property land belongs to their

father G.S.Ramaiah, the defendant No.1 is mother

and defendant Nos.2 and 3 are the sons and the

property in Sy.No.15/3 situated at Pillaganahalli

village, Uttarahalli Hobli, Bengaluru South Taluk has

been purchased by their father on 6.12.1990 and after

his death they are in joint possession and enjoying the

suit schedule property, as on the date of filing the

suit. They further contended, they came to know on

9.8.2004 that the defendant Nos.1 to 3 had sold the

schedule property to the defendant Nos.4 to 6 under

the sale deed registration No.BNG(U)KNGR-909/2002-

2004 in favour of defendant No.4 and in favour of

defendant No.5 vide sale deed registration

KNGR/910/2003-04 and in favour of defendant No.6

in KNGR/911/2003-04 and rectification cum

supplementary deed on 17.4.2004. The defendant

Nos.1 to 3 have sold entire extent of 2 acres and 14

guntas and including 16 guntas kharab land and they

requested for partition from defendant Nos.1 to 3,

they refused, hence they have filed suit. To prove the

contention, the plaintiff herself examined as PW1 and

got marked 8 documents. The Ex.P1 is sale deed

dated 5.2.1990 to show his property was purchased

by their father, Ex.P2 is RTC, Ex.P3 is Mutation and

Ex.P4 is EC in respect of the ownership of the property

by the father of the plaintiff, is not in dispute. The

Ex.P5 and 6 are the sale deeds dated 11.4.2003 and

Ex.P7 is rectification deed dated 17.4.2004.

13. The defendant Nos.5 and 6 i.e., the present

appellants case is that suit property is only one

property, there are other several properties which

were not subject matter and including in the partition

suit. Therefore, the partial partition suit is not

maintainable. If the same contention were taken by

the defendants in the written statement, however,

there is no issues on this pleadings. Though the

plaintiff counsel contended that suit is maintainable,

there is no pleading in the written statement which is

not correct. The paragraph 11 of the plaint it is

categorically pleaded by the plaintiff that they do not

have any knowledge about other properties which

belongs to the Joint Hindu family and reserve right to

include other properties, as they may find in the

course of time. In the chief examination at paragraph

12 she herself stated that they do not know about

other properties owned by her father and in the cross

examination, PW1 admits that they have filed suit for

only one property and she do not know how many

properties were held by the father. She further admits

there was some other properties which stands in the

name of their father.

14. On perusal of the evidence of this witness

and admission made by her, which clearly reveals the

suit filed by the plaintiff is for only one property that is

Sy.No.15/3, even though there were other several

property and house property held by her father, but

suit is filed only for one property but not included all

other properties in the schedule. Even though the

plaintiff reserved the right for adding some other

properties during the pendency of the suit, but they

have not included any of the other properties. On the

other hand, the appellants main contention that suit

for partial partition is not maintainable and they are

successful in proving that the other properties are not

included by the plaintiff in the suit for partition. The

same was stated by the defendant in the evidence at

paragraph 2 that G.A.Ramaiah owned house at

Gottigere village and the plaintiff also residing in the

Gottigere village. This evidence of the DW1 not been

disputed by the plaintiff and defendant also stated at

paragraph 1 of the examination chief that there was

one more property at Sy.No.97 at Gottigere village

measuring 1 acre and 16 guntas and 2 guntas of

kharab in the name of defendant No.1 Ramakka and

the plaintiff purposely suppressed the same while

filing the suit. In support of his case, the defendant

DW1 got marked Ex.D17 which is a RTC in respect of

Sy.No.97 of gottigere village which stands in the name

of Ramakka, the wife of Ramaiah the defendant No.1

herein. The Exs.D18 to D29 and the RTCs showing

the Sy.No.97 stands in the name of Ramakka and

Ex.D30 upto 2014 stands in the name of Ramaiah.

These properties are not included by the plaintiff, even

after examination of DW1 by seeking any amendment

to the schedule property. Ex.D31 is another RTC

which shows Sy.No.37/1 of Gottigere village

measuring 0.18 guntas also stands in the name of

Ramaiah and after his demise, stands in the name of

defendant Nos.1 to 3 and this RTC reveals both

Sy.Nos.37/1 and 15/3 which stands in the name of

defendant Nos.1 to 3, which clearly reveals there are

other landed properties, Sy.No.97 and Sy.No.37/1

apart from the house property at Gottigere village

were all joint family properties, which were not

included by the plaintiff in the suit schedule property.

Thereby the defendant Nos.5 and 6 was successful in

proving the suit field by the plaintiff is a partial

partition and intentionally suppressing all other

properties. Hence the suit for plaintiff partial partition

is not maintainable.

15. In this regard, learned counsel for appellant

relied upon the judgment of the Division bench of this

Court reported in MANU/KA/1562/2010 in the case

of G.M. Mahendra Vs G.M. Mohan, in a similar

situation, the Division Bench has held at paragraph 18

as under:-

"18. When he contends that he has become the absolute owner of 50% of the joint family property, and if he has filed a suit for partition he has to file a suit for partition in respect of all the properties wherever they are situated. For the reasons best known to the plaintiff in O.S. No. 2/83, he did no include the present suit property. Similarly he also did not include other joint family properties. Similarly, he also did not crave leave the Court to institute a suit in respect of the property not included in the said suit to treat the said suit as a suit for partial partition only. There is no proper explanation by the plaintiff in this regard.

When he has omitted to include plaint schedule property as the cause of action in the present suit was also there as on the date of institution of the suit in view of the law laid down by is Court in Sri Tukaram v. Sri Sambhaji, ILR 1998 KAR 681 which is as hereunder:xxxxxxxxxxxxxxxxxxxxxxxxxx

partition The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpot, the suit for partition of the share of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld.xxxxxxxxxxxxxxxxxxxxxxxx

The finding given by the Trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non- joinder of necessary properties to be included in the suit has to be upheld."

Taking into consideration this citation, the Court has to hold that the suit filed by the

plaintiff was not maintainable as the suit for partial partition cannot be maintained without seeking leave of the Court as contemplated under the provisions of Order 2, Rule 2 of CPC. Therefore, we are of the view that suit of the plaintiff was also not maintainable on this ground."

16. In another judgment of Co-ordinate bench

of this Court in the case of Vishwaraj and Ors. Vs.

B.M.Byrappa and Ors. reported in MANU

KA/342/2013 has taken similar view and cited

another judgment of the Co-ordinate Bench of this

court in the case of Sri Tukaram Vs. Sri. Sambhaji

& Ors. reported in MANU/KA/0498/1998 and

held at paragraph No.19 as under:-

"In the present case on hand, the 1st defendant has alienated the suit land in favour of defendant ndants-2 to 6. the 1st defendants is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. It

has been contended by the Learned Counsel or the alieness while allotting the share to defendant-1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition.

Otherwise, it would be difficult to apply principles of equitable partition. The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotch-pto, the suit for partition of the shares of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit has been filed by one of the non-alienating co-parceners of the joint family property. The suit has been filed by the non- alienating co-parceners with respect to the only property which has been alienated. This is not a suit for general share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the 1st defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased the property by the 1st defendant. In that

view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law."

17. In view of the principle laid down by the

Division Bench as well as the Co-ordinate bench in the

above said case, the suit filed by the plaintiff for

partial partition is not maintainable. The Trial Court

not considered this aspect and erred in giving findings

against the defendants. Hence, answered the point

No.1 in favour of the appellant/defendant Nos.5 and

18. The plaintiffs have contended that the

defendant Nos.1 to 3 do not have any absolute right

over the schedule property for executing the sale deed

in favour of the defendant Nos.4 or 5 and 6.

Admittedly, the defendant Nos.1 to 3 sold the

property by sale deeds dated 11.4.2003 marked as

Ex.D1, where the defendant Nos.1 to 3 have executed

sale deed in faovur of the appellant No.1 Ravishankar

holding that the Ramakka is wife and other two

defendant Nos.2 and 3 were sons of Ramaiah who

were absolute owners and selling the property and

they received Rs.11 lakhs and Rs.2.20 lakhs by two

cheques were drawn on Bank of Baroda Siddiaiah

road. They have stated, the vendor, selling the

property for family necessities. It is an admitted fact,

subsequently the very same defendant Nos.1 to 3

executed another sale deed on 11.4.2003 in favour of

defendant No.6 for land measuring 1 acre 4 guntas in

Sy.No.15/3 and in Ex.D1. The land measuring 1 acre

4 guntas has been sold to the defendant No.5, the

entire suit schedule property 2 acres 8 guntas has

been sold vide two separate sale deeds. The

possession of property was already delivered in the

year 2003 itself.

19. The defendants have contended that after

purchase of the properties by defendant Nos.5 and 6

there was interference by the very vendors, hence

defendant Nos.5 and 6 have filed two suits

O.S.Nos.884/2000 and 859/2004 for permanent

injunction which was decreed by the civil court. The

judgment and decrees were produced and marked at

Ex.P3 to D7. The defendants Nos.5 and 6 have also

taken contention that the defendant Nos.1 to 3 are

also said to be entered into agreement with

Vishwanatha for selling the suit schedule property and

the said Vishwanatha filed suit for specific

performance in O.S.No.903/2004, which came to be

dismissed at Ex.D7 and D8 in the judgment and

decree in the said suit.

20. The defendant Nos.5 and 6 also taken the

contention that the defendant Nos.1 to 3 were in

financial need, therefore they offered to sell the entire

suit schedule property and it was purchased by

defendant nos.5 and 6 in two separate sale deeds.

Subsequently, the khatha also changed in the name of

defendant No.5 and 6 they put up the compound,

obtained telephone connection, electricity connections

and dug the bore well. Further contended that the

KIADB issued a notification for acquiring the land on

3.6.1999, subsequently it was withdrawn. Further

contended that the suit schedule property was

mortgaged with the Union Bank for securing loan to

the term for more than Rs.23 lakhs and the bank has

notified for selling the suit schedule property for

recovery of Rs.34.34 lakh. Therefore the defendant

Nos.5 and 6 paid the said amount to the bank for

clearing the mortgage and purchased the property

from the defendant Nos.1 to 3. In support of his

contention, the defendant Nos.5 and 6 produced

Exs.D9 and 10 which are the certificates issued by

Union Bank of India dated 20.2.2009 wherein the

loan borrowed by Ramakka defendant Nos.1 to 3 has

been declared as "NPA" and the defendant No.5

discharged the loan. Certificate issued by the banker

which reveals at Exs.D9 and 10 and an amount of

Rs.34.34 lakhs was paid by the defendant Nos.5 for

discharging the mortgage, these documents were

suppressed by the plaintiff.

21. The defendant also produced Ex.D12 the

auction sale notification of the said property, Ex.D13

tender cum auction notice issued by Union Bank of

India. These documents clearly reveals that the

defendant Nos.5 and 6 purchased the property when

the property was about to be sold in the auction by

the Union Bank. During that financial crisis, the

defendant Nos.5 and 6 purchased the suit schedule

property. Subsequently, defendant Nos.5 and 6 again

paid amount to the Union Bank which clearly reveals

the defendant Nos.5 and 6 purchased the property

and they are in possession.

22. The DW.1 produced documents at Ex.D.33 a

copy of the plaint in O.S.No.16529/2004 filed by one

along with one Lokanath for executing the sale deed,

on the basis of agreement of sale, on the ground there

was an agreement in their favour, by receipt of

Rs.7,50,000/-. It was also claimed there was creation

of sale deed in favour of defendant Nos.5 and 6 and

he has filed the suit. The Ex. D.38 was an agreement

dated 25.11.2002 said to be executed by defendant

Nos.1 and 2 in favour of defendant Nos.4 for having

paid Rs.5 lakhs under the agreement of sale and D4

filed suit for recovery of Rs.5 lakhs + Rs.2.50 lakhs

towards interest. But the defendant Nos.5 and 6 were

already purchased property by paying sale

consideration and also paid huge amount to the bank.

The Exs.D48 and 49 are the copy of the vakalath

which reveals defendant No.5 filed suit against

defendants including plaintiff in O.S.No.26032/2010 at

City Civil Court Mayo Hall, where plaintiff also

appeared in the said case. Ex.D50 is judgment in

O.S.No.26032/2010 where the suit of the plaintiff D2

and 5 (appellants) was decreed whereas the

defendant Nos.1 to 3 for recovery of Rs.40 lakhs

which was paid by the defendant No.5 to the Union

Bank of India, since the said amount was borrowed by

the defendant Nos.1 to 3 by mortgaging the property

and suppressing the same, they sold the property to

defendant Nos.5 and 6. Therefore, for the recovery of

the said amount Rs.34.34 lakhs, the suit was filed by

the defendant No.5 which was decreed. The Ex.D51 is

decree, Ex.D52 is the affidavit of the defendant Nos.1

to 3 in favour of one Vishwanath for undertaking to

repay the amount and Ex.D53 is the plaint filed by the

defendant No.6 against defendant Nos.1 to 3 and

Ex.D54 is written statement of defendant Nos.1 to 3.

and judgment passed in O.S.No.857/2004 is marked

at Exs.D.59 and D.60 is a judgment and decree.

Ex.D.61 is plaint filed by the defendant No.5 in

O.S.NO.887/2004. Exs.D.62 and 63 are the copy of

the judgment and decree. Ex.D64 is genealogical tree

showing all the name of plaintiffs and defendant No.3

who are the legal heirs of Ramaiah. On perusal of

these documents which reveals that the defendant

Nos.1 to 3 have sold the property long back prior to

the 2005 commencement of the Hindu Succession Act,

and the plaintiffs have knowledge about selling of the

property mortgaging of property by defendant Nos.1

to 3 and executing the agreement of sale in favour of

defendant No.4 and after of the property they lost the

possession of the property to the defendant Nos.5 and

6. Executing various documents by defendant Nos.1

to 3 for executing the agreement of sale to various

persons like defendant No.4/Lokanath and one

Vishwanatha and they have also mortgaged the

property to the Union Bank of India, borrowed the

loan and also sold the property to the defendant Nos.5

and 6 by receiving he sale consideration. Such being

the case, the defendant Nos.1 to 3 having every right

over the schedule property for selling the same as on

the filing of the suit. The plaintiffs are not in joint

possession of the suit schedule property and not

including the other properties in the partition. The

contention of the plaintiff cannot be acceptable that

the sale deed executed by the defendant Nos.1 to 3 in

favour of the defendant Nos.5 and 6 is not valid and

not binding on the share of the plaintiff cannot be

acceptable.

23. That apart when the title deeds are in

favour of defendant Nos.5 an 6 without seeking the

declaration to declare the sale deed is null and void.

The suit for partition, even without including other

properties and in only one property the relief of

partition cannot be granted in favour of the plaintiff

and proviso to Section 34 of the Specific Relief Act,

the court cannot declare without seeking relief of

possession of the property by the plaintiff in the suit.

Learned counsel for the appellant relied upon the

judgment reported in AIR 2007 SC 1499 in case of

Meharchand Das vs. Lal Babu Siddique and Others.

Therefore the plaintiff failed to prove issue No.2 that

the defendant have no right to alienate the property

and in view of answering point No.1 against the

plaintiff that suit for partial partition is not

maintainable. On the other hand, the defendant Nos.5

and 6 proved that they are the bonafide purchases of

the suit schedule property for the valuable

consideration under the sale deed executed by the

defendant Nos.1 to 3 and subsequently, they also paid

Rs.34,34,000/- to the Union Bank of India for

discharging the loan borrowed by the defendant Nos.1

to 3, hence, I hold, plaintiff failed to prove issue No.2

and defendant Nos.5 and 6 proved they are bonafide

purchasers of the suit schedule property and the Trial

Court committed error in answering issue No.2 in

favour of plaintiff which is liable to be set aside.

Hence, answered the point No.2 in the Negative and

Point No.3 in favour of the appellants.

24. The learned counsel for the appellants has

contended that the suit for declaration without seeking

possession is not maintainable. In support of his case,

learned counsel for the appellant relied upon the judgment

of the Hon'ble Supreme Court in the case of Meharchand

Das stated supra, wherein the Hon'ble Supreme Court has

held at paragraph Nos.4 and 8 which are as under:

"4. The High Court, as noticed hereinbefore, dismissed the second appeal inter alia holding that the defendant had been in possession. It, however, purported to have applied the law laid down by this Court in Vinay Krishna v.

Keshav Chandra and Anr.

MANU/SC/0136/1993. On the premise that as, admittedly; the defendant had been in possession of the suit property and the only relief prayed for in the suit was to set aside the order dated 29.9.1969, no consequential relief was required to be made for in the suit.

8. The High Court, in our opinion, committed a manifest error in not relying upon the decision of this court in Vinay Krishna

(supra). The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable."

      25.   In   another    judgment       in     the    case   of

Venkataraja        and        Others            vs.       Vidyane

Doureradjaperumal (D) Thr.L.Rs. and Others reported

in MANU/SC/0354/2013, wherein the Hon'ble Supreme

Court has laid down the principle that mere declaration

without consequential relief does not provide the needed

relief in the suit; It would be for the plaintiff to seek both

reliefs and the Hon'ble Supreme Court has held at

paragraph No.18 which is as under:

"18. In view of the above, it is evident that the suit filed by the Appellants/Plaintiffs was not maintainable, as they did not claim

and 10 being admittedly in possession of the

suit property, the Appellants/Plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/Defendants while filing the written statement. The Appellants/Plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the Appellants/Plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the Appellants/Plaintiffs themselves.

As a consequence, the appeals lack merit and, are accordingly dismissed. There is no order as to costs."

26. The Co-ordinate Bench of this Court in another

judgment in the case of Aralappa vs. Jagannath and

Others reported in AIR 2007 Kant 91 has taken similar

view and has held at paragraph Nos.30 and 31 which are

as under:

"30. In a suit, for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not on appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title to the property. It would lead to anomalous situation and create confusion in the public, which is to be avoided.

31. Even if the plaintiff comes to Court asserting that he is in possession and that if it is found after trial that he was not in possession on the date of the suit, even then, the suit for declaration and permanent injunction is liable to he dismissed as not maintainable, as no decree for permanent injunction can he granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of possession. Therefore, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the suit, when he is able to seek further relief of recovery of possession also, omits to do so the Court shall not make any such declaration and the suit is liable to be dismissed as not maintainable."

27. In view of the judgment of the Hon'ble

Supreme Court and Co-ordinate Benches of this Court, the

suit for mere declaration, the sale deed is not binding

without seeking possession is not maintainable, therefore,

I answered point No.4 in the 'Affirmative' in favour of the

appellant against the plaintiff.

28. The appellants successfully proved that they

are the bonafide purchasers of the suit schedule property

and they are in possession of the suit schedule property

from 2004 onwards, whereas, the plaintiffs claims that

they are in joint possession of the property which was

negatived by the Court and therefore, the plaintiff might

have valued the suit under Section 35(2) of the KCFSV

Act and valuing the suit under Section 35(1) of the KCFSV

Act is not correct. Though the plaintiff also can pay the

deficient court fee, but the learned counsel for the

appellants has contended that the suit cannot be

maintainable without calculating the court fee under

Section 35(2) of KCFSV Act. In support of his contention,

the learned counsel has relied upon the judgment of the

Division Bench of this Court in the case of B.S.

Malleshappa vs. Koratagere B. Shivalingappa and

Others reported in Manu/KA/266/2001 and held at

paragraph Nos.11 and 12 (iv) as under:

"11. If the plaintiff claims to be in joint possession (either constructive or actual) and files a suit for partition and separate possession, he has to pay the Court fee only under Section 35(2) of the Act. In such a suit, the plaintiff will be entitled to relief, only if the Court accepts his contention that he is in joint possession (either constructive or actual). On the other hand, if the Court finds that he is not in possession or joint possession [either constructive or actual] or if the Court finds that he has been excluded or ousted from possession, the relief will be denied. But the plaintiff cannot be required to pay Court fee in such a situation. If the Court finds that some of the properties in the plaint schedule are in the possession or joint possession of the plaintiff, and others are not, the Court will give relief only in regard to those properties which are found to be in possession or joint possession of the plaintiff and not in regard to those from which plaintiff had been excluded

or ousted. The Court cannot, either at the instance of defendant, or suo motu, convert the suit as one under Section 35(1) on the basis of defendant's pleadings or evidence. We may illustrate by an example. When a suit is filed by a plaintiff for a bare injunction alleging that he is in possession and pays Court fee under Section 26(c) of the Act, and if defendant denies such possession and established that he (the defendant) has always been in possession, the Court will dismiss the suit for injunction. It will not and cannot hold that it is a suit for possession and consequential injunction and call upon plaintiff to pay Court fee under Section 24(a) or 28 or 29 of the Act.

12. We may now conveniently summarise the principles relating to Court fee in regard to suits for partitions and appeals therefrom:

iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that

he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied."

29. Finally, the Division Bench of this Court has

rejected the appeal and in view of the judgment of the

Hon'ble Division Bench, the suit must have valued under

Section 35(1) of the KCFSV Act and when the suit is filed

under Section 35(2) of KCFSV Act and without possession,

the relief cannot be granted for not categorizing the suit

under Section 35(1) of the KCFSV Act, therefore, on that

ground, the suit is required to be dismissed.

30. In view of the findings above, when the

plaintiff failed to prove that they are in possession of the

suit schedule property and suit for partial partition is not

maintainable and suit for mere declaration without seeking