(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)
was dismissed by the Trial Court. So also, the review petition
decree was also dismissed by the Trial Court.
2. Brief facts giving rise to the present appeal are as
under:
3. The respondents - defendant Nos.1 to 4 entered
4. Pursuant to the pleadings of the parties, the Trial
(2) Whether the defendant No.6 proves that the suit
suffer from mis-joinder and non-joinder of
necessary parties?
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RECASTED ADDL. ISSUE DT.03-1-2018:
(1) Whether defendant No.6 proves that defendant
No.5 is the bonafide purchaser of suit schedule
properties Sl.No.1 to 3 for valuable consideration?
ADDITIONAL ISSUES DT.03-1-2018:
(1) Whether defendant No.6 proves that suit is barred
by law of limitation?
(2) Whether defendant No.6 proves that suit is hit by
non-inclusion of all the joint family properties as
contended in the written statement?
5. Plaintiff Nos.1 and 2 got themselves examined as
PWs1 and 2 and documentary evidence at Ex.P1 to P17 were
marked. Respondent No.7 - defendant No.7 (Bank Manager)
examined himself as DW1, while defendant Nos.6 and 2 got
themselves examined as DWs2 and 3 respectively and
documentary evidence at Ex.D1 to D13 were marked on their
behalf.
6. It is a matter of record and an undisputed fact that
both parties adduced oral and documentary evidence on all
issues including the issues on merits as well as issues relating to
non-joinder of necessary parties and non-inclusion of all alleged
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joint family properties. However, the Trial Court proceeded to
pass the impugned judgment and decree, without recording any
finding on the merits of the claim of the parties, but dismissing
the suit by coming to the conclusion that the suit was bad for
non-joinder of necessary parties and non-inclusion of all alleged
joint family properties, without recording any finding on the
merits of the claims of the parties. Aggrieved by the impugned
judgment and decree, the appellants - plaintiffs are before this
Court by way of the present appeal.
7. Heard learned counsel for the appellants and learned
counsel for the respondents and perused the material on record.
8. Learned counsel for the appellants - plaintiffs would
invite our attention to the impugned judgment and decree, in
order to point out that after having recorded a finding that the
suit was bad for non joinder of necessary parties and non-
inclusion of all the alleged joint family properties, it is essential
for the Trial Court to provide an opportunity to the parties,
including the appellants to take steps to include all the properties
and thereafter proceed to decide the rival claims on merits. It is
therefore submitted that the impugned judgment and decree
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passed by the Trial Court deserves to be set aside and the
matter be remitted back to the Trial Court for reconsideration
afresh in accordance with law. In support of his submission, he
places reliance upon the decision of the Co-ordinate Bench of this
Court in the case of Niroop D.J. v. D.A.Jayaramegouda3.
9. Per contra learned counsel for the respondents does
not dispute that the defendants had taken up a specific
contention that the suit is bad for non-inclusion of all alleged
joint family properties and that the Trial Court did not record any
finding on merits, but dismissed the suit only on the ground that
all alleged joint family properties had not been included, as a
result of which, the suit was not maintainable in law. It was
therefore submitted by the learned counsel for the respondents
that appropriate orders may be passed in the facts and
circumstances of the instant case by reserving liberty in favour of
the appellants as well as the respondents to take necessary
steps to include all alleged joint family properties, by setting
aside the impugned judgment and decree and remitting the
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matter back to the Trial Court for reconsideration afresh in
accordance with law.
10. In the judgment of the Co-ordinate Bench of this
Court in the case of Niroop D. J3 (supra) it has held as under:
18. In a suit for partition, all the necessary parties and
also all the joint family properties have to be brought
in for effecting the partition by metes and bounds. The
Trial Court is required to determine the property given
to the plaintiff after his marriage and whether the joint
family is in existence or not and what are the self-
acquired properties of the plaintiff and also defendant
No.1. Unless these properties are included and also
D.T.Goutham is arrayed as one of the defendants, the
evidence on record is incomplete and not sufficient to
adjudicate the dispute between the parties effectively.
19. In a suit for partition, when the Trial Court comes to the
conclusion that the plaintiff has omitted certain
properties, which could have been specifically
mentioned in the written statement, it ought to have
deferred the judgment and directed the plaintiff to
include those properties and also array D.T.Goutham
as party and then decide the case on merits. The
material on record does not point out that the
Trial Court has given such an opportunity to implead
necessary parties and include the properties before
pronouncing the judgment. Hence, the impugned
judgment is incomplete and it is not decided on
merits.
11. As can be seen from the aforesaid judgment of the
Co-ordinate bench of this Court, the judgment and decree of the
Trial Court was set aside and the matter was remitted back to
the Trial Court for reconsideration afresh by providing an
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opportunity to the parties to include all alleged joint family
properties and other parties who are not impeded as parties to
the proceedings.
12. In the instant case, while dismissing the suit, the
Trial Court did not express any opinion or recorded any finding
as regards the merits of the claims of the parties, but proceeded
to dismiss the suit on the sole ground that all alleged joint family
properties had not been included among the suit schedule
properties. While arriving at the said conclusion, the Trial Court
held as under :
"14. When I gone through the entire documents once
it is crystal clear that other than suit schedule properties
number of other properties are available belongs to the
joint family properties of plaintiffs and defendants 1 to 4.
Those properties are shown in Ex.P-18 i.e., Sy.No.152/A,
152/9, 170/2, 35/1, 39/1, 72 (RS 207), 193/1A. Even
though some of these properties are subject matter of OS
37/1993 and said suit filed by Smt.Sitawwa @ Partivibai
against present defendant No.2 and his brothers and
sisters but as per the judgment and decree defendant No.2
being a father of plaintiffs 1 to 3 got 1/5th share, out of
the said suit property but those properties not included in
the present suit. In addition to that, plaintiffs have not
included RS No.30/1 measuring 8 acres, 28 guntas, RS
No.35/1 measuring 7 acres, 10 guntas, RS No.170/2
measuring 11 acres, RS No.39/1 measuring 3 acres, 18
guntas and CTS No.1365 in this suit and in respect of
those properties defendants have produced RTCs as per
Ex.D-4 and 5 etc as discussed supra and Sy.No.42/6 also
standing in the name of Parashuram. In this aspect
learned counsel for the plaintiff vehemently aruged that
since there is a FDP pertaining to OS 37/1993 and
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therefore not included but said facts not pleaded in the
plaint. In the absence of pleading whatever the amount of
evidence or contention taken by the plaintiff cannot be
accepted in the eye of law. Moreover other than suit
property of OS 37/1993 some by defendant No.6 also
available but plaintiffs have not other properties as per the
documents and contention taken included those properties
and hence arguments canvassed by plaintifsf counsel
cannot be accepted in the eye of law. On the contrary
defendant No.6 has specifically pleaded in his written
statement para-11 that what are all the properties not
included in this suit and in support of his contention they
have produced documents as discussed supra. Further in
the cross-examination of PW-1 recorded on 28-3-2017 he
has admitted as follows:
"We have not included all the ancestral
family properties in this suit. Some of the
properties mentioned in the plaint are the
familyl properties. We have no any
impediment to include all the family
properties in this suit."
When some other properties belongs to the plaintiffs family
which are standing in the name of defendant No.2 and
other family members of plaintiffs are available and not
included in the above suit and thus no impediment to
include all those properties the suit filed by plaintiffs itself
is hit by partial partition. Admittedly, plaintiffs and
defendants 1 to 4 are governed by Hindu law. Under the
Hindu law if a family member wants to seek partition he
has to include all the joint family properties in an one hot
potch. If any one of the property not included without any
proper reason or pleading to that effect the suit of the
plaintiff itself hit by partial partition. If suit is hit by partial
partition suit itself is not maintainable as per the
observation of Hon'ble Apex Court in decision reported in
ILR 1998 681 (Sri Tukaram v/s Sambhaji & others),
AIR 2008 (NOC) 1057 (A.P.) (N.Jangi Reddy &
others V/s Yellaram Narsimha Reddy & others),.
Whereas in the present case on hand also plaintiffs have
not included all the joint family properties even though
specific pleading taken by defendant No.6 and specific
issue framed to that effect and opportunities also given to
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plaintiffs to include those properties but not included and
no proper explanation. Hence, suit itself not maintainable.
When suit of the plaintiffs itself is not maintainable
question of giving finding that whether suit properties are
available for partition or not at this stage does not arise,
because unless and until plaintiffs have include all the
properties the suit for partial partition is not at all
maintainable as discussed supra. In the result, I answer
issue No.4 does not survive for consideration and
additional issue No.2 framed on 3-1-2018 in the
affirmative.
18. Issues 5, 6 and additional issue dt.19-9-
2014: Since these issues are inter-connected to each
other and hence these issues are taken up for answer
together to avoid repetition of facts.
In view of the findings on above issues when suit of
the plaintiffs itself is not maintainable for want of non-
inclusion of all the joint family properties inspite of
sufficient opportunity given to plaintiffs by framing issues
to that effect and hence question of plaintiffs and
defendant No.2 are entitle the relief of declaration as well
as partition and relief of mesne profits does not arise at
this stage. Moreover there is no need to more discuss on
these issues. When suit of plaintiffs itself is not
maintainable in view of the observation of Hon'ble High
Court of Karnataka in the above cited decision question of
plaintiffs and defendant No.2 are entitle any relief as
prayed in the above suit at this stage does not arise.
Moreover in one stretch defendant No.2 has denied the
case of plaintiffs in his written statement whereas in the
evidence he has admitted the suit of plaintiffs. But as per
Ex.D-8 there is a partition between two sons and
defendant No.2. Hence the above inconsistant defence
taken by defendant No.2 itself shows that the plaintiffs and
defendants 1 to 4 are colluded with each other and filed
this suit without inluded all their family properties and only
they have concentrated alienated properties. Under such
circumstances at this stage question of plaintiffs are entitle
the relief as sought for also does not arise. Hence, I
answer issues 5 and 6 and additional issue framed
on dt.19-9-2014 in the negative."
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13. As is clear from the findings recorded by the Trial
Court, that the sole basis on which the suit came to be dismissed
was by holding that all alleged joint family properties have not
been included by the appellants - plaintiffs. Consequently,
though several contentions have been urged by both the sides in
support of their respective claims, without expressing any
opinion on the merits / demerits of the rival contentions and in
order to provide an opportunity to the parties to seek inclusion of
all alleged joint family properties and in order to prevent
multiplicity of proceedings and duplication of evidence and in
light of the joint submission made by both sides, we deem it just
and appropriate to set aside the impugned judgment and decree
and remit the matter back to the Trial Court for reconsideration
afresh in accordance with law by issuing certain directions.
14. In the result, the following:
ORDER
1. The appeal is hereby allowed.
2. The impugned judgment and decree dated
19.01.2018 passed in O.S.No.216/2013 by the
Trial Court is hereby set aside and the matter is
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remitted back to the Trial Court for
reconsideration afresh in accordance with the law.
3. The parties are directed to appear before the Trial
Court without awaiting further notice from the
Trial Court on 16.10.2025.
4. Liberty is reserved in favour of the parties to file
additional pleadings, amended pleadings and take
appropriate steps and / or take appropriate steps
to seek inclusion of alleged joint family properties
as additional properties to the suit.
5. Liberty is also reserved in favour of all the parties
to adduce additional oral and documentary
evidence in support of their respective claims.
6. All rival contentions on all aspects of the matter
are kept open and no opinion is expressed on the
same.
7. The registry is directed to transmit the Trial Court
Records back to the Trial Court forthwith.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
EM
Ct:vh
