R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV R.F.A. No.765/2014 (PAR) Between:
Domegunta Venkatasesha Reddy, S/o Sankara Reddy, Aged about 63 years, R/o Mudivathi Village, Nellore District, Andhra Pradesh. ... Appellant (By Sri Sampat Anand Shetty, Advocate *a/w Sri Dayananda K.G. & Sri K. Rajendra Prasad, Advocates) And:
1. Gowramma, W/o Late Krishnappa, Aged about 35 years.
** Since deceased, represented by Legal heirs of R-2 i.e., R2(a) to 2(c), R-3 and R-4 2. Ramesh, S/o Late Krishnappa, Since deceased by legal heirs 2(a) Manjula, W/o Late Ramesh, Aged about 38 years.
2(b) Pawana, S/o Late Ramesh, * Inserted vide chamber order dated 30.1.2019.
** Inserted vide Court order dated 11.3.2019.
Aged about 20 years.
2(c) Yeshwanth, S/o Late Ramesh, Aged about 19 years.
3. Srinivasa, S/o Late Krishnappa, Aged about 31 years.
4. Chandramma, S/o Late Krishnappa, Aged about 48 years.
5. Papamma, D/o Late Krishnappa, Aged about 53 years.
All are residing at Kadabisanahalli Village, Varthur Hobli, Bangalore East Taluk, Bangalore – 560 087.
6. Venkatesh, S/o Late Ramaiah, Aged about 68 years.
7. Kenchamma, S/o Late Peddanna @ Doddanna, Aged about 63 years.
8. Narayan, S/o Late Peddanna @ Doddanna, Aged about 48 years.
9. Shama, S/o Late Peddanna @ Doddanna, Aged about 41 years.
10. Venkatappa, S/o Late Peddanna @ Doddanna, Aged about 41 years.
11. Peddanna, S/o Late Peddanna @ Doddanna, Aged about 21 years.
Respondent Nos.6 to 11 are R/o Kadabisanahalli Village, Varthur Hobli, Bangalore East Taluk, Bangalore – 560 087.
12. Venkataswamy, S/o Late Ramaiah @ Ramabovi, Aged about 61 years.
13. Nagaraju, S/o Late Venkataswamy, Aged about 31 years.
Respondent Nos.12 and 13 are R/o Bhovi Palya, Navarathan Agrahara Dhakle, Jala Hobli, Bangalore North (Addl.) Taluk, Bangalore District – 560 013.
14. N.M.Raju, S/o Late Nanjundappa, Major, R/o Yemlur Village, Varthur Hobli, Bangalore East Taluk – 560 087.
15. Bharathi S. Alva, W/o Sathish Alva, Aged about 58 years, R/o No.155, 2nd Stage, 2nd Phase, West of Chord Road, Bangalore – 560 010.
16. Renwick Angelo Masoarenhas, S/o Rudhlph Masoarenhas, Aged about 39 years, R/o No.D1, D2, Arphi Apartments, No.2, Leonard Lane, Richmond Town, Bangalore – 560 025.
17. Satish Kumar Garg, S/o Devedas Garg, Major, R/o No.G-3/4, Model Town – III, Delhi – 110 009.
18. T. Narayana, S/o Thimmaiah, Aged about 53 years, R/o Kariyammana Agrahara Village, Varthur Hobli, Bangalore East Taluk – 560 087.
19. Gangamma, W/o Late Muniswamy, Aged about 77 years, No.371, Bhavani Nagar, Banashankari III Stage, 80 Feet Road, Bangalore – 560 085.
20. Chinnakka, S/o Late Peddanna, Aged about 75 years, No.42, Suddugunte Palya, 2nd Cross, Tavarekere Main Road, Madivala, Bangalore – 560 068.
21. Munimma, W/o Late Ramaiah, Since dead by legal heirs 21(a) Narayana, S/o Late Ramaiah, Aged about 56 years.
21(b) Venkataswamy, S/o Late Ramaiah, Aged about 49 years.
21(c) Nagaraju, S/o Late Ramaiah, Aged about 25 years.
21(d) Muniamma, D/o Chandrappa, Aged about 43 years.
Respondent Nos.21(a) to 21(d) are R/o No.776, Jalahalli Village, Rama Bhovi Colony, Bangalore – 560 013.
22. Ramakka, W/o Late Abbaiah, Aged about 53 years, R/o Kutkanahalli, Near Bhovi Palya, Anekal Taluk, Sarjapur Hobli, Bangalore – 562 125.
23. Venkatamma, D/o Late Peddanna, Aged about 60 years.
24. Lakshmi, D/o Late Peddanna, Aged about 51 years.
25. Venkatesh, S/o Late Peddanna, Aged about 49 years.
26. Krishna, S/o Late Peddaanna, Aged about 35 years.
Respondent Nos.22 to 26 are R/o No.42, 2nd Cross, Bhovi Colony, S.G. Palya, Dharmaram Post, Bangalore – 560 029.
27. M/s. Cessana Garden Developers Pvt. Ltd., Represented by its Authorised Signatory, Aravind Pai, Registered Office at The Falcon House No.1, Main Guard Cross Road, Bangalore – 560 001. …Respondents (By Sri M.R.Rajagopal, Advocate for Sri Parashuram R. Hattarakihal, Advocate for R-1, R-2 (a to c), R-3 to R-5;
Notice to R-6 & R-12 is dispensed with vide order dated 14.07.2015;
R-7, R-8, R-10, R-11, R-13 and R-22 are served; Sri Harish N.R., Advocate for R-9;
Sri Padmanabha Mahalay, Senior Advocate for Sri Kalyan R., Advocate for R-27;
Sri Mujtaba H., Advocate for R-20, R-21 (a to d), R-23 to R-26;
Notice to R-14 to R-19 is dispensed with vide order dated 27.06.2014) * * * * This R.F.A. is filed under Section 96 of CPC, against the judgment and decree dated 16.01.2014 passed in O.S. No.8334/2003 on the file of the XLIII Additional City Civil and Sessions Judge, CCH-44, Bangalore, decreeing the suit for partition.
This R.F.A. having been heard and reserved on 30.11.2018 and coming on for pronouncement of judgment, this day, the Court delivered the following:
J U D G M E N T This appeal is by defendant No.14 before the Trial Court, assailing the judgment and decree dated 16.01.2014 passed in O.S.No.8334/2003 on the file of XLIII Additional City Civil and Sessions Judge, (CCH-44), Bangalore.
2. The parties are referred to by their ranks before the trial Court for the purpose of convenience.
3. The plaintiffs have instituted the suit in O.S.No.8334/2003 seeking relief of partition as regards their half share and are claiming under the branch of Venkataswamy @ Myakalappa and have also sought for relief of declaration that the sale deeds executed by the branch of Ramaiah @ Rama Bhovi were null and void and not binding on the plaintiffs.
4. The relief of declaration was sought for as follows:
(a) that the sale deed dated 05.05.1975 executed by late Ramaiah @ Rama Bhovi and his sons in favour of defendant No.9; sale deed dated 05.07.1996 executed by defendant No.9 in favour of defendant No.10;
(b) Sale deed dated 13.10.1997 executed by defendant No.10 in favour of defendant No.12; sale deed dated 10.01.1996 executed by defendant No.2 in favour of defendant No.11; sale deed dated 01.06.1999 executed by defendant No.11 in favour of defendant No.12;
(c) Sale deed dated 30.03.1994 executed by late Venkatamma, wife of late Ramaiah @ Rama Bhovi in favour of defendant No.13 and sale deed dated 21.03.2000 executed by defendant No.13 in favour of defendant No.14, are all not binding on the plaintiffs.
5. The suit schedule property consists of an extent of 2 acres 3 guntas including 4 guntas of karab in Survey No.44 of Kadabisenahalli Village, Varthur Hobli, Bangalore East Taluk, which was said to have been granted by the State in favour of one Mestri Venkata Bhovi. It is stated that the prepositor Mestri Venkata Bhovi died intestate leaving behind Ramaiah @ Rama Bhovi (now represented in the present proceedings by defendants Nos.1 to 6 and 8) and the other son Venkataswamy @ Myakalappa (now represented by his legal heirs, who are the plaintiffs in the suit).
6. The plaintiffs have averred that Rama Bhovi who was managing the property and the affairs of the joint family, taking advantage of Venkataswamy’s illiteracy, had alienated portions of the joint family property without taking into confidence Venkataswamy and to the detriment of his entitlement of half share in the joint family property. It is however stated that the revenue entries were not changed to reflect the sale transactions and that the sale transactions were nominal and possession was never handed over to the purchasers.
The plaintiffs have stated that the sale deeds executed in favour of the purchasers were set aside as being in violation of Sections 4 and 5 of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short “the PTCL Act”) and that the said land had stood restored to the legal heirs of the grantee Mestri Venkata Bhovi. The plaintiffs further state that Ramaiah @ Rama Bhovi did not have any exclusive right and consequent to setting aside of the alienations, the plaintiffs who claim through the branch of Venkataswamy possessed interests as regards half share in the suit schedule property.
7. Defendant Nos.1 to 6 and 8, who are the legal heirs of Ramabhovi appeared in the said proceedings, but did not file their written statement, while defendant No.7 – Venkataswamy S/o Ramaiah @ Rama Bhovi and defendant Nos.9 to 14 (subsequent purchasers) though served with notice have remained ex parte. Defendant No.14, however, contends that there was no due service of notice and the order placing him ex parte ought to be set aside. Defendant No.17(a) (eldest great grand son of Mestri Venkata Bhovi) has filed a written statement and defendant Nos.19 to 22 together have filed a separate written statement.
Defendant No.17(a) in his written statement has disputed the genealogical tree submitted by the plaintiffs stating that the same is incomplete and incorrect and that if a decree of partition were to be passed, defendant Nos.15 to 18 were also entitled to the shares. Defendant Nos.15, 16, 17(b) to 17(d) and 18 have adopted the written statement filed by defendant No.17(a).
In the written statement filed by defendant Nos.19 to 22, the said defendants assert that they are the legal heirs of Pedakka, who is the second daughter of Mestri Venkata Bhovi. They contend that the alienations made by Rama Bhovi and his legal heirs are illegal and that they too are entitled to a share.
8. The Trial Court however did not frame any issues and has merely framed the following point for consideration and disposed off the suit by answering the same in the affirmative:
“Whether the plaintiffs are entitled for the reliefs sought for?”
Plaintiff No.3 got himself examined as PW-1 and got marked Exhibits P.1 to P.28, whereas defendant No.22 got himself examined as DW-1 and got marked Exhibit D.1.
9. In its cryptic order, recording reasons at paras -
12 and 13, the trial Court holds that the property originally belonged to Mestri Venkata Bhovi and that all his legal heirs are entitled for a share in the suit property and that the plaintiffs being the legal heirs of the second son, namely Venkataswamy @ Myakalappa were entitled for their half share in the suit schedule property. The Trial Court has further observed that the alienations made by Rama Bhovi and his children having been challenged before the Assistant Commissioner, Bangalore North Division, Bangalore as being in violation of conditions imposed regarding non- alienation and the Assistant Commissioner having set aside the alienations, the property stood restored to the legal representatives of the prepositor and was open for partition.
10. The suit came to be decreed with the Court declaring that the plaintiffs were entitled for half share in the suit property and holding that the alienations made by Rama Bhovi and his children were not binding on the plaintiffs’ share.
11. Heard both the sides.
Contentions of the Appellants:
12. Sri Sampath Anand Shetty, learned counsel appearing for defendant No.14 (appellant) contends as follows:
(a) Plaintiffs have played fraud on the Court and have withheld material facts. The trial Court has proceeded on the premise that alienations stood set aside by virtue of the order of the Assistant Commissioner as per Exhibit P.24 by holding that the alienations made were in contravention of the conditions of grant and provisions of the PTCL Act. However, the said order of the Assistant Commissioner dated 01.04.2003 was subsequently set aside by the Special Deputy Commissioner, Bangalore during the pendency of the suit on 27.02.2004 at the instance of Veeragandham Bramhayya who is said to have acquired portions of the suit schedule property on 05.03.2001 through a deed of exchange executed by defendant No.12. It is stated that the said order of the Special Deputy Commissioner being questioned in W.P. No.13892/2007 c/w W.P.No.14756/2004 (SC-ST) came to be disposed off by an order dated 18.12.2008, remanding the matter for fresh consideration. On remand, that the Assistant Commissioner had dismissed the petitions seeking restoration of land, which has been affirmed by the Special Deputy Commissioner. Hence, subsequent developments which in effect have eclipsed the order of the Assistant Commissioner at Exhibit P.24, not having been brought to the notice of the Court, constitutes fraud on the Court, disentitling the plaintiffs from any relief.
(b) Non-joinder of Veeragandham Bramhayya was fatal to the suit, as he is said to have acquired interest to an extent of 1 acre 19 guntas by virtue of a deed of exchange executed by defendant No.12 on 05.03.2001 which was much earlier to the institution of the suit. Defendant No.14 contends that this amounts to non- joinder of a necessary party and hence the suit is liable to be dismissed in terms of the mandate of Order I Rule 10(2) of the Code of Civil Procedure, 1908.
(c) Procedure followed by the trial Court in not framing issues is a serious lapse prescribed for disposal of suits as per Order XIV of CPC, which vitiates the judgment. Defendant No.14 contends that the genealogical trees relied upon by the parties as per Exhibit P.1 and Exhibit D.1 (while Exhibit P1 discloses that the prepositor Mestri Venkata Bhovi had two children; however, Exhibit D.1 reveals that the prepositor had four children) being at variance with each other necessitated framing of an issue.
(d) The challenge is as regards sale deeds executed as far back as 1965, and in view of the mandate of Section 3 of the Limitation Act, 1963, the Trial Court ought to have framed an issue and recorded a finding as to whether the relief sought for was barred by provisions of Limitation Act, 1963 and that the appeal ought to be allowed remanding the matter for fresh consideration in terms of Order XLI Rule 23-A of CPC.
13. Defendant No.14 has contended that summons were not received and the order placing him ex parte is illegal and there was no due service of notice as contemplated under law. He has relied upon the judgment in the case of Nahar Enterprises Vs. Hyderabad Allwyn Limited and another reported in 2007 (9) SCC 466, wherein the Apex Court while setting aside the order placing the party ex parte, has opined that the summons that is sent is required to be accompanied by copy of the plaint and other documents in terms of Order V Rule 2 of the Code of Civil Procedure, 1908 and holds that mere service of summons would not amount to due service.
14. Sri.Padmanabha Mahalay, learned Senior Counsel appearing for Sri Kalyan R., for respondent No.27, who is a subsequent purchaser from defendant No.14 has reiterated the contentions of defendant No.14 while supporting him and contends that, (a) the subsequent purchasers not having been made as parties, amounts to non-joinder of necessary parties and is fatal to the suit.
(b) Suit for mere relief of declaration without seeking for consequential relief of possession which is necessary in the facts of the present case, is in violation of Section 34 of the Specific Relief Act, 1963.
(c) Suit ought to have been filed within 12 years as prescribed under Article 65 of the Limitation Act, 1963 and hence no relief ought to have been granted to the plaintiffs.
(d) In view of setting aside of the order of the Assistant Commissioner at Exhibit P.24, the premise on the basis of which the judgment of the Trial Court was delivered not surviving, the suit ought to fail.
Contentions of the Respondents:
15 (a). Sri.M.R. Rajagopal, learned counsel appearing for Sri Parashuram R. Hattarkihal for respondent Nos.1, 2(a) to (c), and 3 to 5, submits that the present appeal is by defendant No.14, who is said to have purchased an extent of 20 guntas in Survey No.44 on 21.03.2000 from T.Narayana who in turn had purchased the property from his previous owner, Venkatamma, wife of Rama Bhovi. It is also submitted that the property has been subsequently sold on 21.04.2004 in favour of M/s. Cessana Garden Developers Pvt. Ltd. (respondent No.27 herein). In light of the above, it is contended that the claim for partition is only between two branches viz., the branch representing the interest of Rama Bhovi who are represented by defendant Nos.1 to 6 and 8 and the other branch of Venkataswamy who is represented by the plaintiffs who would share the property in equal proportion. It is submitted that defendant No.14 (appellant) would not in any way be prejudiced by the preliminary decree as regards the claim of 20 guntas as legal rights were derived through Venkatamma wife of Rama Bhovi which could be adjusted and satisfied during an equitable set off of the said property to the half share of his vendor i.e., Rama Bhovi’s branch.
(b) It is also contended that the appeal in R.F.A.No.454/2014 filed by legal heirs of Papamma and Pedakka, who claim to be legal heirs of late Mestri Venkata Bhovi has been withdrawn. The said appellants in R.F.A.No.454/2014 are represented by respondents Nos.20, 21(a) to 21(d) and 23 to 26 herein, and consequently, the appeal at the instance of the purchaser is not maintainable.
(c) The said respondents in the alternative contend that the Appellate Court has power to supplement reasons and that no case is made out for remand. The said respondents contend that the power to reverse a decree is only to be exercised if prejudice has been caused, and relying on Section 99 of CPC contend that facts of the present case do not warrant reversal of the decree and the irregularity if any, does not touch the merits of the case. The respondents rely on Order XLI Rule 24 of the CPC to contend that the evidence on record is sufficient to resettle issues and dispose off the matter by this Court in exercise of its appellate powers. The respondents rely upon the judgment in the case of Ashwinkumar K. Patel V. Upendra J. Patel and Others reported in (1993) 3 SCC 161 wherein the Apex Court has observed that remand ought not to be resorted to, as a matter of course. They also rely on the judgment in the case of Wuntakal Yalpi Chenabasavana Gowd V. Rao Bahadur Y. Mahabaleshwarappa and another reported in AIR 1954 SC 337 to bolster the argument against remand.
(d) The respondents while rebutting the contention of defendant No.14 as regards service of notice contend that he had been served with notice of the application seeking temporary injunction through the Senior Civil Judge, Nellur District, Andhra Pradesh. The said report of service is a part of the record and hence the contention that there was no service of summons, is liable to be rejected, more so, in light of the second proviso to Order IX Rule 13 of the CPC which provides that a decree passed ex parte cannot be set aside on the mere ground of irregularity in service of summons if the Court is satisfied that the party (defendant No.14) had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs’ claim.
16. In light of the contentions raised, the legal issues are decided by referring to the following points for consideration:
(1) Necessity of framing of issues in the light of contention raised regarding limitation vis-à-vis the alienations and the setting up of contradictory genealogical trees by the plaintiffs and defendants as per Exhibits P.1 and D.1, respectively;
(2) Necessity of arraying purchasers of undivided interest as parties in a partition suit;
(3) Need for remand in light of Section 107 of CPC;
(4) Improper service of summons to appellant;
(5) Prejudice to subsequent purchaser and maintainability of appeal at his instance;
17. Re. Point No.1:
A. Limitation:
(i) Order XIV of the CPC mandates framing of issues when a material proposition of fact or law is affirmed by a party and denied by the other. However, in the present case where relief sought for is a decree for partition which requires satisfaction of conditions precedent for exercise of rights, the Court is required to frame appropriate issues as regards the legal requirements to be fulfilled by the plaintiff in such a suit. In the present suit which involves in effect the setting aside of sale deeds, the question as to, ‘Whether the relief for quashing of sale deeds could be granted?’, is to be answered by reference to Section 3 of the Limitation Act which mandates that the Court ought to record a finding as to whether the relief sought for is barred by the Law of limitation, irrespective of whether such contention has been raised by the parties or not.
(ii) Defendant No.14 (appellant) has rightly relied upon the judgment in the case of Prem Singh and Others V. Birbal and Others reported in AIR 2006 SC 3608 wherein this Court has reiterated the principle that permissibility of relief must mandatorily be determined vis-à-vis bar of limitation in the light of Section 3 of the Limitation Act. In the present case, sale transactions have been effected right from 1965 and subsequently, irrespective of absence of any contention on limitation by any contesting defendants or by defendant No.14 (appellant), the Court ought to have framed an issue as to, ‘Whether relief sought for as regards the sale deeds was barred by the law of limitation?’.
(iii) In a suit for partition, while considering quantification of share and also while considering equitable set-off of the sale deeds of the purchasers towards the share of the vendor coparceners, the Court necessarily is called upon to consider the extent of land purchased, chronology of sale transactions, as well as the total extent of land sold to various purchasers vis-à- vis which would fall to the share of the respective coparcener. While recording a conclusive finding as stated above, sale transactions for legal necessity by the Kartha and sale transactions beyond the period of limitation are necessarily to be excluded and it is only with respect to the remaining portion of land which would fall to coparcener’s share that the question of equitable set-off, of the land sold by the coparceners is required to be considered. In the event that, the sum total of parcels of land sold exceed the share of the coparcener, the equitable set-off is to be effected as per chronology of sale transactions and in case the latter transactions have resulted in alienation of land to an extent greater than the share of the coparceners, such alienations cannot be a subject matter of equitable set- off. For such an exercise, examining the validity of the sale deeds qua limitation is a pre-condition and in the present case the question of limitation is to be determined vis-à-vis the sale transactions that have been made by the members of Rama Bhovi’s branch. Hence, framing of an issue as regards limitation qua the sale deeds executed by Rama Bhovi’s branch was necessary.
(iv) Learned counsel for the appellant has rightly relied upon the case of Makhan Lal Bangal V. Manas Bhunia and Others reported in AIR 2001 SC 490 which mandates proper framing of issues and opines that in such absence matter would required be remanded.
The relevant observations are as follows:
“…. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be then able to tell precisely how the dispute was decided.”
Though it is pointed out at Para Nos.19 and 21 that -
“….An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission…..”
In the facts of the present case, non-framing of issues as regards question of limitation has certainly caused prejudice and has vitiated the trial.
This Court in Syed Haisanulla V. Ahmad Beig alias Mumtaz reported in ILR 1987 KAR 591 has noted that ordinarily heavy burden lies on Courts especially where defendants are placed ex parte to ensure that judgments must contain precis of the plaint and the points that arose for determination and should also record the findings and “contain succinctly the summary of the discussion of the evidence and the effect of the document in the suit”. This duty, it can be said would specifically also include framing of issue on limitation, in the present facts.
B. Disputed Genealogical Tree:
That apart, in a partition suit the Court in order to grant relief is required to record findings on certain pre- requisites, as encapsulated by the Apex Court while relying upon the treatise ‘Hindu Law’ by Mulla (17th Edn.) in Shasidhar and others V. Ashwini Uma Mathad and another reported in (2015) 11 SCC 269:
“20. We may consider it apposite to state being a well settled principle of law that in a suit filed by a co-sharer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit, such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenary property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharers, coparceners, co-owners or joint- owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case.”
It is clear that in the facts of the present case, the trial court having failed to do so, this matter becomes trite for remand for fresh consideration.
The dispute as regards genealogy of the prepositor as raised by defendants Nos.19 to 22 who state that Venkatabhovi also had two daughters, Papamma and Pedakka and that the legal representatives of the two daughters (defendent Nos.15 to 18) were also entitled for a share in the property requires to be adjudicated. In fact, defendant Nos.15, 16, 17(b) to (d) and 18 have adopted the written statement filed by defendant No.17(a). A perusal of Exhibit D.1 (the genealogical tree) produced by the said defendants showing Pedakka and Papamma as daughters of Mestri Venkatabhovi reveals that it is in contradistinction to the genealogical tree produced by the plaintiffs at Exhibit P.1 which merely shows Venkatabhovi as having two sons viz., Ramaiah and Venkataswamy without referring to any daughters as sharers. In fact, the legal representatives of Papamma and Pedakka had filed an appeal R.F.A.No.454/2014, relying on the genealogy as per Exhibit D.1 to seek rights of succession by emphatically asserting that the genealogical tree placed before the Court as per Exhibit P.1 by the plaintiffs, as being false. Subsequently, however, they withdrew their appeal. The legal representatives of Papamma and Pedakka have also been arrayed as defendants in the present proceedings. In the present suit it is apparent that there exists contrary versions of the genealogical tree which requires an issue to be framed in that regard. Without ascertaining all sharers, there could be no proper adjudication in a suit for partition.
18. Re. Point No.2:
The contention of non-arraying of necessary party, Veeragandham Bramhayya (who had acquired right in respect of 1 acre and 19 guntas in the suit schedule property by virtue of a deed of exchange as per Exhibit-
P.27 on 05.03.2001, admittedly prior to institution of the suit) having been brought to the notice of this Court by defendant No.14 (appellant) is to be taken note of and requires consideration, even though defendant No.14 might have nothing to do with Veeragandham Bramhayya. This is more so in the light of the declaration in the case of Dhanalakshmi and Others V.
P. Mohan And Others reported in 2007 10 SCC 719 wherein the Apex Court had held that purchasers of undivided shares of the coparceners were entitled to come on record in preliminary decree proceedings so that they may claim an equitable set off in the final decree proceedings as regards their purchase transaction. Hence, the plaintiffs’ omission to array purchasers of undivided share prior to institution of the suit necessitates reconsideration of the matter after affording an opportunity to the purchasers.
19. Re. Point No.3:
The contesting respondents submit that this Court need not remand the matter back but may in exercise of power vested in it under Section 107 of the Code of Civil Procedure, decide this case finally. However. it is clear that in the absence of relevant material as is required to adjudicate the contentions in a suit for partition [as mandated by the Apex Court in Shasidhar and others V. Ashwini Uma Mathad and another reported in (2015) SCC 11 269] this Court sitting in appeal is not in a position to determine the case finally as contemplated in Section 107(a) or under Order XLI Rule 24 of the CPC. Reliance of the respondents on the judgments of the Apex Court in Ashwinkumar K. Patel V. Upendra J. Patel And Others as reported in 1999 (3) SCC 161 is misplaced as the observations made therein was in the context of disposal of an appeal against an order passed in a interlocutory application. Even otherwise, approach of the Trial Court being wholly erroneous, this Court is constrained to remand this matter for fresh consideration in the interest of justice.
20. Re. Point No.4.:
In so far as defendant No.14 having been placed ex parte, he contends that there was no due service of notice. Though he was served with summons as regards the interim application filed by defendant Nos.19 to 22, defendant No.14 has rightly asserted that there is no record of service of summons of the suit on him. Resort to notice by way of substituted service through paper publication in a mechanical manner without the Trial Court having found as regards the factum of avoidance of notice by defendant No.14 would vitiate the order passed under Order V Rule 20 of CPC. A perusal of the order dated 17.08.2007 shows that it does not record any satisfaction by the trial court that defendant No.14 was “keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way”. Service of notice of application under Order XXXIX Rules 1 and 2 filed by Defendant Nos. 19 to 22, cannot be taken to be service of suit summons. In view of the fact that matter is being remanded with direction to implead all alienees and for fresh consideration, it would meet the ends of justice if defendant No.14 (appellant) is afforded an opportunity to participate in the trial, file his written statement and contest the matter on merits.
21. Re. Point No.5:
The respondents’ contention that the subsequent purchaser, defendant No.14 has not suffered any prejudice as he has only purchased 20 guntas in Survey No.44, from one T. Narayana who in turn traces his right to Venkatamma (wife of Rama Bhovi) to whose share an extent of 1 acre would eventually be allotted, cannot be accepted. The said argument proceeds on the assumption that Venkata Bhovi’s two sons would get one acre each in the partition. This is fallacious in so far as the extent of land to be allotted to each branch would have to be ascertained in the manner as referred to under para 17(A)(iii) (supra). Hence after trial, the trial Court may hold that the sale deed executed by Rama Bhovi’s branch cannot be set aside either due to relief being barred by limitation or for having been executed for legal necessity or for any other legally acceptable reason to be assigned by it. Hence, the arguments of the contesting respondents (herein) that no prejudice would be caused though sounds attractive, does not withstand legal logic.
22. The further contention of the respondents that appeal in RFA No.454/2014 having been withdrawn, present appeal at the instance of Exhibit D.14 is not maintainable, does not deserve acceptance. The appeal in RFA No.454/2014 had been filed by the legal representatives of only Pedakka and Papamma who are said to be daughters of Mestri Venkata Bhovi, whereas defendant No.14 (appellant) traces his right from Venkatamma, wife of Rama Bhovi, whose rights are independent of rights of the other appellants in R.F.A.No.454/2014.
23. No finding is being recorded as regards the other contentions of the parties as the same would prejudice the rights of the parties pending adjudication before the trial Court in view of the remanding of the matter for fresh consideration.
24. In view of the above discussion, the impugned judgment and decree of the trial Court is set aside and the matter is remanded for fresh consideration in accordance with law with a direction to the trial Court to:
(a) Frame necessary issues in light of the observations made above as well as the pleadings:
(b) Implead all alienees who have derived right prior to institution of the suit as per the details to be furnished by the parties;
(c) Consider claims of parties who may seek to be impleaded claiming rights through subsequent transactions during pendency of legal proceedings and permit the parties referred to in (b) and (c) to file written statements.
Trial Court is to consider the matter afresh on all aspects. Considering that the suit is of the year 2003, the trial Court is to expedite the disposal of the suit.
Accordingly, the appeal is disposed of subject to the above observations.
Parties are directed to appear before the Trial Court on 20.2.2019 without waiting for notice.
Lower Court records to be sent to the Trial Court, forthwith.
Sd/- JUDGE RS/* ct-mhp