IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY REGULAR FIRST APPEAL NO.1263 OF 2015 C/W REGULAR FIRST APPEAL NO.1429 OF 2015, REGULAR FIRST APPEAL NO.1442 OF 2015 R.F.A. No.1263/2015 BETWEEN:
N.A.KRISHNA REDDY S/O VENKATASWAMY REDDY AGED ABOUT 74 YEARS, RESIDING AT SURVEY NO.150, NEAR SHANUBOGH LAYOUT, OPP. TO VARUN TELEVISION, DODDANEKKUNDI, BANGALORE - 560 037.
SENIOR CITIZEN NOT CLAIMED ... APPELLANT (BY SRI.SAMPATH KUMAR B K, ADV.) AND:
1. SHANTHAMMA W/O LATE. N.A.VENKATASWAMY REDDY, AGED ABOUT 61 YEARS 2. AJITH KUMAR S/O N.A.VENKATASWAMY REDDY, AGED ABOUT 34 YEARS 3. BABU S/O N.A.VENKATASWAMY REDDY, AGED ABOUT 31 YEARS ALL ARE R/AT DODDANEKKUNDI, DODDANEKKUNDI MAIN ROAD, K.R. PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE - 560 037.
4. N.A. GOPAL REDDY S/O VENKATASWAMY REDDY @ ABBAIAH REDDY, AGED ABOUT 61 YEARS, R/AT 50TH "A" CROSS, SHANUBOGH LAYOUT MAIN ROAD, DODDANEKUNDI, BANGALORE - 560 037.
5. CHANDRAMMA W/O LATE MUNIREDDY, AGED ABOUT 49 YEARS 6. DIVYA D/O LATE MUNIREDDY, AGED ABOUT 27 YEARS RESPONDENTS NO.5 AND 6 ARE R/AT DODDANEKKUNDI, K.R. PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE-560 037.
7. DODDA AMMAYYAMMA W/O LATE R.GOPAL REDDY, D/O LATE ABBAIAH REDDY, AGED ABOUT 78 YEARS, R/AT DODDANEKKUNDI, DODDANEKKUNDI MAIN ROAD, K.R. PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE - 560 037.
8. CHINNA AMMAYYAMMA D/O LATE ABBAIAH REDDY, W/O LATE SEETHARAMI REDDY, AGED ABOUT 72 YEARS, R/AT 955, PILLA REDDY COMPOUND, DOORAVANINAGAR, VIJANAPURA, BANGALORE-560 016.
9. VARALAKSHMAMMA D/O LATE ABBAIAH REDDY, W/O LATE NAGAPPA REDDY, AGED ABOUT 60 YEARS, R/AT 113, P.N. BUILDING, NEAR LAKSHMINARAYANA TEMPLE, MUNEKOLALU, BANGALORE-560 037.
10. K. JAYAPRAKASH S/O. N.A. KRISHNA REDDY AGED ABOUT 37 YEARS, R/AT 43/1, 2ND MAIN, 2ND CROSS, SHANUBOGH LAYOUT MAIN ROAD, DODDANEKKUNDI, BANGALORE - 560 037.
11. K.DHANANJAYA S/O N.A.KRISHNA REDDY, AGED ABOUT 32 YEARS, R/AT 43/1, 2ND MAIN, 2ND CROSS, SHANUBOGH LAYOUT MAIN ROAD, DODDANEKKUNDI, BANGALORE-560 037.
12. M/S SRINIDHI CONSTRUCTIONS A PARTNERSHIP FIRM HAVING ITS OFFICE AT FLAT NO.B-1, SRI KRISHNA APARTMENTS, RUSTOMBAGH MAIN ROAD, BEHIND MANIPAL HOSPITAL, BANGALORE-560 017.
BY ITS MANAGING PARTNER, B. JAGADEESH AND OTHERS. ... RESPONDENTS (BY SRI.G PAPI REDDY, ADV. FOR C/R1 TO R6; SRI.P.B.AJIT AND SRI.THONTADHARYA.R.K. ADV. FOR R7 TO R9;
SRI.AMARNATH, ADV. FOR R10 AND R11, SRI.SHANMUKHAPPA, ADV. FOR R12) THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI RULE 1 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 28.07.2015 PASSED IN O.S.NO.7536/2011 ON THE FILE OF THE C/C OF XV ADDL. CITY CIVIL & SESSIONS JUDGE AT BANGALORE CITY, (CCH NO-3), DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
R.F.A. No.1429 OF 2015 BETWEEN:
1. MRS.DODDA AMMAYYAMMA W/O R.GOPAL REDDY, D/O LATE ABBAIAH REDDY, AGED ABOUT 75 YEARS, R/AT DODDANEKKUNDI, DODDANEKKUNDI MAIN ROAD, K.R. PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE - 560 037.
2. CHINNA AMMAYYAMMA D/O LATE ABBAIAH REDDY, W/O SEETHARAMI REDDY, AGED ABOUT 70 YEARS, R/AT 955, PILLA REDDY COMPOUND, DOORAVANINAGAR, VIJANAPURA, BANGALORE-560 016.
3. VARALAKSHMAMMA D/O LATE ABBAIAH REDDY, W/O NAGAPPA REDDY, AGED ABOUT 59 YEARS, R/AT 113, P.N. BUILDING, NEAR LAKSHMINARAYANA TEMPLE, MUNEKOLALU, BANGALORE-560 037. ... APPELLANTS (BY SRI. P B AJIT, ADV.) AND:
1. SHANTHAMMA W/O LATE. N.A.VENKATASWAMY REDDY, AGED ABOUT 67 YEARS 2. AJITH KUMAR S/O N.A.VENKATASWAMY REDDY, AGED ABOUT 35 YEARS 3. BABU S/O N.A.VENKATASWAMY REDDY, AGED ABOUT 36 YEARS ALL ARE R/AT DODDANEKKUNDI, DODDANEKKUNDI MAIN ROAD, K.R. PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE - 560 037.
4. N.A. GOPAL REDDY S/O VENKATASWAMY REDDY @ ABBAIAH REDDY, AGED ABOUT 30 YEARS, R/AT 50TH "A" CROSS, SHANUBOGH LAYOUT MAIN ROAD, DODDANEKUNDI, BANGALORE - 560 037.
5. CHANDRAMMA W/O LATE MUNIREDDY, AGED ABOUT 56 YEARS 6. DIVYA D/O LATE MUNIREDDY, AGED ABOUT 33 YEARS RESPONDENTS NO.5 AND 6 ARE R/AT DODDANEKKUNDI, K.R. PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE-560 037.
7. N.A.KRISHNA REDDY S/O LATE MR.VENKATASWAMY REDDY, @ ABBAIAH, AGED ABOUT 79 YEARS, R/AT SY.NO.150, SHANUBHOG LAYOUT, OPP: TO VARUN TELEVISION, DODDANEKKUNDI, BANGALORE – 37 8. K. JAYAPRAKASH S/O. N.A. KRISHNA REDDY AGED ABOUT 43 YEARS 9. K.DHANANJAYA S/O N.A.KRISHNA REDDY, AGED ABOUT 39 YEARS, RESPONDENT NOS.8 & 9 , R/AT 43/1, 2ND MAIN, 2ND CROSS, SHANUBOGH LAYOUT, DODDANEKKUNDI, BANGALORE - 560 037.
10. M/S SRINIDHI CONSTRUCTIONS A PARTNERSHIP FIRM HAVING ITS OFFICE AT FLAT NO.B-1, SRI KRISHNA APARTMENTS, RUSTOMBAGH MAIN ROAD, BEHIND MANIPAL HOSPITAL, BANGALORE-560 017.
BY ITS MANAGING PARTNER, B. JAGADEESH ... RESPONDENTS (BY SRI.G PAPI REDDY, ADV. FOR R1 TO R6; SRI.SHANMUKHAPPA, ADV. FOR R10) THIS RFA IS FILED UNDER SC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.07.2015 PASSED IN O.S NO.7536/2011 ON THE FILE OF THE LXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH NO.65) AND CONCURRENT CHARGE OF XV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH NO.3), DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
R.F.A. NO.1442 OF 2015 BETWEEN:
M/S SRINIDHI CONSTRUCTIONS A PARTNERSHIP FIRM, HAVING ITS OFFICE AT FLAT NO. B-1, SRI KRISHNA APARTMENTS, RUSTOMBAG MAIN ROAD, BEHIND MANIPAL HOSPITAL, BANGALORE – 560 017, REPRESENTED BY ITS MANAGING PARTNER SRI.B. JAGADEESH. ... APPELLANT (BY SRI.SHANMUKHAPPA, ADV.) AND:
1. SMT SHANTHAMMA W/O LATE. SRI. N.A VENKATASWAMY REDDY, AGED BAOUT 62 YEARS 2. SRI. AJITH KUMAR S/O LATE. SRI. N.A VENKATASWAMY REDDY, AGED BAOUT 34 YEARS 3. SRI. BABU S/O LATE. SRI. N.A VENKATASWAMY REDDY, AGED BAOUT 30 YEARS ALL ARE R/AT DODDANEKKUNDI, DODDANEKKUNDI MAIN ROAD, K.R. PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE - 560 037.
4. SRI. N. A GOPAL REDDY S/O SRI. VENKATASWAMY REDDY @ ABBAIAH REDDY, RESIDING AT 50TH A-CROSS, SHANUBOGH LAYOUT, MAIN ROAD, DODDANEKKUNDI , BANGALORE - 560 037 5. SMT.CHANDRAMMA W/O LATE. SRI. MUNIREDDY, AGED ABSOUT 50 YEARS 6. SMT. DIVYA D/O LATE. SRI. MUNIREDDY, AGED ABOUT 28 YEARS NO.5 AND 6 ARE R/AT DODDANEKKUNDI, KR PURAM HOBLI, BANGALORE 560037 7. SRI. N.A KRISHNA REDDY S/O LATE. SRI. VENKATASWAMY @ ABBAIAH REDDY, AGED ABOUT 73 YEARS, R/AT SY NO. 150, NEAR SHANUBHOG LAYOUT, OPP: TO VARUN TELEVISION, DODDANEKKUNDI, BANGALORE 560037 8. SMT. DODDA AMMAYYAMMA AGED ABOUT 79 YEARS, D/O LATE SRI. ABBAIAH REDDY, W/O LATE. SRI. R. GOPAL REDDY, R/AT DODDANEKKUNDI VILLAGE, KR PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE 560037 9. SMT. CHINNA AMMAYYAMMA AGED ABOUT 75 YEARS, D/O. LATE SRI. ABBAIAH REDDY, W/O LATE. SRI. SEETHARAMI REDDY, R/AT NO. 955, PILLAREDDY COMPOUND, DOORAVANINAGAR, VIJANAPURA, BANGALORE 560016 10. SMT. VARALAKSHMAMMA AGED ABOUT 69 YEARS, D/O. LATE SRI. ABBAIAH REDDY, W/O LATE. SRI. NAGARAPPA REDDY, R/AT NO. 113, PNR BUILDING, NEAR LAKSHMINARAYANA TEMPLE MUNEKOLALU, BANGALORE 560037 11. SRI. K. JAYAPRAKASH AGED ABOUT 38 YEARS, S/O NA KRISHNA REDDY R/AT NO. 43/1, 2ND MAIN, 2ND CROSS, SHANBHOGH LAYOUT, DODDANEKKUNDI, BANGALORE 560037 12. SRI. K. DHANANJAYA AGED ABOUT 33 YEARS, S/O NA KRISHNA REDDY R/AT NO. 43/1, 2ND MAIN, 2ND CROSS, SHANBHOGH LAYOUT, DODDANEKKUNDI, BANGALORE 560037 (BY SRI.PAPI REDDY G, ADV. FOR C/R1 TO R3; SRI.B.K.SAMPATH KUMAR, ADV. FOR R7;
... RESPONDENTS SRI.B.AMARNATH, ADV. FOR R11 AND R12) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 28.07.2015 PASSED IN OS.NO.7536/2011 ON THE FILE OF THE C/C XV ADDL.CITY CIVIL & SESSIONS JUDGE AT BANGALORE CITY, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THESE APPEALS COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY AFTER HAVING HEARD AND RESERVED FOR JUDGMENT ON 07.11.2016., THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This regular first appeal is filed by the first defendant in O S No.7536/2011 against the judgment and decree dated 28.7.2015 passed by the XV Additional City Civil & Sessions Judge, (CCH-3), Bangalore, decreeing the suit for declaration that joint development agreement dated 1.9.2010 executed by defendants No.1, 5, 6 & 7 in respect of plaint schedule property is not binding on the share of plaintiffs and for partition and separate possession.
2. For the sake of convenience, the parties would be referred to as per their ranking in the court below.
3. The facts to be stated in brief are as follows:
The original propositus is one Sri Venkataswamy Reddy @ Abbaiah Reddy, who died intestate. He had four sons and three daughters. Out of the four sons Sri N A Venkataswamy Reddy and Sri Munireddy are no more. The plaintiff No.1 was the legally wedded wife of Sri N A Venkataswamy Reddy and plaintiffs No.2 & 3 are his sons. Plaintiff No.4 and plaintiff No.5 are wife and daughter respectively of deceased Sri Munireddy. The defendant Nos.5 & 6 are the sons of defendant No.1. Thus plaintiffs and defendant No.1 are the members of Hindu Joint family owning and possessing plaint schedule property jointly. Sri Venkataswamy Reddy died in the year 1981. Originally Sri Venkataswamy Reddy was in possession of plaint schedule property and he was the priest of Basavanna Temple located in plaint schedule property. After coming into force of Inam Abolition Act, suit land was granted in favour of defendant No.1, since defendant No.1 was the eldest son and Kartha of the joint family. The defendant No.1 was looking after welfare of the joint family members. Suit land was re-granted in his favour with the consent of other members of joint family. Except suit land, there were other properties which are already divided between the plaintiffs and defendant No.1 as per unregistered family partition deed dated 11.12.1992. But suit land was kept joint for the purpose of joint cultivation by all members of the family.
4. On 7.12.2007 defendant No.1 got converted said land into non agricultural use for formation of residential layout as per the order passed by revenue authorities, but the plaintiffs did not know this fact. Thereafter, defendant No.1 started putting up construction over the suit land, for which plaintiffs made enquiry, but defendant No.1 went on giving evasive answers. Finally, plaintiffs demanded their legitimate share by effecting actual partition and separate possession of their share in the suit property, for which defendant No.1 refused.
5. The defendant No.1 along with his sons executed Joint Development Agreement Deed in favour of defendant No.7. Neither defendants No.1, 5 and 6 nor defendant No.7 have any absolute right over the suit land to execute such agreement deed. Therefore, joint development agreement deed is not binding on the share of plaintiffs. Other defendants No.2, 3 and 4 are sisters of defendant No.1 and this plaintiff No.4 and already they have got married. Thus they have no any right, title and interest over the suit land.
6. The defendant No.1 filed written statement which is adopted by defendant Nos.5 & 6. The defendant Nos.2, 3 and 4 have not presented their written statement. The defendant No.7 also presented its written statement as well as additional written statement.
7. It is contended by the first defendant that in view of judgment and decree in O S No.38/1967 already there is severance of status among the members of the family. It is denied that suit land is joint family property. Suit land is exclusively granted to defendant No.1 by the Special Deputy Commissioner for Inams Abolition. Name of defendant No.1 appear continuously as its kathedar and owner. The suit is bad for non-joinder of necessary parties, since Chinna Ammaiah and Varalakshmi and even M/s.Srinidhi Consultants are not made as a party to the suit. Suit land was bearing Sy.No.3 which later on renumbered as Sy.No.150 and same was granted in favour of defendant No.1 alone. The defendant No.1 cultivated suit land from 1968-69 to 1976-77 on Panchasalagutta basis. The defendant No.1 applied for regrant and accordingly occupancy right was regranted in his favour under Section 6 of Mysore (Religious & Charitable) Inams Abolition Act, 1955. Thus he alone became the absolute owner of the suit land. The defendant No.1 paid conversion fee of Rs.1,89,907/-. The defendant No.1 paid Rs.4,89,350/- to Bangalore Development Authority towards fees for sanction of layout plan. He alienated portion of 1 acre 24 guntas of land out of entire suit land in favour of defendant No.7 which is a partnership firm, dealing in development and construction of residential apartments. Thus on 1.9.2010 the defendant No.1 executed registered G P A instrument and joint development agreement in respect of portion of entire suit land. The joint development agreement subject property was assessed to tax in the name of defendant No.1 and numbered as Katha No.3014 by the BBMP, Bangalore. The defendant No.1 paid a sum of Rs.34,00,595/- being betterment charges to BBMP for taking up development activities by the developer. In O S No.38/1967 suit property was not included.
8. It is stated, Sri Venkataswamy Reddy @ Abbaiah Reddy died on 9.3.1985. It is denied that suit land was owned and possessed by the original propositus Sri Venkataswamy Reddy @ Abbaiah Reddy. It is also denied that father of defendant No.1 was the priest of Basavana Temple situated in suit land. There is no existence of Basavana Temple in the suit land. It is denied that defendant No.1 was Kartha of joint family and was looking after the welfare of the joint family members. The suit land was re-granted in the name of defendant No.1 with consent of other family members is denied. Suit O S No.38/1967 this suit property was not included, clearly indicates that this suit land was not joint family property, but it is self acquired property of defendant No.1. It is contended that there has been partition except the suit land since it was not joint a family property.
9. The defendant No.7 has contended in the written statement that the defendant No.1 being the owner of the suit schedule property has executed joint development agreement in favour of defendant No.7 for development of two acres of land, out of entire suit land measuring 3 acres 1 gunta. The defendants No.5 & 6 have also subscribed their signatures to the said joint development agreement and possession has been delivered to defendant No.7. The defendant No.7 has paid a sum of Rs.1 crore to defendant No.1 apart from spending amount for the purpose of obtaining conversion order and other expenses. The defendant No.7 got verified revenue records and also order passed in favour of defendant No.1 and only thereafter entered into agreement. The defendant No.1 and his sons have executed registered general power of attorney. The defendant No.7 has invested huge amount but in view of temporary injunction, defendant No.7 is not in a position to develop the land as per the terms of joint development agreement. Already 35 years lapsed from the date of grant order. And suit is not maintainable, since same is barred by law of limitation. The plaintiffs never made any attempts to get their names entered in the revenue records.
10. On the basis of the above pleadings, the court below framed the following issues:
(1) Whether the defendant No.1 proves that the joint family status had been severed after the judgment and decree passed in a suit for partition in O S No.38/67 dated 19.2.1968 as pleaded in para No.1 of this written statement?
(2) Whether the plaintiffs prove that the suit schedule property is the joint family property as pleaded?
(3) Whether the plaintiffs prove that they are in joint possession of the suit schedule property?
(4) Whether the plaintiffs prove that the suit schedule property was granted to the 1st defendant as the karta of the joint family?
(5) Whether the 1st defendant proves that the suit schedule property is his self acquired property by virtue of the grant made to him by the Deputy Commissioner for Inams as pleaded?
(6) Whether the plaintiffs prove that the alleged Joint Development Agreement dated 1.9.2010 entered into between defendants 1, 5 and 6 on the hand and defendant No.7 on the other, in respect of suit schedule property is not binding on the plaintiffs?
(7) Whether the suit is bad for non-joinder and mis-joinder of parties?
(8) Whether the court fee paid is sufficient?
(9) Whether the suit is barred by limitation?
(10) Whether the plaintiffs prove that they are entitled to partition of suit schedule property?
(11) If so, what is their share?
(12) What order or decree?
11. In order to prove the respective case, plaintiff No.2 was examined as PW-1 and 21 documents were exhibited as Ex.P1 to P21. On the other hand, the defendants lead evidence of two witnesses as DWs.1 and 2 and got exhibited 109 documents marked as Ex.D1 to D109.
12. The court below has held joint family status had not been severed, suit schedule property is a joint family property, plaintiffs are in joint possession of the suit property, suit schedule property was granted to the 1st defendant as the Karta of the joint family, suit schedule property is not the self-acquired property of the first defendant, joint development agreement is not binding on the shares of the plaintiffs and plaintiffs No.1 to 3 jointly entitled for 1/7th share, plaintiff No.4 is entitled for 1/7th share and plaintiffs No.5 & 6 jointly entitled for 1/7th share in the suit land and accordingly decreed the suit. It is aggrieved by this judgment and decree, the first defendant has filed the present regular first appeal.
13. I have heard the learned counsel for the appellant and respondents and perused the impugned judgment.
14. The learned counsel for the appellant contends that suit O S No.38/1967 was filed by the appellant and the respondents and a preliminary decree was drawn on 19.2.1968, thereby the joint family status was severed and the family members divided themselves by metes and bounds in accordance with the preliminary decree. The plaintiffs 4 to 7 in O S No.38/1967 were represented by their next friend and natural guardian, who was their mother and wife of Mr.Abbaiah Reddy and not the appellant, who was 26 years old at the time of filing of that suit. Hence it is apparent that the appellant was not the Kartha of the family. The appellant is the absolute owner of Sy.No.150 (Old No.3) measuring 3 acres 1 gunta having acquired the same by way of Panchasala Gutta auction held on 17.4.1968 and subsequently occupancy rights were granted. The appellant has produced gutta receipts and the RTC extracts which proved that appellant was cultivating the land personally. The trial court has erred in holding that the Special Deputy Commissioner had observed that this land was cultivated by father of the appellant. No objection has ever been raised by any family member much less the respondents herein at any stage right from the said grant till date. Hence they are estopped from claiming that the said grant was made to the purported joint family. The index of land and the assessments for the years 1973-74 and 1977-78 reflect the name of the appellant as tax payer and owner. The appellant applied for conversion, paid several amounts towards the same including Rs.4,89,350/- towards sanction of plan and Rs.34,00,595/- towards betterment charges to the BBMP. The other family properties are divided through an unregistered family partition deed dated 11.12.1992. If that was the case, nothing prevented them from partitioning the suit schedule property. It is contended, father of the appellant was not the priest of Basavanna Temple. The father of the appellant was never in possession of the property. PW-1 has admitted that plaintiffs were not in possession of the suit schedule property and that they were not living as a joint family amongst other explicit admissions. When the appellant was the absolute owner in sole possession of the schedule property, there was no need of taking plea of ouster against the other family members and no question of adverse possession arises either as the appellant is the sole lawful owner in exclusive possession of the property and cultivating the land personally right form 1968. In the face of no material being produced regarding continuation of joint family after a decree in an earlier suit, a claim for partition is not maintainable. In this regard, reliance is placed on a decision in Anil Kumar Mitra & Others v. Ganendra Nath MItra & others, AIR 1997 SC 3767. It is further contended that there is presumption as to joint family property but there is no presumption as to joint family in absence of strong evidence. Reliance is placed on decision in Marabasappa by LR’s & others v. Ningappa by LR’s and Others, (2011) 9 SCC 451. The plaintiffs and appellant have purchased other properties in their individual capacities which indicate that the suit schedule property is not a joint family property and further more that the joint family is not in existence. Hence he prays for setting aside the judgment and decree of the trial court.
15. On the other hand, the learned counsel for the respondents supported the judgment and decree of the trial court and prayed for dismissal of the appeal.
16. The point that arises for consideration is, whether the impugned judgment and decree suffers from any infirmity so as to call for interference at the hands of this Court? My answer would be in the negative for the following reasons.
17. Relationship of plaintiffs with defendants 1 to 5 is not in dispute. It is admitted that during life time of Sri Venkataswamy Reddy @ Abbaiah Reddy defendant No.1 and other members of the family filed suit against Sri Venkataswamy Reddy in O S No.38/1967 for partition and separate possession in joint family properties and said suit came to be decreed on 19.2.1968 by which right, title and interest of defendant No.1 and other members of the family is already determined with respect of the suit properties of the said suit. After passing of preliminary decree in O S No.38/1967, final decree is not passed. It is not in dispute that father of the defendant No.1 died in the year 1981. Ex.D16 & D17 make it clear that suit land was re-granted to the defendant No.1 as per Section 6 of Mysore (Religious & Charitable) Inam Abolition Act, 1955.
18. The main controversy is that the suit property was not partitioned and it is joint family property though re-granted in the name of defendant No.1. It is the specific contention of the plaintiffs that father of defendant No.1 was cultivated suit land and thereafter this defendant No.1 continued cultivation of the suit land as a tenant, since father of the defendant No.1 was not properly maintaining the affairs of the family. It is the specific contention of the appellant that since same was re-granted in his individual capacity, the plaintiffs have no any right, title and interest over the suit property. Therefore, it is to be examined as to whether suit land was granted in the individual name of defendant No.1 or as a member of the joint Hindu family.
19. Suit O S No.38/1967 was filed by the very appellant and others against father of deceased defendant No.1 and 4. Ex.D4 is the decree passed in the said suit. The suit came to be decreed in which right of the parties in respect of the suit properties of that suit already determined. The plaint in O S No.38/1967 is marked as Ex.D3. It showed that father of defendants No.1 and 4 of the present suit, was not acting in the interest of plaintiffs of that suit which indicated that father of defendant No.1 was not properly managing the joint family properties. Accordingly, preliminary decree came to be passed.
It is pertinent to note that severance of status will occur only after effecting actual partition by metes and bounds. Except Ex.D4 no material is produced by defendant No.1 or any parties that there is severance of status. Therefore, it cannot be stated that there is severance of status by metes and bounds in the family properties as per the terms of the preliminary decree.
20. Ex.D1, P16 and Ex.D16 make it clear that suit land is an Inam land. In Ex.D1, Index of land it is clearly mentioned that suit land is Basavanna Devaru Land. Ex.16 endorsement dated 15.6.1979 makes it clear that the suit land was re-granted in favour of defendant No.1. Name of the defendant No.1 came to be entered in the record of rights in respect of the suit land as is clear from Ex.D17. The endorsement Ex.D5 issued by the Tahsildar, it makes it clear that prior to re-grant of this land in favour of defendant No.1, this land was in cultivation of defendant No.1 on Panchasalagutta basis. DW-1 in his evidence has stated that land Sy.No.150 was inam land and it was cultivated by his father. When suit in O S no.38/1967 was filed, this suit land was not yet re-granted in favour of defendant No.1. Therefore, the suit property could not have been included in the earlier suit.
21. Ex.D10 is the statement of one of the witnesses in the re-grant proceedings. After conducting enquiry, the Special Deputy Commissioner allowed the application filed by the defendant No.1 and re-grant order was passed on 30.4.1979, which is clear from Ex.P16. Though DW-1 stated that suit land was never cultivated by his father, but it is clear from the re- grant proceedings, the very defendant No.1 has given statement stating that he was cultivating the suit land since last 20 years. His evidence was recorded on 16.1.1978 that means even before Panchasalagutta the suit land was in cultivation of defendant No.1. Further in the statement he has stated that prior to cultivation of suit land by him, his father was cultivating the suit land. Therefore, statement of the defendant No.1 in the re-grant proceedings is contrary to the stand taken in the present suit. It is so because, in the present suit, he contends that he alone cultivated the suit land. Ex.P17 makes it clear that suit land was cultivated by his father and thereafter he continued his cultivation. Thus it cannot be said that all throughout the appellant was in exclusive possession and cultivation and recognizing that regrant order was passed in his favour. His father was cultivating the land which was continued by the first defendant and as an elder son the regrant order was made in his favour. In that view of the matter the court below is justified in holding that the suit land is not the individual property of the first defendant or that it is his self-acquired property.
22. It is to be mentioned here that possession of one co- owner or joint owner is for and on behalf of all members of the family. Merely because no name of plaintiffs is recorded in revenue records, it cannot be held that plaintiffs are not in joint possession of suit land as on the date of suit.
23. The defendant No.7 has entered into joint development agreement with the first defendant for which the defendant No.5 & 6 are also the signatories. The purchaser of undivided interest in joint family property cannot enforce his right against other co- owners or joint owners who never consented for such agreement. Such being the position of law, plaintiffs who have established their right, title and interest over entire property, thereby such joint development agreement does not bind on plaintiffs and defendant No.7 is not entitled to enforce his right under the said general power of attorney or under registered joint development agreement.
24. The court below has in detail considered the materials and evidence in the case and justified in passing the judgment and decree. The impugned judgment and decree do not suffer from any infirmity or illegality so as to call for interference by this Court.
R F A No.1429/2015 is filed by daughters of original propositus who were defendant Nos.2 to 4 in the suit before the trial court. Their only prayer is that the trial court ought to have declared their share also in the suit schedule property. It is held that the suit schedule property is a joint family property and the plaintiffs are entitled to definite share in it. The defendants No.2 to 4 are also held to have entitled to share of 1/7th each. Though the trial court has discussed about shares of daughters in body of the judgment, however, it failed to incorporate and declare the shares of daughters in the operative portion. To that extent, the judgment and decree of the trial court is to be modified to read into the judgment of the trial court, the shares of defendants No.2 to 4 as 1/7th share each. R F A Nos.1263/2015 & R F A No.1429/2015 are accordingly disposed of.
R F A No.1442/2015 is filed by the 7th defendant. In view of the above disposal of R F A No.1263/2015 & R F A No.1429/2015, this R F A No.1442/2015 does not survive. If at all the 7th defendant has any remedy, it is against the first defendant and his sons. It is accordingly disposed of akd Sd/- JUDGE