9911796707
TMI Blog1994 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... e and permanent injunction. The suit property consists of 30 guntas of land in Survey No. 214 in each suit. 4. The plaint averments are shortly as under: 5. The plaintiff's father and his brother formed a joint Hindu Family. The father of the plaintiff died about 30 years ago leaving behind him the plaintiff and his brother Boregowda. During the life time of the plaintiff's father there was a division of the properties belonging to joint Hindu Family. After the partition the plaintiff's father purchased the suit Survey No. 214 measuring one acre 20 guntas along with two other properties under a registered sale deed dated 5.7.29. Therefore, the suit land is a self-acquired property of the plaintiff's father which devolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant came to be accepted that the suit land was the joint family property. It had fallen to the share of the defendant. In this view, the suit came to be dismissed. 8. Two appeals were preferred. The first defendant in O.S. No. 347 of 1974 died during the pendency of the appeal. His legal representatives were not brought on record. As a result, the appeal abated. It was held that the cause of action survived against the second defendant in O.S. No. 347 of 1974. Ultimately, it was concluded that the partition was true. But defendants in both cases failed to prove that the suit properties fell to their shares. Further the purchase of the suit land by the father of the plaintiff was out of joint Hindu Family funds. With these observations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family properties were not made the subject-matter of the suits nor were all the co-sharers impleaded. It is well-settled in law that a suit for partial partition is not maintainable. Merely because the plaintiff came to file an application under Order 6 Rule 17 C.P.C. it would not mean it could be allowed and a preliminary decree for partition be passed. As a matter of fact, the causes of action are different. Therefore, the High Court went wrong in holding the larger relief of declaration of title and injunction even though not available to the plaintiff the smaller relief for partition could be granted. 13. The Court of First Appeal had, in fact, accepted the partition of the joint family. No doubt, it has observed that the allotment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry decree for partition of 1/3rd of plaintiff's share. During the pendency of the first appeal Kalegowda, the first defendant in O.S No. 347 of 1974 died. The finding of the trial court was clearly in his favour and it is to the following effect: Issue No. 3:- The evidence on record especially the evidence of P.W.I and the averments in Ex.D-1 clearly establish that the suit schedule property was the joint family property of the father of the plaintiff and his brothers. The evidence of the defendants disclose that in a partition which took place subsequently the suit land was allotted to the shares of the first defendants in both the suits. Apart from the oral evidence, the Revenue records at Ex. P-1 to P-3, Kandayam receipts at Ex.D- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn witness P.W.I has admitted that there was a partition amongst the plaintiff's mother Ningamma, himself and the 1st defendant in the two suits. There is no satisfactory evidence to prove that in that partition the suit property was allotted to the share of the 1st defendant in the two suits jointly. 18. Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned Counsel for the appellant that the causes of action ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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