* Author
[2024] 3 S.C.R. 46 : 2024 INSC 165
Srinivas Raghavendrarao Desai (Dead) By Lrs.
v.
V. Kumar Vamanrao @ Alok and Ors.
(Civil Appeal Nos. 7293-7294 of 2010)
04 March 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ.]
Issue for Consideration
A suit was filed by the plaintiff claiming share in the suit schedule
properties. The Judgment of the High Court placed reliance upon
1965 partition which was not the pleaded case in the plaint initially
filed. Whether the High Court committed a grave error in placing
reliance upon the partition allegedly effected in the year 1965;
whether evidence could be led beyond pleadings.
Headnotes
Pleadings – Evidence beyond pleadings – Appellants submitted
that the judgment of the High Court deserves to be set aside
for the reason that reliance has been placed upon 1965
partition which was not the pleaded case in the plaint initially
filed – Propriety:
Held: The High Court committed a grave error in placing reliance
upon the partition allegedly effected in the year 1965, in terms
of which Schedule ‘A’ properties were allotted exclusively to the
share of defendant No.1 – The fact remains that it is not even
the pleaded case of the plaintiffs in the suit that there was any
partition of the family properties in the year 1965 – The suit was
filed on 26.05.1999 – Even the pleaded case of the defendants,
especially defendant No. 1 who is the husband of plaintiff No.
3 and father of plaintiffs No. 1 and 2, in the written statement
filed by him was not that there was any partition in the year
1965 – The plaintiffs sought to amend the plaint seeking to raise
pleadings regarding 1965 partition – The Trial Court, vide order
dated 11.10.2006 rejected the application for amendment of the
plaint – The aforesaid order was not challenged any further –
Meaning thereby, the same attained finality as far as the case
[2024] 3 S.C.R. 47
Srinivas Raghavendrarao Desai (Dead) By Lrs. v.
V. Kumar Vamanrao @ Alok and Ors.
sought to be set up by the plaintiffs based on 1965 partition –
There is no quarrel with the proposition of law that no evidence
could be led beyond pleadings – It is not a case in which there
was any error in the pleadings and the parties knowing their
case fully well had led evidence to enable the Court to deal with
that evidence – In the case in hand, specific amendment in the
pleadings was sought by the plaintiffs with reference to 1965
partition but the same was rejected – In such a situation, the
evidence with reference to 1965 partition cannot be considered.
[Paras 14 and 15]
Case Law Cited
Jehal Tanti and others v. Nageshwar Singh (dead)
through LRs., 2013 (14) SCC 689; Ghanshyam Sarda
v. Sashikant Jha, Director, M/s J. K. Jute Mills Company
Limited and others, (2017) 1 SCC 599; Bhagwati Prasad
v. Chandramaul, [1966] 2 SCR 286 : AIR 1966 SC
735 – referred to.
List of Keywords
Pleadings; Partition of family properties; Evidence beyond pleadings.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.7293-7294 of
2010
From the Judgment and Order dated 19.12.2008 of the High Court
of Karnataka at Bangalore in RFA Nos.1463 and 1782 of 2007
Appearances for Parties
M. Gireesh Kumar, S. K. Kulkarni, Ankur S. Kulkarni, Ms. Uditha
Chakravarthy, Ms. Shalaka Srivastava, Ms. Priya S. Bhalerao, Varun
Kanwal, Advs. for the Appellants.
Basava Prabhu S Patil, V. Chitambresh, Sr. Advs., Ankolekar
Gurudatta, Korada Pramod Kumar, Amith J, Purushottam Sharma
Tripathi, Amit, Mrs. Vani Vyas, E. C. Vidya Sagar, Advs. for the
Respondents.
48 [2024] 3 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
Rajesh Bindal, J.
1. The appeals1
filed by the plaintiffs having been partly allowed by the
High Court2
, the defendant No. 7 has challenged the judgment and
decree3
of the High Court before this Court.
Facts of the case
2. A suit4
was filed by Kumar Vamanrao alias Alok son of Sudheendra
Desai(plaintiff No.1), Kumar Vyas alias Prateek Sudheendra Desai
(plaintiff No. 2) and Aruna wife of Sudheendra Desai (plaintiff
No.3), sons and wife of Sudheendra (defendant No. 1) respectively,
impleading the parents of defendant No.1 and great grant mother of
the plaintiffs No.1 and 2. Kumari Arundhati (defendant No. 5) was
daughter of Ramarao (defendant No.2 and sister of defendant No.1.
Martandappa (defendant No.6) was said to be proposed purchaser
of the part of the land. Srinivas Raghavendrarao Desai (defendant
No.7) was impleaded in the suit vide order dated 02.01.2001.
2.1 Defendant No.7 is in appeal before this Court against the
judgment and decree of the High Court. He having died
during the pendency of the Special Leave Petitions, his legal
representatives have been brought on record vide order dated
23.03.2015. Prahlad (defendant No.8) brother of defendant
No. 7 was impleaded in the suit vide order dated 11.07.2003.
Whereas Administrative Officer-Murugharajendra Vidyapeeth
(defendant No. 9) was impleaded vide order dated 08.06.2005,
as defendant No. 7 had sold Regular Survey No.106/2 in favour
of defendant No. 9 by executing sale deed dated 25.07.2001.
3. The suit was filed by the plaintiffs claiming 5/9th share in the suit
schedule properties. Further prayer was made for grant of mesne
profits. Along with the plaint, the following schedule of the properties
was attached of which partition was sought:
1 R.F.A. No. 1463 of 2007 and R.F.A. No. 1782 of 2007
2 High Court of Karnataka, Circuit Bench at Dharwad
3 Judgement and decree dated 19.12.2008
4 O.S.No.60 of 1999
[2024] 3 S.C.R. 49
Srinivas Raghavendrarao Desai (Dead) By Lrs. v.
V. Kumar Vamanrao @ Alok and Ors.
“SCHEDULE- ‘A’
The properties standing in the name of defendant No. 1
S.
No.
TALUKA VILLAGE R.S.NO.
BLOCK
NO.
AREA
A-G
ASST.
Rs.PS.
VALUATION
1. Dharwad Dhandikoppa 50/1 4-6-1/2 11-49 Rs. 50,000/-
2. Dharwad Saptapur 106/2 3-14 9-28 Rs. 50,000/-
3. Dharwad Lakamanahalli 86/2B 7-32 26-32 Rs. 80,000/-
4. Dharwad Kelgeri 69 6-10 6-53 Rs. 50,000/-
5. Dharwad Kelgeri 152/4 7-01 20-82 Rs. 70,000/-
SCHEDULE- ‘B’
The properties standing in the name of D.2
S.
No.
TALUKA VILLAGE R.S.NO.
BLOCK
NO.
AREA
A-G
ASST.
Rs.PS.
VALUATION
1. Dharwad Saptapur 120 3-20 5-36 Rs. 40,000/-
2. Dharwad Kanavi
Honnapur
87A 2-06 0-51 Rs. 10,000/-
3. Hubli Sutagatti 9A/2 2-01 1-11 Rs. 10,000
[1/2 share in
this property
to RV Desai
D-1]
4. Dharwad city R.S. No. 55A flat in plot No. F-2
Lakamanahalli village in ground floor VCidyagiri, the
House in Century Park bearing Municipal No.
14184/A//0B2 Rs 2,00,000/-
5. Dharwad Nuggikeri
Village
R.S. No.
44/4
7-00 1-12 Rs. 70,000/-
SCHEDULE – ‘C’
Standing in the name of defendant No.4’s
husband V. H. Desai
S.
No.
TALUKA VILLAGE R.S.NO.
BLOCK NO.
AREA
A-G
ASST.
Rs.PS.
VALUATION
1. Hubli
Taluka
Suttagatti 9A/9 1-18 1-53 Rs. 10,000/-
50 [2024] 3 S.C.R.
Digital Supreme Court Reports
SCHEDULE- ‘D’
Standing in the name of defendant No.4’s
husband V. H.Desai
S.
No.
TALUKA VILLAGE R.S.NO.
BLOCK
NO.
AREA
A-G
ASST.
Rs.PS.
VALUATION
1. Dharwad Dhandikoppa Block
No. 9
5-33 20-81 Rs. 50,000/-
standing in the
name of D2
and D4]
2. Dharwad Hosayallapur Block
No. 170
16-32 46-37 Rs. 60,000/-
[1/2 share
in the land
standing in the
name of D2
and D4]
3. Dharwad Murakatti Block
No. 69
13-10 22-99 Rs. 70,000/-
[standing in
the name of
D1 and D3]
4. HOUSE PROPERTIES
a) Desai Galli House CTS No.
1292
32 Sq.
yard
Rs. 50,000/-
Standing in
the name of
D2 and D4
b) Desai Galli House CTS No.
1295
676
Sq.
yard
Rs. 1,00,000/-
Standing in
the name of
D2 and D4
4. Vide judgment and decree5
, the Trial Court6 held the plaintiffs No.1
and 2 and defendants No.1 to 3 and 5 entitled to 1/6th share in the
following property:
“A schedule: Survey No.50/1, 86/2B, 69, 152/4
B schedule: 87/A, 9A/2
D schedule: Block No.9, B.No.170(8 Acres gunthas), CTS
No.1292, CTS No.1295
Defendant no.2 was held entitled to Item 4 in Schedule-B.
Defendant no.1 was held entitled to Item 3 in the Schedule-D.”
5 Judgement and decree dated 21.04.2007
6 The III Additional Civil Judge (Senior Division) & CJM, Dharwad
[2024] 3 S.C.R. 51
Srinivas Raghavendrarao Desai (Dead) By Lrs. v.
V. Kumar Vamanrao @ Alok and Ors.
The suit pertaining to Regular Survey Nos.106/2, 120 and 9A/9
was dismissed. No mesne profits were granted. The suit was also
dismissed against defendants No.6 to 9.
5. Aggrieved against the judgment and decree of the Trial Court, two
appeals were preferred before the High Court. R.F.A. No.1463 of
2007 was filed by the plaintiffs raising a grievance of rejection of
their part claim. R.F.A. No.1782 of 2007 was filed by defendants
No.1 to 3 and 5, aggrieved against grant of 1/6th share each to the
plaintiffs being excessive. Findings of the Trial Court with regard to
the property at Sr.No.5 in Schedule-B (Regular Survey No.44/4) was
also challenged. The High Court disposed of both the appeals by a
common judgment holding that:
* Schedule-A properties (Regular Survey No(s).50/1, 106/2,
86/2B, 69 & 152/4) are exclusive properties of defendant No.1
as these were allotted to him in the partition in the year 1965.
Hence, the plaintiffs as well as the defendant No.1 will have
1/4th share each in the aforesaid properties.
* The claim of the plaintiffs, for share in Schedule-B (Regular
Survey No(s).120, 87A, 9A/2, 44/4) and Schedule-C properties
(Regular Survey No.9A/9) and Item no.1 (Block No.9) and Item
No.2 (Block No.170) of Schedule-D, was rejected.
* Sale of Item No.2 (Regular Survey No.106/2) of Schedule-A
property by defendant No.7 in favour of defendant No.9 was
held to be null and void and not binding on the plaintiffs and
defendant no.1.
* Property at Item no.4 (CTS No(s).1292 & 1295) in Schedule-D
was to be shared equally by the plaintiffs and the defendant
No.1 (1/12th share).
* The matter regarding half share in Item No.3 (Block No.69) of
Schedule-D was remitted to the Trial Court to allow the plaintiffs
to adduce the evidence to prove that the same was purchased
by the defendant No.1 out of the joint family funds.
* The matter regarding Item no.5 (Regular Survey No.44/4) of
Schedule-B was also remitted to the Trial Court. The plaintiffs
were held entitled to mesne profits from defendant No.1 of the
properties in which they have been granted share.
52 [2024] 3 S.C.R.
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6. Aggrieved by the aforesaid judgment and decree of the High Court,
the defendant No.7 (Srinivas Raghavendrarao Desai) filed two
Special Leave Petitions. Leave was granted. As he expired during the
pendency of the matters before this Court, his legal representatives
have been brought on record. The issue raised in the present appeals
is only pertaining to Regular Survey No. 44/4 and Regular Survey
No.106/2, which was sold to defendant No.9 by defendant No.7 vide
sale deed dated 25.07.2001.
Arguments
7. Learned counsel for the appellants submitted that the judgment of the
High Court deserves to be set side for the reason that reliance has
been placed upon 1965 partition which was not the pleaded case in
the plaint initially filed. No evidence led, which was beyond pleadings
could be considered. An application seeking amendment of the plaint
was filed to take up that plea, however, the same was declined by
the Trial Court vide order dated 11.10.2006 and the order was not
challenged any further. Even the pleadings to that effect sought to
be taken in the replication filed by the plaintiffs were struck off by
the Trial Court. The pleaded case of the defendants before the Trial
Court was that there was a partition amongst the family members
on 30.08.1984. The aforesaid partition deed was subject matter of
litigation in Civil Suit No. 80 of 1995 filed by the defendant No. 2
wherein the same has been noticed and an order passed thereon.
7.1 The High Court had totally gone wrong in setting aside the
decree dated 23.06.1995 without there being any challenge
to the same by any of the parties. That issue did not arise out
of the judgment of the lower Appellate Court. It was further
submitted that the appellant/defendant No. 7 had not violated
any interim order passed by the Trial Court as on the date such
an order was passed, he was not even party to the litigation.
He was impleaded only on 02.01.2001.
8. On the other hand, learned counsel for the respondents No. 1 to 3/
plaintiffs submitted that the entire effort of the appellants is just to
deprive respondents No. 1 to 3 of their rightful share in the family
property. The partition of 1965 was rightly relied upon by the High
Court as against the partition of 1984, the genuineness of which
is quite doubtful. In fact, all the family members had connived to
deny rightful claim of the plaintiffs. It was further submitted that the
[2024] 3 S.C.R. 53
Srinivas Raghavendrarao Desai (Dead) By Lrs. v.
V. Kumar Vamanrao @ Alok and Ors.
sale deed which was executed by the appellant-defendant No. 7 in
favour of defendant No. 9 in violation of the interim order passed by
the Trial Court is non-est and deserves to be ignored. In support,
reliance was placed upon the judgments of this Court in Jehal
Tanti and others v. Nageshwar Singh (dead) through LRs,
7
and Ghanshyam Sarda v. Sashikant Jha, Director, M/s J. K. Jute
Mills Company Limoited and others8
. He further argued that once
the parties go to trial knowing the issues involved, the evidence led
even without pleadings can very well be appreciated. In support,
reliance was placed upon the judgment of this Court in Bhagwati
Prasad v. Chandramaul9
.
8.1 The property bearing Regular Survey No. 106/2 was sold by
defendant No. 7 to defendant No. 9 to protect his interest.
Even though the sale was held to be bad by the High Court, no
appeal has been preferred by defendant No. 9. Only defendant
No. 7 has challenged the same. No doubt, the application for
amendment of plaint to raise the pleading regarding 1965
partition was rejected, however, the High Court had made
observations that defendant No. 7 is entitled to argue on the
basis of the pleadings and documentary evidence to vindicate
his right and also that the Trial Court is not barred to mould
the relief and allot shares in accordance with law in a suit of
partition.
8.2 Learned counsel for defendant No. 9 adopted the arguments
which were raised by learned counsel for the appellants as
their interest is common and he is the bonafide purchaser of
the property, which is a public institution, from defendant No.
7 on payment of consideration.
9. In response to the submissions made by learned counsel for
respondents No. 1 to 3, learned counsel for the appellant submitted
that the stand taken by defendant No. 1 before the High Court was
a clear somersault as his counsel sought to argue relying upon
the proceedings before the Land Tribunal which was not even his
pleaded case before the Trial Court. The sale deed was executed
7 2013(14) SCC 689
8 (2017) 1 SCC 599
9 AIR 1966 SC 735
54 [2024] 3 S.C.R.
Digital Supreme Court Reports
by defendant No. 7 on 25.07.2001. The same was well within the
knowledge of defendant No. 1, however, he did not challenge the
same during his life time, in case there was any error committed by
defendant No.7. It was for the reason that the property had come
to the share of defendant No. 7.
10. Heard learned counsel for the parties and perused the relevant
referred record.
11. To understand the relations between the parties, we deem it
appropriate to frame the family tree, as is evident from the material
on record:
12. The High Court finally found that the properties forming part of
Schedule ‘A’ are exclusive properties of defendant No. 1 allotted in
the partition in the year 1965. The plaintiffs and defendant No. 1 will
have 1/4th equal shares each.
12.1 The claim of the plaintiffs for share in Schedule ‘B’, ‘C’ and item
Nos. 1 and 2 of Schedule ‘D’ properties was rejected.
12.2 Sale of Item No. 2 of Schedule ‘A’ property by defendant No.
7 to defendant No. 9 was declared to be null and void, hence
not binding on the plaintiffs and defendant No. 1.
12.3 The plaintiffs and defendant No. 1 were held entitled to 1/4th share
in item No. 4 of Schedule ‘D’. Meaning thereby 1/12th share each.
[2024] 3 S.C.R. 55
Srinivas Raghavendrarao Desai (Dead) By Lrs. v.
V. Kumar Vamanrao @ Alok and Ors.
12.4 With regard to ½ share of item No. 3 of Schedule ‘D’ properties,
the matter was remitted to the Trial Court to allow plaintiff No.
1 to adduce evidence to prove that ½ share in item No. 3 was
purchased by defendant No. 1 out of joint family funds.
12.5 In respect of item No. 5 of ‘B’ Schedule also, the matter was
remitted to the Trial Court to allow defendants No. 2 and 7 to
adduce necessary evidence as to extent of land allotted to
the share of defendant No. 7 in the partition. In other words,
it was to be decided whether it is 4 acres in Sy. No. 44/4 of
Nuggikere village is allotted to the share of defendant No. 7 or
entire extent of 7 acres is allotted. The defendant No. 7 and
defendant No. 2 were permitted to file additional pleadings and
adduce evidence available with them to prove their respective
cases.
13. In the written statement filed by defendants No. 1 to 3 (father and
grand parents of plaintiffs No. 1 and 2) to the suit filed by the plaintiffs,
the definite stand taken is that the property bearing Regular Survey
No. 106/2 does not belong to the joint family of the answering
defendants, rather it had gone to the branch of Raghvendrarao,
hence cannot be made subject-matter of partition.
14. As is evident from the judgment of the High Court, much reliance
was placed upon the oral partition effected between the parties in
the year 1965. In our opinion, the High Court committed a grave
error in placing reliance upon the partition allegedly effected in the
year 1965, in terms of which Schedule ‘A’ properties were allotted
exclusively to the share of defendant No.1. The fact remains that it
is not even the pleaded case of the plaintiffs in the suit that there
was any partition of the family properties in the year 1965. The suit
was filed on 26.05.1999. Even the pleaded case of the defendants,
especially defendant No. 1 who is the husband of plaintiff No. 3 and
father of plaintiffs No. 1 and 2, in the written statement filed by him
was not that there was any partition in the year 1965. Quite late,
the plaintiffs sought to amend the plaint seeking to raise pleadings
regarding 1965 partition. The Trial Court, vide order dated 11.10.2006
rejected the application for amendment of the plaint. The aforesaid
order was not challenged any further. Meaning thereby, the same
attained finality as far as the case sought to be set up by the plaintiffs
based on 1965 partition.
56 [2024] 3 S.C.R.
Digital Supreme Court Reports
15. There is no quarrel with the proposition of law that no evidence could
be led beyond pleadings. It is not a case in which there was any
error in the pleadings and the parties knowing their case fully well
had led evidence to enable the Court to deal with that evidence. In
the case in hand, specific amendment in the pleadings was sought
by the plaintiffs with reference to 1965 partition but the same was
rejected. In such a situation, the evidence with reference to 1965
partition cannot be considered.
16. The plea sought to be taken by the plaintiffs regarding 1965 partition
in the replication filed by them would not come to their rescue for
the reason that the amendment application filed to raise that plea
was specifically rejected. The Trial Court had rightly ignored the plea
taken in the replication by the plaintiffs regarding oral partition of
1965, as amendment sought to that effect had already been declined.
What was not permitted to be done directly cannot be permitted to
be done indirectly.
17. In the written statement filed by defendant No. 7, a specific plea was
raised regarding 1984 partition and the property bearing Regular Survey
No. 106/2 coming to his share. In the additional written statement filed
by defendant No. 7 before the Trial Court, a specific plea was raised
that the property bearing Regular Survey No. 44/4 had exclusively fallen
to his share in the family partition effected on 30.08.1984. This gets
credence from a decree passed by the Civil Court in Civil Suit No. 80
of 1995, titled as “Sri Ramarao Vyasarao Desai v. Dr. Shriramarao
Raghavendrarao Desi and another”, decided on 23.06.1995, which
notices the partition of 1984. In the aforesaid suit, father of defendant
No. 1, who was the only son of Vyasrao and two sons of Raghvendrarao,
namely, Prahlad and Srinivas Raghvendrarao were parties. The High
Court had gone wrong in holding the aforesaid compromise decree to
be bad without there being any challenge to the same by the parties.
It is not even the case set up before the Trial Court.
18. As a consequence, the finding recorded by the High Court that all
Schedule ‘A’ properties were allotted to defendant No. 1 is liable to
be set aside. Ordered accordingly.
19. Strangely enough, there is somersault in the stand taken by defendant
No. 1. It is for the reason that earlier the plaintiffs and defendant No.
1 were stated to be at loggerheads as lot of allegations had been
made by the plaintiffs in the plaint, such as playing cards, drinking
[2024] 3 S.C.R. 57
Srinivas Raghavendrarao Desai (Dead) By Lrs. v.
V. Kumar Vamanrao @ Alok and Ors.
etc. It is for that reason that the suit for partition was filed during
the life time of the defendant No. 1. However, now they have joined
hands. As a result, defendant No. 1 before this Court is now seeking
to support the case of the plaintiffs. Such conduct of the parties, like
a pendulum in the clock in fact puts the Court on trial.
20. If the contents of partition dated 30.08.1984 are perused, the property
bearing Regular Survey No. 106/2 goes to the share of the appellant.
Even otherwise, the property in question, namely, Regular Survey No.
106/2, on which the plaintiffs and defendant No. 1 are now staking
claim was sold by defendant No. 7 to defendant No. 9 vide registered
sale deed dated 25.07.2001. It was well within the knowledge of
defendant No. 1. The Trial Court categorically recorded that even if
the signatures on the sale deed were effected by defendant No. 7,
stated to be executed on behalf of defendant No. 1, but still defendant
No. 1 did not object to the same and in fact supported the stand of
defendant No. 7 as the property in question had gone to his share
in the family partition. Further, if defendant No. 1 was the true owner
of the property in question and had any objection to the aforesaid
sale transaction, during his life time he never challenged the same
despite being in knowledge thereof. This also establishes that in fact
in 1984 partition, the property had gone to the share of defendant
No. 7. The partition deed dated 30.08.1984 between Vyasrao
Hanamanthrao Desai and Raghavendrarao Hanamanthrao Desai,
whose descendants are litigating with reference to their respective
shares is extracted below:
“The portion of the property belonging to Sri Vyasrao
Hanamanthrao Desai and Late Capt. Raghavendrarao
Hanamanthrao Desai was discussed in detail and the
following agreements were agreed to by me. People who
attended on Thursday 30th August, 1984.
The persons attended are as follows:
1. Sri R.V. Desai (Son of Sri V.H. Desai)
2. Major P.R. Desai
3. Dr. R. S. Desai
(Sons of Late Capt. R. H. Desai)
in attendance and according to the advise of Sri V.H. Desai.
58 [2024] 3 S.C.R.
Digital Supreme Court Reports
The partition has been agreed to and done in the following
manner:
SRI V.H. DESAI LATE CAPT. R.H. DESAI
Village AG S.No./
Bl No. Village AG S.No./
Bl.No.
1) Kelgeri 4-18 69 1) Saptapur 3-00 108/2
2) -do- 4-10 152/2 2) -do- 3-14 106/2
3) Nuggikeri 5-03 37 3) Nuggikeri 13-37 31
4) Lakamanahalli 7-37 86/2B 4) -do- 07-00 44
5) Dondikoppa 5-35 9 5) Lakamanahalli 06-08 3/2
6) Sutagatti 3-37 13 6) Narayanpur 5-19 7+14B/2
7) Hosayallapur 8-16 126/1 7) Hosayallapur 8-16 126/2
-------- --------
48-30 48-10
-------- --------
Survey No. 109 of Saptapur has not been shown but, it
has been included equally among the both the parties and
consists of Guava garden.
Following lands have not been divided as they are not in
physical position and cases regarding them are pending
and they will be equally distributed after the settlement of
cases. The above mentioned are as under:
Village A-G Sl-No-/Bl.No.
1) Nuggikeri 3-34 129
2) Nuggikeri 1-00 31
3) Nuggikeri 1-00 37
4) Kanavihonnapur 2-09 87/A
5) Kanavihonnapur 1-38 81”
21. Even with reference to property bearing Regular Survey No. 44/4,
also we do not find that the matter needs to be remanded back for
the reason that in the family partition held in the year 1984 clearly
the aforesaid Regular Survey No. was assigned to the share of late
[2024] 3 S.C.R. 59
Srinivas Raghavendrarao Desai (Dead) By Lrs. v.
V. Kumar Vamanrao @ Alok and Ors.
Raghavendrarao Hanamanthrao Desai, who was the predecessorin-interest of the appellants. The area clearly mentioned therein was
seven acres, hence there is no dispute.
22. So far as the argument raised by learned counsel for the respondents
regarding sale conducted by defendant No. 7 in favour of defendant
No. 9 to be in violation of the interim order passed by the Trial Court
is concerned, suffice it to state that the interim order restraining
defendants No.1 to 4 from alienating the property in question was
passed by the Trial Court on 31.05.1999. As on that date, defendant
No. 7 was not party to the suit as he was impleaded only on
02.01.2001. There is no order passed by the Trial Court thereafter
directing that the interim order was further extended qua the newly
impleaded defendant also, hence it cannot be said to be a case of
wilful violation of the order passed by the Trial Court.
23. The order passed by High Court in Writ Petition No. 11431 of 1977
filed by Sudheendra, decided on 25.03.1983, does not come to the
rescue of the respondents for the reason that the same was passed
before the partition was effected between the parties on 30.08.1984.
Secondly, it was a Writ Petition filed by defendant No. 1 through his
grand father as he was minor at that time. The Writ Petition was
filed against the State seeking quashing of order dated 21.05.1976
passed by Special Land Tribunal, Dharwad. Without there being
any material and the parties affected or beneficiary of 1965 partition
being party, the Court recorded that there is no dispute that there
was such a partition.
24. For the reasons mentioned above, the appeals are allowed. The
findings of the High Court with reference to Regular Survey Nos.
106/2 and 44/4 are set aside. The same are held to be the properties
coming to the share of the appellants. The sale deed executed by the
appellant (since deceased) in favour of defendant No. 9 regarding
Survey No. 106/2 is upheld.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeals allowed.
