2012 (4) AIR Kar R 424 ::AIR 2013 (NOC) (SUPP) 1083 (KAR.) ::(2013) 1 KCCR 672

Karnataka High Court

Hon'ble Judge(s): N. Kumar, B. Sreevnivase Gowda , JJ

(A) Civil Procedure Code (5 of 1908) O. 9, R. 9 and S. 2(ii)— Cause of action — Regrant of land in favour of three co-owners — Alienation of land by one co-owner ignoring other two co-owners — Suit for partition and possession of 1/3 share by one of co-owners against said co-owner and alienees from him as aforesaid — Dismissal of suit for non-prosecution — Subsequent suit filed by plaintiff in previous suit after regrant of land for second time, again for partition and permanent injunction — All alienees from co-sharers made parties — Order of regrant for first time made property partible — After regrant for second time again property became partible — Cause of action of both suit thus, not one and same — Subsequent suit cannot be dismissed under O 9, R 9 - Suit also does not become infructuous on death of co-sharer as her alienees were her legal representatives (Para 48,49,53)

(B) Civil Procedure Code (5 of 1908) S. 11, O. 20, R. 18— Res judicata — Suit for partition of Hindu Joint Family property — Decree for partition — Would be res judicata as between all who are parties to suit Hindu Law — Joint family property — Partition (Para 59)

(C) Civil Procedure Code (5 of 1908) O. 20, R. 18 and O. 1, R. 10— Suit for partition — Necessary parties — Alienees from co-parceners are parties to suit — Suit cannot be dismissed on ground that subsequent purchasers are not made parties — Those persons could be made parties in final decree proceedings — Direction can be passed by Court to implead those persons as parties in final decree proceedings before any adverse order is passed against such alienees Hindu Law — Joint family property — Partition — Suit for — Necessary parties (Para 64)

(D) Civil Procedure Code (5 of 1908) O. 20, R. 18— Suit for partition — Share of plaintiffs declared — They cannot be denied benefit of possession on ground that they are not in possession on date of suit — Suit filed against co-sharer/joint family member who has put others in possession — Plaintiff would be entitled to recover possession from third party also who is in possession of suit schedule property (Para 70)

(E) Civil Procedure Code (5 of 1908) O. 20, R. 18— Suit for partition — Limitation — Suit filed against alienees of defendant — It is in fact suit for partition filed against members of family, co-sharers and co-parceners — Suit not barred by limitation insofar as alienees are concerned as no period of limitation is prescribed for filing suit for partition (Para 71)

(F) Limitation Act (36 of 1963) Art. 64, 65 — Adverse possession — Case of defendant that he was in possession of suit land as tenant — Belief of defendant that plaintiffs were not entitled to regrant of land — Suit cannot be dismissed on ground of adverse possession {" Unless the person asserting title by adverse possession admits title of the plaintiff and denies his title openly, the basic requirement of adverse possession is not established. Similarly, if the case of the defendant is that he was lawfully put in possession and he has become the absolute owner and he asserts title to the property by such valid transfer of title, the plea of adverse possession is not available to him. Similarly, if the purchaser from one of the members of the joint family or a co-owner, assorts adverse possession, then the law governing adverse possession between co-owners and members of a joint family is attracted. Unless there is a plea of ouster and unless the said plea is established by acceptable evidence, they cannot succeed on the plea of adverse possession. (Para 81) "}

(G) Civil Procedure Code (5 of 1908) O. 20, R. 18— Suit for partition — Suit property i e land not partible and vested with Govt — Property sold by defendant — Purchaser would get no title over property — Purchasers putting up construction without sanction of law — Plaintiff cannot be held to be not entitled to decree of mandatory injunction to remove constructions — However, such claim of mandatory injunction of plaintiffs could be gone into at stage of final decree proceedings (Para 87)

(H) Civil Procedure Code (5 of 1908) O. 20, R. 18— Suit for partition — Alienation of part of suit land made by co-sharers after land vested with Govt — Constructions put up on land when matter was pending before various forums for adjudication of rights — Some of constructions put up in disobedience of order of temporary injunction granted by High Court — Suit cannot be dismissed on ground of estoppel Evidence Act (1 of 1872), S 115 (Para 90)