THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT No.248 of 2001 and Cross objections (SR) No.60652 of 2001 Dated: 27th August, 2010 Between:- Nanjundappa and others. …Appellants AND Nanjamma and another. …Respondents THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT No.248 of 2001 and Cross Objections (SR) No. 60652 of 2001 Common Judgment: Aggrieved by the judgment and decree dated 22.11.1999 passed in O.S. No. 172 of 1996 by the Senior Civil judge, Hindupur, Ananthapur District, the appellants herein, who are the defendants in the said suit preferred the present appeal. The first respondent/plaintiff preferred Cross Objections challenging the part of the judgment and decree which went against her. The brief facts of the case are as follows:- The plaintiff is the daughter of one Venkatappa. Venkatappa and Nanjappa are sons of one Ramalingappa and thus they are real brothers. Venkatappa died in the year 1971. Plaintiffs elder sister Renukamma died in the year 1955. Her husband also died five months prior to her death. Renukamma’s daughter Sundaramma was about three months old when Renukamma died. Therefore, Sundaramma was not entitled to any share in the suit schedule properties and, therefore, she is not made as a party to the suit. Venkatappa’s brother Nanjappa died leaving behind his wife Sanjeevamma (Defendant No.19), the first respondent Nanjudappa, Baswarajappa, Niranjanappa, Akka Mahadevi (Defendant No.11), Kanthamma (Defendant No.12) and Gangamma (Defendant No.13). Nanjappa died in the year 1968. Venkatappa and Nanjappa were jointly enjoying the property during their life time. Nanjappa was managing the properties as Venkatappa was innocent and illiterate. Defendants 2 to 6 are the legal heirs of Baswarajappa. Defendants 8 to 10 are the children of Niranjanappa and Defendant No.7 – his wife. Baswarajappa died in the year 1988. Defendant No.19 is the wife of Najnappa. Nanjudappa (Defendant No.1), Baswarajappa, Niranjanappa, Akka Mahadevi (Defendant No.11), Kanthamma (Defendant No.12) are the children of Nanjappa and Sanjeevamma (Defendant No.19). Baswarajappa died in the year 1988. Defendant No.2 – Sunandamma is the wife of Baswarajappa. Defendants 3, 4, 5 and 6 are the children of Baswarajappa and Sunandamma. Defendant No.7 – Siddagangamma is the wife of Niranjanappa. Defendants 8, 9 and 10 are the children of Niranjanappa and Siddagangamma. Defendant No.13 is the husband of Gangamma and defandants 14 to 17 are their children. Defendant No.18 is the purchaser of Item No.3 of the suit schedule property. Plaint A and B Schedule properties are the ancestral and joint properties of Venkatappa and Nanjappa. Plaint A Schedule Property is fertile land. Item Nos.4 and 5 of Plaint A Schedule Properties are purchased by Ramalingappa in the year 1941. Nanjappa, after marrying Sanjeevamma, settled at Kaithagundanahalli village and he was managing plaint A Schedule Properties. Out of the income of A Schedule properties, Nanjappa acquired some of the B Schedule Properties of the plaint. The first defendant has been managing the properties of the joint family of the plaintiff and the defendants. The properties were not divided during the life time of Venkatappa and Nanjappa. Thus, plaint A and B Schedule properties are ancestral joint family properties of the plaintiff and defendants. It is the further case of the plaintiff that the 18th defendant in collusion with the other defendants brought into existence a fictitious document and that the alleged sale deed in favour of the 18th defendant is not supported by consideration and that the recitals of that sale deed are wholly untrue and that the said sale does not bind the plaintiff. The second defendant filed a written statement and denied the material averments made by the plaintiff. She averred that the plaintiff ought to have made Renukamma’s husband Sankarappa and her daughter Sankaramma as parties to the suit, since they are necessary parties and that the suit is bad in law and not maintainable for non- joinder of necessary parties to the suit. It is further averred that the plaintiff had filed a suit against the defendants 1 and 2 and one Niranjanappa, the brother of the first defendant, in O.S. No.64 of 1991 on the file of the District Munsif Court, Madakasira, in respect of A schedule properties and in the said suit the plaintiff averred that the defendants 1 and 2 and Niranjanappa are strangers and they are not related to her. It is further averred that the plaintiff had obtained interim orders in the said suit and subsequently the said injunction orders were vacated and then the plaintiff preferred C.M.A. No.5 of 1992 on the file of the Additional District Judge, Hindupur, and that the said CMA was also dismissed. It is also averred that the plaintiff, while pending the said suit in O.S. No.64 of 1991, filed the present suit and, therefore, the present suit is hit by the principle of res judicata. It is also averred that O.S. No.64 of 1991 was dismissed on 28.01.1994. It is also averred that the 18th defendant is in effective possession and enjoyment of item No.3 of the suit A schedule property. The plea of the plaintiff that she is in joint possession of the property has been denied and it is also averred that the court fee paid by the plaintiff is insufficient. The 19th defendant filed written statement contending that Renukamma died subsequent to the death of her father and therefore the husband of Renukamma and their daughter are necessary parties to the suit. It is also contended that Joolappa, S/o Thippaiah and Putta Rudrappa are also necessary parties to the suit since they are having joint right along with the 19th defendant in Sy.Nos.2-1 and 10-5 and the plaintiff ought to have added Sy.No.8-2 which is in Golahalli village, Idihalli Hobli, Madhugiri Taluk and that the suit is bad for not adding those properties and necessary parties. The lower Court framed the following issues. 1. Whether the suit is bad for non-joinder of necessary parties? 2. Whether the plaintiff is in joint possession of the suit schedule properties? 3. Whether the plaintiff is entitled to seek for partition as sought for? 4. To what relief? On behalf of the plaintiff PWs.1 and 2 were examined and Exs.A1 to A46 were marked. On behalf of the defendants DWs.1 and 2 were examined and Exs.B1 to B18 were marked. The learned Senior Civil Judge, Hindupur, having observed that in the earlier suit in O.S. No.64 of 1991 the defendants had taken a stand that the plaint schedule properties are in joint possession and enjoyment of both the parties and that the plaintiff ought to have filed a suit for partition and not for bare injunction and that the suit properties originally belonged to Ramalingappa and now they cannot take contra plea and held that the plaint schedule properties are the ancestral and joint family properties of Venkatappa and Nanjappa and that the plaintiff and defendants are in joint possession and that the plaintiff being the legal heir of Venkatappa is entitled to seek partition. The learned Senior Civil Judge also, having observed that since both the parties did not adduce any evidence as to when Renukamma died and whether it is before or after the death of her father and there is no evidence on record to show how Julappa, S/o Thippaiah and Pedda Rudrappa are necessary parties to the suit, held that the suit is not bad for non-joinder of necessary parties. The learned Judge further held that defendant No.18 purchased item No.3 of the plaint A schedule property under Ex.B13 registered sale deed and therefore he is entitled for item No.3 of the plaint A schedule property and therefore the said item should be allotted to defendant Nos.1 to 17 and 19 while effecting the partition in the final decree proceedings so as to bind the vendors to the sale under Ex.B13, and accordingly a preliminary decree was passed for partition of plaint A and B schedule properties into two equal shares and for allotment of one such share to the plaintiff representing the branch of her father late Venkatappa. Aggrieved by the said judgment and decree, the defendants in the lower Court, except defendant No.18, filed the present appeal. Sri R.V. Prasad, learned counsel for the appellants, submitted that the lower Court failed to consider the averments made by the plaintiff in O.S. No.64 of 1991 that the defendants are totally strangers and there is no relationship between them. It is also submitted that when the earlier suit was pending the plaintiff filed the suit without taking permission of the Court. It is also argued that the suit is bad for non-joinder of necessary parties and the plaintiff ought to have adduced evidence in support of her contention that Renukamma predeceased her father and when the plaintiff failed to adduce any evidence on this issue the suit is liable to be dismissed and that the lower Court did not consider this aspect and only taking into consideration the pleadings made by the plaintiff is not proper. It is also argued that the suit B schedule properties are the self acquired properties of Nanjappa and that they are not joint properties of Nanjappa and Venkatappa and that there is no proper appreciation of evidence on this issue. It is also argued that item No.3 of the plaint A schedule property was sold to the 18th defendant and the same could not have been included in the present suit schedule. Sri O. Manohar Reddy, learned counsel for the second respondent/18th defendant, submitted that the suit is bad for non- joinder of necessary parties. It is further contended that as far as the purchase made by the 18th defendant is concerned the doctrine of lis pendens does not apply since the said transaction took place during the pendency of earlier suit in O.S. No.64 of 1991 which is much prior to the filing of the present suit and, therefore, Section 52 of the Transfer of Property Act is not applicable to the facts of the present case. It is also submitted that the purpose of Section 52 of the Transfer of Property Act is not just and equitable but only subject to the authority of the Court which is dealing with the property to which claims are put forward. It is also contended that the lower Court exercised its discretion and that the property allotted in favour of the 18th defendant is only a minor portion when compared in value in respect of the other items of the property. Sri K.S. Gopalakrishnan, learned counsel for the first respondent/cross objector/Plaintiff, submitted that the evidence on record shows that Renukamma died in the year 1953 i.e., much prior to the death of her father and therefore neither Sankaramma nor the husband of Renukamma can claim any share in the properties and therefore it cannot be said that the suit is bad for non-joinder of necessary parties. It is further argued that no decree shall be reversed or modified in appeal on account of any misjoinder or non-joinder of parties under Section 99 CPC. It is also argued that when the plaintiff filed suit for injunction in O.S. No.64 of 1991 the defendants filed written statement, which is marked as Ex.A45, contending that the suit for bare injunction is not sustainable since the suit properties are joint family properties and no division took place and the plaintiff ought to have filed a suit for partition. According to the learned counsel this is a judicial admission, which binds the defendants. According to him, since the defendants in the earlier suit specifically pleaded that the suit properties are joint family properties and are liable for partition now they cannot turn around and say that the plaintiff is not entitled for partition and that they are not in joint possession. It is also his contention that the cross-objections are maintainable under Order XLI Rule 22 CPC. Referring to Order XLI Rule 22 CPC, it is submitted that any respondent may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour and may also take any cross- objection to the decree which he could have taken by way of appeal. It is also contended that Rule 33 of Order XLI empowers the appellate Court to make whatever order it thinks fit not only as between the appellant and the [1]respondent but also as between a respondent and a respondent. In support of his contention he relied on a decision reported in Pannalal v. State of Bombay and others1. With regard to sale in favour of defendant No.18, it is submitted that so long as the property is joint and not partitioned, a purchaser cannot have any right and he is not entitled to get possession of the said land. Relying on the judgment in Ramdas v. Sitabai and others[2], it was argued that without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. It is submitted that defendant No.18 stepped into the shoes of his vendors who were parties to the earlier suit. He has also relied on the judgments reported in Sanjay Verma v. Manik Roy and others[3], Marirudraiah and others v. B. Sarojamma and others[4], Sanjay Gupta v. kala Wati[5], and T.G. Ashok Kumar v (1) Govindammal; (2) Kanagavalliammal[6]. With regard to lis pendens. The learned counsel for the cross-objector submits that if the alienations pendente lite are permitted to prevail over the claim of the plaintiff, then there could be no certainty that the litigation would ever come to an end. The points that arise for consideration are; 1. Whether the present suit is not maintainable in view of the filing of the earlier suit in O.S. NO.64 of 1991? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the suit schedule properties are self acquired properties of Nanjappa or joint family properties of Nanjappa and Venkatappa? 4. Whether the Cross-objections are not maintainable against the co-respondent? 5. Whether the doctrine of lis pendens is applicable to the facts of the present case? 6. Whether the allotment of item No.3 of plaint A schedule property to the defendants and holding that defendant No.18 is entitled for item No.3 of the plaint A schedule property is valid? Point No.3: As seen from the evidence let in, the plaintiff was examined as PW.1. She deposed that her father Venkatappa and his brother Nanjappa were in joint possession and enjoyment of the suit schedule properties and that after the death of her father Venkatappa and his brother Nanjappa herself and the children of Nanjappa are in joint possession of the properties and that she is entitled for half share. According to DW.1 - the second defendant, the plaintiff was never in possession of the plaint A and B schedule properties. It is also her case that the plaint B schedule properties are the self acquired properties of Sanjeevamma, wife of Nanjappa. PW.2 and DW.2 are the purchasers of a part of suit schedule lands. According to PW.1, Ex.A10 is the adangal extract for the plaint A schedule and in Ex.A10 the names of her father Venkatappa and his brother Nanjappa were mentioned in column No.12 of Ex.A10. Ex.A13 is the certified copy of 10(1) account which contains the name of the plaintiff, Nanjappa and also the name of her paternal uncle and his wife Sanjeevamma. Admittedly, Ex.A45 is the certified copy of the written statement filed in O.S. No.64 of 1991. The first defendant in the present suit is the first defendant in the said suit. In that suit the first defendant averred that the plaintiff’s father Venkatappa is elder to Nanjappa and that Venkatappa was managing the joint family property. It is also averred that Venkatappa and Nanjappa were not divided and that the suit schedule properties are still undivided. It is also contended that the plaintiff in O.S. No.64 of 1991 (the plaintiff herein) ought to have filed the suit for partition and that the suit for mere injunction is not maintainable. So the evidence of PW.1 and Ex.A1 to A46 establish that there was no partition between Venkatappa and Nanjappa and the properties were not divided and that the plaintiffs and defendants were in joint possession of the joint family properties. It is settled law that when a party claims that certain properties are not the joint family properties and they are the self acquired properties the burden lies on such party to prove the same. In this case though the defendants had taken a plea that the plaint B schedule properties are their independent acquisitions, but admittedly no evidence has been let in, in support of such contention. It has to be seen that in case between Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and others[7], it was observed as follows. “……………..Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong…………….” In view of the same, the contention of the learned counsel for the Cross-objector that the suit properties are joint family properties and they are liable for partition and the defendants now cannot turn round and say that they are not in joint possession and the plaintiff is not entitled for partition has to be accepted. Point No.2: With regard to the question as to whether the suit is bad for non- joinder of necessary parties, the plaintiff in her plaint has specifically mentioned that Renukamma predeceased her father. PW.1 in her evidence stated that Renukamma died three months after the death of Sankaramma. But, in fact it should be admittedly, read as after the birth of Sankaramma as it appears to be a typographical mistake. Sankaramma’s age was shown as 46 years in 1996. This means Sankaramma was born in 1953. DW.1 deposed that Renukamma might have died three months after the birth of Sankaramma. Thus, it is clear that Renukamma died in 1953. According to PW.1 her father Venkatappa died about 30 years ago. She gave evidence on 19.11.1996. This shows Venkatappa died in 1966. The date of death of Venkatamma is not in dispute. Thus, the evidence of PW.1 and DW.1 shows that Renukamma died three months after the birth of Sankaramma and that Sankaramma was born in 1953 and therefore it is clear that Renukamma died in 1953. In view of the same, it is clear that Renukamma predeceased her father. Since Renukamma predeceased her father, Renukamma’s husband and her daughter cannot claim any share in the property. Therefore, they are not necessary parties to the suit. Similarly, as observed by the lower Court there is no evidence on record to show that Julappa and Pedda Rudrappa are necessary parties to the suit. The defendants have taken a specific plea that Julappa and Pedda Rudrappa are necessary parties to the suit. They ought to have let in some evidence in support of their case. In the absence of any such evidence, it cannot be said that Julappa and Pedda Rudrappa are necessary parties to the suit, therefore, there is no force in the contention of the learned counsel for the appellants that the suit is bad for non-joinder of necessary parties. Point No.1: Learned counsel for the appellants submitted that earlier the plaintiff has filed a suit in O.S. No.64 of 1991 and that she has not taken all the pleas taken in the present suit in the earlier suit, therefore, the present suit is hit by order II Rule 2 CPC. Ex.B1 is the certified copy of plaint in O.S. No. 64 of 1991, which was filed for bare injunction. What was alleged in the said suit is that when the plaintiff did not agree to the proposal of marriage of the daughter of the second defendant with her son, the defendants started causing obstruction to the plaintiff in enjoying the suit schedule property. Of course, the plaintiff also denied her relationship with the defendants in the said suit. So, admittedly, the earlier suit was filed for permanent injunction on the alleged obstruction caused to the plaintiff’s peaceful possession and enjoyment and wrongful interference. In the present suit, the plaintiff has been seeking a decree for partition and separate possession of her half share in the plaint A and B schedule properties by metes and bounds and for separate possession. According to the plaintiff’s case, the cause of action arose two years prior to the filing of the suit when they started proclaiming about the alienations made in favour of the 18th defendant and when her demand for partition was not successful. Order II Rule 2 of CPC is as follows. “2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.” It appears that the first requirement for application of Order II Rule 2 CPC is that there should be same cause of action in two suits. A reading of the plaint averments of the two suits referred to above filed by the plaintiff categorically go to show that the earlier suit was filed only when the defendants tried to interfere with her peaceful possession and enjoyment over the suit schedule properties, whereas the second suit was filed when her demand for partition was not accepted and when the defendants were proclaiming about the alienations made in favour of the 18th defendant. Therefore, the requirement in order to bring the suit within the meaning of Order II Rule 2 CPC appears to be not made out. Therefore, there is no force in the contention of the learned counsel for the appellants on this point. Since the issues in these both suits are not one and the same, the principle of res judicata does not apply in this case. Point No.4: The main contention of the learned counsel for the appellants is that admittedly the plaintiff has not filed any separate appeal questioning the allotment of plaint A schedule properties to the share of the appellants and therefore now by way of cross-objections she cannot question the findings of the trial Court. It is also the submission of the learned counsel for the appellants and the second respondent that the cross-objections are not maintainable against the co- respondent i.e., against the second respondent except in exceptional circumstances. Reliance is placed on the decisions reported in Varanasi Vital Rao v. Jallepalli Janardhanarao[8], and Municipal Corporation of Delhi v. Intnl. Security and Intelligence Agency Limited[9]. It is also their contention that the present suit is hit by the principle of lis pendens since the alienation was not made during the pendency of the present suit but the alienation was made during the pendency of earlier suit between the parties. Order XLI Rule 22 CPC is as follows. “22. Upon hearing respondent may object to decree as if he had preferred a separate appeal.-(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross- objection to the decree which he could have taken by