JUDGMENT
K. Bhakthavatsala, J.
1. This is defendant No. 1’s appeal filed under Section 100 of the Code of Civil Procedure challenging the judgment and decree dated 1-9-1999 made in R.A. No. 14/1987 on the file of the Additional District Judge, Bidar dismissing the appeal and confirming the judgment and decree dated 31-3-1987 made in O.S. No. 116/1983 on the file of the Principal Civil Judge (Sr. Dn.) Bidar.
2. The Respondents No. 1 to 3 are represented by M/s. L.G. Associates.
3. For the purpose of convenience, the appellant/defendant No. 1 and Respondents are referred to in the rank as arrayed in the suit.
4. The brief facts of the case leading to the filing of the appeal may be stated as under:
The Plaintiffs 1 and 2 (Respondents 1 and 2) namely son and the wife of Gurappa Gorte filed a suit for partition and separate possession in O.S.No. 116/1983 against the present appellant/ defendant No. 1, Respondent No. 3 (defendant No. 2) as well as against Susheela Bai and Mukta Bai (defendants 3 and 4 respectively) viz., the daughters of Plaintiff No. 2. The defendants 3 and 4 to the suit have not been made parties to the this appeal. The defendant
No. 1 is the step-brother of plaintiff No. 1 (i.e. Gurappa’s first wife’s son). The second plaintiff is the second wife of the deceased Gurappa. The Plaintiff No. 1, Defendants 2 to 4 are the children of Plaintiff No. 2. The first wife of deceased Gurappa expired when defendant No. 1 was two years old. Thereafter, Gurappa got married to palintiff No. 2 and out of that wedlock she has given birth to plaintiff No. 1 and defendants Nos. 2 to 4. Gurappa expired after the Deepawali in 1992 leaving behind his legal heir viz., the plaintiffs No. 1 and 2 and defendants No. 1 to 4 and successors to the extent of share in the joint family properties. Two months after the death of Gurappa, due to various reasons, differences arose and it became impossible to remain injoint. Therefore, the plaintiffs requested the defendants for mutual partition of the joint family properties. But, they avoided on one pretext or the other and on 8-7-1983 ultimately refused partition of the joint family properties. It is the case of the palintiffs that the suit schedule properties are ancestral joint family properties of the parties to the suit. The plaintiff No. l and the defendants 1 and 2 being the co-parceners of the deceased Gurappa entitled to 3/4* share in the suit schedule properties. Whereas, the plaintiffs 1 and 2 together have got 5/12th share in the suit schedule properties.
The defendants 2 to 4 entered appearance and filed a joint written statement and prayed for partition accordingly, in their favour for separate joint share of defendants 2 to 4.
The defendant No. 1 also entered appearance in the suit and filed a written statement contending that the plaintiff No. 2 is not legally wedded wife of late Gurappa; and late Gurappa was the illatom son-in-law of Akkawwa (mother of plaintiff No. 2); the late Gurappa sold the land bearing No. 519 to discharge all the debt of Akkawwa thereby to save the properties of Akkawwa; the plaintiff No. 2 got filed a suit for partition in O.S.No. 55/1979 on the file of Munisff Court, Basavakalyan, through her son Shivarudrappa (Respondent No. 3 herein) against the late Gurappa, defendant No. 1, plaintiff No. 2, defandant No. 4 and one Saireddy of Narayanapura village (who had purchased the land bearing Sy. No. 519). Thereafter, respectable persons of Narayanapura village settled the dispute amicably with the consent of late Gurappa, Akkawwa and Laxmibai and defendant No. 1, and in that settlement, the land bearing Sy.No. 256 measuring 13 acres 06 guntas and a residential house with zinc-sheets was given to his share (defendant No. 1) and the land bearing Sy.No. 32, measuring 6 acres 30 guntas, land bearing Sy.No. 38 measuring 1 acre 32 guntas and land bearing Sy.No. 51 and one residential house all situated at village Molakhera, were to be given to Lakshmi Bai and her two sons and no share was provided to the daughters of Lakshmi Bai namely Susheela Bai and Muktha Bai as they were given gold ornaments at the time of their marriage for which settlement Susheela Bai and Muktha Bai also agreed and the settlement took place during the Summer season of 1981 at Narayanapura village and since then defendant No. 1 is in possession and enjoyment of the suit land and house property as an absolute owner. Therefore, the plaintiffs and the defendants 2 to 4 have no right over the suit property which is in possession of the defendant No. 1 at Narayanapura village. It is further contended that defendant No. 1 has repaid the loan amount of Rs. 2,700/- on 31-3-1984 borrowed by his father for agricultural development of the suit land by way of Hypothecation and therefore, the plaintiffs are not entitled for any relief in the suit. It is further contended that the Court fee paid on the suit is not sufficient.
5. The plaintiffs have filed rejoinder denying the contentions taken by the defendant No. 1.
6. In view of the pleadings on record, the Trial Court had framed the following issues:
1. Whether Plaintiff No. 2 is the legally wedded wife of Late Gurappa?
2. Does defendant No. 1 prove that late Gurappa was Illatom son-in-law of Akkawwa?
3. Does defendant No. 1 prove that late Gurappa sold his land Sy.No. 519 to discharge the debt of Akkawwa and thereby to save her properties?
4. Does defendant No. 1 prove settlement alleged in para No. 6 of his written statement?
5. Whether Court-fee paid insufficient?
6. To what relief the plaintiff is entitled to?
7. In support of the case of the plaintiffs, the plaintiff No. 2 got herself examined as P.W. 1 besides examining one Amruthappa as P.W.2 and plaintiff No. 2’s mother Akkawwa as P.W. 3 and in rebuttal defendant No. 1 got himself examined as D.W. 1 besides examining 3 other witnesses as D.Ws. 2 to 4 and got marked Ex. D. 1 to D.16.
8. The Trial Court after hearing the arguments and perusing the evidence and material on record, answered issue Nos. 1 and 5 in the affirmative, issued No. 2 to 4 in the negative and decreed the suit holding that the plaintiffs 1 and 2 jointly entitled to 7/15th share in the suit land bearing Sy.No. 256 and the suit house as mentioned in the plaint schedule and defendants 3 and 4 are entitled to 1/3 0th share each. With regard to the plaint schedule properties namely gold ornaments and utensils etc., are concerned, the Trial Court has held that there was no proof that the family owned any of those movables and therefore, no order was passed in so far as the plaint movables are concerned.
9. The defendant No. 1 feeling aggrieved of the impugned judgment made by the Trial Court preferred an appeal in R.A. No. 14/1987 on the file of the Additional District Judge at Bidar. During the pendency of the appeal, Respondent No. 1/plaintiff No. 1 attained majority and therefore, the guardian of plaintiff No. 1 was discharged and permitted to prosecute the appeal. The plaintiffs and defendants as Respondents 1 to 5 entered appearance before the lower Appellate Court.
10. The lower Appellate Court after hearing arguments of the Learned Counsel for the parties formulated in all five points for consideration, Namely:
1. Whether the second plaintiff is the legally wedded wife of Gurappa?
2. Whether the plaintiffs have proved that all or any of the suit properties are the joint family properties of themselves and defendants?
3. Whether the first defendant has proved that as per the settlement between the parties, the suit land and suit house were allotted to his share and that the lands situated in Molkhera village were allotted to the share of palintiffs and D-2?
4. Whether the plaintiffs are entitled to a share in all or any of the suit properties? And if so, to what extent?
5. Whether the impugned judgment and decree call for interference in this appeal?
11. For the reasons stated in the impugned judgment, the Lower Appellate Court has answered point No. 1 and 4 in the affirmative; point No. 2 has been answered holding that the suit land and the suit house are joint family properties of the plaintiffs and defendants; point No. 3 and 5 have been answered in the negative; and consequently dismissed the appeal with costs by the impugned judgment and decree dated 1-9-1999. This is challenged in this appeal on the following grounds:
(i) that the impugned judgment and decrees of the Courts below are not tenable in the eye of law as hit by Section 11 of CPC and Section 115 of Evidence Act;
(ii) that the respondents are no way concerned to the family of Gurappa and the appellant/defendant No. 1 is the only son born to Gurappa;
(iii) that in view of the fact that Respondent No. 3 Shivarudrappa had filed a suit in O.S.No. 55/1979 for partition and the same came to be dismissed, the suit in O.S.No. 116/1983 is not maintainable in law;
(iv) that after the dismissal of the suit, the matter came to be amicably settled at the instance of the elders of the village and the present suit property bearing Sy.No. 256 measuring 13 acres 09 guntas and a house situated at Narayanpur Village was given to the appellant/defendant.
(v) that the Courts below have erred in decreeing the suit without considering the non-inclusion of the properties namely, Sy.Nos. 32, 38 and 51 of Molkhera village.
12. According to the appellant/defendant No. 1 the following are the substantial questions of law:
(a) Whether both the Courts below are right in decreecing the suit when earlier suit in O.S. No. 55/1979 has been dismissed on 10-8-1981?
(b) Whether both the Courts have properly given findings on Section 11 of the Civil Procedure Code that is principles of res-judicata and Section 115 of the Evidence Act that is estoppel, when in the earlier suit the same parties with the same cause of action involving same properties, has been dismissed, the question of again entertaining the present suit and decreeing the suit will not at all arise?
(c) Whether both the Courts below have properly considered the point of void marriage when admittedly Laxmibai was alleged to be married to Gurappa at the age of 10 years?
(d) Whether both the Courts below are right in decreeing the suit without bringing all the properties like Sy.No. 32, 38 and 51 in a common hutch pot? and
(e) Whether both the Courts below have considered the principles laid in , when the partition took place in 1979, immediately after filing the suit O.S.No. 55/1979 and Sy.No. 256 and house at Narayanpur village fell to the share of the appellant, Sy.No. 32, 38 and 51 fell to the share of the Respondents and subsequently, the above suit was also dismissed for default. In this way admittedly partition took place in the year 1979. Under these circumstances, whether both the Courts below are right in decreeing the present suit?
13. When the appeal was listed before the Learned Single Judge of this court on 13-1-2000 for admission, the learned Single Judge heard the Learned Counsel for the appellant and learned advocate for Caveator-Respondents 1 and 2 and admitted the appeal for consideration of the points as formulated in the memorandum of appeal as substantial questions of law and the parties were directed to maintain status-quo as on the date of filing of the suit by the palintiffs.
14. I have heard arguments of the Learned Counsel for the parties.
15. The Courts below have given concurrent finding on the following points:
(a) that the plaintiff No. 2 is the legally wedded wife of late Gurappa;
(b) that the defendant No. 1 failed to establish that late Gurappa was illatom son-in-law of Akkawwa (mother of plaintiff No. 2);
(c) that the defendant No. 1 failed to establish that there was settlement and amicable partition of the properties of late Gurappa; and
(d) that the suit schedule properties are the only joint family properties.
16. In view of the decision in Ratnam Chettiar And Ors. v. S.M. Kuppuswamy Chettiar And Ors., AIR 1976 SC 1 this Court cannot interfere with the concurrent finding of fact given by the Courts below in the absence of any extraordinary or special reasons. In this regard, the Apex Court has held at paragraph No. 11 of the Judgment as under:
“It is a well-settled practice of this Court not to interfere with a concurrent finding of fact given by the two Courts below in the absence of any extraordinary or special reasons. In the instant case we hold that the finding of the High Court as well as of the Trial Court is based on a full and complete consideration of the evidence both oral and documentary and an elaborate and meticulous discussion of all the surrounding circumstances. We, therefore do not feel inclined to interfere with this concurrent finding of fact which is hereby affirmed”.
Therefore, I need not dwell upon the concurrent findings of fact given by the Courts below.
17. Though the learned Single Judge of this Court has admitted the appeal so as to consider the points formulated in the memorandum of appeal, it is necessary to recast the substantial questions of law. The following substantial questions of law would arise for consideration:
1. Whether the plaintiffs suit is hit by doctrine of estoppel under Section 115 of the Evidence Act or Section 11 of C.P.C, in view of dismisal of the earlier partition suit by Shivarudrappa (Respondent No. 3 in this appeal) in O.S.No. 55/1979 on the file of the Munsiff at Basavakalyan?; and
2. Whether the impugned judgment and decree call for interference?
18. My answer to the above points is in the negative, for the following reasons:-
At the very outset it must be mentioned that the defendants No. 3 and 4 (viz., the daughters of late Gurappa and plaintiff No. 2 Lakshmi Bai) in whose favour preliminary decree for partition has been made holding that they are entitled to 1/30th share each, they have not been made parties to this appeal. On this score alone, on account of non-joinder of parties, the appeal is liable to be dismissed.
19. From the Trial Court judgment, it is crystal clear that the Plaintiffs 1 and 2 together entitled for 7/15th share; defendants 1 and 2 are entitled to 7/30th share each and the defendants 3 and 4 namely the daughters of Lakshmi Bai are entitled to 1/30th share each. But the appellant has not challenged the extent of share to which each one of them is entitled and fixed by the Trial Court. With this observation, now I proceed to consider Point No. 1 and 2 formulated by me.
20. On the point whether the suit is hit by Doctrine of Res judicata is concerned, I am of the firm view that the right to sue for partition is a continuing right and incidential to the ownership of joint property. So long as the property remains joint, one of the co-owners has a cause of action for bringing a fresh suit for partition notwithstanding the dismissal of a previous suit for partition filed by one of the co-owners. Their Lordships of High Court of Assam also have taken the same view in the decision in Tara Kishore Das v. Beharu Berman And Ors., AIR 1958 Assam 67 (DB) It is useful to excerpt paragraph 4 of the above said judgment, which reads as under:
“On the face of it, the decision of the learned Subordinate Judge is quite illegal. He appears to have ignored the position that a right to obtain partition is a right inherent in the joint ownership of property. It is a natural and legal incident of ownership, which could not be denied to a co-owner of the property so long as his right subsits. The mere fact that on an earlier occasion he could not obtain partition, is no ground for holding that the right of the co-owner to seek partition is barred for ever. It is a continuing right which the co-owner possessess in the lands in question; and if on account of inconvenience or differences with the co-owner, it is not possible for him to continue in joint ownership of the property, there is no reason why the right to seek partition should be denied to him.
In other words, it is open to the co-owner to ask for separate enjoyment of his share of the property at any time he likes and the right to partition the land cannot be refused so long as his interest in the land is not extinguished. The proposition is too well settled to need authorities. But I would refer to only a few of them. In T.C. Mukerji v. Afzal beg, ILR37All 155 : AIR 1915All 1(2) (A), it was pointed out that the right to bring a suit for partition unlike other suits, is a continuing right incidential to the ownership of joint property and a second suit is therefore, not barred. Another decision to which reference may also be made is Jagamohini Das v. Shiba Gopal Banerjee, AIR 1920 Cal 108 (B), where it was again laid down that the right to sue for partition is a continuing right and incidental to the ownership of joint property. Therefore, so long as the property remains joint, one of the co-owners has a good cause of action for bringing a fresh suit for partition notwithstanding the dismissal of a previous suit for partition.
As I said the law on the point is well settled and it is somewhat strange that the learned Subordinate Judge thought that the claim for partition in the present instance was barred by res judicata because in the previous suit the claim was not allowed. Mr. Bhattacharjee appearing for the defendant-respondents has strenuously argued that the principle or res judicata applies to such a case. He has tried to bolster up the view taken by the learned Subordinate Judge and has urged that the prayer not having been granted by this Court on an earlier occassion must be deemed to have been refused and consequently the present suit of the plaintiff was not maintainable. The argument as I have shown is quite futile and must be rejected. The plaintiff’s claim therefore, for partition of the land in the suit must be allowed”.
In the light of the above said decision, the suit in O.S. No. 55/1979 filed by one of the brothers of the plaintiff No. 1 and dismissal of the suit for default cannot be a bar and the suit is not hit by Section 11 of CPC. Further, the 3rd defendant Susheela Bai was not a party to the said suit. In view of the averments made in the written statement filed in O.S.No. 55/1979 by the appellant/defendant No. 1, the various contentions taken by him are nothing but false, vexatious and not sustainable in the eye of law. Further, the appellant/defendant No. 1 has miserably failed to establish that there was any such legal amicable settlement and in that settlement, the suit properties were given to his share. Merely because he has been enjoying the property does not mean that he is in exclusive possession as absolute owner of the property which is admittedly joint family property. There is not a scintillia of evidence and material on record to establish that the plaintiffs are estopped from seeking relief of partition and separate possession in the joint family properties.
21. For the foregoing reaons, I am of the opinion that there is no merit in the appeal. Hence, I answer Points No. 1 and 2 in the negative. In the result, I pass the following order:
The appeal fails and the same is hereby dismissed with costs.