(Prayer: This RSA is filed under Section 100 of CPC, against the judgement and decree dated 25.07.2009 passed in R.A.No.8/2003 on the file the presiding Officer, Fast Track Court-IV, Bengaluru Rural District, Bengaluru, dismissing the Appeal and confirming the judgement and decree dated 04.12.2002 passed in O.S.No.991/1992 on the file of the Civil Judge (Jr.Dn) and JMFC, Hoskote.)

CAV Judgment

1. Heard Sri G. Papireddy, learned Senior counsel along with Sri Varun Papireddy, learned counsel for appellant No.2 and Sri G.R. Lakshmipathy Reddy, learned counsel for respondent No.1 and Sri K. Shivashankar, learned counsel for respondent No.3(a) to (c).

2. This second appeal is filed praying this Court to set aside the judgment and decree passed by the First Appellate Court in R.A.No.8/2003 dated 25.07.2009 and judgment and decree passed by the Trial Court in O.S.No.991/1992 vide order dated 04.12.2002 dismissing the suit for the relief of partition and separate possession and confirm the sale.

3. The factual matrix of case of the plaintiffs while seeking the relief of partition and separate possession in respect of two items of the suit schedule properties are claiming 1/3rd share in the suit schedule properties and also to declare that sale deed executed by defendant No.1 in favour of defendant No.3 on 23.09.1992 in respect of item No.1 of the suit schedule properties is not binding upon them and also to declare the said sale deed as null and void. It is contended that plaintiff Nos.1 to 3 and defendant Nos.1 and 2 are the joint family members and the suit schedule properties are their ancestral properties. It is further contended that defendant No.1 is the wife of late Narayanappa i.e., the brother of plaintiff No.1 and the junior aunt of plaintiff Nos.1 and 2 constitute a Joint Hindu Family. During the lifetime of propositor Hanumaiah, the lands were enjoyed by him and he died in the year 1958, leaving behind the plaintiffs and defendant Nos.1 and 2 as his sole successors to succeed his properties, without leaving any Will or testament with respect to his properties. After the demise of Hanumaiah, the suit schedule properties are cultivated by plaintiffs and defendant Nos.1 and 2 equally and jointly. The katha of the said land stands in the name of deceased Hanumaiah. It is further contented that husband of defendant No.1 was literate and without the knowledge of the plaintiffs, he has got changed the katha. This fact came to the knowledge of the plaintiffs recently. During the time of Narayanappa, the husband of defendant No.1, he tried to sell suit item No.2 of the properties taking advantage of katha and pahani. Hence, the plaintiff No.2 gave an application to the Tahasildar, who conducted an enquiry and passed an order in RRT PD (K) 33/1989-90.

4. It is the further case of the plaintiffs that suit item No.1 of the suit schedule properties is measuring to an extent of 3 acres 20 guntas. Out of the said extent, the deceased Hanumaiah has sold 1 acre 22 guntas in favour of one Gullappa and he has retained 1 acre 30 guntas which is in possession and enjoyment of the plaintiffs and defendants. In the suit schedule properties, there is no division till this day. Even now, it continues as joint family properties. The husband of defendant No.1 was looking after the properties and katha was standing in his name. He was managing the affairs of the family. The Sy.Nos.60 and 8/5 was not divided and it was enjoyed by the plaintiffs and the defendants as absolute owners after the demise of late Hanumaiah. Taking advantage of the entries made in the revenue records, tried to alienate Sy.No.8/5, the plaintiff No.2 made an application to the Tahasildar and the Tahasildar passed an order mutating the name of the plaintiffs and the defendant No.2 and the name of husband of the defendant No.1 in Column 12/2 of the RTC. It is contented that Sy.No.150 of Bhaktrahalli Village, Hoskote was allotted to the share of husband of plaintiff No.2. After his demise, she has succeeded to the estate of deceased Narayanappa. The defendant No.1 entered into an agreement in respect of said portion measuring to an extent of 3 acres 19 guntas to Smt. Saraswathi, wife of G. Krishnappa, Ulsoor. Subsequent to the said agreement, defendant No.1 and the said Smt. Saraswathi have together executed joint agreement in favour of plaintiff No.2. Hence, the plaintiff No.2 is in possession and enjoyment of entire extent of 6 acres 37 guntas.

5. It is further contended that during the lifetime of husband of defendant No.1, the plaintiffs have demanded to hand over their legitimate share, but at the intervention of elders, the possession of the properties which are being enjoyed by the plaintiffs and defendants continued. Inspite of repeated requests and demand, the defendant No.1 has not divided the shares of the plaintiffs. On the other hand, she is making hectic efforts to alienate the said properties to third parties. It is learnt that she is making efforts to sell the schedule property in favour of one B. N. Hanumanthappa, son of Narayanappa of Bhaktrahalli Village and if any sale transaction takes place, the same is not binding on the plaintiffs. It is contented that said sale deed is created for the purpose of deceiving the plaintiffs. The defendant No.1 has no manner of right, title or interest over the said property to dispose of the same. It is contented that they are in possession and enjoyment of 27 guntas in Sy.No.62 and 1½ guntas in Sy.No.8/5 of Bhaktrahalli Village. The defendant No.1 has interfered on 27.09.1992 and caused obstruction to the cultivation of plaintiffs. Hence, suit is filed.

6. In pursuance of the suit summons, defendant No.1 appeared and filed written statement contending that suit schedule properties are not the ancestral and joint family properties. The suit filed by the plaintiffs is not maintainable and further contended that suit schedule 'A' property was self- acquired property of husband of defendant No.1 and suit schedule 'B' property has fallen to the share of defendant No.1 along with other properties. It is contented that deceased Hanumaiah has not at all executed either Will or any testamentary document. It is denied that after the death of Hanumaiah, the suit properties are cultivated by plaintiffs along with defendants. The documents produced by the plaintiffs with respect to suit properties are false and created one. The claim made in respect of Sy.No.62 measuring to an extent of 1 acre 30 guntas is the self-acquired property of late Narayanappa and item No.2 has fallen to the share of husband of defendant No.1 among other properties. The plaintiffs and defendant No.2 have brought up the suit colluding with each other to knock off the properties of the defendant No.1, suppressing the real facts. It is contented that suit item No.1 was sold to one B.M. Hanumanthappa and defendant No.1 has nothing to do with the said survey number to an extent of 1 acre 30 guntas. During the lifetime of husband of defendant No.1, he had preferred an application on 22.10.1990 against the order passed by the Tahasildar in respect of Sy.No.8/5. In the meanwhile, husband of defendant No.1 expired on 09.12.1990. The application filed by him is still pending before the Assistant Commissioner for final disposal. The defendant No.1 had also preferred an appeal before the Assistant Commissioner against the order passed by the Tahasildar in respect of Sy.No.8/5 in R.A.No.107/1992 and the said the appeal is also pending. It is contented that name of defendant No.1 is appearing in the record of rights after the death of her husband and she is enjoying the suit properties by cultivating the same personally. When the plaintiffs and defendant No.2 are not in possession of the suit schedule properties, the question of dispossession of the plaintiffs by defendant No.1 does not arise. The claim that defendant No.1 has entered into an agreement with respect to 3 acres 19 guntas with Smt. Saraswathi is denied and contend that plaintiffs are not at all in possession and enjoyment of the suit schedule properties with defendant No.1. The defendant No.1 is in possession of Sy.No.8/5 and constructed a dwelling house, wherein she is residing without anybody's interference. When the plaintiffs are not in possession of the suit schedule properties, the question of interference by defendant No.1 does not arise.

7. The defendant No.2 in his written statement has admitted the contents of the plaint averments and sought for 1/3rd share in the suit schedule properties.

8. The defendant No.3 in his written statement admitted that he is the bonafide purchaser and he had purchased 1 acre 30 guntas from the husband of defendant No.1 for a valuable consideration as per the registered sale deed dated 23.09.1992. Since from the date of purchase, he is in possession and also contend that husband of defendant No.1 on 10.12.1962 had purchased the suit properties from one Gullappa. In fact, the father of plaintiff Nos.2 and 3 i.e., deceased Munidasappa, in turn has divided the said property in favour of his sons i.e., plaintiff Nos.2 and 3 as per the registered partition deed dated 07.10.1983. The said property has fallen to the share of plaintiff No.3. In turn, the plaintiff No.3 has sold the share to one Ramaiah. The Ramaiah is in possession and enjoyment of 1 acre 30 guntas in Sy.No.62 of Bhaktrahalli Village. Hence, there is no cause of action for the suit.

9. The Trial Court, taking note of pleadings of the plaintiffs and the defendants, framed the following issues and additional issue which reads as hereunder:

          "1. Whether the plaintiffs prove that the suit schedule property remains as joint family properties of the plaintiffs and defendants 1 and 2 ?

          2. Whether the plaintiffs prove that the plaintiffs and defendants 1 and 2 are in joint possession of the suit schedule property after the death of Hanumaiah, the father of 1st plaintiff and 2nd plaintiff ?

          3. Whether the plaintiffs prove that the husband of the 1st defendant aunt was managing the suit schedule property as a manager ?

          4. Whether the plaintiffs prove that the sale deed executed by 1st defendant in favour of 3rd defendant is not binding on them and the same is null and void ?

          5. Whether the 1st defendant proves that the item No.1 of the suit schedule property is the self acquired property of her husband and the item No.2 fell to his share in the partition ?

          6. Whether the alleged cause of action is true ?

          7. Whether the plaintiffs are entitled to the relief?

          8. What Order or decree?".

Additional Issue:

          "1. Whether 3rd defendant proves that he is the bonafide purchaser of 1 acre 30 guntas in Survey No.62, under a registered sale deed dated 23.09.1992 ?".

10. The plaintiffs, in order to substantiate their case, examined plaintiff No.2 as P.W.1 and got marked the documents as Exs.P1 to P31. On the other hand, defendants examined defendant No.1 as D.W.1 and Special Power of Attorney holder as D.W.2 and got marked the documents as Exs.D1 to D22.

11. The Trial Court having considered the material on record, answered issue Nos.1 to 4 and 6 and 7 as 'negative' and issue No.5 as 'affirmative' that item No.1 of the suit schedule properties is the self-acquired property of her husband and item No.2 fell to his share in the partition. The additional issue No.1 is answered as 'affirmative' that defendant No.3 is the bondafide purchaser of 1 acre 30 guntas in Sy.No.62 under a registered sale deed dated 23.09.1992 and dismissed the suit.

12. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.8/2003. The First Appellate Court considered the grounds urged in the appeal memo, wherein it is contented that the Trial Court committed an error in considering both oral and documentary evidence and committed an error in answering issue Nos.1 to 4 and 6 and 7 as 'negative' and issue No.5 as 'affirmative', in coming to the conclusion that defendant No.1 is the owner of item No.1 of the suit schedule properties is the self-acquired property of her husband and item No.2 has fallen to his share in the partition and also answered additional issue No.1 as 'affirmative' that defendant No.3 is the bonafide purchaser of 1 acre 30 guntas in Sy.No.62 under a registered sale deed dated 23.09.1992.

13. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the following points for consideration which reads as hereunder:

          "1. Whether the impugned judgment and decree of the learned trial Court is arbitrary, perverse, capricious and opposed to well established principle of law ?

          2. Is there any sufficient reasons to interfere in the order of learned trial Court ?

          3. What decree or order ?".

14. The First Appellate Court also having reassessed both oral and documentary evidence, confirmed the judgment of the Trial Court, in coming to the conclusion that there is no evidence before the Court to prove the fact that suit schedule properties are ancestral properties and the same was under cultivation of husband of defendant No.1 and there is no such joint family in existence and concurred with the finding of the Trial Court that item No.1 of the suit schedule properties was purchased by husband of defendant No.1 and the same is the self-acquired property of defendant No.1 and subsequent to the death of husband of defendant No.1, the property has fallen to the share of defendant No.1, who is none other than the wife of late Narayanappa. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

15. This Court, having taken note of the grounds urged before this Court, admitted the second appeal and framed the following substantial questions of law which reads as hereunder:

          "1. Whether the first appellate Court is justified in not considering the two applications filed by the appellants under Order 41 Rule 27 of CPC seeking permission to produce certain documents and passing order thereof while dismissing the appeal R.A.8/03?

          2. Whether the Courts below erred in not accepting the case of the plaintiffs for partition and separate possession of their legitimate share in suit properties in view of admitted relationship and absence of earlier partition?"

16. The main contention of learned Senior counsel and learned counsel for appellant No.2 is that item No.1 of the suit schedule properties is totally measuring 3 acres 22 guntas. The counsel would submit that entire 3 acres 22 guntas had fallen to the share of Hanumaiah. Even though, there was partition among Hanumaiah and his children, but he had sold property to the extent of 1 acre 31 guntas vide sale deed dated 02.08.1957 and remaining extent of 1 acres 30 guntas stands in the name of Hanumaiah. The sold property was northern portion and retained property was southern portion. The counsel also submit that in the sale deed dated 02.08.1957, it is specifically mentioned that he has retained southern portion of the property. The counsel would submit that son of Hanumaiah i.e., Narayanappa had sold remaining 1 acre 31 guntas on 09.08.1957 and he was not having any right to sell the same and both the sale deeds are in favour of Gullappa. The counsel also would submit that the boundaries mentioned in the sale deed dated 02.08.1957 and the sale deed dated 09.08.1957 are one and the same. The counsel would submit that Ex.P8 clearly discloses the total area of the property is measuring to an extent of 3 acres 22 guntas. Hence, it is clear that entire extent of 3 acres 22 guntas belongs to said Hanumaiah. The counsel would submit that Narayanappa, who had sold the property on 09.08.1957 had repurchased the same in the year 1962 and the property which was sold by Hanumaiah was repurchased by plaintiff No.1-Manidasappa in the year 1959. But, counsel would submit that southern portion of the property which had fallen to the share of Hanumaiah was the joint family property and sale was not made by Hanumaiah during his lifetime and also not executed any testamentary document and item No.2 also fallen to the share of Hanumaiah. Even though, there was partition among Hanumaiah and his children, in respect of the property which was allotted in favour of Hanumaiah, there was no partition by his children. The counsel would submit that Hanumaiah died in the year 1958 and earlier there was oral partition between Hanumaiah and their children and both the Courts have committed an error in considering the material on record.

17. The counsel would submit that First Appellate Court also dismissed the applications filed under Order 41 Rule 27 of CPC on the ground that already those documents were produced and the said reason is erroneous. The counsel would vehemently contend that, out of 3 acres 22 guntas, only northern portion was sold and southern portion was retained by Hanumaiah. The counsel would submit that documents at Exs.P3 to P6 are very clear that item No.2 stands in the name of Hanumaiah and defendant No.3, who had purchased the property from defendant No.1 filed a suit for the relief of permanent injunction in respect of item No.1 and the said suit was dismissed. The counsel also submit that defendant No.1 also filed a suit for permanent injunction in respect of item No.2 and the same was also dismissed. It is also contended that plaintiff No.1 had repurchased 1 acre 22 guntas vide sale deed dated 11.05.1959. The counsel would submit that the property which belongs to plaintiff No.1 was got divided among themselves and in respect of the property which was left by Hanumaiah, his three sons have succeeded to the said property. The counsel would contend that Gullappa had no title to sell the property in favour of Narayanappa, as the very sale made by Narayanappa earlier in favour of Gullappa in the year 1957 also not conveys any title. The defendant No.1 had no right to convey item No.1 of the suit schedule properties in favour of defendant No.3 to the extent of acre 1 acre 30 guntas. Hence, prayed this Court to set aside the judgment of the Trial Court and the First Appellate Court and the reasoning given by the Trial Court is not based on any documents.

18. Learned counsel appearing for respondent No.1 and learned counsel appearing for respondent No.3(a) to (c) would vehemently contend that there was no existence of joint family properties and already there was partition and Hanumaiah had sold the property to the extent of 1 acre 31 guntas vide sale deed dated 02.08.1957 and the remaining property which was allotted in favour of Narayanappa was also sold vide sale deed dated 09.08.1957, though the description of the property in both the sale deeds are one and the same and it was set right while repurchasing the property by plaintiff No.1 as well as husband of defendant No.1 and both of them have repurchased the property equally to an extent of 1 acre 31 guntas each. The counsel would contend that plaintiffs have not challenged the sale deed executed by Narayanappa dated 09.08.1957 and even subsequently, when Gullappa sold the very same property in favour of Narayanappa, the same was also not challenged and kept quiet till 1992. The counsel would contend that from 1957 onwards, no documents are placed before the Court that remaining extent of 1 acre of the property was standing in the name of Gullappa and the katha was changed in the name of Narayanappa when he had purchased the property on 09.08.1957 and after having repurchased the property, all the revenue records stands in the name of Narayanappa i.e., the husband of defendant No.1.

19. The counsel also brought to notice of this Court Ex.D13-partition deed among the family members of plaintiffs and the same was a registered document dated 07.10.1983 and also Ex.D14-sale deed executed in favour of Ramaiah by plaintiff No.3 on 23.01.1989, in these two documents, i.e., partition deed and sale deed, it is categorically mentioned that southern portion of the property belongs to Narayanappa i.e., the husband of defendant No.1 and when there is a clear admission that property belongs to Narayanappa, who had purchased the same on 10.12.1962 as per Ex.D12, the very contention of the plaintiffs that suit schedule properties are ancestral properties cannot be accepted. The plaintiff No.3, who took share in the partition had sold northern portion of the property and there is no material to show that family was continuing as joint family. Hence, concurrent finding is based on material available on record. The plaintiffs suppressed the facts and made an attempt to knock off the property of defendant No.1, who had already sold item No.1 of the property in favour of defendant No.3 and defendant No.3 is a bonafide purchaser. Hence, the Trial Court rightly answered additional issue No.1 in favour of defendant No.3, issue No.5 in favour of defendant No.1 and issue Nos.1 to 4 and 6 and 7 as 'negative'. Hence, question of entertaining the second appeal does not arise.

20. In reply to the argument of learned counsel appearing for respondent No.1 and learned counsel appearing for respondent No.3(a) to (c), learned Senior counsel and learned counsel for appellant No.2 brought to notice of this Court admission on the part of D.W.1, wherein she claims that her husband got the property in the partition in respect of other properties and not in respect of Sy.No.62 i.e., item No.1 of the suit schedule properties. Hence, question of executing the sale deed on 09.08.1957 does not arise.

21. The learned Senior counsel in support of their argument relied upon the judgment in WADI vs. AMLLAL AND OTHERS reported in ILR 2003 KAR 4637 and brought to notice on this Court paragraph No.7, wherein the Apex Court has held that the requirement or need is that of the appellate Court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment, admission of such evidence is necessary. The counsel also brought to notice of this Court scope of Order 41 Rule 27 of CPC and contend that Trial Court committed an error in dismissing the applications filed under Order 41 Rule 27 of CPC and ought to have received the documents as additional evidence to consider the germane issues involved between the parties.

22. The counsel also relied upon the judgment in GANAPATI SANTARAM BHOSALE vs. RAMACHANDRA SUBBARAO KULKARNI reported in ILR 1985 KAR 1115 and brought to notice of this Court paragraph No.19 and contend that in a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties which fall to his share. In the case on hand also, relief is sought that the sale is not binding.

23. Having heard learned Senior counsel and learned counsel for appellant No.2 as well as learned counsel appearing for respondent No.1 and learned counsel appearing for respondent No.3(a) to (c) and also keeping in view the substantial questions of law framed by this Court, this Court has to consider the material on record.

Substantial questions of law No.1 and 2:

24. This Court would like to consider both the substantial questions of law together since both are interlinked with each other. The first substantial question of law is in respect of considering the applications filed by the appellants under Order 41 Rule 27 of CPC filed in R.A.No.8/2003 seeking permission to produce certain documents and the second substantial question of law is on the merits of the case. Admittedly, three documents are sought to be produced along with the applications i.e., sale deed dated 02.08.1957 and the same was already produced and marked as Ex.P3 and no dispute with regard to the fact that Hanumaiah had executed the said sale deed. It is also important to note that other documents which are sought to be produced is sale deed dated 09.08.1957 and the said sale deed is executed by Narayanappa in favour of Gullappa. It has to be noted that within a span of 7 days, the said sale deed was executed by Narayanappa, who is none other than brother of plaintiff No.1 and the said sale deed was not challenged by the plaintiffs or defendant No.2 or even the father of plaintiff No.1, Hanumaiah.

25. It is important to note that, if Hanumaiah was having entire extent of land measuring 3 acres 22 guntas and sold portion and retained other portion, which was retained by him, he would have challenged the same, since the second sale deed was executed on 09.08.1957 within a span of 7 days by his son and he sold the property to the extent of 1 acre 31 guntas in the northern portion and not southern portion. No doubt, learned counsel would vehemently contend that while selling the said property, he had mentioned that he has retained southern portion, if he has retained southern portion, he would have challenged the said sale deed which came into existence within a span of 7 days, but he has not done the same. Admittedly, the learned Senior counsel would contend that Hanumaiah died in the year 1958 that means, he was alive when the sale deed dated 09.08.1957 was executed by his son Narayanappa. It is also important to note that father had sold the property in favour of Gullappa and his younger brother Narayanappa, in turn sold the same in favour of Gullappa. It is also important to note that father had sold northern portion of the property in favour of Gullappa. The plaintiff No.1 himself had repurchased the property in the year 1959 itself, but plaintiff No.1 also had not challenged the sale deed executed by his younger brother on 09.08.1957.

26. It has to be noted that property which was sold by Narayanappa in favour of Gullappa on 09.08.1957 was again repurchased in the year 1962 by him. These are the sale deeds which were not challenged even after the death of father Hanumaiah either by plaintiff No.1 or by defendant No.2. It is also important to note that there was partition in the family of the plaintiffs in the year 1983 i.e., on 07.10.1983 and those properties which had fallen to the share of Munidasappa i.e., first son of Hanumaiah was also got divided under the registered partition and while registering the said partition, the property was allotted in favour of plaintiff No.3 is purchased by his father in respect of same survey number, where southern boundary was shown as property of Narayanappa, that means Narayanappa i.e., the husband of defendant No.1, who had purchased the property in the year 1962 was admitted by the plaintiffs. If there is no such property of Narayanappa on the southern side, they would have mentioned the same as joint family property of the plaintiffs as well as defendants. It is important to note that when the plaintiff No.3, who got the property under the partition in the year 1983 also sold the property which he had acquired through the partition and while selling the property, the southern boundary is shown as the property of Narayanappa. Hence, it is very clear that property belongs to the family of Narayanappa. All these documents were taken note of by the Trial Court as well as the First Appellate Court while appreciating the evidence available on record, particularly Ex.D13-partition deed and Ex.D14-sale deed executed by plaintiff No.3 on 23.01.1989, the southern boundary is shown as property of Narayanappa.

27. This Court has taken note of all the material documents before the Court i.e., sale deed dated 02.08.1957, subsequent partition deed and also sale deed executed by plaintiff No.3 i.e., Exs.D13 and D14. These documents pertain to the sale deed executed by Hanumaiah during his life time and the document of Ex.D13 is the registered partition deed of the year 1983 among the plaintiffs. The document of Ex.D14 is the certified copy of the sale deed and Ex.D12 is the certified copy of the registered sale deed dated 02.08.1957 and Ex.P3 is the registered sale deed dated 02.08.1957. When such being the case, the documents which are sought to be produced before the First Appellate Court i.e., sale deed dated 02.08.1057 is already on record. But, the sale deed dated 09.08.1957 was not before the Court and the same was executed by Narayanappa in favour of Gullappa and another sale deed is dated 11.05.1959 under which the plaintiff No.1 had repurchased the property which was sold by his father and these documents will not come to the aid of the appellants with regard to the germane issues involved between the parties as in respect of sale made by the father and the same is not disputed. The very contention of the plaintiffs is that property was retained by the father in respect of remaining land in Sy.No.62. But, subsequent to the sale made by the father vide sale deed dated 02.08.1957, they had retained the remaining properties are concerned, no document is produced before the Court and admittedly, the father died in the year 1958. Even subsequent to his death also, item No.1 of the suit schedule properties was not standing in his name and his son Narayanappa had sold remaining portion of the property in the year 1957 itself as per sale deed dated 09.08.1957 and the same was not questioned. The revenue documents stands in the name of purchaser Gullappa and subsequently, the very same property was purchased by Narayanappa in the year 1962 and no property stands in the name of either Hanumaiah or plaintiffs or husband of defendant No.1 and defendant No.2 to show that the said property remains with the joint family.

28. Though it is contented that the husband of defendant No.1 was the manager of the family and in order to substantiate the fact that he was the manager of the family, no material is placed before the Court. On the other hand, plaintiff No.2, who has been examined as P.W1 categorically admitted that his father was the elder member of the family and husband of defendant No.1 and defendant No.2 are the younger brothers of plaintiff No.1. When such material was considered by the Trial Court and the First Appellate Court, even the First Appellate Court also in paragraph No.27, taken note of Order 41, Rule 27 of CPC and in paragraph Nos.28 and 29 comes to the conclusion that those documents are not at all relevant at this juncture, since Ex.P3-sale deed dated 02.08.1957 was already on record. Though, the sale deed dated 09.08.1957 was not before the Court, but another sale deed dated 11.05.1959 under which plaintiffs had purchased the property is not in dispute and the only dispute is in respect of southern portion of the property and the same was acknowledged by plaintiffs themselves in their document itself at Ex.D1, partition deed and also the sale deed of plaintiff No.3 when he sold the property in the year 1989 and in both the documents, southern side of the property is shown as property of Narayanappa. Hence, the plaintiffs now cannot contend that they are entitled for share in suit item No.1, so also in respect of suit item No.2 is concerned contending that the same belongs to Hanumaiah and nothing is placed on record to show that the said property was allotted in favour of Hanumaiah in the partition and property was standing in his name.

29. The Trial Court, while answering issue Nos.1 and 2, rightly comes to the conclusion that plaintiffs failed to prove that suit schedule properties remains as joint family properties of the plaintiffs and defendant Nos.1 and 2 and so also, the plaintiffs failed to prove that plaintiffs and defendant Nos.1 and 2 are in joint possession of the suit schedule properties after the death of Hanumaiah and no such material is placed before the Court that they are in joint possession of item Nos.1 and 2 of the suit schedule properties. It is the specific case of defendant No.1 that her husband has acquired the property and the same is the self-acquired property of her husband. The plaintiffs also failed to prove that husband of defendant No.1 was managing the suit schedule properties as a manager and no clinching evidence is placed before the Court and it is also very clear that sale deed executed by defendant No.1 in favour of defendant No.3 is not binding on the plaintiffs also, nothing is placed on record. The contention that the sale deed is null and void also cannot be accepted, since Narayanappa sold the property in the year 1957 in favour of Gullappa and the same was repurchased in the year 1962 and from that date, the same was not disputed till filing of the suit from 1962 to 1992. But in the year 1992, wife of Narayanappa had sold the property in favour of defendant No.3.

30. When such being the case, when the document for a decades stands in the name of husband of defendant No.1 and the same was sold to defendant No.3 as it was self- acquired property of husband of defendant No.1. The Trial Court has not committed any error and while answering the additional issue No.1 also, the Trial Court has taken note of the fact that defendant No.3 proves that she is the bondafide purchaser of 1 acre 30 guntas in Sy.No.62 under registered sale deed dated 23.09.1992 and when the property was sold by wife of defendant No.1 in favour of defendant No.3, the eyes of the plaintiffs have become red and contend that suit schedule properties are joint family properties and no document shows that suit schedule properties are ancestral joint family properties and the same is in joint possession. When such being the case, I am of the opinion that Trial Court has not committed any error in appreciating both oral and documentary evidence and rightly comes to the conclusion that issue Nos.1 to 4 have not been proved and rightly held issue No.5 and additional issue No.1 in favour of defendant No.1 as well as defendant No.3.

31. The First Appellate Court also reassessed the evidence available on record and taken note of each and every documents which came into existence among the family. Though, it is contended by learned Senior counsel and learned counsel for appellant No.2 that remaining property stands in the name of Hanumaiah, nothing is placed on record, except relying upon the document of Ex.P8 and no document discloses that the said property was allotted in favour of Hanumaiah in entirety and it was standing in the name of Hanumaiah after partition and the same continued as a joint family property. Hence, I do not find any error on the part of Trial Court and the First Appellate Court. Mere error in showing the description of the property in the sale deed dated 02.08.1957 cannot be a ground to come to a conclusion that properties are joint family properties, since subsequently when the sale deeds were executed by the respective parties, even families of the plaintiffs have admitted that the southern side of the property belongs to Narayanappa and now cannot contend that the properties are joint family properties. With regard to the applications filed under Order 41 Rule 27 of CPC, the First Appellate Court comes to the conclusion that properties were not joint family properties and the documents which are sought to be produced as additional documents will not come to the aid of the appellants.

32. No doubt, learned Senior counsel and learned counsel for appellant No.2 relies upon the judgment of the Apex Court in Wadi's case referred supra relying paragraph No.7, no dispute with regard to the principles laid down in the said judgment regarding receiving of additional documents. The counsel also relied upon the judgment in Ganapati Santaram Bhosale's case referred supra relying paragraph No.19, it is held that in a suit for partition by Hindu coparcener, it is not necessary for him to seek the setting aside of the sale. But, in the case on hand, it is specifically stated that sale made by defendant No.1 in favour of defendant No.3 is not binding and such relief is enough. But, the plaintiffs failed to make out a case for the relief of partition and the sale is not binding, since from the period from 1957 to 1992 till filing of the suit, no documents to show that properties belong to joint family as contended by the plaintiffs. Under the circumstances, I answer substantial questions of law No.1 and 2 as 'negative'.

33. In view of the discussion made above, I pass the following:

ORDER

The regular second appeal is dismissed.