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2009 DIGILAW 92 (KAR)

K. Madhava Raja Nayak v. K. Sridhara Nayak

2009-02-02

B.V.NAGARATHNA, K.L.MANJUNATH

body2009
Judgment :- This appeal is filed by the plaintiffs being aggrieved by the dismissal of O.S.No.3/1999 by Judgment and decree dated 28.8.2006 by the I Additional Civil Judge (Sr.Dn) at Mangalore. 2. For the sake of convenience the parties shall be referred to in terms of their status before the trial court. 3. The plaintiff had filed the suit for partition and separate possession with a direction to defendant to render accounts of income of the suit schedule properties and other incidental reliefs as well as for means profits. 4. According to the plaintiff, the plaintiffs and the defendants are related to each other as per the genealogy given at schedule ‘A’ to the plaint. One Venkappa Nayak was the common ancestor of plaintiff and defendant Nos.1 & 2 he died on 6.1.1962 leaving behind two wives. He was a trader by profession and also owned extensive agricultural lands at Kulur village and on account of his liabilities, the properties at the said village were sold and he thereafter went to Bombay and took up hotel business there. Initially he worked as a servant in a hotel and later acquired lucrative hotel business. The plaintiff was born at Bombay in the year 1929 and that he assisted his father in running the hotel business and out of the income generated, his father had acquired agricultural lands in South Canara District which are described as item No.1 of ‘B’ schedule property, in which according to the plaintiff, the descendants of late Venkappa Nayak through his first wife only have rights. From the hotel business properties in other villages were also acquired and during the life time of the plaintiff’s father he and the sons were living together and enjoying the said properties jointly. That in respect of properties other than item No. 1 of ‘B’ schedule, late Venkappa Nayak had earlier executed a registered Will dated 3.9.1960 and thereafter a codicil dated 20.11.1961 was executed under which he bequeathed the right in a major portion of his properties in favour of his second wife and her then minor son Ramachandra Nayak which included the properties in item No.2 of ‘B’ schedule. That within three months after the death of Venkappa Nayak disputes arose interse between the children of his first wife and the second wife and the matter was sought to be compromised amicably with the intervention of the elders and well-wishers and in the said compromise it was decided to equalise the allotment of properties with reference to shares of parties and that Rohini @ Lakshmibai (Second wife of Venkappa Nayak) had agreed to convey and transfer the properties detailed in item No.2 of ‘B’ schedule to the sons of first wife to be held by them as joint family properties in lieu of other lands given to Rohini @ Lakshmibai and her son instead of upsetting the whole bequest and that Rohini would execute the above properties for nominal price. That the plaintiff being a senior most male member amongst the first wife’s children and who had undertaken cashew business and had incurred heavy loss and was indebted to M/s. Srinivas Ranga Pai and Indian Overseas Bank and the total liability exceeded above Rs.5,00,000/-. It was agreed that the plaintiff’s name as a vendee would not be included in the sale documents to be executed by Rohini @ Lakshmibai and it was therefore decided that item No.2 to be purchased in the names of defendant Nos.1 & 2. That under the above Will defendant Nos. 1 & 2 had received other properties and the plaintiff had also got some lands which were all tenanted lands. Accordingly, as per the above understanding and settlement arrived at Rohini @ Lakshmibai executed registered sale dee dated 26.3.1962 in respect of second item of ‘B’ schedule properties in favour of defendant Nos. 1 & 2 only for a nominal sum and the said properties were enjoyed by defendant No.1 & 2 jointly with the plaintiff and they constituted joint family properties and the plaintiff thus has 1/3rd share in the said properties. According to the plaintiff item No.1 & 2 properties continued as joint family properties and out the plaintiff’s individual mulgeni properties certain outstanding debts were cleared. According to the plaintiff item No.1 & 2 properties continued as joint family properties and out the plaintiff’s individual mulgeni properties certain outstanding debts were cleared. Subsequently, the plaintiff along with certain members of the joint family and other relatives had started plastic manufacturing unit by name Canara Cordage Industries on partnership basis and the said venture also went into rough weather and the plaintiff negotiated with the Canara Bank to settle the liability in respect of the said business; that lands were purchased in the name of defendant No.2 under three separate sale deed dated 6.7.1988 and in the name of 5th defendant certain properties shown as 3rd schedule were purchased with the help of joint family funds. Later defendant No.2 acquired some lands detailed in item No.6 of ‘B’ schedule in the names of defendant Nos.6 to 8 under two registered sale deeds 7.7.1994 17.4.1995 that these properties are also joint family properties. Thus plaintiff is entitled to 1/3rd share in properties covered under items 3, 4, 5 and 6 of ‘B’ schedule. According to the plaintiff, defendants had instituted O.S.No.327/1997 without making the plaintiff a party and had treated ‘B’ schedule properties as joint family properties and had partitioned the said properties under a compromise decree dated 29.1.1998 and that the plaintiff is entitled to 1/3rd share in all the ‘B’ schedule properties. That on account of his business, he shifted to Mangalore and that in O.S.No.327/1997 it has been conceded by the concerned partition that the properties are joint family properties but he was not made a party to the said proceeding and therefore, he is entitled to 1/3rd share in the ‘B’ schedule property. Hence the suit was filed for partition and separate possession and for other incidental reliefs. 5. After service of summons and notice from the trial court, the defendants appeared and defendant Nos. 1, 3 and 4 filed a joint written statement while defendant Nos. 2 and 5 to 8 filed a separate written statement together. 6. According to defendant Nos. 1, 3 and 4, while adopting the written statement of defendant Nos.2 and 5 to 8 further averred that the suit schedule properties are not the properties in which the plaintiff has any right, title or interest and that the properties dealt with O.S.No.327/97 were some of the joint acquisitions of defendant Nos. 6. According to defendant Nos. 1, 3 and 4, while adopting the written statement of defendant Nos.2 and 5 to 8 further averred that the suit schedule properties are not the properties in which the plaintiff has any right, title or interest and that the properties dealt with O.S.No.327/97 were some of the joint acquisitions of defendant Nos. 1 and 2, but they were no acquired with the aid of the ancestral properties and that the present suit based on O.S.No.327/97 filed earlier between the defendants have no nexus with each other and that the manner in which defendant Nos.1 and 2 have dealt with their joint properties cannot be adjudicated to by the plaintiff. 7. Defendant Nos. 2 and 5 to 8 stated that Venkappa Nayak did not inherit any ancestral property, but at a young age of sixteen years, he left for Bombay and there, from the profits of the hotel business he had acquired properties in his own name and also certain properties in Dakshina Kannada District and the properties acquired by their father were his self-acquisitions and that he had bequeathed certain properties by his Will dated 3.9.1960 modified by a registered Codicil dated 20.11.1961. That the properties in Kuloor Village were not joint family properties, but self-acquisition of Venkappa Nayak and that they were lost under Karnataka Land Reforms Act being lands in possession of tenants and they were not discharged for family debts. That in the year 1949, the mother of plaintiff and defendant No.2 died and thereafter Venkappa Nayak had married Rohini @ Lakshmi Bai as second wife which was objected to by the plaintiff and thereafter, he never lived with his father. That their father had sent the plaintiff to Quilon for being trained in casehew trade in the year 1951 and a couple of years later, the plaintiff had returned to Bangalore and had stayed with his sister Tarabai and after marriage, he shifted to Kankanady and he started wholesale business in rice at Bunder, Mangalore, with the help of financial aid to an extent of Rs.15,000/-from the plaintiff father. That all the sons have sold the property bequeathed to them under the Will by the father. They have denied that they had any dispute within three months after the death of their father or that there was mediation or compromise as alleged in the plaint. That all the sons have sold the property bequeathed to them under the Will by the father. They have denied that they had any dispute within three months after the death of their father or that there was mediation or compromise as alleged in the plaint. That the sale made by Rohini @ Lakshmibai with regard to item ‘B’ schedule property in the name of defendant No.2 was not intended for the benefit of the plaintiff also. The said sale was made for discharging the liabilities and defendant Nos. 1 and 2 have discharged the said liabilities. That after the properties were purchased from Rohini @ Lakshmibai by defendant Nos. 1 and 2 improvements were made by defendant No.1 only. That the second defendant had sold the property at Barimar Village bequeathed to him by his father and started a transport business and out of the said income, he had acquired properties in his name and also in the name of his wife5th defendant. The sale deeds dated 11.5.1987, 23.4.1988 and 6.7.1988 are in the name of second defendant who had purchased the property mentioned therein in his own name out of his own funds. The properties mentioned in sale deeds dated 7.7.1999 and 17.4.1995 were purchased by the second defendant in his daughters’ name and not with the family funds. That the properties listed in items IV and V of the plaint ‘B’ schedule are the acquisition of the 5th defendant from the funds of her husband-second defendant. A portion of item IV property was sold by 5th defendant from one Vilasini Bhat and the same was purchased from the land of plaintiff’s daughter Sujatha Prabhu with whom the plaintiff was residing in the said property. According to the defendants, the legacies received by the sons of Venkappa Nayak are from separate properties and the properties subsequently acquired by each son or by the members of the family cannot be claimed as acquisition from any ancestral property. Hence, the plaintiff had nothing to do with O.S.No.327/97 and therefore, he was not arrayed as a party in the said suit. The plaintiff’s right in the share in plaint ‘B’ schedule property is denied and the defendants, therefore, sought for dismissal of the suit. 8. Hence, the plaintiff had nothing to do with O.S.No.327/97 and therefore, he was not arrayed as a party in the said suit. The plaintiff’s right in the share in plaint ‘B’ schedule property is denied and the defendants, therefore, sought for dismissal of the suit. 8. On the basis of the above pleadings, the trial court framed the following issues at para 13 of the judgment: i) Whether the plaintiff proves that the properties of Venkappa Nayak were joint family properties and not his self-acquisitions? ii) Whether the plaintiff proves that in the properties listed as item I plaint ‘B’ schedule it is only the sons of Venkappa Nayak by his first wife who have rights? iii) Whether the defendants prove that by his Will read with the Codicil, Venkappa Nayak bequeathed his properties separately to each son absolutely and that the property bequeathed to each son is the separate property of each son? iv) Whether the plaintiff that he has only right in the properties bequeathed to Sridhara Nayak and Pundalika Nayak? v) Whether the plaintiff proves that item No.II of plaint ‘B’ schedule is the joint family property of the plaintiff and the defendants 1 and 2? vi) Whether the plaintiff proves that the properties purchased under sale deeds dated 11.5.1987, 23.4.1998 and 6.7.1998 were from joint family funds? vii) Whether the plaintiff proves that the properties purchased under sale deeds dated 7.7.1994 and 17.4.1995 were from joint family funs? viii) Whether the plaintiff proves that he is entitled to shares in items II, III and IV and V and VI of plaint ‘B’ schedule? ix) Whether the plaintiff is entitled to question the fairness of the bequeaths made by his father? x) Whether the plaintiff proves that there was dispute about his father’s will and the dispute become the subject matter of mediation by Kudupi Srinivas Shenoy and Raghunath Pai Kasthuri? xi) Whether the plaintiff proves that the sale of item No.II of the plaint ‘B’ schedule property by Rohini alias Laxmibai as guardian of her minor son in favour of defendants No.1 and 2 was pursuant to a compromise intended to equalise the distribution under father’s will and to have the Will from challenge? xi) Whether the plaintiff proves that the sale of item No.II of the plaint ‘B’ schedule property by Rohini alias Laxmibai as guardian of her minor son in favour of defendants No.1 and 2 was pursuant to a compromise intended to equalise the distribution under father’s will and to have the Will from challenge? xii) Whether the plaintiff proves that the sale of item II of plaint ‘B’ schedule was intended to be for the benefit of not only defendants 1 and 2 but also benami for the plaintiff? xiii) Whether the property sold by Rohini alies Laxmibai by sale-deed dt. 26.3.1962 was bequeathed by Venkappa Nayak to his minor son with the obligation of discharging liabilities mentioned in the Will and the sale to the defendants 1 and 2 was for discharging the liability? xiv) Whether the plaintiff proves that the property sold by Rohini alias Laxmibai under sale deed dated 26.3.1962 continued to be enjoyed by plaintiff along with the defendants No.1 and 2? xv) Whether the plaintiff proves that the liability of M/s. Canara Cordage Industries to Canara Bank amounted to Rs.35,00,000-00 and the funds borrowed from Canara Bank were used to improve item No.II of the plaint ‘B’ schedule? xvi) Whether the suit valuation is correct and whether the suit should have been valued under Section 35(1) of Karnataka Court Fees and Suits Valuation Act? xvii) Whether the plaintiff is entitled to an account of the income of suit properties? xviii) What is the correct income of the several items of suit properties? xix) Whether the manner in which the defendants 1 and 2 in the suit O.S.No.327/1997 chose to deal with the properties not belonging to the plaintiff can furnish any cause of action to the plaintiff? xx) Whether the plaintiff proves that Venkappa Nayak and his sons lived together in a common mess? xxi) What reliefs? 9. In support of their case, the plaintiff examined PWs.1 to 4 and got marked Exs.P-1 to P-49 while the defendants examined DW.1 i.e., defendant No.2 and got marked Exs. D1 to D-35. 10. On the basis of the material on record, the trial court held Issue Nos. xxi) What reliefs? 9. In support of their case, the plaintiff examined PWs.1 to 4 and got marked Exs.P-1 to P-49 while the defendants examined DW.1 i.e., defendant No.2 and got marked Exs. D1 to D-35. 10. On the basis of the material on record, the trial court held Issue Nos. 1, 2, 6 to 8, 14, 15, 19 and 20 in the negative and issue Nos.3 and 16 in the affirmative and issue Nos.4, 5, 9 to 13, 17 and 18 as does not arise and accordingly, dismissed the suit of the plaintiff. Being aggrieved by the said judgment and decree, the plaintiff has preferred this appeal. 11. We have heard M/s. Upasana Associates learned counsel for the appellant and Sri. K.M. Nataraj learned counsel for the respondents. 12. Learned counsel for the appellant has submitted that the trial court was not right in dismissing the suit of the plaintiff by holding that the plaintiff/appellant had failed to prove that the suit ‘B’ schedule properties were acquired out of joint corpus and even in O.S.No.327/97 the defendant had categorically admitted that the suit schedule properties are the joint family properties. He submits that even after bequest was made under the Will by the father, there existed a joint family and therefore, the properties acquired even after the death of the plaintiff’s father by the defendants were joint family acquisitions and that appellant-plaintiff has a share in the suit properties. That the trial court failed to appreciate the fact that the sale made by Smt. Rohini alias Lakshmibai in the name of defendant Nos. 1 and 2 only was on account of the debts incurred by the appellant and therefore, his name was not included in the sale deed. He further submits that the trial court failed to appreciate that plaintiff’s father Venkappa Nayak had inherited ancestral properties and even otherwise then properties acquired by him were considered as joint family properties and therefore, the finding of the trial court denying the share of the appellant in the said properties are erroneous and hence, he requests this court to set aside the judgment and decree of the trial court and allow the reliefs claimed by him in the plaint. 13. 13. Per contra, counsel for the respondent while supporting the judgment and decree of the trial court has submitted that the trial court has rightly held that the properties of Venkappa Nayak were not the joint family properties, but were his self-acquisitions and that Venkappa Nayak by virtue of his registered Will and Codicil had bequeathed separately and absolutely to each sons certain properties as successors and not as coparceners and therefore, the properties inherited by them by virtue of the Will and Codicil could not be considered as joint family properties. He further submits that the properties purchased by the defendants subsequent to the death of their father out of their own funds in their own names were never treated as joint family properties in which the plaintiff/appellant also had a share. The defendants on account of their mutual arrangement had entered into a compromise in O.S.No.327/97 and that the plaintiff had no right, title or interest in the properties which were the subject matter of the said compromise. He further submits that in view of the of the negative finding on issue Nos. 1, 2, 6 to 8, 14, 15, 19 and 20 and the affirmative finding on issue Nos. 3 and 16, the trial court was justified in not considering the other issues and thereby dismissing the suit of the plaintiff. He therefore, submits that there is no merit in this appeal and the same has to be dismissed. 14. Having regard to the above submissions, the following points arise for out considerations: i) Whether the properties which were subject matter of bequest made by plaintiff’s father Venkappa Nayak were not his joint family properties but were his self-acquisitions? ii) If the answer to point No.1 is in the affirmative, whether the bequest made by Venkappa Nayak in favour of his sons has reached finality? iii) Whether the appellant has any share in the suit schedule properties? iv) What order? 15. According to the plaintiff, the properties bequeathed by his father Venkappa Nayak were the joint family properties and not his self-acquisitions. He further submits that his father’s family had agricultural lands at Kuloor Village near Mangalore, and the said properties were disposed of by his father and he went to Bombay to pursue hotel business and that the plaintiff was born at Bombay. He further submits that his father’s family had agricultural lands at Kuloor Village near Mangalore, and the said properties were disposed of by his father and he went to Bombay to pursue hotel business and that the plaintiff was born at Bombay. However, no material has been produced to show that plaintiff’s father had inherited joint family properties and that with the aid of the said properties he had acquired some more properties. 16. On the other hand, it is the clear averments of the plaintiff that his father went to Bombay and did hotel business and thereafter he was able to acquire hotels and out of the profits from the hotel business he had acquired certain properties at Bombay as well as in Dakshina Kannada District. Therefore, in the absence of any material on record with regard to the nucleus of ancestral property with the aid of which plaintiff’s father had acquired certain properties and out of which the suit schedule properties were acquired, we are not in a position to hold that the suit schedule properties are the joint family properties in which the plaintiff has a share. 17. In this context, it would be relevant to note that the property under Hindu Law can be classified under two heads: (1) coparcenary property and (2) separate property. Coparcenery property is again divisible into (i) ancestral property and (ii) joint family property which is not ancestral. This latter kind of the property consists of property acquired with the aid of ancestral property and property acquired by individual coparceners without such aid, but treated by them as property of the whole family. Joint family property is qualified in a two-fold manner viz., it must be a joint family property and it must also be ancestral. It is obvious that there must have been a nucleus of joint family property before an ancestral joint family property can come into existence because the word ancestral connotes descent and hence, pre-existence. Where there is ancestral joint family property, every member of the family acquires in it a right by birth which cannot be defeated by individual alienation or disposition of any kind except under certain peculiar circumstances. Where there is ancestral joint family property, every member of the family acquires in it a right by birth which cannot be defeated by individual alienation or disposition of any kind except under certain peculiar circumstances. This is equally true of joint family property, where a sufficient nucleus of the property in the possession of the members of a joint family has come to them from a paternal ancestor, the presumption is that the whole property is ancestral and any member alleging that it is not, will have to prove his self-acquisition. Similarly, where property is admitted or proved to be joint family property, which may not have been acquired with the aid of ancestral property, but if the same has been treated by them as the property of the whole family, it is subject to exactly the same legal incidents as the ancestral joint family property. 18. Thus, coparcenary property means and includes (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisitions of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property and (4) separate property of the coparceners thrown into the common stock. 19. The term “ancestral property” has a special meaning in Hindu Law. That means only such property as is inherited by a male from father, father’s father and father’s father’s father and such inheritor’s son, son’s son and son’s son’s son get an interest in it by birth. Hence, unless there is a nucleus of ancestral property with the aid of which the acquisitions are made, the acquisitions cannot be included within the concept of coparcenary property available for partition between the members of the joint family. The coparcenary property is the property held by a coparcenary absolutely and free of all claims from the rest of the coparceners which is known as separate or self-acquired property. 20. Separate property of a person is property in respect of which other coparcenars can claim no light and on the death of the coparcener, the same is succeeded to not by survivorship but by inheritance, either testamentary or by intestate succession. 21. 20. Separate property of a person is property in respect of which other coparcenars can claim no light and on the death of the coparcener, the same is succeeded to not by survivorship but by inheritance, either testamentary or by intestate succession. 21. In the instant case, as is already noted, the plaintiff has failed to prove that there was any nucleus of ancestral property or joint family property with the aid of which his father had acquired properties and out of which the suit schedule properties have been acquired so as to make the suit schedule properties also joint family properties. There is also no evidence to the effect that the plaintiff along with his brothers and father have jointly acquired certain properties out of which the suit schedule properties were acquired so as to entitled the plaintiff a share in the said properties. On the other hand, plaintiff’s evidence shows that he had no documentary evidence to show that his father had ancestral properties coupled with his statement that his father had gone to Bombay to work in a hotel as a servant and thereafter, he started a business of hotel at Bombay and subsequently, acquired properties out of his earnings in the hotel business in Bombay also negatives the contention of the plaintiff that his father had inherited ancestral properties. The properties acquired by the plaintiff’s father Venkappa Nayak have to be held to be his separate properties and not ancestral or joint family properties. Under the circumstances, point No.1 is held in the negative. 22. According to the defendants, late Venkappa Nayak had bequeathed his separate properties by a registered Will and Codicil to each of his sons absolutely and the said fact has been admitted by the plaintiff who has stated that he had no right in the properties bequeathed in favour of his brothers just as they had no right in the properties bequeathed in his name. In view of the admission made by the plaintiff and our answer to point No.1, we hold that the separate properties of Venkappa Nayak were bequeathed by him to his sons and since there has been no challenge to the Will and Codicil of late Venkappa Nayak, we hold that the bequest made by him has achieved finality. In view of the admission made by the plaintiff and our answer to point No.1, we hold that the separate properties of Venkappa Nayak were bequeathed by him to his sons and since there has been no challenge to the Will and Codicil of late Venkappa Nayak, we hold that the bequest made by him has achieved finality. The parties have acted upon the terms and conditions of the Will and the plaintiff has also admitted in his evidence that he has sold properties in Balthilla Village which he had succeeded to under the Will & Codicil of his father in the year 1962 to one Smt. Satyamma and the properties at Barimar Village to Deekayya in the year 1962 apart from other properties which she had inherited under the Will. Hence, point No.2 is answered in the affirmative. 23. ‘B’ schedule of the plaint consists of six items. Item No.1 comprises of two immovable properties situated in Panemangalore Village, Bantwal Taluk; item No.2 comprises of 22 pieces of dry garden and wet lands situated in Panemangalore Village; item No.3 consists of 7 properties comprising of wet and garden lands; item No.4 comprises of 5 properties which are dry lands situated at Naricombu Village, Bantwal Taluk. Item No.5 comprises of two pieces of wet lands situated in Panemangalore Village, while item No.6 comprises of 3 properties at Naricombu Village comprising of dry and bagayat lands. The plaintiff has sought 1/3rd share in respect of the ‘B’ schedule properties. 24. In view of our findings with regard to point Nos.1 and 2 above, we hold that all those properties which are the subject matter of bequest in the registered Will and Codicil made by late Venkappa Nayak and succeeded to by the respective parties cannot now be reopened and hence, the plaintiff has no right, title and interest in respect of the properties which are the subject matter of the Will and Codicil. Hence point No.3 is answered against the appellant. 25. There is another aspect of the matter, O.S.No.327/97 was filed by K. Satish Nayak son of K. Sridhar Nayak who is defendant No.1/first respondent and in the said suit a partition was claimed between two branches of the family of Venkappa Nayak i.e., defendant Nos. 1 and 2 (respondent Nos. 1 and 2) herein in respect of properties held jointly as mentioned in ‘B’ schedule in the said suit. 1 and 2 (respondent Nos. 1 and 2) herein in respect of properties held jointly as mentioned in ‘B’ schedule in the said suit. The said suit was not filed for partition of ancestral properties or joint family properties which originally belonged to Venkappa Nayak, but the partition was sought in respect of properties held jointly by respondent Nos.1 and 2 herein. The plaintiff-appellant had no right, title or interest in respect of the suit schedule properties mentioned in O.S.No.327/97 and hence, he was not arrayed as party in the said suit. The said suit ended in a compromise and the properties were allotted respectively between the parties to the said suit who are all members of the family of respondent Nos. 1 and 2 herein. Merely because the plaintiff in O.S.No.327/97 had averred that the suit schedule properties mentioned in the said were ancestral properties or joint family properties or were acquired with the aid of ancestral properties or joint family properties cannot confer a right, title and interest in the plaintiff vis-à-vis those properties some of which are also subject matter of ‘B’ schedule in the instant suit. As already stated, the said suit ended in a compromise decree dated 29.1.1998. The appellant herein filed the suit after the conclusion of O.S.No.327/97 by merely basing this case on the averments made in the said suit, there is no explanation as to why the plaintiff chose to filed the suit in the year 1999 when the properties belonging to his father were bequeathed by a Will and Codicil which came into effect after the death of the testator i.e., the plaintiff’s father on 6.1.1962. The suit filed by the plaintiff in the year 1999 is not only belated, but is also frivolous only based on certain averments made in an earlier suit between the defendants which concluded in the year 1998 and in which the plaintiff was not a necessary party. Even otherwise assuming for a moment that he had the right to seek the reliefs, the plaintiff herein could have impleaded himself in the said suit and sought the very same reliefs he is seeking in the suit. 26. In view of our finding on point Nos. Even otherwise assuming for a moment that he had the right to seek the reliefs, the plaintiff herein could have impleaded himself in the said suit and sought the very same reliefs he is seeking in the suit. 26. In view of our finding on point Nos. 1, 2 and 3, we are of the view that the plaintiff is not entitled to any relief and the trial court has rightly dismissed the suit which judgment and decree we confirm. 27. Accordingly, the appeal is dismissed without any order as to costs.