JUDGMENT 1. These two appeals arise out of judgment and decree dated 17.02.1998 passed in O.S.No.10311/1983 by the II Addl. City Civil Judge, Bangalore, dismissing the suit as not maintainable and also on the ground that it is barred by Order 9 Rule 9 CPC. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. Before setting out the case of each party, it is necessary to set out the events which transpired from the date of institution of the suit till the date of commencement of trial, in order to properly appreciate the controversy between the parties. FACTUAL MATRIX 4. The plaintiffs initially filed a suit in O.S.No.10311/83 for the relief of permanent injunction restraining the defendants-1 to 11 or anybody claiming under them from putting up any construction or continuing the same in any portion of the land described in the schedule attached to the plaint and for mandatory injunction directing the defendants to pull down the constructions erected on the lands mentioned in the schedule and in the event of their failure to do so, direct demolition of the same through Court at the cost of the defendants. The subject matter of the suit as on the date of institution of suit, was only Sy.No.62 and Sy.No.55 of Saneguruvanahalli village. Subsequently, by way of an amendment some more items of properties came to be included to the schedule to the plaint and a prayer of partition was included. By an order dated 15.11.1990 passed on I.A.16, the suit came to be converted into a suit for partition and separate possession. Thus, in all, the suit consists of six items of properties. Similarly, from time to time, several applications were filed for impleading those persons who have purchased the suit properties in bits, which were allowed. Though initially, there were 11 defendants, in the end, the total number of defendants became 27. Additional issues have been framed twice. It is in this background, we have to appreciate the pleadings in the case. 5. The father of the first plaintiff viz., one Narasaiah @ C. Narasaiah was the propositus of the family. He had three sons namely Narasaiah, Narasimha Murthy and Lakshminarasappa and two daughters. Narasaiah and Narasimha Murthy, sons of C. Narasaiah are no more. It is in this background, we have to appreciate the pleadings in the case. 5. The father of the first plaintiff viz., one Narasaiah @ C. Narasaiah was the propositus of the family. He had three sons namely Narasaiah, Narasimha Murthy and Lakshminarasappa and two daughters. Narasaiah and Narasimha Murthy, sons of C. Narasaiah are no more. The first plaintiff is the son of Lakshminarasappa and the second plaintiff is the son of Narasaiah. The propositus, i.e., Narasaiah’s wife predeceased him. His two daughters are also no more. His another son Narasimha Murthy died leaving behind him, his wife Kittamma, the 11th defendant in the suit. 6. The land bearing Sy.No.62 measuring 1 acre 21 guntas and Sy.No.55 measuring 3 acres 24 guntas and items 3 to 6 of the plaint schedule are all lands attached to the office of the Shanbog of Saneguruvanahalli village and Shivanahalli Village. Except Sy.No.1 which is situated at Shivanhaalli, all other Sy.Nos are situated at Saneguruvanahalli village. After the death of C. Narasaiah, the holder of the aforesaid office, his sons continued as members of undivided Hindu Joint Family. They were in possession of the suit schedule lands apart from other lands belonging to the joint family. On the passing of the Karnataka Village Officer’s Abolition Act, 1961, (for short, hereinafter referred to as “the Act”), all the village offices were abolished and all incidents including the right to hold office and emoluments attached thereto, the right to levy customs fee or perquisites in money etc., pertaining to the aforesaid office were extinguished subject to Sections 5, 6 and 7 of the Act. 7. The plaintiffs filed an application for regrant of the aforesaid lands under the Act claiming 1/3rd share. However, the husband of the 11th defendant, Late, Narasimha Murthy filed an application claiming regrant of the entire land in his favour. All the applications were clubbed and after enquiry, the aforesaid lands came to be re-granted in the joint names of three brothers in HOM.155/68-69 by an order dated 20.06.1970. Before the said order, Narasimha Murthy died. During his lifetime, he had sold lands in Sy.Nos.62 and 55 of Saneguruvanahalli village in favour of the first defendant B. Rudraiah under a registered sale deed dated 11.03.1970. Before the said order, Narasimha Murthy died. During his lifetime, he had sold lands in Sy.Nos.62 and 55 of Saneguruvanahalli village in favour of the first defendant B. Rudraiah under a registered sale deed dated 11.03.1970. Therefore, after regrant, the legal heirs of Narasimha Murthy, i.e., the 11th defendant preferred an appeal in MA No.21/71 on the file of the District Judge, Bangalore. The order of regrant was set aside and the matter was remanded to the Assistant Commissioner for fresh enquiry. After such remand, as the power of regrant was delegated to the Tahsildar, the case was renumbered as HCA 68/79-80 before him. The Tahsildar held an enquiry and re-granted the lands in favour of the plaintiffs and Smt. Kittamma jointly on 19.04.1982. Aggrieved by the said re-grant, Smt. Kittamma, preferred an appeal in MA No.20/82 before the District Judge, Bangalore. In the said appeal, defendants-3 and 6 to 10 got themselves impleaded as respondents. After hearing all the parties, the appeal came to be dismissed on 17.12.1984. Challenging the said order of the learned District Judge, Smt. Kittamma preferred W.P.No.20197/84 before this Court, which came to be withdrawn with a liberty to file a Revision Petition. Accordingly, CRP No.309/85 was filed. Defendants-3 and 6 to 10 also had filed writ petitions which were also withdrawn. They also filed CRP 654/98 challenging the said order. CRP 309/85 came to be dismissed on 22.01.1985 on merits affirming the order of re-grant made in the joint names of plaintiffs and 11th defendant. Against the said order, Writ Appeal was filed, which was dismissed as not maintainable. Thereafter 11th defendant filed Review Petition seeking review of the order of the learned Single Judge passed in CRP 309/85 which was also rejected. Aggrieved by the same, the 11th defendant preferred Special Leave Petition to the Supreme Court of India in SLP (Civil) No.9347/85. On 09.01.1987 the Special Leave Petition was dismissed as withdrawn. 8. Mean while, the first defendant Rudraiah, claiming to be the tenant of the schedule property filed Form No.7 under the provisions of the Karnataka Land Reforms Act before the Land Tribunal, Bangalore North Taluk, which was numbered as LRF.INA 312/1983-84. Form No.7 was allowed granting occupancy rights. Aggrieved by the same, the plaintiffs preferred appeal in LRA 166/1987 before the Land Reforms Appellate Authority, Bangalore District. The appeal came to be rejected. Form No.7 was allowed granting occupancy rights. Aggrieved by the same, the plaintiffs preferred appeal in LRA 166/1987 before the Land Reforms Appellate Authority, Bangalore District. The appeal came to be rejected. Against the said order, the plaintiffs individually preferred two separate Revision Petitions in CRP No.625/1988 and CRP No.2898/88. After hearing all the parties, the CRPs were allowed by an order dated 18.07.1989 setting aside the orders passed by the Land Tribunal as well as the Land Reforms Appellate Authority, granting occupancy rights and rejecting Form No.7. The said orders were challenged before the Supreme Court in S.L.P.No.561 and 562/1998. The same came to be rejected on 04.02.1998. 9. The defendants who claim to have purchased bit of lands in the aforesaid survey numbers, filed W.P.No.3543/86 for a writ of mandamus directing the Tahsildar to consider their request for regularisation of the aforesaid lands contending that they have acquired title to the same by virtue of purchase of land under registered sale deed and regrant order made in favour of the their vendor will enure to their benefits. Plaintiffs were not impleaded as parties in the said writ petition. Behind their back and in their absence, the writ petition was allowed. On coming to know of the same, the plaintiffs filed applications in the said writ petition for a direction to consider their request. The same was also allowed. The Tahsildar, in pursuance of the orders passed by the High Court regularised the sale of land made in favour of Rudraiah-the first defendant in respect of Sy.No.62 and declined to do so in respect of Sy.No.55 as Rudraiah by then had sold the lands in said survey number and had no subsisting interest. The request of the plaintiffs was not considered. Therefore they preferred two writ petitions in W.P.No.22172 and 22173/90. Both the writ petitions were allowed holding that the first defendant is entitled to claim right, title and interest in the share of his vendor at a partition and the orders passed by the Tahsildar were quashed. 10. Therefore the plaintiffs contend that, the regrant of the land jointly made in their favour and the 11th defendant has become final. The application filed for grant of occupancy rights by the first defendant has been rejected and it has become final. 10. Therefore the plaintiffs contend that, the regrant of the land jointly made in their favour and the 11th defendant has become final. The application filed for grant of occupancy rights by the first defendant has been rejected and it has become final. His request to regularise the land purchased by him under a sale deed by virtue of regrant is also negatived by holding that he is entitled to claim right, title and interest in the share of his vendor only, that too at a partition. The plaintiffs and defendants-11 are co-owners and each one has undivided 1/3rd share in the schedule property. The first defendant claims that he had purchased the land from Late. Narasimha Murthy, the husband of 11th defendant under a sale deed dated 11.03.1970 and on that day the lands stood vested with the Government. The regrant was made on 20.06.1970. The alleged sale has come into existence prior to the date of regrant. The sale deed alleged to have been executed by late Narasimha Murthy is nothing to do with the property belonging to the plaintiffs. It will not come in the way of effecting partition and putting the plaintiffs in separate possession and enjoyment of their respective shares. Late Narasimha Murthy, who is alleged to have executed the sale deed in favour of the first defendant had no right whatsoever to transfer the right of the plaintiffs in favour of any other third persons. Therefore, even if there is a sale deed that has been executed by late Narasimha Murthy in favour of the first defendant, the same is not binding on the plaintiffs. The recitals in the sale deed are false. The plaintiffs have not admitted the genuineness of the alleged sale deed dated 11.03.1970. 11. The first plaintiff is very old and he is not keeping good health. The second plaintiff is employed. Of late, they noticed some constructions being put up over the land in Sy.No.62 and some temporary structures over the land in Sy.No.55 both of which formed a part of the schedule to the plaint. They reliably gathered that defendants-6 to 10 were putting up constructions in Sy.No.62. Rudraiah the first defendant who claims to have purchased the lands bearing Sy.No.55 and 62 from the husband of Smt. Kittamma, appeared to have divided the properties among his family members. They reliably gathered that defendants-6 to 10 were putting up constructions in Sy.No.62. Rudraiah the first defendant who claims to have purchased the lands bearing Sy.No.55 and 62 from the husband of Smt. Kittamma, appeared to have divided the properties among his family members. In that division, it is claimed that Sy.No.62 has been allotted to defendants-6 and 10. They appeared to have applied for grant of licence before the Village Panchayath for construction of a theater and a resolution to that effect has been passed. They further claim that they have obtained a No Objection Certificate from the District Magistrate. The defendants have no right, title or interest in or over the plaint schedule property and at rate to put up any construction or to continue the same. The authorities have no right to issue the No Objection Certificate in the absence of consent of the plaintiffs. The plaintiffs are not bound by the said NOC. The grant of NOC is illegal and without jurisdiction as the same is granted in violation of the mandatory requirement of law and principles of natural justice. The plaintiffs will take separate steps against the grant of the NOC by the District Magistrate before an appropriate forum. The plaintiffs’ rights are in jeopardy by reasons of illegal construction put up by the defendant on the lands. The buildings constructed are liable to be demolished as they were built on the lands belonging to the plaintiffs and hence illegal. 12. The plaintiffs and defendant 11 are co-owners and they have undivided interest in the suit schedule properties. The construction of building on the suit lands is detrimental to the interest of the plaintiffs and the law does not permit such constructions at all. The defendants have no right to put up any constructions. The plaintiffs approached the defendants and requested them not to put up any constructions or proceed with further construction. As they refused to do so, the suit is filed. The plaintiffs and 11th defendants are entitled to have their share worked out before this Court according to the order of regrant. Therefore, the suit is filed for the relief of partition, separate possession and for other consequential reliefs. 13. As they refused to do so, the suit is filed. The plaintiffs and 11th defendants are entitled to have their share worked out before this Court according to the order of regrant. Therefore, the suit is filed for the relief of partition, separate possession and for other consequential reliefs. 13. It is also stated that when the plaintiffs had filed O.S.No.3/1971 for the relief of partition in respect of schedule properties and other landed properties, the said suit came to be dismissed for default. Proceedings were initiated for restoration of the suit. The suit was restored. Subsequently, the suit was withdrawn, as the suit was premature and the cause of action to file a suit had not arisen. The said suit will not come in the way of decreeing this suit since it will not operate as res judicata. In fact, the right sue for partition to the plaintiffs arose only after withdrawal of the Special Leave Petition by the 11th defendant before the Supreme Court of India, which affirmed the order of regrant made in favour of the plaintiffs. Therefore the suit is maintainable. It is well within time. 14. After filing of this suit, the first plaintiff challenged the NOC issued in favour of defendants-6 and 10 before the Government of Karnataka and there was an order of remand passed in the revision petition presented by the first plaintiff. Against this order, defendants-6 and 10 presented Writ Petition 20052/83 and the matter was remanded to the Government of Karnataka for fresh enquiry. The Revision Petition was dismissed and the writ petition filed against the said order is pending. The plaintiffs have questioned the legality of the construction of the Cinema Theatre on the land in question as it is violative of the provisions of the Karnataka Cinemas Regulation Act, Karnataka Land Reforms Act and other appropriate laws on the subject. Therefore, the plaintiffs sought for a declaration that each plaintiff is entitled for 1/3rd share in the suit schedule property and put them in separate possession and enjoyment of their respective shares and for permanent injunction and mandatory injunction as referred supra. 15. Defendants-1, 3, 6 to 10 filed written statement, contending that the suit is not maintainable in law and the same is barred by res judicata. The suit in O.S.No.3/1971 was a suit for partition and separate possession of their shares, which was dismissed in 1978. 15. Defendants-1, 3, 6 to 10 filed written statement, contending that the suit is not maintainable in law and the same is barred by res judicata. The suit in O.S.No.3/1971 was a suit for partition and separate possession of their shares, which was dismissed in 1978. Even the Misc.No.335/82 filed for setting aside the said order of dismissal, was also dismissed. The grounds urged in the suit O.S.No.3/71 are the same as the one urged in the present suit. The present suit is barred by the principles of res judicata. The Court fee paid on the plaint is not correct and is insufficient. The plaintiffs have to pay ad-velorem court fee since they are admittedly not in possession of the suit schedule properties. The schedule properties are worth more than one crore. Mere allegation that they are in joint possession at this stage, cannot absolve the plaintiffs from payment of ad-valorem court fee. The suit for partial partition is not maintainable in law. All the properties alleged to have been re-granted are not included in the suit when the cause of action is based on the alleged regrant. The suit for partition must comprise of all the joint family properties and cannot be maintained only in respect of some properties. That principle applies even where some of the properties have gone out of the family and are in possession of the purchasers. By way of amendment, plaintiffs have sought for partition and possession of only the properties purchased by Rudraiah. The suit is therefore liable to be dismissed on the ground that such a suit for partial partition is not maintainable. Even if the amendment relates back to the date of the suit and it is deemed that the suit for partition is filed on the date when the present suit is filed, it is still beyond a period of 12 years from the date on which the alienee came into possession of the properties. Even otherwise, a sale effected by the manager of the joint Hindu Family is not void. Therefore, the plaintiffs are bound to seek for setting aside the sale deed and cannot merely pray that the alienation is not binding upon their shares. The suit without there being such a prayer is not maintainable against these defendants. 16. It was further contended that suit is bad for non-joinder of necessary parties. Therefore, the plaintiffs are bound to seek for setting aside the sale deed and cannot merely pray that the alienation is not binding upon their shares. The suit without there being such a prayer is not maintainable against these defendants. 16. It was further contended that suit is bad for non-joinder of necessary parties. Item No.2 of the schedule, i.e., lands comprised in Sy.No.55 is in possession of the alienees numbering nearly one hundred. The said persons are in possession and enjoyment for more than ten years having constructed houses in the said land bearing Sy.No.55. This fact also is within the knowledge of the plaintiffs. 17. Thereafter, the defendants have referred to various legal proceedings referred to in the plaint admitting the said proceedings and giving their own versions of the said proceedings. It was contended that in a suit for partition, where some of the properties are in possession of the alienees, the alienees are entitled to contend that the properties purchased by them should be allotted to the share of alienor and be entitled to take equities into consideration and direct that the properties alienated should be allotted to the share of the person who alienated the properties. The other joint family properties are lands comprised in Sy.No.12, 108 and 112 of Saneguruvanahalli village and Sy.No.1 of Shivanahalli Village and the total extent of land is more than 12 acres. 18. The suit was initially filed for permanent injunction restraining the defendants from putting up any construction on the lands in question and for a mandatory injunction for pulling down the structures constructed. The suit was instituted on 21.07.1983. It is not disputed that in pursuance of the sale deed, Rudraiah was put in possession of the properties in question. O.S.No.3/1971 was filed for partition and possession of several properties including the suit schedule properties and the alienees were made parties to the suit. The said suit was dismissed and miscellaneous petition filed for setting aside the ex-parte judgment and decree was also dismissed. Even in that suit there was no prayer for setting aside the sale deed admittedly executed by the manager of the Hindu Joint Family. An objection of that kind had also been raised in the earlier suit. A second suit for partition and possession is maintainable only if it is brought within a period of 12 years from the date of sale. An objection of that kind had also been raised in the earlier suit. A second suit for partition and possession is maintainable only if it is brought within a period of 12 years from the date of sale. Hence, the present suit filed on 21.07.1983 is barred by law of limitation. There is no cause of action for the suit and therefore they sought for dismissal of the suit. 19. After the plaint was amended, defendants-1, 3, 6 to 10 filed additional written statement. They contended that there was no joint family constituted by the plaintiffs and the husband of the 11th defendant. The joint family came to an end by virtue of partition effected amongst the plaintiffs and the husband of 11th defendant during the year 1960. Under that partition lands comprised in Sy.No.1 was allotted to the share of the plaintiffs. The rest of the lands viz., lands in Sy.No.55 and 62 of Sanneguruvanahalli and other Sy.Nos. mentioned in the suit schedule were left to the share of Narasimha Murthy, the husband of the 11th defendant and he was allowed to enjoy the same exclusively and from 1960 onwards except Sy.No.1 of Sannaguruvanahalli, and other lands were not in the possession of any of the plaintiffs. All these lands were left to be enjoyed by the 11th defendant and the 11th defendant continued to enjoy all the suit lands in her own right except Sy.No.1 of Sanneguruvanahalli village. From 1960 onwards, the lands were in possession and enjoyment of the husband of 11th defendant as stated above and by asserting his rights of ownership, he has sold portion of the lands to various purchasers long back. The plaintiff has filed O.S.No.1/1971 on the file of the then Civil Judge, Bangalore, for partition of the suit lands. In that suit it is admitted by the plaintiffs that apart from the first defendant who was party in O.S.No.3/71, the other purchasers who were parties to O.S.No.3/71 are H. Thimmaiah, Gowramma, H. Rathamma, B.H. Venkataramaiah, Narayana Setty, K. Doddaiah, Munihanumaiah, Lingappa. These purchasers came into possession of the suit lands purchased by them, except Sy.No.1 of Shivanathalli and Sy.No.55 and 62 of Sanneguruvanahalli. These properties are the subject matter of the present suit. They came into possession of these properties even prior to filing of the suit O.S.No.3/71. These purchasers came into possession of the suit lands purchased by them, except Sy.No.1 of Shivanathalli and Sy.No.55 and 62 of Sanneguruvanahalli. These properties are the subject matter of the present suit. They came into possession of these properties even prior to filing of the suit O.S.No.3/71. Thus, none of the plaintiffs are in possession of any of the suit lands except some portion of Sy.No.1 of Sanneguruvanahalli village. Some portion of Sy.No.1 had also been sold by the first plaintiff and some of the lands had been acquired by the Bangalore Development Authority. None of the lands are available for partition. It is further submitted that if Sy.No.1 is to be partitioned, the plaintiffs have now lost their rights and are not entitled to seek partition. 20. The suit is bad for non-joinder of necessary parties. The purchasers of some of the suit lands whose names have been given above are necessary parties. The other purchasers who have purchased the land or portion of the lands before filing this suit are also required to be made as parties. Without impleading all the parties who were in possession of different bits of land, the plaintiffs are not entitled to maintain the suit and the suit is liable to be dismissed for non-joinder of necessary parties. As none of the plaintiffs are in possession of any of the suit properties except a portion of Sy.No.1, the suit has to be valued on the basis of market value of suit property as on the date of filing of suit and the plaintiffs have to pay Court fee under Section 35(1) of the Karnataka Court Fees and Suit Valuation Act. Suit valued under Section 35(2) is mischievous and intended to evade Court fee. 21. The say of the plaintiffs that Sy.No.1 of Shivanahalli and Sy.No.12, 112 and 108 of Sanneguruvanahalli belonged to the plaintiffs and Narasimha Murthy is incorrect. They were never ancestral to them. The lands attached to the village office cannot become ancestral properties of the plaintiffs and Narasimha Murthy as claimed by them. The lands attached to the village office vested with the Government, under the Act. Re-grant is permissible under the Act only in favour of the holder of the village office, Narasimha Murthy was Baravardhar. Though regrant is made jointly, regrant enures to the benefit of Narasimha Murthy only. The lands attached to the village office vested with the Government, under the Act. Re-grant is permissible under the Act only in favour of the holder of the village office, Narasimha Murthy was Baravardhar. Though regrant is made jointly, regrant enures to the benefit of Narasimha Murthy only. Therefore, the plaintiffs are not entitled to seek partition of the suit properties and by virtue of the re-grant order no right is conferred under the Act in favour of the plaintiffs. Further the regrant order relates back to the date of enactment. The plaintiffs are not in possession of suit property except a portion of Sy.No.1 in Shivanahalli from the year 1960. The plaintiffs are out of possession of the suit property for more than 30 years. The right of the plaintiffs alleged in the suit and right of partition claimed in the suit are barred by the law of limitation and none of the plaintiffs are in possession of the suit properties for a period of 12 years prior to the date of filing of the above suit. 22. Sy.No.12 and Sy.No.108 of Sanneguruvanahalli Village are acquired by the Bangalore Development Authority. The said authority has formed layout and sites have been allotted by the said authority to various persons. Those allotees are in possession of respective sites allotted to them and they have also constructed buildings. As far as item No.3 of Schedule ‘A’ is concerned, it has become house sites and portions of the said Sy.Nos. have been sold by the plaintiffs themselves and the portions retained by them have also become house sites. Therefore, Sy.No.1 of Shivanahalli is not in existence and there is no land available in the said Sy.No. as agricultural land for partition. Lands comprised in Sy.No.12 and Sy.No.108 are all acquired by the Bangalore Development Authority. Layout is formed. Sites are allotted to various persons and they are in possession of the same. In so far as lands comprised in Sy.No.62 of Sanneguruvanahalli is concerned, it is situated in Bangalore Aglomoration as defined under Urban (Ceiling and Regulation) Land Act of 1976. The defendants have approached the authorities under the said Act. Sy.No.62 is not vested under the said Act. To the knowledge of the plaintiff, Sy.No.62 was a low lying area, it was far below the road level. The defendants have approached the authorities under the said Act. Sy.No.62 is not vested under the said Act. To the knowledge of the plaintiff, Sy.No.62 was a low lying area, it was far below the road level. Lands in Sy.No.62 has also become the urban property and therefore Sy.No.62 is not in existence. The defendants have constructed factory shed, Cinema Buildings and have raised other constructions even prior to filing of the suit. No objections were raised by any of the plaintiffs in respect of constructions made from time to time. The plaintiffs by their conduct have allowed the enjoyment of Sy.No.62 by these defendants as if they are the owners. The cost of development is more than Rs. One crore which has been incurred from time to time by these defendants. Therefore the plaintiffs are estoped from claiming partition. 23. 11th defendant has filed her statement. She also contends that suit is not maintainable. It is bad for non-joinder of necessary parties. It is also bad for non-inclusion of all the properties of the joint family. The suit schedule items, 3, 4, 5 and 6 have been acquired by the Bangalore Development Authority and award has been passed and land having vested in BDA, the BDA is a necessary party. So also allottees of sites in these lands who have acquired title to the lands are necessary parties. There are about more than 100 houses constructed in the suit schedule item No.2 by different persons who are in possession and in whose names the khatha of the sites in the suit schedule item No.2 stands. These persons are in continuous possession openly and to the knowledge of the plaintiffs for over 25 years. These persons are also necessary parties. Therefore, the suit is liable to be dismissed for not impleading the necessary parties. 24. There was a family partition effected by registered partition deed dated 11.08.1960. The plaintiffs are seeking to reopen the partition, but have not included all the properties that were partitioned under the said partition deed. They have included only some of the items. Therefore, the suit is liable to be dismissed as all the properties are not included in the suit schedule. It is submitted that equitable partition was effected in 1960, keeping in view that the suit schedule properties are allotted to the husband of this defendant. They have included only some of the items. Therefore, the suit is liable to be dismissed as all the properties are not included in the suit schedule. It is submitted that equitable partition was effected in 1960, keeping in view that the suit schedule properties are allotted to the husband of this defendant. As the plaintiffs are seeking partition in these lands, partition has to be treated as reopened and all the joint family properties must be included for equitable partition. Admittedly, the suit schedule items 1 to 6 are not joint family properties though regrant is in favour of plaintiffs and 11th defendant jointly. As per the averments made in the plaint itself, all the suit schedule items are in possession of outsiders of the family and are not lands assessed for land revenue as on the date of the amendment of the plaint or on the date of filing of the suit. Therefore, Section 35(1) of Karnataka Court Fees Act is applicable and the plaintiffs are liable to pay advalorem court fee on the market value of the suit schedule properties. The suit cannot be proceeded with, unless the deficit court fee is paid. It is incorrect to state that O.S.No.3/71 was premature and cause of action to file the suit had not arisen. The present suit is barred under order 9 Rule 9 of CPC. 25. The 11th defendant filed an additional written statement after the plaint was amended contending that impleading of additional defendants does not cure the defect of non-joinder of necessary parties. The persons impleaded are not parties in possession of portion of suit schedule properties in assertion of their own rights arising from transactions prior to the date of institution of the suit. All the alienees are not impleaded. Further, the names of the persons impleaded and their addresses are erroneous. The plaintiffs have deliberately not taken steps to serve the notices through Court and ‘Kannada Prabha’ through which notice was taken out to some of the defendants by substituted service, the said news paper is not in circulation in the area in which the additional defendants reside. The lands in Sy.No.55 there are 84 holders of sites who have purchased sites and have constructed houses and are residing there. These sales have taken place between 1978 and 1980. These persons who are necessary parties are not impleaded as parties to the suit. The lands in Sy.No.55 there are 84 holders of sites who have purchased sites and have constructed houses and are residing there. These sales have taken place between 1978 and 1980. These persons who are necessary parties are not impleaded as parties to the suit. 26. The suit for partition is not maintainable as the properties divided under the partition deed dated 11.08.1960 are not included in the suit. Plaintiffs-1 and 2 have deliberately omitted to include in the suit schedule all their joint family properties including the portions of Sy.No.1 which were allotted to respective shares in the partition dated 11.08.1960. Therefore, the suit is liable to be dismissed. 27. The entire schedule properties are sold or acquired for public purpose. The sales were effected for legal necessity of the joint family by the Manager of the Joint Hindu Family and the same are binding on the plaintiffs. The plaintiffs have taken compensation for the lands acquired. 28. Defendants T. Gangadhara, T. Ramachandra, S.T. Anand and T. Manjunatha have filed separate written statement. They contend that the father of these defendants had purchased a house and a vacant land for the purpose of constructing a marriage choultry so as to fetch some income for being used for the benefit of the Anjaneya Temple which is renovated and improved at a heavy cost incurred by him. They are in exclusive possession and enjoyment as sole and absolute owners of the portion of the land purchased in Sy.No.1 of Shivanahalli Village for three decades. Suit is barred by time and therefore they sought for dismissal of the suit. 29. Defendants 22, 25, 26 and 27 have filed separate written statement taking similar pleas. The 7th defendant also has filed a separate written statement taking similar pleas. The third defendant in the suit filed an additional written statement reiterating the stand taken by other defendants in their written statement. 30. On the aforesaid pleadings, the trial Court framed the following issues and additional issues: “REGULAR ISSUES: 1) Whether the plaintiffs prove that they are in actual and lawful possession of the suit schedule properties? (2) Whether the defendant prove that defendant No.3 and defendant Nos.6 to 10 are in possession of Sy.No.62 which is item No.1 of the suit schedule property and defendant No.10 is in the possession of Sy.No.55 which is item No.2 as absolute owners? (2) Whether the defendant prove that defendant No.3 and defendant Nos.6 to 10 are in possession of Sy.No.62 which is item No.1 of the suit schedule property and defendant No.10 is in the possession of Sy.No.55 which is item No.2 as absolute owners? (3) Whether the suit filed for permanent injunction is maintained in law? (4) Whether the suit is barred by time? (5) Whether the suit is properly valued for the purpose of Court fee? (6) Whether this suit is barred by the principles of res-juducata in view of the decision in O.S.No.3/1971 on the file of the Addl.Civil Judge? (7) Whether the plaintiffs are entitled for permanent injunction as prayed for? (8) Whether the plaintiffs are entitled for mandatory injunction as prayed for? (9) What order and decree? ADDL. ISSUES FRAMED ON 13.02.1995: 1) Whether the suit brought by the plaintiffs for partition is not maintainable without bringing the suit for general partition including all the properties? 2) Do plaintiffs prove that suit properties are joint family properties? 3) Whether the suit is bad for non-joinder of necessary parties as alleged? 4) Whether the plaintiffs are etopped from seeking partition in the suit properties? 5) Whether defendants-1, 3, 6 to 10 are entitled, in equity, for allotment of the suit properties to the share of 11th defendant? 6) Whether suit for partition is maintainable in view of sale deed of the suit properties executed by Shanbhogi Narasimha Murthy in favour of first defendant on 11.03.1970? ADDL. ISSUES FRAMED ON 23.09.1997: 1) Does the 11th defendant prove that the order of re-grant enures to the benefit of Shanbhogue Narasimha Murthy alone? 2) Whether the defendants-3, 6 to 10 prove that the suit schedule properties are not in existence as described in the schedule? 3) Whether the suit properties were tenanted lands and have vested in Government under the provisions of Karnataka Land Reforms Act – deleted 4) Whether defendants-3, 6 to 10 have acquired title by way of adverse possession by means of ouster? 5) Does the plaint disclose any cause of action against D-12 to 14, 22, 25, 26 and 27? 6) Whether the suit is not maintainable as the properties divided under the partition deed dated 11.08.1960 are not included in this suit as contended in paragraph 3 of the written statement of D-11? 5) Does the plaint disclose any cause of action against D-12 to 14, 22, 25, 26 and 27? 6) Whether the suit is not maintainable as the properties divided under the partition deed dated 11.08.1960 are not included in this suit as contended in paragraph 3 of the written statement of D-11? 7) Are the purchases from the father of D-12 Late Narayan Shetty and father of D-22 and other are necessary parties? 8) Whether D-3, 6 to 10 prove that the plaintiffs are estopped from claiming reliefs against defendants-3, 6 to 10? 31. The plaintiffs in order to substantiate their claim, examined the first plaintiff Sri. Lakshminarasappa as P.W-1 and the second plaintiff Sri. S.N. Prahald Rao as P.W-2. They produced in all 32 documents, which were marked as Exs.P-1 to P-32. On behalf of defendants, third defendant R. Veeranna was examined as D.W-1, 13th defendant, T. Ramachandra was examined as D.W-2 and 27th defendant Venugopala Setty was examined as D.W-3. They produced in all 55 documents. A Commissioner was appointed in the case for spot inspection and local inspection. His report was marked as Ex.C-1 and the note made by the Commissioner at the spot was marked as Ex.C2(a). FINDINGS OF THE TRIAL COURT 32. The learned trial Judge on consideration of the aforesaid oral and documentary evidence on record held that the plaintiffs have failed to prove that they are in actual and lawful possession of the suit schedule properties. Similarly, defendants also have failed to prove that defendants-3 and defendants-6 to 10 are in possession of Sy.No.62 which is item No.1 of the suit schedule property and defendants-10 is in possession of Sy.No.55 which is item No.2 as absolute owners. It held that suit filed for permanent injunction is not maintainable in law. It also held that suit is not barred by time and the suit is properly valued for the purpose of Court fees. It held that suit is not barred by principles of res judicata in view of the decision in O.S.No.3/71 on the file of the Additional Civil Judge. It further held that plaintiffs are not entitled for permanent injunction as prayed for. The plaintiffs are also not entitled for decree for mandatory injunction. The suit brought by the plaintiffs for partition is maintainable even without including all the properties. The plaintiffs have proved that the suit properties are joint family properties. It further held that plaintiffs are not entitled for permanent injunction as prayed for. The plaintiffs are also not entitled for decree for mandatory injunction. The suit brought by the plaintiffs for partition is maintainable even without including all the properties. The plaintiffs have proved that the suit properties are joint family properties. The suit is bad for non-joinder of necessary parties. The plaintiffs are not estopped from seeking partition in the suit properties. Defendants, 1, 3, 6 to 10 in these proceedings are not entitled for any equity for allotment of suit properties to the share of the 11th defendant. It held that the suit for partition is maintainable notwithstanding the execution of the sale deed of the suit properties by Narashimha Murthy in favour of the first defendant on 11.03.1970. It held that order of regrant does not enure to the benefit of Narasimha Murthy alone. Defendants-3, 6 to 10 have failed to prove that the suit schedule. Defnednats-3, 6 to 10 have not acquired title by way of adverse possession, by means of ouster. Plaint does not disclose any cause of action against defendants-12 to 14, 22, 25, 26 and 27. The suit is maintainable though properties divided under the partition deed dated 11.08.1960 are not included in the suit. Purchasers from the father of defendant-12 Late. K. Narayana Shettty and father of defendant-22 and others are necessary parties. Defendants-3, 6 to 10 have failed to prove that plaintiffs are estopped from claiming relief against defendants-3, 6 to 10. Thus, the suit came to be dismissed on the ground that suit is bad for non-joinder of necessary parties and the suit is hit by Order 9 Rule 9 of CPC and on the ground that plaintiffs are not in possession of the property as on the date of the suit. Aggrieved by the said judgment and decree of the Trial Court, the legal representatives of both the plaintiffs have filed separate appeals. RIVAL CONTENTIONS 33. Sri. H.R. Ananthakrishna Murthy, learned Counsel appearing for the appellants contended before us that, the earlier suit was dismissed for non-prosecution. The said suit was filed for partition and separate possession. The plaintiffs had no right to seek for partition in respect of suit schedule properties as the suit lands had not yet been re-granted in their favour. Sri. H.R. Ananthakrishna Murthy, learned Counsel appearing for the appellants contended before us that, the earlier suit was dismissed for non-prosecution. The said suit was filed for partition and separate possession. The plaintiffs had no right to seek for partition in respect of suit schedule properties as the suit lands had not yet been re-granted in their favour. The cause of action for the present suit has arisen only after the issue relating to regrant of land is finally decided by the Apex Court while dismissing the S.L.P. Therefore, bar under Order 9 Rule 9 of CPC is not attracted to the facts of this case. Secondly, he contended that in a suit for partition when all the members of the joint family or co-sharers are made parties, suit cannot be dismissed on the ground that purchasers from one of the co-sharers are not made parties. In the final decree proceedings, all these persons can be made as parties. The material on record shows that admittedly on the date of suit, the plaintiffs were in possession of some portion of Sy.No.1 of Shivanahalli Village. They were admitted to be in possession of the properties in the written statement. Therefore, if the plaintiffs are entitled to 1/3rd share in all the suit schedule properties, they are entitled for possession of that 1/3rd share. The trial Court committed a serious error in ignoring these undisputed facts and the settled legal position and in dismissing the suit even though on all other issues it has recorded the findings in favour of the plaintiffs. Sri. N. Shankaranarayana Bhat, the learned Counsel appearing for the appellant in the order appeal reiterated the same grounds. 34. Sri P.D. Surana, learned Counsel appearing for the contesting defendants/respondents contended that the suit is hit by Order 9 Rule 9 CPC, as cause of action for the present suit and the earlier suit is one and the same. Secondly, he contended that even prior to the date of suit, alinees were in possession of the property. In the earlier suit for partition, the alienees were made parties, when the said suit was dismissed for non-prosecution, in so far as these alinees are concerned, the suit is not maintainable in law and it is also clearly barred by time. He pointed out that initially suit is one for bare injunction. In the earlier suit for partition, the alienees were made parties, when the said suit was dismissed for non-prosecution, in so far as these alinees are concerned, the suit is not maintainable in law and it is also clearly barred by time. He pointed out that initially suit is one for bare injunction. It is amended in the year 1989 nearly 8-9 years after the institution of the suit to convert it into a suit for partition. It is well settled that in so far as persons who were impleaded as parties subsequently, the suit is instituted on the date the summons were served on them. By that time, the suit was clearly barred by time. It is also well settled that when the alienee from one of the co-parceners is in exclusive possession of the land and the other co-parcener or members of the family do not take steps to recover possession, the possession of the alienee in so far as those coparceners who are not party to the alienation, becomes adverse. These defendants have perfected their title by adverse possession. He also submitted that the evidence on record and the finding recorded by the Court below show that though plaintiffs pleaded joint possession, they were not in possession of the property at all and therefore the suit is rightly dismissed. He further contended that 11th defendant is dead. The plaintiffs are the legal heir of the 11th defendant. All the rights in the property which vested with the 11th defendant now devolves upon the plaintiffs. Therefore, this suit for partition filed against third parties who are strangers and outsiders of the family do not survive for consideration after the death of the 11th defendant. Lastly he contended that after the defendants acquired title to the property by way of purchase, they got the sanction plan, obtained No Objection Certificate and have put up constructions such as Cinema Theatre, industrial sheds and other houses and the plaintiffs did not move their little finger to stop the constructions and therefore they have acquiesced with those constructions, as consequence of which, they are estopped from now seeking partition in respect of the lands over which constructions have come up. Therefore, he contends that seen from any angle, the judgment and decree passed by the trial Court is valid and legal and does not call for interference. 35. Therefore, he contends that seen from any angle, the judgment and decree passed by the trial Court is valid and legal and does not call for interference. 35. From the aforesaid submissions of the learned Counsel the following points arise for our consideration: (1) Whether the present suit filed by the plaintiffs is barred by principles contained in Order 9 Rule 9 of CPC? (2) Whether the trial Court was justified in dismissing the suit of the plaintiffs on the ground of non-joinder of necessary parties? (3) What is the right of the plaintiffs in respect of the suit schedule properties and whether they are entitled for possession of the suit properties? (4) Whether the suit is barred by time against the alinees? (5) Have the defendants acquired title to the suit schedule properties by adverse possession, as contended by them in their written statement? (6) Whether the plaintiffs are entitled to mandatory injunction as prayed for? (7) Whether the claim of the plaintiffs is barred by Estoppel and Acquisance? (1) MAINTAINABILITY OF THE SUIT – ORDER 9 RULE 9 CPC 36. The material on record discloses that, one C. Narasaiah was the propositus. He had three sons by name Narasaiah, Narasimha Murthy and Lakshmi Narasappa and two daughters. He was, the Shanbhog of the villages Saneguruvanahalli and Shivanahalli. All the six items of the plaint schedule properties were Shanbhog Inam lands possessed by the said C. Narasaiah. During the life time of C.Narasaiah who was the ‘Kartha’ of the joint family consisting of himself and his three sons, there was no partition. After his death, his three sons continued as members of Hindu Undivided Family for some time and thereafter they effected a partition in respect of all their joint family properties under a registered deed dt. 11-8-60 except the suit schedule lands which were Inam lands and they were not partiable and therefore, they were not partitioned. 37. With the passing of the Karnataka Village Office Abolition Act, 1961, all the inam lands came to be vested with the Government on the appointed date, namely 1-2-63. The first defendant Rudraiah purchased the lands bearing Sy.No.55 and 62 from Narasimha Murthy under a registered sale deed dt. 11-3-70. They are items 1 and 2 of the plaint schedule. The said Narasimha Murthy had also sold away other items in favour of Thimmaiah and Gowramma. The first defendant Rudraiah purchased the lands bearing Sy.No.55 and 62 from Narasimha Murthy under a registered sale deed dt. 11-3-70. They are items 1 and 2 of the plaint schedule. The said Narasimha Murthy had also sold away other items in favour of Thimmaiah and Gowramma. The said Narasimha Murthy and his two brothers made an application for regrant of the lands under the Act before the Assistant Commissioner, Bangalore sub-division, which was registered as Case No.155/68-69. After enquiry, by an order dated 20-6-70, he allowed the application re-granting the inam lands in their favour by declaring that each one of them is entitled to 1/3rd share, Narasimha Murthy challenged the said order in MA No.21/71. The appeal was allowed and the matter was remanded to the Assistant Commissioner for fresh enquiry. By that time, the power was conferred on the Tahsildar to adjudicate the claims. The Tahsildar after holding enquiry by an order dated 19-04-1982, re-granted the lands in favour of Narasaiah, Lakshminarasaiah and Kittamma, wife of Narasimha Murthy as by then, Narasimha Murthy had died. The said order of regrant was challenged before the District Court by Smt. Kittamma in appeal M.A.No.20/82, which came to be dismissed on merits on 17-12-84, which was converted into CRP 309/1985. After hearing the parties it was dismissed on 22-1-85. A writ appeal came to be filed against the said order, which was also dismissed as not maintainable. Therefore, Smt. Kittamma preferred a Special Leave Petition before the Supreme Court in SLP No.9347/1985 and on 9-1-87, she withdrew the said S.L.P. Thus, the order of regrant jointly made in favour of Narasaiah, Lakshmi Narasaiah and Kittamma attained finality. In fact, after purchasing this property under registered sale deeds, the alienees also got themselves impleaded in these proceedings as parties and as they were parties to the said proceedings, they are also fully bound by this order. 38. It is after regrant of the land on 20-6-70 when the said Narasimha Murthy was alienating the property ignoring the claims of other two co-sharers- the plaintiffs filed O.S.No.3/71 against Narasimha Murthy and the alienees from him, for partition and separate possession of their 1/3rd share and for a direction to the first defendant Narasimha Murthy to render accounts and for grant of other consequential reliefs. In the said suit, they had included all the plaint schedule properties. In the said suit, they had included all the plaint schedule properties. In the year 1978, the said suit came to be dismissed for non-prosecution. It is after regrant of the land for the second time on 30-4-82, the plaintiffs filed the present suit on 21-7-83 initially for the relief of a permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property. Subsequently, they filed I.A.No.16 on 29-9-88 for amendment of the plaint seeking the relief of partition and separate possession also. By an order dt. 15-11-90, the said application was allowed. In the present suit, all the alienees from the co-sharers are made as parties. 39. In the written statement filed by the defendants, in particular the defendant No.1, he has contended that the second suit of the plaintiffs for partition and separate possession is not maintainable, as except him, all other defendants are not members of the family and therefore, the principle underlining the suit for partition among the family members is not attracted to a suit where strangers to the family are sought to be proceeded with. Therefore, it was submitted the suit filed is not maintainable. It is hit by Order 9 Rule 9 of CPC. 40. Order 9 Rule 9 bars a fresh suit if an earlier suit is dismissed for default which reads as under: “(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 41. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 41. Interpreting the aforesaid provision the Himachal Pradesh High Court in the case of ASHA SHARMA AND OTHERS v. AMAR NATH AND OTHERS – AIR 2003 Himachal Pradesh 32 held as under:- “So far the question of suit being barred by principle of res judicata is concerned, such principles are not attracted in the present case. There is no scope of dispute that an order made under Order 9 Rule 8 of the Code of Civil Procedure would not amount to res judicata, as such, a suit cannot be said to have been heard and finally decided by the order of dismissal made for the non-appearance of the plaintiffs under Order 9 Rule 8 of the Code. The only effect of an order made under Order 9 Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9 Rule 9 of the Code. The question, in the circumstances, is whether the second suit for partition filed by the plaintiffs is not maintainable in view of the bar created under Order 9 Rule 9 of the Code. Rule 9 of Order 9 is based on sound public policy that no defendant should be vexed twice on the same cause of action. It will also not apply to the cases where the cause of action is recurring or continuous. The right to enforce partition is a legal incident of a joint tenancy, and so long such tenancy subsists, a party has a continuous right for partition. Cause of action is continuous in partition cases which subsists so long as the property is held jointly. In other words, the joint owner can file a suit for partition until partition is actually effected irrespective of the fact whether earlier suits for such partition were dismissed in default or an earlier decree for partition was not acted upon.” 42. Cause of action is continuous in partition cases which subsists so long as the property is held jointly. In other words, the joint owner can file a suit for partition until partition is actually effected irrespective of the fact whether earlier suits for such partition were dismissed in default or an earlier decree for partition was not acted upon.” 42. The Division Bench of the Allahabad High Court in the case of BISHESHAR DAS AND ANOTHER vs. RAM PRASAD AND ANOTHER [1906 ILR 28 Allah, 627] held, .“The right to enforce partition is a legal incident of a joint tenancy and as long as such tenancy subsists so long may any of the joint tenants apply for partition of the joint property’ and second suit for partition is maintainable”. 43. In the case of MADHURA GRAMANI vs THUMMALA SESHA REDDI AND OTHERS, AIR 1926 MADRAS PAGE 1018, it was held, ‘When the suit of the plaintiffs assignor was dismissed in 1917 she was relegated to her right of possession as joint owner and consequently to her right to partition, a right which accrues from time to time, as this right had not been taken away by the prior litigation’. 44. The Punjab High Court in the case of MANOHAR LAL BEHARI LAL vs ONKAR DAS ALIAS OMKAR DASS AND OTHERS AIR 1959 PUNJAB 252 Division Bench observed that, “A suit for partition dismissed for default under Order 9 Rule 8 of CPC does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues. The only effect of an order passed under Order 9 Rule 8 of CPC is that a fresh suit based on the same cause of action is barred by the provisions of Order 9 Rule 9 of CPC. It has, however been repeatedly held that a suit for partition dismissed for default under Order 9 Rule 8 of CPC does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right, which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues.” 45. The reason is that the right to enforce a partition is a continuous right, which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues.” 45. Rule 9 of Order 9 is based on sound public policy that no defendant should be vexed twice on the same cause of action. The only effect of an order made under Order 9 Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9 Rule 9 of the Code. It will not apply to the cases where the cause of action is recurring or continuous. A suit for partition dismissed for default under Order 9 Rule 8 of CPC does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right, which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues. Cause of action is continuous in partition cases which subsists so long as the property is held jointly. In other words, the joint owner can file a suit for partition, until partition is actually effected, irrespective of the fact whether earlier suits for such partition were dismissed for default or withdrawn or an earlier decree for partition was not acted upon. 46. The plaintiff’s suit is for partition of certain joint family property which was jointly held at the time of the previous suit and continues to be joint up to now. When it was dismissed for non-prosecution, the plaintiffs applied for restoration of the suit, but their application was dismissed on the ground that they have failed to establish sufficient cause for their non-appearance in the court. The dismissal of the suit for default would not put an end to the joint status of the property. The effect of such dismissal is the joint status continues. The property continues to be joint. The co-sharers right to seek partition of the property held jointly, continues. It is a recurring cause of action. The cause of action comes to an end only after partition of the property held in joint, is severed and the share to which each co-sharer is entitled to, is put in possession of their respective share. The co-sharers right to seek partition of the property held jointly, continues. It is a recurring cause of action. The cause of action comes to an end only after partition of the property held in joint, is severed and the share to which each co-sharer is entitled to, is put in possession of their respective share. Therefore, the order of dismissal for default passed under Order 9 Rule 8 CPC, would not have the effect of filing yet another suit for partition on the same cause of action. 47. Learned Counsel for the respondents contended that, having denied the joint status of the parties in the previous suit, it must be held that the joint status came to an end. The plaintiffs alleged in the previous suit that the property was in joint status and therefore, entitled to a decree for partition. If it is found that the property held by them was in joint status, they are entitled to a decree. The suit will fail if it is proved that this averment made by them is not proved. Mere denial of joint status in the written statement by the defendant, would not put an end to the joint status. Joint status comes to an end only when such a joint status is severed by effecting a partition by metes and bounds. In other words, when the property is actually divided. Till such time the joint status continues. 48. The suit O.S.3/71 was filed for partition and separate possession of the plaintiff’s 1/3rd share each, on the basis of the re-grant order dated 20.6.1970. It is only after such re-grant, the schedule properties became partiable. When the appeal was preferred against the said order of re-grant in MA 21/71 and the appeal was allowed, the regrant order was set aside. The plaintiffs could not have prosecuted the suit further, as the schedule property was not partiable without an order of re-grant. It is in those circumstances, the suit came to be dismissed for non-prosecution in the year 1978. However, after remand again the order of re-grant was passed for the second time on 30.4.1982. After such re-grant, again the property became partiable. It is then that the present suit O.S.No.10311/1983 is filed. Therefore, the cause of action for the earlier suit and the cause of action for the present suit is not one and the same. However, after remand again the order of re-grant was passed for the second time on 30.4.1982. After such re-grant, again the property became partiable. It is then that the present suit O.S.No.10311/1983 is filed. Therefore, the cause of action for the earlier suit and the cause of action for the present suit is not one and the same. The trial Court committed an error in dismissing the suit of the plaintiffs under Order 9 Rule 9 of CPC without properly appreciating the facts of the case. 49. It was contended that the cause of action against the alienees is not the same as against the co-sharer and, therefore, when admittedly the alienees are in possession of the property, the plaintiffs are not in possession of the property, the second suit as far as co-sharers are concerned is not maintainable. But, the first suit was for partition and separate possession of 1/3rd share which each of the plaintiffs had in the subject matter of the suit. In a suit for partition it is not necessary to make the alienees parties. However, if on the date of suit, alienation has been made and if the said decree is to be binding on those persons, they should be made parties. The alienees being total strangers to the plaintiffs, the plaintiffs cannot file a suit for partition against the alienees. The suit for partition is essentially against a co-sharer and if that co-sharer has alienated the property in favour of third parties, they have to be made parties. Similarly, if such a suit is dismissed for default, even the second suit is only against a co-sharer and the alienees being the persons claiming under the co-sharer are made parties. Therefore, the contention that the second suit against the alienees is not maintainable is without any merit in the light of the law as declared by various High Courts in this country. The underlining principle is, if the property is jointly held by the members of joint family, until and unless there is severance of joint tenancy, the person who has a right in the joint tenancy has a right to institute the suit. The underlining principle is, if the property is jointly held by the members of joint family, until and unless there is severance of joint tenancy, the person who has a right in the joint tenancy has a right to institute the suit. A suit for partition on such joint tenancy dismissed for non-prosecution would not take away the right of such co-sharer to seek for partition till the partition is effected and, therefore, the right to file a suit for partition subsists in a co-sharer till the property is partitioned. We do not see any merit in the contention that the second suit for partition is not maintainable. 50. During the pendency of the appeal both the appellant Nos.1 and 2 died. An application is filed to bring the L.Rs of the 1st appellant on record and it was allowed. The application to bring the L.Rs of the 2nd appellant is also allowed. 11th defendant in the suit is the 11th respondent herein. She died, inte state, leaving behind no issues. The appellants are her legal heirs. The 1st respondent is total stranger to the family. In these circumstances it is contended that when all the co-parceners are dead, suit for partition is not maintainable. After the death of co-parceners, the suit merges with the appeal and suit for partition is not maintainable against 3rd party. 11th defendant- Smt. Kittamma was a co-sharer. After her death, her estate devolves on the plaintiffs. Therefore, all other defendants to the suit being outsiders to the family, they cannot be construed as her L.Rs and, therefore, the suit for partition is not maintainable. 51. Originally, the suit O.S.No.3/71 was filed against a co-sharer Narasimha Murthy. During the pendency of the suit, he died and, therefore, his widow Smt. Kittamma was brought on record as his legal heir. In the second suit she was made a party in her own name. The subject matter of the suit is held jointly by the plaintiffs and Smt. Kittamma. The share to which Smt. Kittamma is entitled to, is 1/3rd share of her husband Narasimha Murthy. All the alienees are claiming under Narasimha Murthy. In other words, the estate of Narasimha Murthy is now in the hands of these alienees. It is to the estate of Narasimha Murthy that Smt. Kittamma succeeded. The share to which Smt. Kittamma is entitled to, is 1/3rd share of her husband Narasimha Murthy. All the alienees are claiming under Narasimha Murthy. In other words, the estate of Narasimha Murthy is now in the hands of these alienees. It is to the estate of Narasimha Murthy that Smt. Kittamma succeeded. Even though the order of re-grant is in her name, it was conferred on her because, she represented the estate of Narasimha Murthy. As he was not alive and it was a heritable right, the land was re-granted in favour of Smt. Kittamma to the extent of her husband’s share in the property. 52. The CPC defines as to who a legal representative is, at Section 2(11). “Legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.” 53. The alienees are claiming title to an Inam land, which had vested with the Government prior to alienations of land made in their favour. On the date of alienation, the lands were not yet re-granted. On such re-grant, the title of the alienees would become valid. Admittedly, the re-grant in favour of Narasimha Murthy was set aside during his life time and after his death it was re-granted in favour of his wife Smt. Kittamma. The said order of re-grant made in the name of Smt. Kittamma enures to the benefit of these alienees. Under these circumstances, notwithstanding the fact that Kittamma is dead, as the property to which she was entitled to is in the hands of these alienees and they are intermeddling with the estate, they are the legal representatives. Therefore, the suit filed for partition even after the death of Smt. Kittamma survives and does not become infructuous. Therefore, we do not find any substance in the said contention also. (2) SUIT FOR PARTITION – NECESSARY PARTY 54. Plaintiff is the dominus litus. He cannot be compelled to sue a person against whom he does not claim any relief. Therefore, the suit filed for partition even after the death of Smt. Kittamma survives and does not become infructuous. Therefore, we do not find any substance in the said contention also. (2) SUIT FOR PARTITION – NECESSARY PARTY 54. Plaintiff is the dominus litus. He cannot be compelled to sue a person against whom he does not claim any relief. Doctrine of ‘dominus litus’ is applied to one who though not originally a party has made himself one, by intervention or otherwise, and has assumed the entire control and responsibility for one side, and is treated by the Court as liable for costs as a person who is really and directly in this suit as a party. The theory of dominus litus, however, should not be overstretched in the matter of impleading of parties, because it is the duty of the Court to ensure that if for deciding the real matter in dispute, a person is a necessary party, the Court can order such person to be impleaded. It is the settled law that it is open to the Court to add any such person as necessary party in the suit to enable the Court to effectively adjudicate the question involved in the suit. 55. Order 1 of CPC deals with parties to suits. Order 1 Rule 1 deals with the question as to who may be joined as plaintiffs; whereas, Order 1 Rule 3 stipulates who may be joined as defendants. Order 1 Rule 9 mandates that no suit shall be defeated by reason of mis-joinder or non-joinder of parties and Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. The proviso to the said rule makes it clear that, nothing in the said rule shall apply to non-joinder of a necessary party. Order 1 Rule 10(2) gives jurisdiction to the Court to order that the name of any person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added at any stage of the proceedings. Sub-rule (2) provides for the addition of (1) necessary parties, and (2) of proper parties. 56. Sub-rule (2) provides for the addition of (1) necessary parties, and (2) of proper parties. 56. Therefore, it is necessary to find out who is a necessary party and who is a proper party to the suit. For determining the question who is a necessary party, there are two tests, one-there must be a right to some relief against such party in respect of the matter involved in the proceedings in question; second – it should not be possible to pass an effective decree in the absence of such a party. An eventual interest of a party in the fruits of litigation cannot be held to be the true test for impleading a party. Persons who ought to have been joined as parties are called necessary parties, i.e., persons in whose absence the Court will not be able to give effective decree at all. Therefore, a necessary party is a party without whose presence a suit cannot be proceeded with, i.e., a party necessary to the constitution of the suit without whom no decree can at all be passed. Failure to implead a necessary party as a party to the proceeding is fatal to a suit. 57. A person is a proper party if his presence enables the Court to adjudicate upon the questions raised in a suit more effectively and completely. A proper party is one in whose absence, an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Proper parties are those whose presence enable the Court to adjudicate the issues more ‘effectually and completely’. A person may be impleaded as a defendant to a suit, though no relief may be claimed against him, provided his presence is necessary for a complete and final decision of the questions involved in the suit. Such a person is called a proper party as distinguished from necessary party. 58. As regards non-joinder of parties, a distinction has been drawn between the non-joinder of a person who ought to have been joined as a party and the non-joinder of a person whose joinder is only a matter of convenience or expediency. This is because Order 1 Rule 9 is a rule of procedure which does not affect the substantive law. If a decree cannot be effective without the absent parties, the suit is liable to be dismissed. This is because Order 1 Rule 9 is a rule of procedure which does not affect the substantive law. If a decree cannot be effective without the absent parties, the suit is liable to be dismissed. A necessary party is one in whose absence the Court cannot pass an effective decree. Ordinarily a decree does not bind a person who is not impleaded eo nomine in a suit. The words ‘so far as regards the rights and interests of the parties already before it’ in the rule show that the rights of parties not before the Court cannot be adjudicated. In cases where joinder of a person as a party is only a matter of convenience, the absent party may be added or the suit may be tried without him. It is in this context that the distinction between a necessary and a proper party becomes material. Except where there is a legal bar to the maintainability of a suit by reason of non-joinder of a party, or where in his absence, the decree that may be passed might become infructuous or inexecutable, the Court cannot dismiss a suit for non-joinder of a person. When the question is such that it can be decided between the parties to the suit, the Court cannot decline to do so because third persons might be interested therein. The plea of non-joinder must be raised at the earliest opportunity and the party raising the plea should specifically state the persons who should have been impleaded. 59. In a partition suit, all co-parceners must be before Court either as plaintiffs or as defendants. Any co-parcener or co-sharer who sues for partition of property must make the other co-parceners or co-sharers as defendants because the partition which is made in his favour is a partition against his co-parceners or co-sharers. Any decree which gives him a portion of property takes away all rights which they, i.e., the others coparceners or co-sharers would otherwise have to that portion, and therefore, it is a decree against them and in his favour. A decree for partition made in a suit instituted by a member of Joint Hindu Family is therefore res judicata as between all who are parties to the suit. A decree for partition made in a suit instituted by a member of Joint Hindu Family is therefore res judicata as between all who are parties to the suit. Besides the co-parceners, the wife, the mother, grand-mother or other legal heirs, are necessary parties to the suit when they are entitled to a share on a partition having succeeded to the estate of such co-parceners or co-sharers. When the partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties. Of course, in such a case, it is open to the others to apply to be made parties. Those members of the family who are entitled to maintenance would be proper parties to a suit for partition. So too, the joinder of creditors and in particular decree holders as well as mortgages as defendants may be proper in cases where their claims are disputed. Every co-parcener and every purchaser of the interest of a coparcener is entitled to institute a suit for partition. 60. In Section 333 of Mulla’s Hindu Law 17th Edition at page 537 dealing with the question as to who should be the parties to the suit, it is stated as under:- a). The plaintiff in a partition suit should implead as defendants:- (i) the heads of all branches; (ii) females who are entitled to a share on partition; (iii) the purchaser of a portion of the plaintiff’s share, the plaintiff himself being a coparcener; (iv) if the plaintiff himself is a purchaser from a coparcener, his alienor. b) It is desirable that the following persons should be made parties; though not necessary parties, they are proper parties to such a suit; (a) a mortgagee with possession of the family property or of the undivided interest of a coparcener; (ii) simple mortgagees of specific items of the family property; (iii) purchaser of the undivided interest of a coparcener; (iv) persons entitled to provision for their maintenance and marriage, that is, widows, daughters, sisters and such like and distinguished heirs; (v) any person entitled to maintenance from the family, the plaintiff may also plead any other coparcener or any person interested in the family property such as a mortgage or a lessee. Such a person may himself apply and be made a party.” 61. Such a person may himself apply and be made a party.” 61. In a suit for partition, at the stage of passing of a preliminary decree for partition, the only question that needs to be adjudicated by the trial Court is, whether the property in question is a co-parcenery property or a joint family property and if so, what is the share to which these family members are entitled to. For the declaration of such shares, the presence of alienees is not necessary. Even in their absence the suit of the plaintiff can be adjudicated upon and their presence is in no way necessary for the court to determine the questions involved in the suit. It is only after declaration of sharers, at the stage of dividing the property by metes and bounds and putting them in possession of the extent of the share so declared, the character, validity and the nature of alienations have to be taken note of. It is at that stage, it is necessary to hear the persons who are claiming title through such members of the family and who have parted with valuable consideration and who are in possession of the property. This is because if they have to be dispossessed from the property, if their sale deeds are to be annulled, they have to be heard. Therefore, a suit for partition cannot be dismissed on the ground of nonjoinder of these third parties/strangers to the family. A suit for partition can be dismissed only if the members of the family who have an interest in the property are not made parties as they are the only necessary parties to the suit. At worst if a person other than a necessary party is not made a party to the suit, the decree passed in their absence may not bind them, if they are claiming any independent title to the property being in possession of the same. If members of a joint family file a suit for partition without impleading alienees and collude and get a decree passed affecting the interest of alienees, the said collusive decree being void, as alienees being not made parties and such a decree does not in any way affect their interests. But, a suit for partition cannot be dismissed on that ground. 62. But, a suit for partition cannot be dismissed on that ground. 62. In a suit for partition not only those who are entitled to a share in the joint family property but also those persons who are entitled to maintenance and also those persons for whose marriages provision has to be made from out of the funds of joint family property are necessary parties. A transferee of an item of property from the vendee who purchased it from a party to the suit is not directly a transferee and therefore there is no nexus between the transferee and the party to the suit from whom the property was purchased. Therefore, such transferee is not a necessary party to the suit. In a suit for partition of properties of a Joint Hindu Family, there is no legal bar even after a preliminary decree had been passed, in an appropriate circumstances to add a party under Order 1 Rule 10, in the final decree proceedings if the Court thinks that the addition of such party is necessary to adjudicate upon all questions effectively and completely. The proceedings in a partition suit do not become final unless the final decree is passed. It is only the final decree that brings about termination of suit. The Court can add a party in a partition suit even after a preliminary decree but before a final decree takes place. A suit for partition is finally disposed of only with the passing of a final decree. Impleading of additional parties subsequent to passing of a preliminary decree in a suit for partition is permissible, only if none of the questions already settled by the preliminary decree would not have to be re-opened by reason of such a joinder. Therefore, it is clear in order to decide the share to which each member of a family or a person claiming under such member of a joint family, the necessary parties are only the members of the joint family. Once all those members are made parties, the suit for partition cannot be dismissed on the ground of non-joinder of necessary parties. The purchasers from those members of the family or subsequent purchasers from the earlier purchasers are proper parties in a suit for partition. They could be added even during final decree proceedings. For not adding them as parties, a suit for partition cannot be dismissed. 63. The purchasers from those members of the family or subsequent purchasers from the earlier purchasers are proper parties in a suit for partition. They could be added even during final decree proceedings. For not adding them as parties, a suit for partition cannot be dismissed. 63. In the instant case it is not in dispute that, on the day the suit was filed, the members of the family whom the schedule property belonged were only the plaintiffs and the 11th defendant. It is also not in dispute that earlier all the joint family properties except the suit schedule property had been partitioned by metes and bounds. The schedule properties were not partitioned because they were not partiable at that time, the same having been vested with the Government under the provisions of Village Offices Abolition Act 1961, subject to the right of the holders of the village officers to seek re-grant. It is also not in dispute that the order of re-grant was passed on 20.6.1970. However, the same came to be set aside in an appeal and the matter was remanded. After such remand again the schedule lands were re-granted and the said order of re-grant was confirmed by this Court on 22.1.1985 and it has attained finality. The defendants in the suit claimed title to the suit property under a registered sale deed executed by Late Narasimha Murthy, the husband of 11th defendant. Subsequently, they in turn have sold bits of land in favour of various persons. Some of those purchasers in turn have sold the properties in favour of others. Even the first plaintiff has sold lands in bits in favour of others. All these alienations were made during the pendency of the re-grant proceedings and therefore, those sale deeds are subject to the final order of regrant made. Now that in the final order of re-grant, the grant has been made in favour of each one of the members of the family to the extent of 1/3rd share, the alienations made by Narasimha Murthy to the extent of his 1/3rd share would be valid and in excess of the said 1/3rd share would be void. Therefore, the question is whether these alienees from the members of the family are claiming title through them. All the persons who are entitled to a share in the land re-granted are parties to the suit. Therefore, the question is whether these alienees from the members of the family are claiming title through them. All the persons who are entitled to a share in the land re-granted are parties to the suit. Even the persons who purchased the property from Late Narasimha Murthy are parties to the suit. Subsequent purchasers are not made parties. On that ground the suit for partition could not have been dismissed by the trial Court. All those persons could be made parties in the final decree proceedings. If they are not made parties, the decree to be passed in the final decree would not be binding on them and it cannot be executed against persons against whom no decree is passed. But, that should be not a ground for dismissal of suit for partition. 64. The trial Judge was in total error in not properly appreciating the difference between a necessary party and a proper party in a suit for partition and in dismissing the suit of the plaintiff for partition and separate possession. It would have been proper for him to have directed the plaintiffs to implead those persons as parties in the final decree proceedings before any adverse order is passed against such alinees. In that view of the matter, the finding recorded by the trial Court that the suit for partition is not maintainable for jon-joinder of necessary parties is illegal and therefore, is liable to be set aside. (3) WHAT IS THE RIGHTOF THE PLAINTIFFS 65. From the aforesaid facts it is clear that the schedule properties were all Inam lands. They stood vested with the Government by virtue of the provisions of the Village Offices Abolition Act, 1961 on the appointed date of 1.2.1963. They were re-granted in favour of the plaintiffs and Smt. Kittamma, the 11th defendant. Therefore, the said order of regrant having attained finality to which these defendants are also parties, the title of the plaintiffs to the extent of their 1/3rd share each in the plaint schedule property is not in dispute and is clearly established by these legal proceedings. The first defendant is a party to all these proceedings and, therefore, the title of the plaintiffs of the suit schedule property is clearly established. 66. The first defendant is a party to all these proceedings and, therefore, the title of the plaintiffs of the suit schedule property is clearly established. 66. The first defendant-Rudraiah filed an application in Form No.7 under the provisions of the Karnataka Land Reforms Act for grant of occupancy rights in respect of lands bearing Sy.Nos.55 and 62. The Land Tribunal, Bangalore North Taluk, in LRF No.INA 312/83-84 granted the occupancy rights. Against the said order, the plaintiffs preferred an appeal in LRA No.166/1987 before the Land Reforms Appellate Authority, Bangalore District and the appeal came to be dismissed. Against the said order, the plaintiffs preferred revision petitions before this Court in CRP.Nos.625/1988 and 2898/1988. This Court by an order dated 18.7.1989 allowed both the CRPs and set aside the order granting occupancy rights in favour of the first defendant. Aggrieved by the same, the first defendant preferred SLP Nos.561 and 562/1998 before the Apex Court. The same came to be rejected by an order dated 4.2.1998. Thus, the claim of tenancy put forth by the first defendant in respect of these two items of the property is negatived and the said order has attained finality. 67. Sri Rudraiah also filed an application for regularization of his sale deed dated 11.3.1970 in respect of Sy.Nos.55 and 62. When his request was not considered, he filed W.P.No.3543/1986 for a writ of mandamus to the authorities to consider his request. The plaintiffs got themselves impleaded in the Writ Petition and also requested that their objections to the request of the first defendant are to be considered. A mandamus was issued to consider the request and objections. After so considering, the authorities directed regularization of the sale deed in respect of land bearing Sy.No.62 and refused regularization in respect of Sy.No.55 as the first defendant had sold the said survey number to various persons. The said order was challenged by these plaintiffs in W.P.Nos.22172, 22173 and 19260/1990. This Court by an order dated 30.11.1995 allowed the Writ Petitions and set aside the order of regularization in respect of lands bearing Sy.No.62. Challenging the said orders, W.A.No.694/1996 is filed. Today the same is also dismissed. 68. From the aforesaid undisputed facts it is clear that the alinenees from Narasimha Murthy or his wife Smt. Kittamma did not acquire absolute title to the properties which they purchased, as their vendors were not the absolute owners. Challenging the said orders, W.A.No.694/1996 is filed. Today the same is also dismissed. 68. From the aforesaid undisputed facts it is clear that the alinenees from Narasimha Murthy or his wife Smt. Kittamma did not acquire absolute title to the properties which they purchased, as their vendors were not the absolute owners. The vendors had only 1/3rd share in the suit schedule properties. The acquisition of title by these alienees cannot be more than 1/3rd share which their vendors had. In so far as the remaining 2/3rd share is concerned, it belongs to the plaintiffs. Therefore, the plaintiffs are the owners of 2/3rd share in all the suit schedule properties as on the date of the suit. 69. It was contended by virtue of Ex.D6 the plaintiffs have no right in the schedule property as they have relinquished their right. The said document is not admitted. It is marked as Ex.D6. Admittedly, it is not stamped nor registered. Any writing under which a person relinquishes or transfers his right in an immovable property which is more than Rs.100/- requires registration under Section 17 of the Registration Act. A document which is not duly registered under the said Act is inadmissible in evidence. Even if such documents are marked in evidence, it has no legal effect on which the Courts can act. That apart, this is a document dated 11.5.1972. The conduct of the parties prior to 11.5.1972 clearly demonstrates that none respected the said document. The said document did not supersede any of the proceedings which were fought between them tooth and nail up to the Apex Court. On 19.4.1982 when the re-grant order was passed holding that the plaintiffs 1 and 2 are entitled to 1/3rd share each, if this document was in existence such an order could not have been passed. The said order of re-grant is challenged before this Court as well as before the Apex Court. ‘Therefore, the said orders which conferred 1/3rd share each to the plaintiffs cannot be rendered negated on the basis of this unregistered and inadmissible document. In fact, the second plaintiff who was confronted with this document is not a signatory to this document. Reliance is placed on his evidence to the effect that he has admitted the signature of Lakshmi Narasappa. In law, that is no admission. In fact, the second plaintiff who was confronted with this document is not a signatory to this document. Reliance is placed on his evidence to the effect that he has admitted the signature of Lakshmi Narasappa. In law, that is no admission. Therefore, it is obvious that the title of the plaintiffs 1 and 2 to the extent of 1/3rd share each is clearly established and the said right in no way is being extinguished in a manner known to law. 70. The suit schedule lands are all attached to the office of Shanbog of Saneguruvanahalli and Shivanahalli Villages. The said lands were in possession of all the members of the joint family of Sri Narasiah and his sons. During their lifetime there was no partition. Apart from these lands the joint family owned other properties also. Those properties were also in the joint possession of the family members. Except the schedule properties they effected a partition by metes and bounds in respect of their other properties. The schedule properties were not partitioned because they were not partiable. Therefore, they continued to enjoy the suit property jointly as had been done earlier. However, one of the sharer viz., Narasimha Murthy claimed that the schedule property exclusively belonged to him and he was in possession of the property. In view of the order of re-grant having become final, as set out earlier, his contention that the schedule property exclusively belonged to him and that he was in exclusive possession of the property was negatived. Therefore, the possession of one co-sharer is the possession of other co-sharers in law. No co-sharer can claim that he is in exclusive possession of the joint family property to the total exclusion of other co-sharers unless he is able to demonstrate that he has ousted the other co-sharers. Possession of plaintiffs over a portion of Sy.No.1 of Saneguruvanahalli village is admitted by all the parties to the suit. There is neither a plea of ouster nor there is any evidence of ouster. In those circumstances, the possession of Narasimha Murthy and after his death his wife Smt. Kittamma of the schedule property is the possession of the plaintiffs. Therefore, in law it cannot be said that the plaintiffs are not in possession of any portion of the schedule property and therefore they are not entitled to possession of the property in a suit for partition. Therefore, in law it cannot be said that the plaintiffs are not in possession of any portion of the schedule property and therefore they are not entitled to possession of the property in a suit for partition. Once in a suit for partition the right of the plaintiffs is declared and in the final decree proceedings, the property could be divided by metes and bounds in terms of the preliminary decree and the plaintiffs would be entitled to possession of that portion of the property which would be allotted to their share in the final decree. In the event of that portion being in possession of others-the defendants, they are entitled to recover possession from the person in possession of the property. That is the right to which the plaintiffs are entitled to in a suit for partition in pursuance of the preliminary and final decree to be passed in this case. The plaintiffs in a suit for partition, whose share is declared, cannot be denied the benefit of possession of the property on the ground that they are not in possession on the date of the suit. Once the suit is filed against a co-sharer/joint family member who has put others in possession, notwithstanding the fact that the third party purchaser is in possession of the suit schedule property, the plaintiff would be entitled to recover possession from third party also, if the property is in their possession legitimately falls to the share of the plaintiffs after passing of final decree. In that view of the matter, the contention of the defendants that the plaintiffs are not entitled to possession as they were not in possession of any portion of the property as on the date of suit is without substance, and contrary to the admitted pleadings and evidence on record. (4) LIMITATION 71. It was contended on behalf of alinees that though no limitation is prescribed for filing a suit for partition, that holds good only against the co-parceners/co-sharers. The said principle has no application to the alinees who are third party strangers to the family. If the alinees are claiming title independent of the family members or co-parcerners, there is merit in the said submission. The said principle has no application to the alinees who are third party strangers to the family. If the alinees are claiming title independent of the family members or co-parcerners, there is merit in the said submission. When they claim title under the members of the family or co-parceners and when they are lawfully inducted into possession by them, the possession of the said family members and persons claiming under them would be the possession of the plaintiffs in the suit also. Till the partition is effected by metes and bounds, nobody can claim exclusive title to any portion of the property. Therefore the alinees though they are put in exclusive possession of a portion of the property, as the property is not divided by metes and bounds, they cannot claim exclusive title to the property which is to be in their possession. Therefore the plaintiffs are deemed to be in possession in law, of the property, which is in the possession of such alinees. Therefore the limitation do not run against such alinees, as there is no privity of contract between them. Therefore if the plaintiffs have to recover possession from such alinees, it is necessary for the plaintiffs to file a suit for general partition against the co-parceners or family members or co-sharers and include such alinees who are only proper parties in a suit for partition. Only if they get decree against co-sharers, family members or coparceners, they would be entitled to possession from such alinees. Therefore the suit that is being filed against the alinees is in fact a suit for partition filed against the members of the family, co-sharers and co-parcerners and as admittedly no period of limitation is prescribed for filing such a suit, this suit is not barred by law of limitation in so far as alinees are concerned. (5) ADVERSE POSSESSION 72. Now, the next question is, whether the defendants have acquired title to the suit property by adverse possession so that the right of the plaintiffs over the property stood extinguished. In the written statement filed initially there was no specific plea of adverse possession. It is only in the additional written statement filed after adding the prayer for partition and separate possession, an exhaustive written statement is filed. In the written statement filed initially there was no specific plea of adverse possession. It is only in the additional written statement filed after adding the prayer for partition and separate possession, an exhaustive written statement is filed. In para 2 of the written statement it is stated that, these purchasers came into possession of the suit lands respectively purchased by them except Sy.No.1 of Sanneguruvanahalli and Sy.Nos.55 and 62 of Sanneguruvanahalli. They came into possession of these properties even prior to filing of the suit O.S.No.3/1971. Thus, none of the plaintiffs are in possession of any of the suit lands except some portion of Sy.No.1 of Sanneguruvanahalli Village. Some portions of Sy.No.1 have also been sold by plaintiff No.1 and some of the land have been acquired by the Bangalore Development Authority. Again in para 6 it is stated that, the plaintiffs are out of possession of the property for the past more than 30 years. The right of the plaintiffs alleged in the suit and right of partition claimed in the suit are barred by the law of limitation and none of the plaintiffs are in possession of the suit properties for more than 12 years prior to the filing of the above suit. In para 11 they have stated that, the plaintiffs by their conduct have allowed the enjoyment of Sy.No.62 by these defendants as if they are the owners. The cost of the development is more than Rs.1 crore which has been incurred from time to time by these defendants. Therefore, the plaintiffs are estopped from claiming partition. In para 12 it is stated that, Sy.No.62 and 55 were tenanted lands, the one of the defendants viz., Rudraiah was the tenant of these two survey numbers from the year 1950 under Narasimha Murthy, the husband of the 11th defendant. At no point of time from 1950 onwards plaintiffs asserted any rights over these two properties. Rudraiah has made an application for grant of occupancy rights under the Karnataka Village Offices Abolition Act read with the provisions of Karnataka Land Reforms Act. The right of Rudraiah as tenant is concluded against him. The application was rejected by the High Court. Against the order of the High Court, an SLP was filed before the Supreme Court in SLP Nos. 14405-14406/1989 and the same is pending. Therefore, the land vested with the Government. The right of Rudraiah as tenant is concluded against him. The application was rejected by the High Court. Against the order of the High Court, an SLP was filed before the Supreme Court in SLP Nos. 14405-14406/1989 and the same is pending. Therefore, the land vested with the Government. These survey numbers are not available for partition as claimed by the plaintiffs. In fact re-grant is made subject to the tenancy rights. 73. From the aforesaid stand in the written statement it is clear that, the case of the first defendant is he is in possession of the land as a tenant from the year 1950. He has filed an application for grant of occupancy rights. Now the matter is in Supreme Court. When a person gets into the possession of the land as a tenant, his possession is lawful at the inception and if he is continuing as tenant, his possession is lawful and, therefore, such a tenant who according to him got into land under a tenancy continuing in possession as a tenant is not entitled to the plea of adverse possession. It is a different story that this case of tenancy is not accepted, grant of occupancy right is rejected which order has also attained finality. R.Veeranna-the third defendant, who is the son of Rudraiah the first defendant who was examined as DW1 in the case had deposed as under:- “40. We took possession of the and in Sy.No.55 and 62 lawfully. My possession of the land even to this day is a lawful one, I have never used my possession as an unlawful possession. I submit with assertion that neither Lakshmi Narasappa nor Prahaladrao have any right in the re-granted land. In all the forums we have repeatedly contended that the order of re-grant could not have been passed jointly in favour of the three persons. After hearing all our contentions including the aforesaid contention, the joint regrant so made by the Tahsildar has made upheld”. 74. From the aforesaid categorical admission in the deposition, let alone asserting hostile title to the real owner, the person asserting possession believes he is in lawful possession and his grievance was the plaintiffs are not entitled to re-grant. Therefore, this is not a case of defendants admitting the title of the plaintiffs, asserting a hostile title and possession openly, continuously and in a hostile manner to the true owner. Therefore, this is not a case of defendants admitting the title of the plaintiffs, asserting a hostile title and possession openly, continuously and in a hostile manner to the true owner. 75. In the case of S.M. KARIM vs. BIBI SAKINA, reported in AIR SC 1964 page No.1254, the Apex Court held as under:- “5. ……Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Long Possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea…….” 76. In the case of RAJENDRA SINGH vs. SANTA SINGH, reported in AIR SC 1973 page 2537, the Apex Court held as under:- “16. ….Continued illegal possession ripens into a legally enforceable right only after the prescribed period of time has elapsed. It matures into a right due to inaction and not due to the action of the injured party which can approach a Court of appropriate jurisdiction for redress by a suit to regain possession. The relief against the wrong done must be sought within the time prescribed. This is the only mode of redress provided by law for such cases. …..” 77. In the case of FRANCIS M.V. vs. V. LINGAMMA AND ANOTHER, reported in KAR.L.J. 1987(1), page 94 the Court held as under:- “3. …A specific averment as to the point of time at which the possession which was otherwise for the benefit of the object of the trust, turned hostile and adverse is on essential ingredient of a plea of adverse possession. …….” 78. In the case of CHANDRAKANTABEN vs. VADILAL BAPALAL, reported in AIR SC 1989 page No.1269, the Apex Court held as under:- “….. It is true that it is the intention to claim exclusive title which makes possession adverse and his animus possidendi must be evidenced and effectuated by the manner of occupancy which again depends upon the nature of the property. It is true that it is the intention to claim exclusive title which makes possession adverse and his animus possidendi must be evidenced and effectuated by the manner of occupancy which again depends upon the nature of the property. The manner of possession depends upon the kind of possession which the particular property is susceptible. That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner’s possession. ….” 79. In the case of M. SIDHIQUE vs. MOHD. K.P. KUTTY reported in AIR SC 1996 page 1003, the Apex Court held as under:- “12. …unless there is a specific plea and proof that the appellant has disclaimed his right and asserted hostile title and possession to the knowledge of the respondent within the statutory period and the latter acquiesced to it, he cannot succeed to have it established that he perfected his right by prescription. …..” 80. In the case of ALLA BAKSH vs. MOHD HUSSAIN, reported in ILR 1996(2) KAR, page No.1340, the Court held as under:- “9. ….Section 27 of the Limitation Act provides that on the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. A perusal of the Section per se reveals that this Section applies and controls the operation of the right to the property in cases, where the period of limitation over suit for possession of the property expires and suit is not filed. It provides that right to property of person shall be extinguished when it provides, as to when the right to the person to his property shall extinguish and in what cases it shall extinguish. The earlier part of the Section reveals that if there is a cause of action for a person to file a suit for possession and the suit for possession is not filed by him either on the basis of title or on the basis of possession and late dispossession, if the period of limitation prescribed hereof expires without suit being filed, then the right, title and interest of that therein shall extinguish. The Section provides an exception to the general principle of law that limitation bars the remedy only, but, does not extinguish the right, but, so far as Section 27 is concerned, it expressly provides that when there exists a cause of action in favour of a person to file a suit for possession, then, if the suit is not filed within a period of limitation prescribed, and the period of limitation stands determined, then not only period of limitation come to an end, but, his right will also comes to an end and it is to stand extinguished. The cases, where, the possession of the defendant becomes adverse to the plaintiff, it means that title of the owner of the property would extinguish on the expiry of the period of 12 years, in cases covered by Article 65, if the suit for possession had not been filed by the plaintiff, that is, the owner of the property for possession within that period. The question is, when can the possession be said to be adverse? This has been dealt with in many cases. 10. Simply possession for 12 years may not become adverse. The possession must for 12 years be continuous possession and it must be hostile in its nature. ….” 81. In the light of the aforesaid undisputed facts and the judgments of the Apex Court, it is clear that unless the person asserting title by adverse possession admits title of the plaintiff and denies his title openly, the basic requirement of adverse possession is not established. Similarly, if the case of the defendant is that he was lawfully put in possession and he has become the absolute owner and he asserts title to the property by such valid transfer of title, the plea of adverse possession is not available to him. Similarly, if the purchaser from one of the members of the joint family or a co-owner, asserts adverse possession, then the law governing adverse possession between co-owners and members of a joint family is attracted. Unless there is a plea of ouster and unless the said plea is established by acceptable evidence, they cannot succeed on the plea of adverse possession. Therefore, as rightly held by the trial Judge in this case, the defendants have failed to establish the plea of adverse possession which they have set up. Unless there is a plea of ouster and unless the said plea is established by acceptable evidence, they cannot succeed on the plea of adverse possession. Therefore, as rightly held by the trial Judge in this case, the defendants have failed to establish the plea of adverse possession which they have set up. Therefore, we do not see any infirmity in the said finding recorded by the trial Court. (6) MANDATORY INJUNCTION 82. The prayer is to pull down the structures constructed on the lands mentioned in the schedule. The two lands where the constructions are put up are Sy.No.62 and Sy.No.55. The case of the defendants is they have not put up any construction in Sy.No.55. They have sold it during 1979-80 to about 84 persons in bits through registered sale deeds. It is the purchasers who have put up structures after they purchased the land in Sy.No.55. Before the institution of the suit about 40-50 houses have come up in Sy.No.55. 83. The trial Court at para 85 dealing with these constructions held that in respect of constructions in Sy.No.55 the matter regarding mandatory injunction has to be considered in final decree proceedings taking note of all the aspects of the matter together with equitable consideration. Therefore, he held the plaintiffs are entitled to mandatory injunction in this suit, in the final decree proceedings. 84. However, in respect of lands in Sy.No.62, the material on record discloses that the land in Sy.No.62 has been fully developed and a cinema theatre, residential house, industrial sheds have been put up. The construction over lands in Sy.No.62 is put up subsequent to 1978. The plan for the theatre is approved during the year 1982. In respect of the construction of theatre, granting of licence for construction, the matter has reached this Court by way of several Writ Petitions. The learned Judge after referring to the said Writ Petitions and the orders made thereon was of the view that the High Court after taking note of these constructions did not pass any order either holding the constructions as illegal or directed demolition of the said constructions. On the contrary, it directed the parties to pursue the remedies in Civil Court if they are entitled to. On the contrary, it directed the parties to pursue the remedies in Civil Court if they are entitled to. Therefore, he was of the view that, in the light of the aforesaid judgments of this Court in writ proceedings, no decree for mandatory injunction could be granted. 85. It is a clear case of misreading of the orders of the High Court, misreading of evidence on record and misinterpretation of law. If a person puts up construction on a property which does not belong to him and without obtaining sanctioned plan, the said construction cannot be condoned by the Courts. It is only in cases where a lawful owner of a property obtains legal sanctions as required under law and puts up construction and if such construction is illegal or in the process of construction any encroachments are made and if the person who claims to be the real owner of those properties stands by, allows the construction to be put up without any protest and it is after the completion of either the substantial portion of the construction or complete construction, he approaches the Court for a decree of mandatory injunction, then equitable consideration would arise. His conduct of not moving the Court immediately to prevent such illegal constructions assumes importance. It is in those circumstances, the law is fairly well settled that notwithstanding the fact that the construction put up is an illegal one and in the process of construction any encroachments are made, the remedy is not by way of mandatory injunction but in lieu of mandatory injunction compensation in terms of money. This principle has nothing to do with a case where a person purchases the property from a person who has no title or a person who purchases the property from a person when that property is vested in the Government by virtue of a social legislation and puts up constructions without any sanction from any authority or such persons alienate the properties and such alienees put up constructions then it cannot be said that such equitable considerations would apply. In the instant case, the lands in question were not partiable. They stood vested in the Government with the passing of the Act. Therefore, even the inamdars or persons who were holding this village offices lost title to the property with a right to seek for re-grant. In the instant case, the lands in question were not partiable. They stood vested in the Government with the passing of the Act. Therefore, even the inamdars or persons who were holding this village offices lost title to the property with a right to seek for re-grant. When such properties were acquired under a sale deed, the purchaser gets no title. More so in this case that the seller was not the absolute owner of the entire property. He had only a 1/3rd undivided share in the property sold and such purchasers have put up constructions without sanction of law. The record shows that by virtue of such sale deeds under which they got no title, they got the katha transferred, got some plan prepared, sanctioned, all of which would not regularize their title or constructions and they have in turn sold the properties and purchasers from them have put up constructions on the basis of these documents which have no sanction in the eye of law. The question of entitlement of the plaintiff for a decree of mandatory injunction was not the subject matter of those Writ Petitions. This Court had no occasion to go into the said question and rightly even if such contentions were urged, they directed the parties to approach Civil Court for appropriate reliefs. Therefore, that order of the High Court cannot be held against the plaintiffs to deny them the relief of mandatory injunction, if in law they are entitled to the decree of mandatory injunction. The trial court failed to notice that these defendants especially defendants Nos.1 to 10 were parties to all the proceedings and these constructions are put up during the pendency of these proceedings. Therefore, they have no respect for the law. Some of the constructions are put up in disobedience to the interim order passed in these proceedings. In fact the trial Judge in respect of constructions over lands in Sy.No.55 has categorically held that the matter regarding mandatory injunction has to be considered in final decree proceedings taking note of the equitable consideration. That is the proper thing to do. 86. In a suit for partition there are two decrees, preliminary decree and final decree. In fact the trial Judge in respect of constructions over lands in Sy.No.55 has categorically held that the matter regarding mandatory injunction has to be considered in final decree proceedings taking note of the equitable consideration. That is the proper thing to do. 86. In a suit for partition there are two decrees, preliminary decree and final decree. The preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree – the decree which would be executable would be the final decree. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it. 87. When a suit for partition is filed in Court, a preliminary decree is passed determining the shares of the members of the family. The final decree follows, thereafter allotting specific properties and directing partition of immovable property by metes and bounds. Unless and until a final decree is passed and allottees of the shares are put in possession of their respective properties, the partition is not complete. The preliminary decree which determines the shares does not bring about final partition. Therefore, in a preliminary decree, the question that has to be gone into is, whether the schedule properties are joint family properties, whether they are partiable, whether they are already partitioned, if not partitioned what is the share to which each member of the family is entitled to? Therefore, the only adjudication that takes place at the stage of preliminary decree is the entitlement of the extent of share to which the members of the family are entitled to. It is after preliminary decree determining the shares to which each party is entitled to, in the final decree proceedings, the separation of their share has to be gone into. A final decree is to be passed in terms of the preliminary decree. It is after preliminary decree determining the shares to which each party is entitled to, in the final decree proceedings, the separation of their share has to be gone into. A final decree is to be passed in terms of the preliminary decree. If the plaintiff who has come to Court is not in possession of the property to which he is entitled to as declared by the preliminary decree, the property is to be divided by metes and bounds and the plaintiff-sharer is put in possession of only his share in the joint family property allotted to him in the final decree. If any of the members had alienated the properties prior to the preliminary decree, the alienation is per se, is not void provided the alienation is to the extent of the share declared by the Court. The purchaser is certainly entitled to claim the property which he has purchased from the share which is allotted to his vendor. It is only in cases where a sharer in excess of his share disposes of the most valuable property, at the time of adjustment of shares, it is not necessary to allot the properties which he has already sold to the purchasers. Otherwise, if all the properties are of the same value, the location of which does not make any difference in so far as market value of the property is concerned, as far as possible in the final decree proceedings, the properties which a sharer has already sold is to be allotted to the purchaser of his share, so that the sale deeds executed by him are honoured and the purchaser from such sharer is not put to any loss and hardship. But, if a sharer has sold properties far in excess of his share, even after such equitable considerations to the extent to the property which is sold is in far excess of his share, a final decree is to be passed to deliver possession of that portion to the sharer to which it is allotted. But, if a sharer has sold properties far in excess of his share, even after such equitable considerations to the extent to the property which is sold is in far excess of his share, a final decree is to be passed to deliver possession of that portion to the sharer to which it is allotted. At that stage, if it is necessary to demolish any construction which is already put up which is illegal, which is not authorised or unauthorised construction, then the question of the Court exercising its discretion to grant or not to grant a decree for mandatory injunction arises on the evidence to be adduced, in particular, the person who will be hurt by such decree for mandatory injunction. If without demolition of such illegal construction it is not possible to effect a partition by metes and bounds in terms of the preliminary decree, a decree for mandatory injunction should follow. Therefore, the trial Court declining to grant a decree for mandatory injunction in respect of construction made over lands in Sy.No.62 at the stage of passing preliminary decree is illegal. As was done in respect of constructions put up over lands in Sy.No.55 enquiry should have been relegated to the final decree proceedings. Therefore, the finding of the trial Court that the plaintiffs are not entitled to any decree for mandatory injunction in respect of constructions made over lands in Sy.No.62 is unsustainable and accordingly it is set aside. It is made clear the claim of the plaintiffs for mandatory injunction shall be gone into at the stage of final decree proceedings keeping in mind the above observations. (7) ESTOPPEL & ACQUISANCE 88. It was contended that the plaintiffs have not taken any steps either to prevent the alienees or to challenge the alienations made by the other co-sharer. The Bangalore Development Authority has acquired lands in Sy.Nos.12 and 108 and formed a layout and allotted sites to various persons. When the defendants constructed factory shed, cinema buildings and raised other constructions, no objections are raised by the plaintiffs in relation to the said constructions. The defendants have spent more than a crore of rupees. The plaintiffs by their inaction are estopped from claiming any right in any of these properties. When the defendants constructed factory shed, cinema buildings and raised other constructions, no objections are raised by the plaintiffs in relation to the said constructions. The defendants have spent more than a crore of rupees. The plaintiffs by their inaction are estopped from claiming any right in any of these properties. If the subject matter of the suit is acquired by the BDA, thereafter has formed sites, allotted the same to the allottees who have put up constructions on the said sites, that in no way affects the rights of the plaintiffs in so far as their share in the property is concerned. Once their right is declared, as they have not challenged acquisition, they would be entitled to compensation for the land so acquired to the extent of the share which is declared by this Court. They cannot challenge the allotments or the constructions made by such allottees and therefore on that ground their suit for partition cannot be dismissed. 89. In so far as the plea of estoppel is concerned, this Court had an occasion to consider the law on the point in the case of SRI PARUSHURAM NEMANI KUDUCHAKAR AND OTHERS Vs SMT SHANTABAI RAMACHANDRA KUDUCHAKAR AND OTHERS [ILR 2004 KAR 3355]. After noticing various judgments it was held as under:- “37. In the light of the principles evolved as aforesaid, the law on estoppel could be stated thus: Estoppel is a rule of evidence. If finds statutory recognition in Sections 115 to 117 of the Evidence Act. However, it is not an exhaustive statement of the law of estoppels. Estoppels are of infinite variety of intricate matters. The rule of estoppel is based on equity and good conscience. In plain words, estoppel means, a person shall not be allowed to say one thing at one time and the opposite of it at another time. A person is estopped from denying or withdrawing his previous assertion, or from going back upon his own act, or asserting state of things opposite to what he has formerly asserted by words or conduct. The principle is that it would promote fraud and litigation, if a person is allowed to speak against his own act or representation on the faith of which another person was induced to alter his position. The object of estoppel is to prevent fraud and secure justice between parties by promotion of honesty and good faith. 38. The principle is that it would promote fraud and litigation, if a person is allowed to speak against his own act or representation on the faith of which another person was induced to alter his position. The object of estoppel is to prevent fraud and secure justice between parties by promotion of honesty and good faith. 38. One of the species of estoppels is contained in the doctrine of approbation and reprobation. It means, a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. If parties in Court are permitted to assume inconsistent positions in the trial of their causes, the usefulness of courts of justice would in most cases be paralysed, the coercive process of the law, available only between those who consented to its exercise, could be set at naught by all. But the right of all men, honest and dishonest, are in the keeping of the courts and consistency of the proceedings is therefore required of all those who come or are brought before them. In fact this maxim is only one application of the doctrine of election and its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. This doctrine, however does not apply against the provisions of statute. It applies to the conduct of the parties. 90. Therefore, it is clear, admittedly the plaintiffs have not made any express representations to these defendants and now they are not attempting to rescind from such representations. On coming to know of the alienations, the plaintiffs have filed the suit for partition. As the order of re-grant came to be set aside, the said case was not pursued and immediately after re-grant for the second time, the present suit is filed for partition and an interim order is sought for. In the re-grant proceedings, the alienees from the co-sharers are all parties. All these alienations are made after the land vested with the Government. The constructions are put up when the matter was pending before various forums for adjudication of rights. Some of the constructions are put up in disobedience of the order of temporary injunction granted by this Court. In the re-grant proceedings, the alienees from the co-sharers are all parties. All these alienations are made after the land vested with the Government. The constructions are put up when the matter was pending before various forums for adjudication of rights. Some of the constructions are put up in disobedience of the order of temporary injunction granted by this Court. Even otherwise, when alienations are made after vesting of the land in the Government and constructions are put up during the pendency of the proceedings before the various forums, such a person cannot plead estoppel against the plaintiffs. The defendants by their conduct have disentitled themselves from even raising the plea of estoppel though their case of estoppel is not made out in this case and therefore the submission that the suit is liable to be dismissed on the ground of estoppel is also without any substance. 91. In the light of the aforesaid discussions, we pass the following order:- (a) Both the appeals are allowed. (b) Judgment and decree of the trial Court is hereby set aside. (c) Plaintiffs suit for partition and separate possession is decreed declaring plaintiff No.1, plaintiff No.2 and 11th defendant are entitled to 1/3rd share each in all the plaint schedule properties. (d) The question of granting a decree for mandatory injunction shall be decided in the final decree proceedings. (e) If any request is made by any of the parties to this proceedings, the trial Court shall implead all the parties who are in the possession of the plaint schedule properties claiming title from the plaintiffs 1, 2 and 11 in the final decree proceedings and shall determine their respective rights. (f) Parties to bear their own costs.