JUDGMENT : These appeals are decided by this common judgment as they are preferred challenging the same judgment. 2. The appeal in RFA No. 460 of 2009 is filed by the plaintiff. The appeals in RFA Nos. 1219 and 1085 of 2009 are filed by the defendants 2 and 6(b) respectively. 3. The parties are referred to by their rank before the Trial Court for the sake of convenience. 4. The suit was filed seeking the relief of declaration that the plaintiff and defendants 1 to 6 were the absolute owners of the suit schedule properties and for partition and separate possession of the same. The suit properties were the land bearing Sy. No. 73 of Yeshwanthpur Village, Bangalore North Taluk, measuring 6 acres and 1 gunta and land bearing Survey No. 70/1 of Yeshwanthpura Village, Bangalore North Taluk, measuring 1 acre. The plaintiff claimed that he was entitled to l/7th share in the suit schedule property. Defendants 1 to 5 were the brothers of the plaintiff and the defendant 6 was the mother of the plaintiff. M/s. Fire Bricks and Potteries Private Limited was arrayed as defendant 7. It was the plaintiff's case that his father late V.L. Dhanram Modaliar and his father's brother V.L. Venugopal Modaliar had purchased 12 acres and 2 guntas of land in land bearing Survey No. 73 of Yeshwanthpur Village, under a registered sale deed dated 3-2-1938. It was claimed that V.L. Dhanram Modaliar and V.L. Venugopal Modaliar, along with their family members had promoted two companies, namely, M/s. Fire Bricks and Potteries Private Limited and M/s. Standard Tiles and Clay Works Limited. The shares in the said two companies were held jointly by V.L. Dhanram Modaliar and V.L. Venugopal Modaliar. Subsequently, by an arrangement between the two brothers, M/s. Fire Bricks and Potteries Private Limited (defendant 7) came to be owned by V.L. I Dhanram Modaliar and his family members and M/s. Standard Tiles and I Clay Works Limited came to be owned by V.L. Venugopal Modaliar and his I family members. M/s. Standard Tiles and Clay Works Limited, represented by its Managing Director V.L. Venugopal Modaliar, sold the property to defendant I 7-Company, which was represented by V.L. Dhanram Modaliar, the plaintiff's father, under a registered sale deed dated 14-4-1945. M/s. Standard Tiles and Clay Works Limited, represented by its Managing Director V.L. Venugopal Modaliar, sold the property to defendant I 7-Company, which was represented by V.L. Dhanram Modaliar, the plaintiff's father, under a registered sale deed dated 14-4-1945. It was urged by the plaintiff that V.L. Venugopal Modaliar was entitled to only half share in Item No. 1 of the suit schedule properties, namely, 6 acres and 1 gunta and hence, V.L. Venugopal Modaliar could not have transferred the entire extent of 12 acres 2 guntas to defendant 7. Therefore, the plaintiff claimed that he was entitled to partition and separate possession of l/7th share in the suit schedule properties. It was further urged by the plaintiff that his father V.L. Dhanram Modaliar was granted occupancy rights in respect of land bearing Sy. No. 70/1, Yeshwanthpura Village, Bangalore North Taluk, measuring 1 acre, Item No. 2 of the suit schedule properties. The defendants 1 and 3 to 7 had entered appearance on service of summons and had filed a common written statement. It was the case of the said defendants that both V.L. Dhanram Modaliar and V.L. Venugopal Modaliar acquired the property under a registered sale deed dated 3-2-1938 (Exhibit D. 1) for and on behalf of M/s. Standard Tiles and Clay Works Limited, though the said property was purchased in their individual names. This was on account of the fact that the aforesaid company was not incorporated as on the date of purchase. However, the land bearing Sy. No. 73 of Yeshwanthpura Village, Bangalore North Taluk, measuring 12 acres and 2 guntas had always been in the possession and occupation of M/s. Standard Tiles and Clay Work Limited, since its incorporation till the property was sold to the defendant 7-company, under a registered sale deed dated 14-4-1945. It was evident from the revenue records that from 14-4-1945, the defendant 7-company had been in possession and occupation of the land bearing Sy. No. 73. It was stated that there were two partitions amongst the legal heirs of V.L. Dhanram Modaliar i.e., the plaintiff's father, where under the present suit schedule property was neither included in the schedule of properties that were partitioned, nor expressly excluded. The first partition was by way of a deed of partition dated 29-9-1962. However, in the said deed, the parties thereto had expressly agreed that the said partition was only a partial partition. The first partition was by way of a deed of partition dated 29-9-1962. However, in the said deed, the parties thereto had expressly agreed that the said partition was only a partial partition. Subsequently, in the year 1969, the plaintiff is said to have filed a civil suit in O.S. No. 56 of 1969 seeking partition of the joint family property. A compromise was said to have been arrived at by the parties thereto. In the said compromise petition, at paragraph 11, the parties to the said petition are said to have declared as below: "Parties hereby confirm that there are no other property -movable or immovable whatsoever to be divided amongst them and belonging to joint family". The plaintiff is said to have served defendant 7 in various capacities, including as the Managing Director of the said company till 16-1-1980. During his tenure as a director, the defendant 7 had mortgaged the suit schedule property in favour of Karnataka State Financial Corporation to secure a loan. The mortgage deeds dated 2-6-1961 and 2-1-1970 had also been executed by the plaintiff as a director of the defendant 7-company. In the said mortgage deeds, the plaintiff had represented to the secured creditor that the defendant 7-company was the absolute owner of the mortgaged property. The defendant 2 had not filed written statement. During the pendency of the suit, the sixth defendant is said to have died and her daughters have been impleaded as defendants 6(a) and 6(b). They are said to have filed a common written statement and have also prayed for a decree of 2/7th share in the suit schedule property. On the basis of the above pleadings, the Court below is seen to have framed the following issues: "1. Does defendants prove title of 7th defendant to the suit property? 2. Whether the suit claim is barred by limitation? 3. Whether the valuation and payment of Court fee are insufficient? 4. Does the plaintiff prove joint title or possession of the suit property? 5. Whether the plaintiff is entitled for the partition and possession of l/7th share? 6. To what reliefs the parties are entitled?" The Trial Court had answered Issues 1 and 2 in the affirmative and 3 and 4 in the negative and answered issue 5 by holding that the plaintiff is not entitled to partition and possession of l/7th share in the suit schedule properties. 6. To what reliefs the parties are entitled?" The Trial Court had answered Issues 1 and 2 in the affirmative and 3 and 4 in the negative and answered issue 5 by holding that the plaintiff is not entitled to partition and possession of l/7th share in the suit schedule properties. It is that judgment which is under challenge in these appeals. 5. The learned Senior Advocate Sri T.V. Ramanujam appearing for the learned Counsel for the appellant contends that the Trial Court had taken up issues 1,4 and 5 together and had given the following reasons to dismiss the suit: "Further, it is an undisputed fact that subsequently both the brothers V.L. Dhanram Mudaliar, father of plaintiff and defendants 1 to 5 and V.L. Venugopal Mudaliar have formed M/s. Firebricks and Potteries (Private) Limited and M/s. Standard Tiles and Clay Works (Private) Limited. This finding is not supported by any evidence. The learned Judge has used the word 'subsequently', thereby observing that as if the two companies were formed by the two brothers after Exhibit D. 1 dated 3-2-1938. There is no evidence to support this observation or if it is called as a finding, it is not proved by any evidence. On the other hand, even as seen from the written statement of defendants 1 and 3 to 7 in para 8, it is clearly stated that the companies were already incorporated and the two brothers acquired the property not for their own personal benefit but acquired as directors of the companies incorporated under the provisions of the Companies Act, 1956. There is also evidence to show that the seventh defendant-company was incorporated before 3-2-1938. The seventh defendant-company has been incorporated in the year 1935 as seen from Exhibit D. 8 at page 107 of the typed set of documents and also as seen from page 258 which are balance-sheets of the seventh defendant-company. Thus, there is documentary evidence to show in the form of balance-sheets filed by the defendants themselves that the seventh defendant was incorporated in the year 1935 and it is seen from para 8 of the written statement that M/s. Standard Tiles and Clay Works (Private) Limited was already incorporated under the Indian Companies Act, 1913, and the two brothers were directors". The learned Senior Advocate would draw attention to para 6.01, at page 15 of the judgment, wherein the learned Trial Judge had posed a question as follows: "So, now we have to consider that whether both V.L. Dhanram Mudaliar and V.L. Venugopal Mudaliar have purchased the entire Sy. No. 73 of Yeshwantpura Village wherein Item 1 of suit schedule property is situated in their individual capacity or as directors of M/s. Standard Tiles and Clay Works (Private) Limited and M/s. Firebricks and Potteries (Private) Limited". The very framing of this question, it is contended, was erroneous. It was nobody's case that V.L. Dhanram Mudaliar and V.L. Venugopal Mudaliar purchased Item 1 of the suit schedule property under Exhibit D. 1-a sale deed, as directors of both the companies. The learned Judge had further proceeded as follows: "But it is the case of the plaintiff himself that after purchasing the said land Sy. No. 73 by V.L. Dhanram Mudaliar and V.L. Venugopal Mudaliar, both of them had promoted two companies known as M/s. Standard Tiles and Clay Works (Private) Limited and M/s. Firebricks and Potteries (Private) Limited. So, it is clear that at the time of purchasing the suit schedule property, these two companies were not at all in existence and therefore, Exhibit P. 1 is in the individual names of V.L. Dhanram Mudaliar and V.L. Venugopal Mudaliar and not as representatives of the company. But subsequently, it is the case of the plaintiff himself that the two companies were promoted by V.L. Dhanram Mudaliar and V.L. Venugopal Mudaliar". The above finding, it is contended, is on the face of it, erroneous. It is pointed out that it was not the case of the plaintiff that, at the time of Exhibit P. 1, the two companies were not in existence. It was not the case of the plaintiff that the two companies were promoted after Exhibit P. 1. The two companies were very much in existence at the time of Exhibit P. 1. And even as per para 8 of the written statement, the two brothers were directors of the two companies incorporated under the Companies Act, 1956. The finding is thus contrary to the evidence available on record and it is not supported by any evidence. Hence, it is contended that this reasoning and the finding based on this erroneous reasoning is liable to be set aside. The finding is thus contrary to the evidence available on record and it is not supported by any evidence. Hence, it is contended that this reasoning and the finding based on this erroneous reasoning is liable to be set aside. It is further contended that the second reason given is that Item No. 1 of the suit schedule property had been mortgaged by the seventh defendant under Exhibits D. 5 and D. 6 showing it as the property of the seventh defendant and hence, Item No. 1 was the property of the seventh defendant. The question was whether the seventh defendant had become the owner under Exhibit D. 2. If the seventh defendant, proceeding on the basis that it had title under Exhibit D. 2, and had mortgaged the suit property under Exhibits D. 5 and D. 6, and plaintiff and defendants 1 to 5 had stood as guarantors, it would not create title in favour of the seventh defendant, if Exhibit D. 2 had not, in fact, created title. Exhibits D. 5 and D. 6 are seen to be mortgage deeds in a printed format. Apart from that, the plaintiff and defendants 1 to 6 were shareholders and plaintiff and defendants 1 to 5 were in the management of the company. They were all family members. No third-party was involved. There were no separate deeds of guarantee. It is not stated as to why the plaintiff and defendants 1 to 5 or some of them had been asked to stand as guarantors. Therefore, if Exhibit D. 2 did not convey title to the seventh defendant, the mere mortgage of the property by the seventh defendant claiming as owner and the plaintiff and defendants 1 to 5 joining in the said mortgage deed, would not confer title to the seventh defendant, if the seventh defendant otherwise had no title under Exhibit D. 2. The third reasoning given by the Judge is that there was a suit in O.S. No. 56 of 1969, covered by Exhibits D. 38 and D. 39 and in that suit, the suit properties were not included and hence the suit properties are not the joint family properties, but is the property of the seventh defendant. This is also erroneous. In 1962, there was a partial partition covered by Exhibit P. 12. A reading of Ex. This is also erroneous. In 1962, there was a partial partition covered by Exhibit P. 12. A reading of Ex. P. 12 makes it clear that the partition deed was only in respect of one property namely No. 1, Langford Road, Civil Station, Bangalore and a vacant piece of land, south of it as acquired by Dhanram Mudaliar out of his self-acquired funds. The partition deed recites that the two properties were amalgamated and a house was constructed and a private road was laid by late Dhanram Mudaliar and constructions were put up out of their separate funds and that it was only a partial partition. It is stated that there was a portion which was not the matter of the partition. Hence, merely because the suit property has not been included in O.S. No. 56 of 1969, it could not be presumed that the suit properties were not available for partition and they are the properties of the seventh defendant. 6. On the other hand, the learned Senior Advocate Sri K.G. Raghavan, appearing for the Counsel for defendant 7 contends that the appeals are liable to be dismissed on the following grounds: (i) Burden of proof; (ii) Doctrine of estoppel as enshrined in Section 115 of the Indian Evidence Act, 1872; (iii) Sale of property by a ostensible owner as contemplated under Section 41 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'TP Act', for brevity); (iv) Effect of not seeking declaration on the title to the suit schedule properties by the plaintiff within the limitation period; (v) Non-maintainability of second suit for general partition amongst the family members; (vi) Limitation. (i) It is contended that one of the grounds on which the Trial Court has dismissed the suit is based on the proposition of law that the plaintiff has to prima facie show that the suit schedule properties have been held jointly by them. In fact, the plaintiff has expressly admitted in his cross-examination, that he has not produced any document to show that Item No. 1 property was standing in the names of legal representatives of the father of the plaintiff. He has also further admitted that he has not produced any document before the Court to show that the occupancy right, in respect of Item No. 2 of the schedule, was granted in favour of his late father. He has also further admitted that he has not produced any document before the Court to show that the occupancy right, in respect of Item No. 2 of the schedule, was granted in favour of his late father. On the other hand, the defendant 7-company has proved beyond reasonable doubt that the suit schedule properties are its absolute properties. The following documents have been produced before the Trial Court by the defendant 7-company for establishing its title to the suit schedule properties: (a) Sale deed dated 14-4-1945 (Exhibit D. 2); (b) Mortgage deeds dated 2-6-1961 and 2-1-1970 (Exhibits D. 5 and D. 6 respectively): Both the deeds were signed by the plaintiff and other directors on behalf of the defendant 7-company and this fact had been admitted by the plaintiff himself in his cross-examination; (c) Compromise petition filed by the plaintiff and other defendants in the suit for partition bearing O.S. No. 56 of 1969. In the said petition, the plaintiff and other defendants too have expressly confirmed, in paragraph 11 of the petition, that there are no other property-movable or immovable whatsoever, to be divided amongst them and belonging to joint family; (d) Grant certificate (Exhibit D. 46) in respect of the Item No. 2 property, confirming that the grant was in favour of the defendant 7-company. Therefore, it is contended that the Trial Court has rightly held that when the plaintiff has asserted that the suit schedule properties are joint family properties, the burden is on the plaintiff to demonstrate that suit schedule properties are joint family properties. (ii) It is further contended that one of the most pertinent questions for consideration is whether the plaintiff could question the entitlement of the defendant 7-company to the suit schedule property in the light of the conduct of his late father V.L. Dhanram Modaliar and V.L. Venugopal Modaliar having executed the sale deed dated 14-4-1945 (Exhibit D. 2), wherein V.L. Dhanram Modaliar has represented the defendant 7-company and V.L. Venugopal Modaliar has represented M/s. Standard Tiles and Clay Works Limited. Reliance is placed on the following decisions: 1. B.L. Sreedhar and Others v. K.M. Munireddy and Others, AIR 2003 SC 578 : (2003)2 SCC 355 ; 2. Sunderabai and Another v. Devaji Shankar Deshpande, AIR 1954 SC 82 ; 3. Reliance is placed on the following decisions: 1. B.L. Sreedhar and Others v. K.M. Munireddy and Others, AIR 2003 SC 578 : (2003)2 SCC 355 ; 2. Sunderabai and Another v. Devaji Shankar Deshpande, AIR 1954 SC 82 ; 3. Tata Iron and Steel Company Limited v. Union of India and Others, AIR 2000 SC 3706 : (2001)2 SCC 41 ; 4. Indira Bai v. Nand Kishore, AIR 1991 SC 1055 : (1990)4 SCC 668 ; 5. Jai Narain Parasrampuria and Others v. Pushpa Devi Saraf and Others, (2006)7 SCC 756 . It is contended that from the aforesaid judgments, it is established that when a person, either by words or by conduct, has consented to an act, which has been done and that he will offer no opposition to it and he thereby induces others to do that from which they otherwise might have abstained, then such person cannot question the legality of the act he had so sanctioned. Assuming, but not admitting that transfer of property from M/s. Standard Tiles and Clay Work Limited to the defendant 7-company under registered sale deed dated 14-4-1945 is not a valid transaction, the legal representatives of late V.L. Venugopal Modaliar and V.L. Dhanram Modaliar are estopped from raising any claim against the defendant 7-company for the following reasons: (a) Assuming that V.L. Venugopal Modaliar and V.L. Dhanram Modaliar bought the suit schedule property (Item No. 1) in their individual capacities; both the brothers were party to the sale deed dated 14-4-1945 (which is marked as Exhibit D. 2). During the said sale, V.L. Venugopal Modaliar represented as the Director of M/s. Standard Tiles and Clay Work Limited and V.L. Dhanram Modaliar represented as the Director of the defendant 7-company; (b) Being parties to the sale deed dated 14-4-1945, both V.L. Venugopal Modaliar and V.L. Dhanram Modaliar had expressly consented to the sale of the property by M/s. Standard Tiles and Clay Work Limited to the defendant 7 without any opposition; (c) Based on the representations made by M/s. Standard Tiles and Clay Work Limited, the defendant 7-company has altered its position by paying the consideration to it; and (d) Therefore, neither the plaintiff nor any other legal heirs of V.L. Venugopal Modaliar and V.L. Dhanram Modaliar should be allowed in any suit or proceeding between themselves and such person or their representative to deny the transfer of title from M/s. Standard Tiles and Clay Work Limited to the defendant 7-company. It is further pointed out that the High Court of Madras in V. Baskaran and Another v. Manjula and Others 2013(2) MWN (Civil) 631 (Mad.), has held as under: "If there are certain recitals in a registered document then contra evidence cannot be adduced by either of the parties". It was further held that: "The recitals in a registered deed cannot be given a go-by and the party who committed himself in black and white cannot veer round and take an antithetical stand". The Apex Court in V.K. Surendra v. V.K. Thimmaiah and Others (2013)10 SCC 211 , has observed that recitals in the documents are binding on the persons who were parties to the said document. The Apex Court in Vidhyadhar v. Mankikrao and Another AIR 1999 SC 1441 : (1999)3 SCC 573 , has observed that the intention is to gather from the recital in the sale deed, conduct of the parties and the evidence of record. The High Court of Andhra Pradesh in Darisi Masthanamma v. Mandiga Rama Krishna AIR 2006 AP 286 , has observed that a party to a document should not go back from the recitals in the document. From the aforesaid decisions, it is contended that the true intention of the parties to the document can be ascertained from the recitals contained in the said document and the parties to the document cannot ignore the recital to their benefit. From the aforesaid decisions, it is contended that the true intention of the parties to the document can be ascertained from the recitals contained in the said document and the parties to the document cannot ignore the recital to their benefit. In the present case, the recitals of Exhibit D. 2, which is the registered sale deed dated 14-4-1945 state and confirm that the property' (Item No. 1) belongs to M/s. Standard Tiles and Clay Work Limited and the same was acquired from the previous owners under a registered deed of sale dated 3-2-1938 i.e., Exhibit D. 1. The said recital is reads thus: "2. Whereas, the property denoted in the schedule written hereunder belongs to the Vendor Company, the same having been acquired by the Vendor from the previous owners under a registered deed of sale dated 3-2-1938". Since both V.L. Venugopal Modaliar and V.L. Dhanram Modaliar were parties, although as directors of the respective companies, to the said deed, neither they or their representatives can now go back on the recital and claim title to the property. Therefore, the plaintiff is now estopped from going back on the representation made in the sale deed dated 14-4-1945 wherein both V.L. Venugopal Modaliar and V.L. Dhanram Modaliar were parties to the said document. (iii) It is contended that M/s. Standard Tiles and Clay Work Limited is not the absolute owner of the suit schedule property (Item No. 1) as claimed by the plaintiff, as an alternative submission, it is contended on behalf of the defendant 7-company that the execution of the sale deed dated 14-4-1945 (Exhibit D. 2) by M/s. Standard Tiles and Clay Work Limited in favour of the defendant 7-company is squarely covered by Section 41 of the Transfer of Property Act, and therefore, M/s. Standard Tiles and Clay Work Limited can be held to be the ostensible owner. For application of Section 41 of the TP Act, the following conditions need to be satisfied: (a) The Transferor must be an ostensible owner; (b) He must be held out to be so by the consent, express or implied, of the real owner; (c) The transfer must be for consideration; and (d) The Transferee must have acted in good faith, taking reasonable care to ascertain that the Transferor had power to transfer. The following authorities are relied upon: In Ramcoomar Koondoo v. Macqueen (1872)11 Beng LR 46, the Judicial Committee of the Privy Council held as follows: "It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an enquiry that, if prosecuted, would have led to a discovery of it". In the case of Seshumull M. Shah v. Sayed Abdul Rashid and Others AIR 1991 Kant. 273, it is held as under: "Section 41 incorporates a rule akin to the rule of estoppel whereby the real owner, who by reason of his conduct or express or implied consent, was responsible for the creation of an ostensible ownership, cannot be permitted to set up his real ownership to defeat the rights of a bona fide purchaser acting in good faith and who despite reasonable enquiries could not discover such real ownership". In Fazal Husain v. Muhammad Kazim and Others AIR 1934 All. 193, it is observed that Section 41 enacts a rule which a species of estoppel, but falling short of the requirements of Section 115 of Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act', for brevity). If it is proved that the transfer is made with the consent of the rightful owner, the case would fall within the purview of Section 115 of the Evidence Act and the other conditions of Section 41 need not be satisfied. Such consent will estop the owner even though the transferee made no enquiries as to ascertain that the transferor had power to make the transfer, a condition which is essential to the application of Section 41. In Ramjanam Ahir and Others v. Beyas Singh and Others AIR 1958 Pat. Such consent will estop the owner even though the transferee made no enquiries as to ascertain that the transferor had power to make the transfer, a condition which is essential to the application of Section 41. In Ramjanam Ahir and Others v. Beyas Singh and Others AIR 1958 Pat. 537 , it is held as follows: "The words used in Section 41 of the Act are clear enough to indicate that the section does not require that the transaction to be binding on the real owner must have been, entered into by the ostensible owner with the consent of the real owner. For the application of this section, it is no doubt true that with the consent of the true owner, the possession of the ostensible owner must continue upto the date of the transfer; but it is not at all necessary that the transfer itself should be with the consent of the owner". In Kovvuri Satyanarayanamurthi and Others v. Tetali Pydayya and Others AIR 1943 Mad. 459 , it is held as under: "Section 41 after all is another species of estoppel when the representation is not made directly to the representee but when it consists in making it possible for the ostensible owners to mislead those with whom they are dealing on account of the special position of vantage in which they were placed by the conduct, express or implied, of the real owners". In view of the principles laid down as above in the aforesaid judgments, it is contended that the facts of the present cases are completely covered under Section 41 of the TP Act, as all the conditions contemplated under the said section is satisfied. In view of the principles laid down as above in the aforesaid judgments, it is contended that the facts of the present cases are completely covered under Section 41 of the TP Act, as all the conditions contemplated under the said section is satisfied. It is sought to be analysed thus: (a) The transferor must be an ostensible owner: In this case, M/s. Standard Tiles and Clay Work Limited is the ostensible owner as it has represented itself to have acquired the property under the registered sale deed dated 3-2-1938 as per the recital; (b) He must be held out to be so by the consent, express or implied, of the real owner: M/s. Standard Tiles and Clay Work Limited represented that it is the real owner by express consent of both V.L. Venugopal Modaliar and V.L. Dhanram Modaliar as they were also parties to the sale deed dated 14-4-1945; (c) The transfer must be for consideration: The transfer of the suit schedule property (Item No. 1 of the schedule) was for consideration of a sum of Rs.4,800/- as evident from the recitals in the said deed; and (d) The transferee must have acted in good faith, taking reasonable care to ascertain that the Transferor had power to transfer. The defendant 7-company has purchased the property from M/s. Standard Tiles and Clay Work Limited based on the representations contained in the said deed. M/s. Standard Tiles and Clay Work Limited has expressly confirmed that it is absolute owner of the property having purchased under the sale deed dated 3-2-1938 and both V.L. Venugopal Modaliar and V.L. Dhanram Modaliar have consented to the said sale by M/s. Standard Tiles and Clay Work Limited, by being parties to the said sale as representatives of the respective companies. Therefore, the defendant 7-company had to be considered as a bona fide transferee in terms of Section 41 of the TP Act. (iv) It is contended that V.L. Venugopal Modaliar and V.L. Dhanram Modaliar, being parties to the sale deed dated 14-4-1945, had by express conduct, indicated that they consent to an act which has done by M/s. Standard Tiles and Clay Work Limited and that they have not offered any opposition to the said sale. In fact, by being parties to the said sale deed, they have expressly consented to the sale. In fact, by being parties to the said sale deed, they have expressly consented to the sale. Therefore, both V.L. Venugopal Modaliar and V.L. Dhanram Modaliar and their legal representatives cannot now question the legality of the act done by M/s. Standard Tiles and Clay Work Limited, which was so sanctioned by them to the prejudice of the defendant 7-company which had given faith to the words and representations made by the parties to the said sale deed. Attention is also drawn to a judgment of the Supreme Court in Anathula Sudhakar v. P. Buchi Reddy and Others AIR 2008 SC 2033 : (2008)4 SCC 594 : 2008 AIR SCW 2692, wherein it is held as under: "We may however clarify that a prayer for declaration will be necessary only if the denial of the title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property". It is clear that when there is a cloud on the plaintiffs title, it is necessary for the plaintiff to seek for declaration. In the present case, the plaintiff has admitted in this cross-examination at page 39, of the paper book that he was aware of the execution of the sale deed dated 14-4-1945, in favour of the defendant 7-company and therefore it implies that the plaintiff was aware that there is cloud on his title wherein sale deed dated 14-4-1945 has confirmed prima facie title in favour of the defendant 7-company. That being so, it was imperative for the plaintiff to have filed a suit for declaration challenging the sale deed dated 14-4-1945 under Section 31 of the Specific Relief Act, 1963 (hereinafter referred to as the 'SR Act' for brevity). Since, the plaintiff has failed to challenge the said sale deed within the limitation period, the plaintiff cannot now contend that he can ignore the said sale deed and seek partition. It is contended that apart from the above, the reliefs as prayed for are merely consequential. Since, the plaintiff has failed to challenge the said sale deed within the limitation period, the plaintiff cannot now contend that he can ignore the said sale deed and seek partition. It is contended that apart from the above, the reliefs as prayed for are merely consequential. (v) It is pointed out that the Trial Court had also dismissed the suit for partition filed by the plaintiff on the ground that the second partition was not maintainable. The Trial Court had noted that there were earlier partitions amongst the family members of V.L. Dhanram Modaliar. The plaintiff himself had produced the partition deed dated 29-9-1962 which was marked as Exhibit P. 12. In the said partition dated 29-9-1962, the parties thereto expressly agreed that the said partition is only a partial partition. There was an express statement to this effect at page 21 of the paper book (Exhibit P. 12). Subsequently in the year 1969, the plaintiff filed a suit in O.S. No. 56 of 1969, seeking partition of the entire joint family properties. A compromise was arrived at by the parties to the suit bearing O.S. No. 56 of 1969. The plaintiff had intentionally concealed the fact of filing of the partition suit by him in the year 1969 in the present suit. In the written statement filed by the defendants 1, 3 to 7, the said defendants had specifically pleaded in paragraph 17 as follows: "It would be relevant to point out at this stage that the plaintiff himself had instituted a suit bearing O.S. No. 56 of 1969 in the Bangalore City Civil Court in which the third defendant was a co-plaintiff. The sixth defendant and defendants 1 to 4 were defendants therein. The said suit was instituted for partition and separate possession of the plaintiff's shares. The said suit ended in a compromise wherein it is clearly declared in para 11 as under: That there are no other property - movable or immovable whatsoever to be divided amongst them and belonging to joint family". The said suit was instituted for partition and separate possession of the plaintiff's shares. The said suit ended in a compromise wherein it is clearly declared in para 11 as under: That there are no other property - movable or immovable whatsoever to be divided amongst them and belonging to joint family". It may further be noted that the plaintiff himself in his further evidence at page 33 of the paper book has stated as follows: "At para 11 of the said petition and the judgment and decree in the above suit, it is mentioned by the parties to the compromise that there is no other properties moveable or immovable whatsoever to be divided amongst them and belonging to the joint family. This is made only with reference to the above said property at No. 1 Langford Road a one and has no connection whatsoever to other properties belonging to out joint family including the Suit Schedule Property". Therefore, the plaintiff now cannot contend that the earlier partition suit was only a partial partition. It is pointed out that there is no reference to the said partition in the plaint except to the extent of making bare averments that there were certain partitions in the joint family. Therefore, the plaintiff has not come to the Court with clean hands. A perusal of the compromise petition and the certified copy of the final decree proceedings makes it clear that in O.S. No. 56 of 1969 filed by the plaintiff, the members of the joint family have expressly confirmed that there are no other joint family properties except the properties that are subject-matter of the partition suit bearing O.S. No. 56 of 1969. It is pointed out that Exhibit D. 39 at page 304 of the paper book confirms that the parties to the partition suit bearing O.S. No. 56 of 1969 filed by the plaintiff have reaffirmed that "there are no other movable and immovable properties whatsoever to be divided amongst them and belong to the joint family". It is pointed out that Exhibit D. 39 at page 304 of the paper book confirms that the parties to the partition suit bearing O.S. No. 56 of 1969 filed by the plaintiff have reaffirmed that "there are no other movable and immovable properties whatsoever to be divided amongst them and belong to the joint family". And that although the Trial Court did not consider the note contained at page 304 of Exhibit D. 39, which was made by the parties to the said suit before the Appropriate Authority, the Trial Court has rightly come to the conclusion that there was no reason for the plaintiff and the defendants in the said suit for not including the suit schedule properties in the said suit nor the plaintiff excluded the present suit schedule properties in the compromise petition filed in O.S. No. 56 of 1969. It is settled proposition of law that a suit for general partition should encompass all the joint family properties both movables and immovables should be brought into the hotchpot, so that equitable division of all the joint property has to be made. However, only in exceptional cases, the said rule may be relaxed and partial partition may be allowed. It is contended that the partial partition is permissible provided: (a) The parties to the suit have expressly consented to such exclusion in the pleadings; or (b) The parties by mistake have left out the said property from the partition. On the other hand, it is contended by Sri Raghavan, that it is the case of the plaintiff herein that the parties to the said suit have intentionally left out the property from the purview of partition and that it was their intention to keep the suit schedule properties jointly. It is the contention of the plaintiff that O.S. No. 56 of 1969 filed by him for partition of joint family properties was a partial partition and not a general one. However, it is contended that the plaintiff has failed to provide any material documents proving his contentions. On the contrary, from a perusal of Exhibit D. 39 and the compromise petition, it was evident and unambiguous that the parties to the said suit did not consider the present suit schedule properties as joint family properties. However, it is contended that the plaintiff has failed to provide any material documents proving his contentions. On the contrary, from a perusal of Exhibit D. 39 and the compromise petition, it was evident and unambiguous that the parties to the said suit did not consider the present suit schedule properties as joint family properties. Even assuming that it was the intention of the parties to the said suit to exclude the present suit schedule properties, such intention should be expressly pleaded by the parties to the said suit. On the contrary, the parties thereto had expressly confirmed that there are no other joint family properties except the properties to the schedule thereto. Moreover, a second general partition suit is also barred under Order 2, Rule 2 of the Code of Civil Procedure, 1908 as the plaintiff had not produced any document to show that he took the leave of the Court for excluding the suit schedule properties. It is contended that the plaintiff nor any other person who was party to the suit for partition bearing O.S. No. 56 of 1969, did not challenge the note contained at page 304 of the Exhibit D. 39, wherein it was stated that there are no other movable and immovable properties whatsoever to be divided amongst them and belong to the joint family. That being the case, it is now not open for the plaintiff to state that the earlier partition was merely a partial partition. (vi) It is contended that the Trial Court had also dismissed the suit for partition bearing O.S. No. 874 of 1990 as barred by law of limitation. The Trial Judge held that there were two earlier partitions amongst the family members of late V.L. Dhanram Modaliar and that this property was never consciously excluded from the partition of the joint family properties. On the contrary, the parties to the aforesaid compromise petition have expressly stated that there are no other properties for partition except the suit properties of that case. Therefore, the Trial Judge had held that in the year 1962 itself or in the year 1969, the possession of the plaintiff was excluded from the suit schedule properties and therefore 12 years have been and therefore, the suit is barred in terms of Article 110 of the Limitation Act, 1963 (hereinafter referred to as the 'Limitation Act', for brevity). Therefore, the Trial Judge had held that in the year 1962 itself or in the year 1969, the possession of the plaintiff was excluded from the suit schedule properties and therefore 12 years have been and therefore, the suit is barred in terms of Article 110 of the Limitation Act, 1963 (hereinafter referred to as the 'Limitation Act', for brevity). It is contended that, in the present case, the plaintiff was very well-aware of the execution of the sale deed dated 14-4-1945 conveying suit schedule properties (Item No. 1) in favour of the defendant 7. During his cross-examination, the plaintiff has admitted that the defendant 7 was in possession of the property. Moreover, the plaintiff himself has along with other directors had mortgaged that suit schedule properties in favour of Karnataka State Financial Corporation in the year 1962 and 1970. In addition to that, the plaintiff, along with other defendants, in compromise petition have expressly confirmed that there were no other properties which form part of the joint family except the suit schedule properties in that suit. Therefore, from the evidence available on record, it can be said that the defendant 7 has been in exclusive possession of the suit schedule properties and thereby, inferring ouster of the possession of the plaintiff herein and hence, the Trial Court has rightly dismissed the suit as barred by limitation. For the aforesaid reasons and based on the above propositions of law, it is sought that this Court dismiss the present appeal and other two appeals filed by the Devaraj Dhanram-defendant 2 and Smt. T. Vanajakshi-defendant 6(b), in R.F.A. Nos. 1219 and 1085 of 2009, respectively. 7. By way of reply, it is contended by Sri Ramanujam that insofar as the contention that in D. 39 at page 304, there is a note stating that there are no other properties movable or immovable whatsoever, to be divided amongst them and belonging to the joint family. It is pointed out that a plea of partial partition was not raised in O.S. No. 56 of 1969. There was no adjudication in O.S .No. 56 of 1969 on merits and it ended in a compromise. In the family, there was a practice of effecting partial partition and the law does not prohibit the same. It is pointed out that a plea of partial partition was not raised in O.S. No. 56 of 1969. There was no adjudication in O.S .No. 56 of 1969 on merits and it ended in a compromise. In the family, there was a practice of effecting partial partition and the law does not prohibit the same. Simply because the plaintiffs had not sought for partition of the present suit properties, in O.S. No. 56 of 1969, it cannot be concluded that the suit properties in this suit are not available for partition. Regarding Item No. 1 of the suit schedule property, the plaintiff has produced Exhibit P. 1, the sale deed dated 3-2-1938 in the name of Dhanram Modaliar and Venugopal Modaliar. The plaintiff has produced Exhibit P. 4, the record of rights in Form 5 in favour of the first defendant, the eldest son of Dhanram Modaliar and kartha upon the demise of Dhanram Modaliar. Exhibit P. 4 refers to Mutation IT No. 2/53-54. It was probably for noting inheritance. Exhibit P. 5, the index of land records in Form 6 in which, Sy. No. 73 is standing in the name of Dhanram Modaliar and Venugopal Modaliar in column 18 and there is reference to D. Balakrishna Modaliar and in Column 20, there is reference to M.R. No. 2/53-54. So Exhibits P. 4 and P. 5, namely record of rights and index of land records stood in the name of Dhanram Modaliar and thereafter Balakrishna Modaliar, the eldest son. Exhibits P. 4 and P. 5 are the certified copies obtained in 1988. As against this, regarding Item No. 1 of suit schedule property, the defendant has produced Exhibits D. 2, D. 47 and D. 48. D. 47 is said to be of the year 1950. It mentions a mutation No. 6/50-51. As already stated, Ex. D. 47 is said to be a photocopy, no negative has been produced. It is not stated as to who took the photo. If it is alleged to be a photocopy, whether photocopiers were available in 1950 is doubtful. D.W. 1 is not competent to speak about Ex. D. 47 because he became the Company Secretary only in 1996 and he had admitted that he had no personal knowledge. Exs. D. 47 to D. 50 have been marked subject to objection by order dated 11-8-2006. This objection had not been cleared. D.W. 1 is not competent to speak about Ex. D. 47 because he became the Company Secretary only in 1996 and he had admitted that he had no personal knowledge. Exs. D. 47 to D. 50 have been marked subject to objection by order dated 11-8-2006. This objection had not been cleared. Even a cursory glance at Exhibit D. 47 shows that it cannot be relied upon. It is indicated that there is an endorsement. It is not known as to who made the endorsement. It is a printed format in RR Form XVIII, filled up in ink. It is allegedly addressed to M/s. Firebricks and Potteries (Private) Limited, and it is not known who received this, on what date it was received. It is alleged that the addressee has purchased Sy. No. 73 from Sri Dharman, which has been registered in the record of rights. This is only a demand for money. Dharman is not the vendor. The vendor under Exhibit D. 2 is M/s. Standard Tiles and Clay Works (Private) Limited represented by Venugopal Modaliar, not Dharman. Ex. D. 47 is not helpful to prove title of the seventh defendant. Exhibit D. 48 is again a photocopy, marked subject to objection. This is said to be issued by the Village Panchayath to the Proprietor of M/s. Standard Tiles and Clay Works (Private) Limited, Yeshwanthapura. M/s. Standard Tiles and Clay Works (Private) Limited, is having its registered office at Feroke S. Malabar in Kerala, even as seen from Exhibit D. 2. It is nobody's case that M/s. Standard Tiles and Clay Works (Private) Limited, had an office in Yeshwantpura. There can be no proprietor for a company. No name is mentioned. It is not known as to how it was served either in person or by post. At the bottom of Exhibit D. 48, it says Annexure-A, after the word memorandum, some numbers are mentioned and struck off. There is a number 51 at the corner of the page. This is a photocopy from some other copy. The document has not been proved and it is not admissible in evidence. This cannot be used to show that M/s. Standard Tiles and Clay Works (Private) Limited got title to Item No. 1. It is stated that a tax of Rs.25/- per annum has been levied for 1939-1940 for factory buildings. This is a photocopy from some other copy. The document has not been proved and it is not admissible in evidence. This cannot be used to show that M/s. Standard Tiles and Clay Works (Private) Limited got title to Item No. 1. It is stated that a tax of Rs.25/- per annum has been levied for 1939-1940 for factory buildings. There is no proof, no pleading, no evidence that M/s. Standard Tiles and Clay Works (Private) Limited had a factory at Yeshwantpura. Exhibit D. 2-sale deed does not say so. In Exhibit D. 2-sale deed, in the schedule, it does not speak of any factory building. Schedule to Exhibit D. 2 sale deed says Rs.12/- has been assessed as tax for both land and building, but Exhibit D. 48 gives a different picture. So, Exhibit D. 48 cannot be relied upon to show that M/s. Standard Tiles and Clay Works (Private) Limited had title in the year 1939. Apart from that, the defendants have produced Exhibits D. 8 to D. 35 balance-sheets. That will not prove title. In one of the balance-sheets, in the auditor's report, there is a query in Exhibit D. 8 that the company has not maintained records showing full particulars including quantitative details and situations of fixed assets. This refers to an auditor's report and in the reply to the auditor's remarks, it is stated that records are being compiled. This Director's report is for the year ending 30-6-1979. So, this clearly shows that the family members were running the company and no one has applied their mind as to whether the seventh defendant had title. They have produced assessment of tax by Corporation dated 10-7-1969. It says that it is a special notice for assessment to building tax. It refers to Door No. 4, Tumkur Road, I Division. The same will not create any title. Further, they have produced Exhibits D. 49 to D. 63. Most of them are after the date of institution of the suit and they have no bearing on the title and most of them are photocopies. So, mere assessment of tax or payment of tax or communication from Revenue Authorities will not convey title, if the seventh defendant otherwise had no title to Item No. 1 of the suit schedule property. So, mere assessment of tax or payment of tax or communication from Revenue Authorities will not convey title, if the seventh defendant otherwise had no title to Item No. 1 of the suit schedule property. It is further contended that the plaintiff need not ask for declaration of Exhibit D. 2-sale deed as null and void or seek cancellation of the said document. The plaintiff can simply ignore the same. Section 31 of the SR Act in Chapter V uses the word "may". This is not a case in which the plaintiff should seek for declaration to cancel Exhibit D. 2-sale deed. Section 31 of the SR Act in Chapter V and Section 34 in Chapter VI operate in different fields. The option is given to the plaintiff either to seek the relief under Section 31 or under Section 34. The reason is, the word used in Section 31 is "may" and it ends by saying the cancelled deed has to be delivered up. To whom is the question? It is for the plaintiff to decide whether he has got any apprehension of mischief or injury by the so-called instrument. If the plaintiff is not a party to such an instrument, he can simply ignore the same and sue for declaration of his title. If there is a question of rival title, the plaintiff can sue for declaration under Section 34 with the consequential relief. In this case, the plaintiff has sought for declaration that the plaintiff and defendants 1 to 6 are the owners of item Nos. 1 and 2 of the suit schedule property. They claim title for item No. 1 based on the registered sale deed of the year 1938, Exhibits P. 1 and D. 1. Regarding item No. 2, they rely upon record of rights and index of lands marked as Exhibits P. 2 and P. 3. The plaintiff has also sought for the consequential relief of partition of his l/7th share. The seventh defendant has claimed rival title based on Exhibit D. 2 of the year 1945. That is why, in the suit, issue 1 has been framed as to whether the seventh defendant proved title. The plaintiff has also sought for the consequential relief of partition of his l/7th share. The seventh defendant has claimed rival title based on Exhibit D. 2 of the year 1945. That is why, in the suit, issue 1 has been framed as to whether the seventh defendant proved title. Issue 1 has been framed throwing burden on the seventh defendant for valid reasons, because Exhibit P. 1-traces title to Item No. 1 of the suit schedule property based on the registered sale deed in Exhibit P. 1, which is an admitted document. But, the question is whether the vendor under Exhibit D. 2 namely, M/s. Standard Tiles and Clay Works (Private) Limited has got a right to execute Exhibit D. 2 purportedly conveying Item No. 1 of the suit schedule property by relying upon Exhibit P. 1. Admittedly, under Exhibit P. 1, the purchasers are two individuals. Hence, it is for the seventh defendant to prove as to how M/s. Standard Tiles and Clay Works (Private) Limited can claim to be the owner of Item No. 1, when they have not purchased it under Exhibit P. 1. That is why the burden is put on the seventh defendant. So in this suit, the rival title is being adjudicated. Hence, the suit falls under Section 34 of the SR Act. Section 31 is in Chapter V with the heading "Cancellation of Instruments". Section 34 do not say, it is subject to Section 31. It is for the plaintiff to choose the remedy and the plaintiff can elect. It is settled law that even 100 years of possession will not create title unless and until there is a plea of adverse possession. Unless and until there is a plea of adverse possession, the question of title does not arise. In the case at hand, there is no plea of adverse possession. The seventh defendant do not admit the title of the plaintiff, the plaintiff do not admit the title of the seventh defendant. So the issue is who is having title. There is no question of limitation because there is no plea of adverse possession. In the case at hand, there is no plea of adverse possession. The seventh defendant do not admit the title of the plaintiff, the plaintiff do not admit the title of the seventh defendant. So the issue is who is having title. There is no question of limitation because there is no plea of adverse possession. In this regard, para 18 of the written statement filed by the seventh defendant is relevant, it reads as follows: "The statement that any attempt is being made to deny plaintiffs right in the suit schedule properties and to deprive of his rightful share in the suit schedule properties is absolutely false. The plaintiff had no right in the suit schedule properties at any point of time and the question therefore of any attempt being made to deprive the plaintiff's alleged rights in the suit schedule properties does not arise at all". It is contended that the seventh defendant claims to be in possession as owner. He does not claim title by adverse possession. The Trial Court has held that only Articles 65 and 58 of Limitation Act, 1963 will get attracted. In this case, the defendants have not pleaded adverse possession. Hence there is no question of limitation at all. In Anathula Sudhakar's case, it has been held that when there is a cloud over the plaintiff's title, he has to sue for declaration and possession. That has no application to the facts of this case. On the facts of this case, the family members were in possession as they were managing the seventh defendant-company. As between family members, there were no disputes. The seventh defendant never made any specific claim denying the title and according to them, the seventh defendant was the owner. That is why they have not raised the plea of adverse possession. In 1989, disputes arose and third parties wanted to take over the seventh defendant-company and defendants 1 to 6 colluded with such third party and disputes arose. The cause of action arose for the first time in 1989-1990 which resulted in filing of the suit and third party claims to possession acting in collusion with defendants 1 to 6. In 1989, disputes arose and third parties wanted to take over the seventh defendant-company and defendants 1 to 6 colluded with such third party and disputes arose. The cause of action arose for the first time in 1989-1990 which resulted in filing of the suit and third party claims to possession acting in collusion with defendants 1 to 6. It is contended that the statement contained in Exhibits D. 5 and D. 6, mortgage deeds attributed to the plaintiff, may be used as an admission against the plaintiff that the plaintiff has admitted that the seventh defendant is the owner of Item No. 1. An admission is of fact. There cannot be any admission regarding a right. A right in immovable property worth more than Rs.100/- can be conveyed or transferred only by a registered document. Mere admission would not transfer or convey title. Even acquiescence cannot create title. Acquiescence is a conduct which may be a relevant fact to apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can pass. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other. It is contended drat in dais regard, the principles oi law laid down in the case of Kamakshi Builders v. Ambedkar Education Society and Others AIR 2007 SC 2191 : (2007)12 SCC 27 :2007 AIR SCW 3850 and in the case of Karnataka Board of Wakf v. Government of India and Others (2004)10 SCC 779 are relevant. On the question of estoppel, the decision of the Apex Court in Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai AIR 1982 SC 121 : (1982)1 SCC 223 , is relied upon. It is contended that there is no scope to raise the question of estoppel on the facts of the present case at all, for the following reasons: (a) If at all there was any representation, it was by Venugopal Mudaliar that M/s. Standard Tiles and Clay Works (Private) Limited, represented by him as Managing Director, owned Item No. 1 of the suit schedule property. This representation is on the face of it, incorrect on a mere perusal of Exhibit P. 1. So, this representation or admission is erroneous. (b) Dhanram Mudaliar had not made any representation. This representation is on the face of it, incorrect on a mere perusal of Exhibit P. 1. So, this representation or admission is erroneous. (b) Dhanram Mudaliar had not made any representation. Simply because he is a party to Exhibit P. 1 or Exhibit D. 1, he is not the vendor. By this, no title would pass on to seventh defendant because, M/s. Standard Tiles and Clay Works (Private) Limited, never had title. (c) If Exhibit D. 2 is treated as a sale deed executed by Venugopal Mudaliar in his individual capacity, at worst, it could cover only a half share, which is 6 acres and 2 guntas. Whether Venugopal Mudaliar would be estopped from questioning the title of the seventh defendant, regarding 6 acres and 1 gunta is a different issue, because in this case, the plaintiff had made a claim of one seventh share of 6 acres and 1 gunta belonging to his father Dhanram Mudaliar. Dhanram Mudaliar had not made any representation. Dhanram Mudaliar had not conveyed anything. (d) It is not the case of the seventh defendant that they have changed their former position or altered their former position to their prejudice, because it is the specific case of the seventh defendant that they have got title under Exhibit D. 2. So, the theory of estoppel is not applicable to the facts of this case at all. (e) As stated above, if the seventh defendant had raised the plea of adverse possession, the plea of estoppel may be available. So, the seventh defendant should admit that they did not get any title under Exhibits D. 2 and that they have been in continuous possession having an animus possidendi against the true owners and there is acquiescence and admission and as a course of conduct and as such, the true owners have lost title by their conduct for a continuous period of 12 years by allowing the seventh defendant to be in adverse possession. It is contended that the reasoning of the Trial Court that because of the mortgage deeds, the seventh defendant is the owner, is a finding which is contrary to law and thus liable to be set aside. Insofar as the application of Section 41 of the TP Act is concerned, the heading of that Section is "transfer by ostensible owner". It is contended that the reasoning of the Trial Court that because of the mortgage deeds, the seventh defendant is the owner, is a finding which is contrary to law and thus liable to be set aside. Insofar as the application of Section 41 of the TP Act is concerned, the heading of that Section is "transfer by ostensible owner". It is contended that an ostensible owner is a person in whose favour the instrument stands. The person whose name stands in the instrument as purchaser will be the ostensible owner. The real owner may be somebody else in some cases. Take the case of a Benami transaction, the instrument may stand in the name of X as purchaser, but Y may claim that he is the real owner. That is why, if a dispute arises, the presumption will be the ostensible owner is the owner. The real owner has to prove that the ostensible ownership is wrong. If it is admitted that X is the ostensible owner and Y is the real owner and based upon ostensible ownership, X transfers the property with the implied or express consent of Y, then Y will be precluded from questioning the title of the purchaser from X. But on the facts of this case, the purchasers under Exhibit P. 1 are two individuals, Dhanram and Venugopal. The seventh defendant's contention that they are only ostensible owners and the real owner is M/s. Standard Tiles and Clay Works (Private) Limited. This the defense set up by the seventh defendant in contending that the above said two persons purchased the properties as directors of two companies for the benefit of the two companies. It is for the seventh defendant to prove the same. No evidence has been let in, no proof is forth coming. Now, the argument proceeds on the wrong assumption that M/s. Standard Tiles and Clay Works (Private) Limited is the ostensible owner. This is only a surmise. Exhibit P. 1, purchase deed does not say so. So, Section 41 is not at all attracted. There is no pleading, there is no evidence and there is no proof that M/s. Standard Tiles and Clay Works (Private) Limited, is the ostensible owner. On the other hand, the ostensible owners and real owners are the two brothers Dhanram and Venugopal. Exhibit P. 1, purchase deed does not say so. So, Section 41 is not at all attracted. There is no pleading, there is no evidence and there is no proof that M/s. Standard Tiles and Clay Works (Private) Limited, is the ostensible owner. On the other hand, the ostensible owners and real owners are the two brothers Dhanram and Venugopal. M/s. Standard Tiles and Clay Works (Private) Limited is a stranger to Exhibit P. 1 and has no title for the property covered by Exhibit P. 1, but chose to create a sale deed purporting to convey property covered by Ex. P. 1 making an untrue statement that the company purchased the property covered by Exhibit P. 1. This is the very issue in the suit. Section 41 of the TP Act was rightly not argued before the Trial Court. There is no pleading, no evidence and no issue was framed in respect of Section 41 of the TP Act. This is a new case setup and even this is based on surmises and conjectures. The plea referring to Section 41 of the TP Act, is not a mere question of law. It is a question of fact and law. There is no fact pleaded. Hence, reference to Section 41 is wholly misconceived. As a question of law, we can refer to the proviso to Section 41 of the TP Act. First of all, the seventh defendant has not pleaded that they have purchased from ostensible owner and the question of good faith was also not been pleaded if Ex. P. 1-sale deed is seen, it is clear, on the face of it, that M/s. Standard Tiles and Clay Works (Private) Limited is not the purchaser. As regards that there has to be specific pleadings pertaining to Ostensible Ownership to attract Section 41 of the TP Act. On the facts of this case, referring to Section 41 of the TP Act does not arise at all in view of what is stated above. The plea of Section 41 is raised for the first time during the course of oral submissions of defendant 7. Coming to item 2 of suit schedule properties, in para 6.03 the learned Judge says that Exs. P. 2, P. 4 and P. 5 pertains to item 2. There is a factual error here. Exhibits P. 2 and P. 3 pertains so Item No. 2, Exs. Coming to item 2 of suit schedule properties, in para 6.03 the learned Judge says that Exs. P. 2, P. 4 and P. 5 pertains to item 2. There is a factual error here. Exhibits P. 2 and P. 3 pertains so Item No. 2, Exs. P. 4 and P. 5 pertain to Item No. 1. The learned Judge clearly mentions that it is in the name of Balakrishna Modaliar. But the learned Judge says that subsequently occupancy rights were in favour of the first defendant. This is the case of the plaintiff that the first defendant was the first son, and became the karta after the demise of Dhanram Modaliar. The learned Judge has not referred to Exhibit P. 3. The learned Judge has relied upon Ex. D. 46. Ex. D. 46 is again a photocopy marked subject to objections. Ex. D. 46 is a printed format with blanks. There is reference to "as per 565/51,52" this document speaks of some auction and this document has not been proved to be true. It is not signed by anyone. The date is not clear. It is full of blanks. Mere, Exhibit D. 46 which is said to be a photocopy which has not been proved in a manner known to law cannot create title to the seventh defendant. On the other hand, the plaintiff has produced Exs. P. 2 and P. 3. There is a presumption regarding correctness of the entries in Exhibits P. 2 and P. 3 as per Section 133 of Karnataka Land Revenue Act, 1964. It is in the name of Balakrishna Modaliar. It is a certified copy applied in 1988-1989. There is a reference to the year 1963-1964. Item No. 2 is standing in the name of Balakrishna Modaliar. Ex. P. 3 is index of lands. Here also there is reference to 365/51-52. Exs. P. 2 and P. 3 are certified copies applied by Managing Director of seventh defendant-Mr. Narasimha Murthy. This clearly shows it was in the name of Balakrishna Modaliar, eldest son of Dhanram Modaliar and after the demise of Dhanram Modaliar, it has been transferred in the name of his eldest son, D. Balakrishna Modaliar. Thus, based on Exs. P. 2 and P. 3, the plaintiff has made out a case. As against Exs. P. 2 and P. 3, the defendant has produced only Ex. D. 46. Thus, based on Exs. P. 2 and P. 3, the plaintiff has made out a case. As against Exs. P. 2 and P. 3, the defendant has produced only Ex. D. 46. The learned Judge relying upon Exhibit D. 46, which was marked subject to objection, has erroneously held that Item No. 2 of suit schedule property belonged to the seventh defendant. The learned Judge has held in para 6.03 that Exhibit D. 37, which is a certificate issued by the Director of Industries and Commerce is not enough to show that the properties were converted into non-agricultural property. The learned Judge holds that the tax receipts and these exhibits corroborates to establish that Item No. 1 of suit schedule exclusively belongs to seventh defendant. At the end, he holds that viewing from any angle he is of the view that the suit schedule property belongs to the seventh defendant-company. This finding is erroneous and contrary to law. At the end of para 6.04, the learned Judge holds that since there is already a partition in the year 1962 and therefore second partition is not maintainable. The suit for partition is perfectly maintainable, because the plaintiff can seek for partition only after adjudication on the question of rival title. Article 110 of Limitation Act will not come into play/. There is no pleading in the written statement that the suit schedule properties were joint family properties and that the plaintiff was excluded from possession by ouster and the plaintiff has lost title by ouster and adverse possession. The defendants have not admitted that the suit schedule properties were joint family properties. There should be pleadings, there should be evidence. The seventh defendant-company cannot be a member of a joint family. Non-inclusion of the property in the partition deed of 1962 and O.S. No. 56 of 1969 will not amount to exclusion of the plaintiff from possession by a member of joint family. Thus, the finding of the learned Judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation is a finding which is contrary/ to law and Article 110 is not at all applicable. Thus, the finding of the learned Judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation is a finding which is contrary/ to law and Article 110 is not at all applicable. On the question of limitation, an argument was put forward stating Exhibits D. 38 and D. 39, partition suits not referring to the present suit properties will amount to exclusion within the meaning of Article 110 of the Limitation Act. Reference was made to page 304 of the typed set of papers and attention was shown to a note at the bottom stating that the parties to that suit have made a note that there are no other properties to be partition. This endorsement is of the year 1981. It was argued that this note would amount to exclusion of the plaintiff. This is without any basis. This note cannot be called as exclusion for the purpose of Article 110 of the Limitation Act. Exclusion is a positive overt act. The so-called statement in the form of a note will not, at any stretch of imagination, be called as exclusion for the purpose of Article 110 of the Limitation Act. The whole argument is academic because the note is of the year 1981 and the suit has been filed on 7-2-1990, within 9 years. So, 12 years have not elapsed. This is pointed out only to show that this argument is baseless. If the note at page 304 is sought to be used as an admission, it can always be proved to be erroneous or untrue and in this case, it is so. It is settled law that the so-called erroneous admission will not raise title. Exhibit P. 1 clearly shows that the property was owned by/ Dhanram Modaliar and Venugopal Modaliar and they have not divested themselves of their title to the property/ covered by Exhibit P. 1, which is Item No. 1 of the suit schedule of property. On the death of Dhanram, as per Hindu Succession Act, 1956 the plaintiff and defendants 1 to 6 are entitled to a share by birth. So the so-called note is erroneous and it will not take away the title. The seventh defendant was not a party to O.S. No. 56 of 1969 which ended in Exhibit D. 39 in 1981. No statement has been made to the seventh defendant. So the so-called note is erroneous and it will not take away the title. The seventh defendant was not a party to O.S. No. 56 of 1969 which ended in Exhibit D. 39 in 1981. No statement has been made to the seventh defendant. The so-called note says, the parties to the suit O.S. No. 56 of 1969 which ended in a compromise, have made a statement which is called as a note at page 304 of the typed set of papers. The 7th defendant cannot use it for any purpose. The defendants 1 to 6 want to use it, they have to prove it. At worst, this so-called note may be called as an admission between plaintiff and defendants 1 to 6, which is on the face of it erroneous. That is why the defendants 1 to 6 have chosen not to enter the witness-box. Thus, in any view of the matter, the judgment and decree of the Trial Court is contrary to law, contrary to the evidence available on record, contrary to settled principles of law and is liable to be set aside. The appellant therefore prays that the judgment and decree of the Trial Court may be set aside and the above appeal may be allowed with exemplary costs. 8. On a consideration of these rival contentions and on a close examination of the record, it is seen that as regards the finding of the Trial Court that defendant 7 had proved title to the suit schedule property and that the plaintiff had failed to prove joint possession and that he was not entitled to the relief of partition is with reference to Issues 1, 4 and 5 decided by the Trial Court together. The Court below has proceeded on the basis that the father of the plaintiff, V.L. Dhanram Modaliar, and his uncle, V.L. Venugopal Modaliar had formed two companies, M/s. Fire Bricks and Potteries Private Limited and M/s. Standard Tiles and Clay Works Limited, subsequent to the purchase of the suit property under Exhibit D. 1, dated 3-2-1938. There is no evidence to support this observation or if it is called as a finding, it is not proved by any evidence. There is no evidence to support this observation or if it is called as a finding, it is not proved by any evidence. On the other hand, even as seen from the written statement of defendants 1 and 3 to 7 in para 8, it is clearly stated that the companies were already incorporated and the two brothers acquired the property not for their own personal benefit, but acquired as directors of the companies incorporated under the provisions of the Companies Act. There is also evidence to show that the seventh defendant-company was incorporated before 3-2-1938. The seventh defendant-company has been incorporated in the year 1935, as seen from Exhibit D. 9 at page 107 of the typed set of documents and also as seen from page 258 etc., which are balance-sheets of the seventh defendant-company. Thus, there is documentary evidence in the form of balance-sheets filed by the defendants themselves to show that the seventh defendant was incorporated in the year 1935. It is seen from para 8 of the written statement that M/s. Standard Tiles and Clay Works (Private) Limited was already incorporated under the Companies Act and the two brothers were its directors. The Trial Court has also accepted the case of defendant 7 that the suit property having been mortgaged under Exhibits D. 5 and D. 6 , would indicate that the said defendant had exercised a right of ownership, to the knowledge of the plaintiff and the other defendants as they had also been signatories to the mortgage deed as guarantors. But however, this proposition could be accepted if in the first instance ownership had indeed been conferred on defendant 7 by virtue of Exhibit D. 2. But if Exhibit D. 2 did not convey title to the seventh defendant, mere mortgaging the property by the seventh defendant claiming as owner and the plaintiff and defendants 1 to 5 joining in the said mortgage deed will not confer title to the seventh defendant if the seventh defendant had otherwise did not get title under Exhibit D. 2. The statement contained in Exhibits D. 5 and D. 6, mortgage deeds, may be used as an admission against the plaintiff that the plaintiff has admitted that the seventh defendant is the owner of Item No. 1. An admission is of fact. There cannot be any admission regarding a right. The statement contained in Exhibits D. 5 and D. 6, mortgage deeds, may be used as an admission against the plaintiff that the plaintiff has admitted that the seventh defendant is the owner of Item No. 1. An admission is of fact. There cannot be any admission regarding a right. A right in immovable property worth more than 100 rupees can be conveyed or transferred only by a registered document. Mere admission will not transfer or convey title. If in law, a person does not acquired title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other. In this regard the following opinion expressed in Kamakshi Builders case, is relevant. "23. Acquiescence on the part of respondent 1, as has been noticed by the High Court, did not confer any title on respondent 1. Conduct may be a relevant fact, so as to apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can be conferred. 24. It is now well-settled that time creates title. 25. Acquisition of a title is an inference of law arising out of certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other". It is contended that in 1962, there was a partial partition covered under Exhibit P. 12. A reading of Exhibit P. 12 makes it very clear that the partition deed was only in respect of one property/namely, No. 1, Langford Road, Civil Station, Bangalore and a vacant piece of land, south of it as acquired by Dhanram Modaliar, out of his self-acquired funds. The partition deed recites that the two properties were amalgamated and a house was constructed and a private road was laid by late Dhanram Modaliar and that the intention was to put up their individual buildings. It is stated that there is a portion which is not the subject-matter of the partition. Hence, the mere fact that suit property has not been included in O.S. No. 56 of 1969, it cannot be concluded that the suit properties are not properties available for partition and they are the properties of the seventh defendant. It is stated that there is a portion which is not the subject-matter of the partition. Hence, the mere fact that suit property has not been included in O.S. No. 56 of 1969, it cannot be concluded that the suit properties are not properties available for partition and they are the properties of the seventh defendant. In Exhibit D. 39 at page 304, there is a note stating that there are no other properties movable or immovable whatsoever to be divided amongst them and belonging to the joint family. The learned Trial Judge does not rely upon this endorsement stating that it is not incorporated in the body of the decree. A plea of partial partition was not raised in O.S. No. 56 of 1969. There was no adjudication in O.S. No. 56 of 1969 on merits and it ended in a compromise. The following factors are relevant in addressing whether Exhibit D. 2 confers title on defendant 7: (a) The vendor is mentioned as M/s. Standard Tiles and Clay Works (Private) Limited, represented by its Managing Director Venugopal Modaliar and the purchaser is M/s. Fire Bricks and Potteries (Private) Limited incorporated under Mysore Companies Act, 1938 (XVIII of 1938) represented by its Managing Director Dhanram Modaliar. (b) Para 2 of the sale deed indicates that the schedule property belongs to the vendor-company, having been acquired by the vendor from the previous owners, under a registered sale deed dated 3-2-1938. But the registered sale deed dated 3-2-1938 proves otherwise. (c) There is no recital that the two brothers purchased it as Directors of the company or on behalf of the company as pleaded in the written statement. Here also the sale consideration is mentioned as Rs.4800/-. It is not shown how this sum or Rs.4800/- was paid, whether by cash or cheque, when it was paid there is no proof. There is no specific recital regarding delivery of possession. (d) There is no resolution of the Board of Directors of the company. There is no seal of the company much less the common seal or seal of the Managing Director or even a rubber stamp of the Managing Director as alleged. (e) There is no proof that M/s. Standard Tiles and Clay Works (Private) Limited, owned the property covered by Exhibit P. 1 anywhere. No evidence has been produced. There is no seal of the company much less the common seal or seal of the Managing Director or even a rubber stamp of the Managing Director as alleged. (e) There is no proof that M/s. Standard Tiles and Clay Works (Private) Limited, owned the property covered by Exhibit P. 1 anywhere. No evidence has been produced. It is clearly a sale deed by Venugopal in favour of Dhanram Modaliar. Hence Exhibit D. 2 will not create any title to the seventh defendant. (f) Even if Exhibit D. 2 is construed as a sale deed by Venugopal Modaliar, as an individual, he can only convey 6 acres and 1 gunta being his half share. The 6 acres and 1 gunta, namely the other half share owned by Dhanram Modaliar is intact. (g) This is the reason why the plaintiff has asked for partition of the extent of 6 acres and 1 gunta. If probabilities could be seen, it was only the family which has been in possession of both items 1 and 2 of the suit schedule properties and they have been running the seventh defendant-company. There was no third party involved. It appears disputes had arisen when defendants 1 to 5 tried to sell the property by selling their shares to third parties. The plaintiff was also said to have been forced to part with his shares. It is thereafter that third-parties engaged in real estate business had come into the picture, who are said to have had an eye on the property which is today very valuable and the plaintiff had filed the suit at that juncture. Thus, there is a clear cause of action for the suit. As regards the contention of defendant 7 that the plaintiff is estopped from questioning its entitlement to the suit properties is concerned, it is seen that the representation made by Venugopal Mudaliar that M/s. Standard Tiles and Clay Works Limited, represented by him as Managing Director, owned Item No. 1 of the suit properties was not apparent from Exhibit P. 1, this was an incorrect statement. Dhanram Mudaliar the other co-owner, had not made any statement, he was purportedly acting for the purchaser. Hence no title would pass to defendant 7. M/s. Standard Tiles and Clay Works Limited never had title to the property. Dhanram Mudaliar the other co-owner, had not made any statement, he was purportedly acting for the purchaser. Hence no title would pass to defendant 7. M/s. Standard Tiles and Clay Works Limited never had title to the property. Even if Exhibit D. 2 is treated as a sale deed executed by Venugopal Mudaliar, it would at best cover his half share, namely, 6 acres and 2 guntas. However, the plaintiff cannot be said to be estopped from making a claim to one-seventh share of his father's share of the property. He had not conveyed the same. There is no plea of adverse possession set up by defendant 7, either. Hence its continuous possession of the property even if unquestioned would not confer title. Insofar as the reasoning of the Trial Court that having regard to the fact that in the suit for partition filed in O.S. No. 56 of 1969, the suit properties had not been included and therefore it would follow that the suit properties were not joint family properties is concerned, it is seen that in 1962, there was a partial partition covered by Exhibit P. 12. A reading of Exhibit P. 12 makes it very clear that the partition deed was only in respect of one property namely No. 1, Langford Road, Civil Station, Bangalore and a vacant piece of land, south of it as acquired by Dhanram Modaliar out of his self-acquired funds. The partition deed recites that the two properties were amalgamated and a house was constructed and a private road was laid by late Dhanram Modaliar and that the intention was to put up their individual buildings. It is stated that there is a portion which is not the subject-matter of the partition. Hence, the mere fact that suit property has not been included in O.S. No. 56 of 1969 it cannot be concluded that the suit properties are not properties available for partition and they are the properties of the seventh defendant. In Ex. D. 39 at page 304, there is a note stating that there are no other properties movable or immovable whatsoever to be divided amongst them and belonging to the joint family. The learned Trial Judge does not rely upon this endorsements stating that it is not incorporated in the body of the decree. A plea of partial partition was not raised in O.S. No. 56 of 1969. The learned Trial Judge does not rely upon this endorsements stating that it is not incorporated in the body of the decree. A plea of partial partition was not raised in O.S. No. 56 of 1969. There was no adjudication in O.S. No. 56 of 1969 on merits and it ended in a compromise. Insofar as the contention of Sri Raghavan as regards the application of Section 41 of the TP Act is concerned, he has, as already noted hereinabove, sought to develop an argument, which Sri Ramanujam complains is a new case sought to be set up for the first time before this Court, without having laid any foundation by way of pleadings or evidence. However, it is to be observed that Section 41 of the TP Act reads thus: "41. Transfer by ostensible owner. - Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith". With regard to the above section, an 'ostensible owner' would be a person in whose favour the title deed stands. The real owner may be another. An example would be a benami transaction. If a dispute arises in such cases, the presumption would be that the ostensible owner is the owner. The real owner would have to prove otherwise. If the property is transferred by the ostensible owner with the implied consent or to the knowledge of the real owner, then the real owner would be precluded from questioning the transfer. But on the facts of this case, the purchasers of the dispute property were Dhanram Modaliar and Venugopal Modaliar. It was the claim of defendant 7 that they were ostensible owners. And the real owner was M/s. Standard Tiles and Clay Works Limited. In that, it was claimed that they had purchased the property in their individual names no doubt, but were in fact, acting as Directors of the company, which was yet to be incorporated as on the date of the transaction. However, the sale deed does not mention the same. In that, it was claimed that they had purchased the property in their individual names no doubt, but were in fact, acting as Directors of the company, which was yet to be incorporated as on the date of the transaction. However, the sale deed does not mention the same. Hence, the application of Section 41 of the TP Act does not arise. Insofar as the contention that the plaintiff ought to have sought for the relief of declaration that Exhibit D. 2 was a void document, is concerned, it is for the plaintiff to opt to seek relief either under Section 31 or 34 of the SR Act. When the plaintiff was not a party to the transaction, he is not precluded from seeking a declaration of his title. And especially if there is a dispute regarding title, he can sue for declaration under Section 34 of the SR Act. As regards the finding of the Trial Court that the suit is barred by limitation, is concerned, there is no pleading in the written statement that that suit schedule proprieties were joint family properties and that the plaintiff was excluded from possession by ouster and the plaintiff has lost title by ouster and adverse possession. The defendants have not admitted that the suit schedule properties were joint family properties. There should be pleadings and there should be evidence. The seventh defendant-company cannot be a member of a joint family. Non-inclusion of the property in the partition deed of 1962 and O.S. No. 56 of 1969 will not amount to exclusion of the plaintiff from possession by a member of joint family. Thus, the finding of the learned Judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation, is a finding which is contrary to law Article 110 of the Limitation Act, is not at all applicable. The further contention canvassed by defendant 7 namely, that Exhibits D. 38 and D. 39, the partition suits do not refer to the present suit properties and hence would amount to exclusion within the meaning of Article 110 of the Limitation Act, and in particular the note appended to the compromise decree of 1969, to the effect that there are no other properties to be partitioned. The same cannot be called an exclusion for the purposes of Section 110. Exclusion is a positive overt act. The same cannot be called an exclusion for the purposes of Section 110. Exclusion is a positive overt act. In any event, if it is shown to be erroneous, it would not affect title. The plaintiff was not a party to any such note made on the decree and no statement had been made to defendant 7. Insofar as Item 2 of the suit properties is concerned, the Trial Court has erroneously held that Exhibits P. 2, P. 4 and P. 5 pertain to the said property. It is only Exhibits P. 2 and P. 3 that pertain to the said property. There is no reference to Exhibit P. 3 by the Trial Court. Reliance on the other hand is placed on Exhibit D. 46, a photocopy of a printed form, the same had been marked to objection. It is an unsigned document and is vague. Even the date is not forthcoming. This document could hardly establish title to the property. On the other hand, the plaintiff has produced Exhibits P. 2 and P. 3. There is a presumption regarding correctness of the entries in Exhibits P. 2 and P. 3 as per Section 133 of Karnataka Land Revenue Act, 1964. It is in the name of Balakrishna Modaliar. It is a certified copy applied in 1988-1989. There is a reference to the year 1963-1964. Item 2 is standing in the name of Balakrishna Modaliar. Ex. P. 3 is index of lands. Here also, there is reference to No. 365/51-52. Exs. P. 2 and P. 3 are certified copies applied by Managing Director of seventh defendant-Mr. Narasimha Murthy. This clearly shows it was in the name of Balakrishna Modaliar, the eldest son of Dhanram Modaliar and after the demise of Dhanram Modaliar, it has been transferred in the name of his eldest son, D. Balakrishna Modaliar. Thus, based on Exs. P. 2 and P. 3, the plaintiff has made out a case. As against Exhibits P. 2 and P. 3, the defendant has produced only Exhibit D. 46. The learned Judge relying on Exhibit D. 46, which was marked subject to objection, has erroneously held that the item 2 of suit schedule property belonged to the seventh defendant. P. 2 and P. 3, the plaintiff has made out a case. As against Exhibits P. 2 and P. 3, the defendant has produced only Exhibit D. 46. The learned Judge relying on Exhibit D. 46, which was marked subject to objection, has erroneously held that the item 2 of suit schedule property belonged to the seventh defendant. The learned Judge has held in para 6.03 that Exhibit D. 37 which is a certificate issued by the Director of Industries and Commerce is not enough to show that the properties were converted into non-agricultural property. The learned Judge holds that tax receipts and these exhibits corroborates to establish that item 1 of suit schedule exclusively belongs to seventh defendant. In the light of the above, the appeals are allowed and the judgment and decree of the Court below is set aside and the suit is decreed as prayed for. A preliminary decree shall be drawn up in terms of the same.