JUDGMENT : K. V. ARAVIND, J. Heard Sri. R. Subramanya, learned counsel for the appellant, Sri A. Krishna Bhat, learned counsel for respondent No.1, Sri V. Subhash Reddy, learned counsel for respondent No.3 and Sri. M.S. Venugopal, learned counsel for proposed R1(a). 2. This appeal is against the judgment and decree dated 19.04.2006 in R.A. No. 59/2001, passed by the Presiding Officer and Additional District Judge, Fast Track Court-IV, Kolar, dismissing the appeal and confirming the judgment and decree dated 24.07.1999 in O.S. No.468/1995, passed by the Additional Civil Judge (Jr. Dn.), Kolar. 3. This Court admitted the appeal to consider the following questions of law, "(a) Whether the Courts below have committed an error in decreeing the suit when the land of A.D. Gangappa is sold on 27.03.1995 in favour of the appellant based on an order of regrant? (b) Whether the Courts below have committed an error in decreeing the suit for partition in respect of inam land in the absnece of there being any re-grant order in favour of the inamdar - A.D. Basappa?" 4. By order dated 11.02.2025, additional question of law was framed as under, " Whether in the facts and circumstances of the case and in light of the additional evidence and sale deed dated 27.03.1995, the matter requires re-consideration by the trial Court?" 5. The parties are referred to by their respective ranks as they appeared before the trial court. The plaintiffs instituted a partition suit, seeking a 1/3rd share in the property bearing Survey No. 63, which measures 1 acre 7 guntas and 8 guntas of Phut Kharab, out of a total extent of 2 acres 23 guntas, situated at Narasapur, Kolar Taluk and District. 6. The case of the plaintiffs is that the schedule property is Gasti Inam land. Basappa @ Basava was a Barawardar, who had four sons, namely, Obalappa, A.D.Ganga, Boothappa, and Biddappa. Obalappa died without legal representatives, and A.D. Ganga died leaving behind his son Basappa, the second plaintiff. B. Vijaya Baskar, the first plaintiff, is the son of Plaintiff No. 2. Boothappa died leaving behind his son Doddabasappa and others. Biddappa died leaving behind his son Munigangappa, the second defendant. According to the averments, after the deaths of Basappa and Obalappa, their sons, namely, A.D. Ganga, Boothappa, and Biddappa, succeeded to the property. The second plaintiff succeeded to the share of A.D. Ganga through his father. Boothappa died leaving behind his son Doddabasappa and others. Biddappa died leaving behind his son Munigangappa, the second defendant. According to the averments, after the deaths of Basappa and Obalappa, their sons, namely, A.D. Ganga, Boothappa, and Biddappa, succeeded to the property. The second plaintiff succeeded to the share of A.D. Ganga through his father. The first plaintiff also succeeded to the share of A.D. Ganga through his father. The second defendant succeeded to his father Biddappa's share, while the third defendant succeeded through his father Boothappa's share. The plaintiffs, along with defendants Nos. 2 and 3, have claimed three equal shares in the suit schedule property. 7. It is evident from the pleadings that 1 acre 8 guntas of land was granted in favour of one Moogappa, and the remaining 1 acre 7 guntas, along with 8 guntas of Phut Kharab, belongs to the plaintiffs and defendants Nos. 2 and 3. The plaint averments state that the name of the grandfather of the first plaintiff and the father of the second plaintiff, A.D. Ganga, appears in the cultivator's column of the RTC. The first plaintiff, second defendant, and third defendant are jointly cultivating the land. 8. It is further the case of the plaintiffs that defendant Nos. 1 and 2 are colluding inter se and fabricating false records, attempting to alienate the suit schedule property. Defendant Nos. 1 and 2 are stated to be represented by counsel, whereas defendant Nos. 3 to 5 have been placed ex-parte. The trial court recorded the evidence of PW.1 on behalf of the plaintiffs and marked Exhibits P1 to P6. The evidence of the defendants was recorded as nil. 9. The trial court, by judgment and decree dated 24.07.1999, held that plaintiff No. 2, along with defendant No. 3, is entitled to a 1/3rd share in the suit schedule property, and plaintiff No. 3, along with defendant No. 4, is entitled to a 1/3rd share. Further, the trial court issued an injunction against the further alienation of the suit schedule property. 10. Defendant No. 1 preferred an appeal in R.A. No.59/2001 dated 19.04.2006, inter alia contending that he is a bona fide purchaser of the suit schedule property from Sri A.D. Ganga, Chinnappa, and Basavaraju under a sale deed dated 27.03.1995. Further, the trial court issued an injunction against the further alienation of the suit schedule property. 10. Defendant No. 1 preferred an appeal in R.A. No.59/2001 dated 19.04.2006, inter alia contending that he is a bona fide purchaser of the suit schedule property from Sri A.D. Ganga, Chinnappa, and Basavaraju under a sale deed dated 27.03.1995. Respondent No. 1 further contended before the First Appellate Court that there was no service of notice and he was not represented by counsel. He also claimed that the signature on blank papers obtained by his brother had been misused in the proceedings. The First Appellate Court rejected the appeal by order dated 19.04.2006. The present appeal is filed challenging the judgment and decree in O.S. No.468/1995 and R.A. No. 59/2001. 11. I.A. No. 2/2024 has been filed for the introduction of additional evidence. I.A. No. 2/2007, also filed for additional evidence, was ordered to be considered along with the main appeal. 12. Sri. Subramanya R., learned counsel appearing for the appellant, submits that the schedule property was purchased by the appellant (defendant No. 1) under a registered sale deed dated 27.03.1995 from Sri. A.D. Ganga, S/o. Late A.D. Gangamma, W/o. Biddappa, and Sri. Chinnappa and Basavaraju, sons of Sri. A.D. Ganga, measuring 1 acre 7 guntas and 8 guntas of Kharab land. 13. Learned counsel further submits that the plaintiffs have claimed their right through Sri A.D. Ganga, S/o. Basappa @ Basava. The vendors of the appellant (defendant No. 1) are not connected with the family of A.D. Ganga, S/o. Basappa @ Basava. The notice issued to defendant No. 1 was not served, and defendant No. 1 had no opportunity to contest the suit. In the absence of such an opportunity and the defence of defendant No. 1, the suit has been decreed. 14. It is submitted that at a later point, the passing of the decree came to the knowledge of defendant No. 1/appellant. Hence, the appeal was filed before the First Appellate Authority in R.A. No. 59/2001. The First Appellate Court, on mere technicalities, rejected the appeal while examining the service of notice. Learned counsel, inviting the attention of the Court to the documents filed along with the I.A. for the production of additional evidence, submits that the endorsement dated 05.02.1983, issued by the Land Tribunal, indicates the grant of land in Survey No. 63 in favour of A.D. Gangamma. Learned counsel, inviting the attention of the Court to the documents filed along with the I.A. for the production of additional evidence, submits that the endorsement dated 05.02.1983, issued by the Land Tribunal, indicates the grant of land in Survey No. 63 in favour of A.D. Gangamma. Learned counsel further draws attention to the sale deed dated 27.03.1995 and submits that the sale deed was executed by Sri A.D. Gangappa, who is the son of A.D. Gangamma and Biddappa, along with their children, Chinnappa and Basavaraju. It is further the case of the learned counsel for the appellant that, taking advantage of the similarity in names, i.e., A.D. Ganga and Biddappa, the partition suit has been filed solely based on the RTC, without substantiating their right in the suit schedule property. 15. Learned counsel would further invite the attention of the Court to the Grant Certificate issued in 1982 in favour of A.D. Ganga, S/o. Late Biddappa and A.D. Gangamma. With the above contentions, learned counsel prays that the judgment and decree in O.S. No. 469/1995 and R.A. No.59/2001 be set aside. 16. Sri A. Krishna Bhat, learned counsel appearing for respondent No. 1, submits that the appellant was represented before the trial court upon service of notice. Defendant No. 1, having appeared before the trial court, engaged the services of counsel, and having failed to utilise the opportunity to defend, cannot now raise the plea of non-service of notice after the decree. Learned counsel further submits that the grounds in the first appeal were solely based on the service of notice and did not address the merits of the judgment and decree. 17. Learned counsel further submits that the land in question was granted in favour of Basappa @ Basava and thereafter succeeded by A.D. Ganga, Boothappa, and Biddappa. The plaintiffs and defendant Nos. 2 to 7 are claiming their right through A.D. Ganga, Biddappa, and Boothappa, and are entitled to a share in the suit schedule property. The trial court, rightly recognising the rights and interests in the suit schedule property, has decreed a 1/3rd share. 18. Sri. V. Subhash Reddy appears on behalf of respondent No.3. 19. Having considered the submissions of learned counsel for the parties and the record, it is evident that the plaintiffs filed a suit for partition against the defendants. The plaint discloses the relationship between the plaintiffs and defendant Nos. 18. Sri. V. Subhash Reddy appears on behalf of respondent No.3. 19. Having considered the submissions of learned counsel for the parties and the record, it is evident that the plaintiffs filed a suit for partition against the defendants. The plaint discloses the relationship between the plaintiffs and defendant Nos. 2 and 3. The claim for partition is made based on the alleged grant by the Land Tribunal, Kolar, and the entries in the RTC standing in the name of A.D. Ganga. The foremost requirement in the plaint is to plead how the suit schedule property constitutes joint family property. Another aspect that requires consideration is the inclusion of defendant No. 1, the present appellant, as a party to the suit. Undisputedly, defendant No. 1 is not a member of the plaintiffs' family, much less the joint family. 20. It is the case of the appellant that he purchased the suit property under a registered sale deed dated 27.03.1995 from A.D. Ganga and his children, Chinnappa and Basavaraju. It appears that for this reason, defendant No. 1/appellant was made a party to the suit. If this fact is indeed true, it can safely be inferred that the plaintiffs had knowledge of the sale deed dated 27.03.1995 in favour of defendant No. 1 and suppressed this information in the pleadings. 21. The appellant has alleged that the RTC of the suit land was in the name of A.D. Ganga. The name of the grandfather of plaintiff No. 1 and the father of plaintiff No. 2 was also A.D. Ganga. Taking advantage of the common name and suppressing the sale deed dated 27.03.1995, an illegal claim in collusion with other parties has been made through the suit for partition. This submission cannot be accepted at the threshold; however, it equally cannot be denied if considered in light of the sale deed dated 27.03.1995. The issue that must be considered is whether the suit property belongs to the family of A.D. Ganga, son of A.D. Basappa, or to the family of A.D. Ganga, son of the late A.D. Gangamma, wife of Biddappa. 22. Insofar as the submissions regarding the service of notice to defendant No. 1/appellant are concerned, the trial court has recorded that defendant Nos. 1 and 2 were represented by counsel and no evidence was led by them. 22. Insofar as the submissions regarding the service of notice to defendant No. 1/appellant are concerned, the trial court has recorded that defendant Nos. 1 and 2 were represented by counsel and no evidence was led by them. When the appeal was filed by the appellant on the ground that he was not served in the original suit, the appellant pleaded before the First Appellate Court that summons were not served and that his brother's signature was obtained on the summons, which was allegedly in collusion with the other parties. The First Appellate Court, after recording that the appellant was represented by counsel and had not availed himself of the opportunity to defend, concluded that the notice and summons were served on the appellant. The signatures found on the summons and the vakalat were the same. Accordingly, the First Appellate Court dismissed the appeal. 23. Be that as it may, both the trial court and the First Appellate Court failed to examine and record findings on the relationship between the plaintiffs and defendant No. 1 to justify the claim for partition, as well as the necessity of including defendant No. 1 as a party to the suit when he was not a member of the family. 24. The trial court, despite the defendants not having filed any written statement, failed to examine the relationship between the parties and the rights of the parties over the properties in question, on which partition was claimed. Upon perusal of the judgment and order of the trial court and the First Appellate Court, it is clear that the trial court proceeded on the presumption that the claim in the suit was not objected to, and thus, the suit property was considered joint family property. Similarly, the First Appellate Court, without considering the factual aspects, rejected the appeal on the hyper-technical issue of service of notice. In light of these considerations, it must be held that both courts below failed to apply their minds appropriately, and both orders are unsustainable. 25. The appellant has produced genealogical tree of the plaintiffs' family and the vendors of the appellant. The same is extracted for convenience. 26. From the genealogical tree, two common names can be identified. Firstly, A.D. Ganga and Biddappa are the children of Basappa @ Basava. Secondly, A.D. Ganga, son of Biddappa and A.D. Gangamma, are the vendors of the appellant. The appellant has produced genealogical tree of the plaintiffs' family and the vendors of the appellant. The same is extracted for convenience. 26. From the genealogical tree, two common names can be identified. Firstly, A.D. Ganga and Biddappa are the children of Basappa @ Basava. Secondly, A.D. Ganga, son of Biddappa and A.D. Gangamma, are the vendors of the appellant. The case of the plaintiffs is based on the reflection of the name of A.D. Ganga in the RTC, whereas the appellant claims that A.D. Ganga was his vendor. In light of the two individuals with the same name, A.D. Ganga, found in both the plaintiffs' family and the vendors' family, the parties should be allowed to lead further evidence, and the findings of the trial court are necessary. Both the courts below have failed to undertake this exercise due to the suppression of the sale deed dated 27.03.1995. The controversy, therefore, requires the recording of further evidence and a finding by the trial court. 27. The Hon’ble Supreme Court in D.S. Lakshmaiah and another vs. L. Balasubramanyam and another (2003 10 SCC 310) at paragraph 18 held as, " 18 . The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. .." 28. The Hon’ble Supreme Court in Appasaheb Peerappa Chandgade vs. Devendra Peerappa Chandgade and others ( (2007) 1 SCC 521 ) at paragraph 17 held as, "17. Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence." 29. In light of the above decisions, there is no presumption of a joint Hindu family or joint family property unless it is established with evidence. In light of the above decisions, there is no presumption of a joint Hindu family or joint family property unless it is established with evidence. The findings of the trial court are based on the presumption that no written statement was filed by the defendants, without applying the aforementioned principle. 30. In view of the above, the following order. (i) The appeal is allowed. (ii) The judgment and decree in O.S.No.468/1995, dated 24.07.1999 on the file of the Additional City Civil Judge, Jr. Dn., at Kolar and order in R.A.No.59/2001, dated 19.04.2006 on the file of the Presiding Officer and Additional District Judge at Kolar, are hereby set aside. (iii) The additional question of law is answered in the affirmative. (iv) O.S. No. 468/1995 is restored to the file of the Additional City Civil Judge, J.M.F.C., at Kolar, with liberty to the appellant/defendant No. 1 to file a written statement and lead further evidence. The other parties are also at liberty to lead further evidence. (v) In view of the remand, the parties are directed to maintain the status quo of the property in all aspects as it stands today. (vi) Considering that the suit is of the year 1995, remand proceedings shall be completed expeditiously.