H. VENKATASWAMY REDDY Vs. NARAYANNA REDDY

JUDGEMENT

(1.) Petitioners are the defendants in O.S. No. 534/2016, which suit has been instituted by first respondent herein seeking partition and separate possession of suit schedule properties.

(2.) During the pendency of proceedings defendants 1 to 4 filed an application under Order 7, Rule 11 (d), Civil Procedure Code for rejection of plaint on the ground that suit is barred by law. In the affidavit supporting the application it was contended that earlier suit O.S.No.18/1987 filed for partition and separate possession had been dismissed on the ground of there being an earlier partition and said judgment and decree passed on 16.11.1993 in O.S.No.18/1987 had attained finality and as such, present suit is barred by principles of res judicata. Trial Court after considering the rival contentions has rejected the said application on the ground that rights of parties are not decided in the said suit and plaintiffs are seeking for partition of suit properties and as such, they are required to establish the existence of joint family and also the fact that property belongs to the joint family. It has also been rejected on the ground that limitation cannot be decided as an abstract principle of law, since, it is a mixed question of fact and law.

(3.) Having heard Sri. R. B. Sadashivappa, learned counsel appearing on behalf of Sri. Shankare Gowda V. N. for petitioners and Sri. Y. R. Sadashiva Reddy, learned Senior counsel appearing on behalf of Sri.V. Shivakumar for Caveator/first respondent/plaintiff. It is noticed by this Court that original propositus was Sri. Venkatappa had two sons namely, Sriyuths Chikka Arasappa and Pillaiah alias Pillappa. Even according to both parties and their pleadings would disclose there was a division of properties amongst Chikka Arasappa and Pillaiah and suit properties fell to the branch of Chikka Arasappa and he had 5 sons who are said to have made some family arrangements in the year 1980 under which plaintiffs claim that suit properties amongst other properties fell to the share of Sri. Obala Reddy and Sri. Narayana Reddy i.e., plaintiffs and father of defendants 1 to 4. On account of properties having not been divided amongst them subsequent to family arrangements, suit in question has been filed.