RFA NO.1979/2019 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.1979 OF 2019 (PAR) BETWEEN: 1. SMT. BHAGYA AGED ABOUT 47 YEARS DAUGHTER OF LATE SRI SUBBEGOWDA RESIDING AT NO.2369 BOGADI VILLAGE, KASABA HOBLI MYSURU TALUK - 570 026. SMT. PUTTALAKSHMI DEAD BY LEGAL REPRESENTATIVES 2. SRI SWAMY AGED ABOUT 52 YEARS S/O. LATE PUTTALAKSHMAMMA 3. SRI SRINIVASA AGED ABOUT 48 YEARS S/O. LATE PUTTALAKSHMAMMA 4. SMT. LAKSHMI AGED ABOUT 50 YEARS S/O. LATE PUTTALAKSHMAMMA APPELLANTS 2 TO 4 ARE RESIDENTS OF BOGADI VILLAGE, KASABA HOBLI MYSURU TALUK - 570 026. …APPELLANTS (BY SRI MUDDU BABU S. AND S. M. BABU, ADVOCATES) RFA NO.1979/2019 2 AND: 1. SMT. MARIYAMMA DEAD BY LEGAL REPRESENTATIVES 1(a) SRI CHIKKANNA @ NARAYANASWAMY (HUSBAND) AGED 75 YEARS 1(b) SMT. GAYATHRI D/O. SMT. MARIAMMA W/O. MAHADEVA AGED 48 YEARS 1(c) SMT. SHANTHA D/O. SMT. MARIMAMMA W/O. SRI NAGARAJ AGED 46 YEARS 1(d) SMT. LAKSHMI D/O. SMT. MARIAMMA W/O. CHANDRU AGED 44 YEARS 1(e) SMT. USHA D/O. SMT. MARIMAMMA W/O. SRI KRISHNEGOWDA AGED 42 YEARS RESPONDENT NOS.1(a) TO 1(e) ARE RESIDING AT NO.2266/3 RAMA MANDIRA ROAD 6TH CROSS, 5TH MAIN PADUVARAHALLI MYSURU - 570 001. 2. SRI CHIKKANNA AGED ABOUT 67 YEARS S/O. LATE SUBBEGOWDA 3. SMT. CHIKKOLAMMA AGED ABOUT 62 YEARS W/O. SRI CHIKKANNA RFA NO.1979/2019 3 4. SRI YOGESH AGED ABOUT 38 YEARS S/O. SRI CHIKKANNA 5. SRI RAMACHANDRA AGED ABOUT 35 YEARS S/O. SRI CHIKKANNA SMT. PUTTALAKSHMAMMA, (DEAD) TRANSPOSED AS 2ND PLANTIFF 6. SMT. PUTTAMMA AGED ABOUT 58 YEARS D/O. LATE SRI SUBBEGOWDA W/O. SIDDEGOWDA DEAD BY LEGAL REPRESENTATIVES 6(a) SRI RAJESH, MAJOR S/O. LATE SIDDEGOWDA 6(b) SMT. SAVITHA W/O. MANJUNATH RESPONDENT NOS.6(a) AND 6(b) ARE RESIDING AT NO.376 BOGADI VILLAGE, BANK COLONY ROAD MYSURU - 570 026. 7. SRI NANGEGOWDA AGED ABOUT 55 YEARS S/O. LATE SRI SUBBEGOWDA 8. SMT. LAKSHMI AGED ABOUT 45 YEARS W/O. SRI NANJEGOWDA 9. SMT. ARUNAKUMARI AGED ABOUT 26 YEARS D/O. SRI NANGEGOWDA 10. SRI AVINASH AGED ABOUT 24 YEARS S/O. SRI NANJEGOWDA RFA NO.1979/2019 4 11. SMT. LATHA AGED ABOUT 20 YEARS D/O. SRI NANJEGOWDA RESPONDENT NOS.2 TO 11 ARE RESIDENTS OF BOGADI VILLAGE KASABA HOBLI MYSURU TALUK - 570 026. 12. SRI SRINIVASALU AGED ABOUT 57 YEARS S/O. LATE SRI NARASAIAH RESIDING AT NO.737 BETTILAWARI ROAD, NELLUR CITY STATE OF ANDHRA PRADESH - 524 001 13. SRI VOONAM CHINNAREDDY AGED ABOUT 63 YEARS S/O. SRI AKULA REDDY RESIDING AT 16/2819 RAMALINGAPURAM, NELLUR CITY STATE OF ANDHRA PRADESH - 524 001 14. SMT. RAJESHWARI AGED ABOUT 53 YEARS W/O. SRI PUTTEGOWDA 15. SRI M. PUTTEGOWDA AGED ABOUT 63 YEARS S/O. LATE SRI MADEGOWDA RESPONDENT NOS.14 AND 15 ARE RESIDING AT 465, FORM HOUSE 11TH MAIN, BOGADI VILLAGE KASABA HOBLI MYSURU TALUK - 570 026 …RESPONDENTS (BY SRI Y. K. NARAYANA SHARMA, ADVOCATE FOR R-14 & R-15; R1(a) TO R1(e), R2 TO R5, R6(a) AND R6(b) R7 TO R13 ARE SERVED AND UNREPRESENTED) RFA NO.1979/2019 5 THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE IV ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C., MYSURU, DATED 20TH APRIL, 2019 IN O.S. NO.886/2012, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 13.02.2025, COMING ON FOR PRONOUNCEMENT, THIS DAY, VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T CAV JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) This appeal is filed by the appellants/plaintiffs challenging the judgment and decree dated 20.04.2019 rendered by the IV Addl. Senior Civil Judge and JMFC, Mysore, in O.S. No.886/2012, whereby the trial Court dismissed the suit of the appellants/plaintiffs and prayed to set aside the judgment and decree. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The plaintiffs are 'appellants' and respondents are 'defendants' before the trial Court. RFA NO.1979/2019 6 3. The brief facts of the plaintiffs’ case are as under; It is the case of plaintiffs that one Subbegowda and Smt. Maramma are husband and wife, they acquired suit schedule property in the year 1986. They died prior to 1999 leaving behind plaintiff No.1 Smt. Bhagya and plaintiff No.2 Puttalakshmamma and defendant No.1 Maramma, defendant No.2 Chikkanna, defendant No.7 Puttamma and defendant No.8 Nanjegowda. Defendant No.3 Chikkolamma is the wife of defendant No.2 and defendant Nos.4 and 5 are children of defendant No.3. Defendant No.9-Lakshmi is the wife of defendant No.8, defendant Nos.10 to 12 are their children, defendant Nos.13 to 16 are the purchasers of the property. After death of Subbegowda and Maramma, plaintiffs and defendant Nos.1 to 12 continued in joint possession and enjoyment of the schedule property. The marriage of plaintiff No.1 was performed in the year 1990 and she was residing with her husband at Bogadi Village, Mysore Taluk. Plaintiff No.1 has constructed a house in the portion of 'A' schedule property in the year 2004 and she has been residing in the said property. On 19.08.2012, RFA NO.1979/2019 7 plaintiff No.1 came to know that some strangers were putting up construction and fence over 'A' schedule property and thereafter, she also came to know that defendant Nos.8 to 12 have executed registered sale deeds in favour of defendant No.13. Further, defendant No.13 has also executed sale deed in favour of defendant No.16 on 05.05.2007. Later, defendant Nos.8 to 12 also executed registered sale deed to an extent of 20 guntas in favour of defendant No.14, who, in turn executed sale deed in favour of defendant No.15. Hence, the sale deeds executed by defendant Nos.2 to 6 and 8 to 12 are illegal and not binding on the share of plaintiff No.1 Smt. Bhagya. In this regard, the plaintiff No.1 had demanded her legitimate share from the defendants, but, the defendants did not effect partition in the suit schedule properties, hence, she filed suit for partition in the year 2012. 4. Before the trial Court, suit summons were issued to the defendants, and defendant No.6 appeared through his counsel and filed his written statement. Defendant No.6-Puttalakshmamma (subsequently transposed as plaintiff No.2) has taken contention that her parents purchased an area RFA NO.1979/2019 8 of 4 acre 13 guntas of land under registered sale deed dated 04.12.1969. Therefore, she consented to allot 12 guntas of land in favour of plaintiff, out of 4 acre 13 guntas. Hence, defendant No.6/plaintiff No.2 also sought for share in the suit schedule property. 5. Further, defendant Nos.2 to 5 and 7 have also filed their written statement, wherein, they have contended that their father Subbegowda and mother Maramma had executed a Will on 21.9.1981 in favour of defendant No.7 in respect of the house measuring 27½ x 20 feet out of 27½ x 60 feet and land measuring 1 acre in Sy.No.275 of Bogadi Village, Mysore Taluk. Thus, khatha has been changed in the name of defendant No.7 and now it is renumbered as Sy.No.275/26. Therefore, Sri Subbegowda and his wife Maramma, during their lifetime made partition of their properties on 24.01.1997 and allotted shares to their other children except their daughter Puttamma (defendant No.7), as she had got property already under the Will dated 21.09.1981. Plaintiff No.1-Bhagya has already taken her share and she constructed a house in the vacant site allotted to her, khatha has been changed in her name. Further, defendant RFA NO.1979/2019 9 No.8-Nanjegowda and defendant Nos.2 to 5 sold the properties fallen to their share in favour of Voonam Chinnareddy (defendant No.14) under two registered sale deeds and to one Srinivasalu (defendant No.13) dated 09.06.2006. It is the specific contention of these defendants that, Schedule 'A' property had already been sold and in Schedule 'B' property, defendant No.8 Sri Nanjegowda, his wife-Lakshmi (defendant No.9) and children defendant Nos.10 to 12 are residing. In Schedule 'C' property, defendant No.2 Chikkanna, his wife Chikkolamma (defendant No.3) and their children defendant Nos.4 and 5 are residing. Further, all the family members have taken shares, so also, defendant Nos.2 to 5 have sold the schedule property in favour of defendant Nos.13 to 16 for their family and legal necessity. Thus, the plaintiff No.1-Bhagya has no right to challenge the sale deeds. 6. Defendant Nos.15 and 16 filed their written statement contending that they are absolute owner of the properties purchased by them. They are bonafide purchasers of 3 acres and 13 guntas of land in Sy.No.275/17. Now said property is separately phoded as Sy.Nos.275/17, 275/21, 275/22, 275/23, RFA NO.1979/2019 10 275/24 and 275/25. The khata of the said property is also recorded in their name. Now, the plaintiff No.1-Bhagya cannot have any right to seek partition as to the property of joint family of Subbegowda, which had been partitioned during his lifetime itself. The plaintiff No.1 had no birth right over the said property at the time of entering partition by her father in the year 1997. 7. The suit of the plaintiffs is not maintainable. It is contended that the suit schedule properties were belonging to Subbegowda and the joint family owned land bearing Sy.No.91 of Basavanahalli Village, Mysore Taluk and the land at Bogadi Village was sold to one Jayaprakash and also to Bapuji House Building Co-operative Society. Further, the joint family properties were divided among defendant Nos.1 to 12 on 24.01.1997 itself and in the said partition, item No.A of suit schedule property bearing Sy.No.275/17 situated at Bogadi Village, Mysore Taluk was fallen to the share of Subbegowda and it was agreed that after death of Subbegowda, the property shall be vested with his sons by name Chikkanna-defendant No.2 and Nanjegowda-defendant No.8. Further, the land bearing Sy.No.275/17 to an extent of 1 acre RFA NO.1979/2019 11 was given to Nanjegowda-defendant No.8 on the premise that he has to bear the marriage expenses of plaintiff No.1-Bhagya. So also, defendant No.7-Puttamma was given 1 acre of land in Sy.No.275/16 under Gift deed. Further, defendant No.8-Nanjegowda was allotted with 3 acre 16 guntas of land situated at Bogadi Village, which was sold to Bapuji House Building Society. In the partition, plaintiff No.1-Bhagya and her sisters were given 2 guntas of land each in Sy.No.275/17. Plaintiff No.1-Smt. Bhagya was also one of the signatory to the partition deed and signed in the Palupatti. Thereafter, plaintiff No.1-Bhagya alienated her share in favour of defendant Nos.15 and 16 under a separate agreement. Defendant No.2, his wife and children also sold 30 guntas of land in Sy.No.275/17 in favour of defendant No.14 under registered sale deed dated 09.06.2006. On the same day, defendant No.8, his wife and children sold 31 guntas in Sy.No.275/17 under registered sale deed dated 09.06.2006 in favour of defendant No.13-Srinivasalu, who in turn sold in favour of defendant No.15-Rajeshwari. Therefore, defendant Nos.14 and 15 are the purchasers of the schedule property. On 05.05.2007, defendant No.14 sold the RFA NO.1979/2019 12 property purchased by him in favour of defendant No.16-M. Puttegowda, therefore, defendant Nos.15 and 16 are the absolute owners of land bearing Sy.No.275/17, now separately phoded as Sy.Nos.275/21 to 275/25. The khatha has been standing in the name of purchasers. Therefore, as on the date of suit, the joint family property was not available and as such, the plaintiffs are not entitled for partial partition and there is no cause of action for the suit. Now defendant Nos.2 and 8 have purchased separate properties from sale proceeds and constructed shopping complex in Bogadi Village. Plaintiff No.1- Bhagya received her share and purchased house property at Bogadi Village out of sale proceeds. 8. The plaintiffs have not stated about the property bearing Sy.No.275/17 measuring 3 acres 16 guntas of land at Bogadi Village, Mysore Taluk and Sy.No.91 measuring 2 acres 20 1/2 guntas of Basavanahalli Village, Mysore Taluk. The plaintiffs have not included said property in the claim for partition. As such, even if it is assumed that there was no prior partition, the plaintiffs cannot bring the suit for partial partition, selectively in respect of only few items of the joint family properties. In view RFA NO.1979/2019 13 of non-inclusion of said items for partition, the suit is liable to be dismissed in limine. There is no cause of action for the suit. The plaintiffs are not in joint possession of the plaint schedule properties. The schedule properties shown in the plaint are non-existing and in view of the division of plaint schedule properties during lifetime of Subbegowda, the plaintiffs cannot have any right to file suit for partition. Defendant Nos.15 and 16 being the bonafide purchasers are entitled for all the equitable reliefs, as they have invested huge amount for purchase of the schedule properties. Further, defendant Nos.2 and 8 have purchased few items of the properties, out of sale consideration that they derived by selling the said items to defendant Nos.13 and 14. Now, defendant No.8 has constructed a shopping complex in Bogadi Village, out of the sale consideration that he received as referred above. So also, defendant No.2 has purchased a house property in Bogadi Village, out of the said consideration amount. But, the plaintiffs intentionally have not included the properties purchased by defendant Nos.2 and 8 out of the sale proceeds of the joint family properties. It shows that, the suit filed by the plaintiffs is collusive in nature with RFA NO.1979/2019 14 defendant Nos.1 to 12. It is contended that land bearing Sy.No.91 had fallen to the share of Chikkanna-defendant No.2. He sold said land on the basis of partition held in the year 1997. If the plaintiffs’ intends to question said partition, then they should have included the items/property in the plaint itself. Therefore, the plaintiffs either to accept the partition held in the year 1997 or they ought to have included the said property in the present suit for partition. Therefore, they cannot approbate and reprobate at the same time. 9. It is contended that, the plaintiffs have not given the boundaries of plaint Schedule 'A' item Nos.1 to 6. Hence, it is not possible to identify the properties as required under Order VII Rule 2 of CPC. In fact, the plaint shall contain the description of the property sufficient to identify it with its boundary. When boundary is not given, the plaint cannot be considered as the one filed complying the provisions of Order VII Rule 3 of CPC. When the plaint is not presented in the manner required under law, it has to be rejected. Hence, the defendants prayed for dismissal of the suit. RFA NO.1979/2019 15 10. After considering the oral and documentary evidence on record, the trial Court framed the following issues: ISSUES 1. Whether the plaintiff proves that he is the members of the Hindu Undivided Joint family? RECASTED ISSUE 2. Whether the plaintiffs proves that the suit schedule properties are the undivided joint family properties of plaintiffs and defendants No.1 to 14? 3. Whether the plaintiff proves that the sale deeds dated: 9.6.2006, 5.5.2007, 15.06.2006, 6.10.2008 are not binding on the plaintiff? 4. Whether the defendant Nos.15, 16 prove that a partition has been effected in the joint family property under a palupatty dtd: 24.1.1997? 5. Whether the defendant no.15, 16 prove that the suit is bad for seeking partial partition? 6. Whether the plaintiffs are entitled for the relief as prayed? 7. What Order or Decree? RFA NO.1979/2019 16 ADDITIONAL ISSUE 1. Whether the Defendant Nos.2 to 5 and 7 prove that defendant no.7 become the owner of 1 acre of land in item no.1, and a site measuring 27 1/2 x 20 feet by virtue of the Will dated 21.09.1981. 11. In order to prove their case, plaintiff No.1- Bhagya got examined herself on oath as PW1 and got marked in all 47 documents as per Exs.P1 to 47. One Swamy was examined as PW2. For the defence, defendant No.4 Yogesh C., was examined as DW.1, defendant No.7-Puttamma was examined as DW.2 and defendant No.16 was examined as DW.3 and got marked 29 documents as per Exs.D.1 to 29. 12. The trial Court after recording the evidence and considering the oral and documentary evidence answered issue Nos.1 to 3, 6 and additional issue No.1 in the negative and issue Nos.4 and 5 in the affirmative and dismissed the suit of the plaintiffs and declined to grant share in the suit schedule properties. RFA NO.1979/2019 17 13. Being aggrieved by the judgment and preliminary decree passed by the trial Court, the plaintiffs preferred this appeal. 14. We have given careful consideration to the material available on record. The trial Court erred in noticing in para 16 of the judgment that the plaintiffs have not placed any single document relating to house property which is relied by them relating to property No.57 junger No.69, however, the defendants/respondents have not disputed that the said property belonged to their father, and that the trial Court has jumped to the conclusion that the plaintiffs have failed to establish that the suit schedule properties were the joint family properties of the plaintiffs and the defendants, which is illegal. 15. 15. The trial Court, erred in not considering the fact that though it has observed in para 15 that, the defendants have contended about the partition dated 24.01.1997, the said document is not produced, and the plaintiffs have to establish their own case without taking any shelter from the pleadings of the defendants, and holds that the item Nos. 1 to 7 of the plaint RFA NO.1979/2019 18 'A' schedule property are not established as joint family properties, which is totally illegal as the defendants, who have contended that partition has taken place by virtue of Palupatti dated 24.07.1997, the same has not been produced, which clearly shows that there was no such document to prove that there was partition on 24.01.1997, which clearly supports the case of the appellants to hold that there was no partition of the schedule properties, and hence are entitled to seek for the relief of partition and separate possession of their respective shares in the plaint schedule properties and the trial Court clearly misdirected itself in stating that the plaintiffs have failed to establish that the suit schedule properties were the joint family properties, which is totally illegal. 16. The trial Court, erred in not noticing at para 17 of the judgment, wherein it is clearly stated that defendant Nos.15 and 16, who have contended regarding palupatti dated 24.07.1997, have not produced the document, but the sale deeds are executed on the said palupatti and that there is a change of khatha based on the division of the property and that the evidence of DW3 and the suggestion made to DW3 goes to show RFA NO.1979/2019 19 that there were certain ancestral properties, which were sold during the life time of the parents of the plaintiffs. When that being the case, it is clear that the burden with regard to prior partition has to be established by producing the said palupatti, which would have thrown some light with regard to the properties mentioned in the plaint schedule properties, which has not been done. In law if a document is sought to be relied, the same will have to be produced to prove the said fact and in the absence of the same, an adverse inference has to be drawn and the trial court without doing so, has merely relied on some entries in the revenue records and has jumped to the conclusion that there was prior partition, which is totally illegal. 17. The trial Court erred in stating in para 18 of the judgment that the sale deeds executed by the defendants/respondents are binding on the appellants on the ground that the appellants have not challenged mutation entries in the revenue records and that the decisions relied on by the defendants 15 & 16 are aptly applicable to the facts on hand, which is illegal, as the properties mentioned in the schedule of the plaint are joint family properties, and as long as the plaintiffs RFA NO.1979/2019 20 are not parties to the said sale deeds, the sale deeds cannot bind the plaintiffs and that the entries in the revenue records would not have any effect in respect of the share in the said properties belonging to the plaintiffs. As long as the defendants have not produced any documents showing that the joint family properties have been divided by metes and bounds and that the said properties remain joint and the share of the plaintiffs cannot be denied in the absence of the plaintiffs being a party to the said transactions, and hence the plaintiffs’ suit for partition could not have been dismissed, which is perverse. 18. The trial Court misdirected in relying on the averments of defendants 15 and 16, stating that the suit is hit by partial partition, just because the plaintiffs have not added property situated at Basavanahalli bearing Sy. No. 91 and another property situated at Bogadi Village, and that the said properties which have brought to the notice of the court could have been added as in the case of a suit for partition, all the parties, both plaintiffs and the defendants are entitled to their respective share in the properties belonging to the joint family. Further, the trial Court erred in stating said land bearing RFA NO.1979/2019 21 Sy.No.91 was also thrown into the hotch potch of the joint family properties and the same had blended into the joint family properties and the plaintiffs are selective in filing the suit only against some of the alienated properties and plaintiffs have intentionally not included all the properties, which is not bonafide and hence the suit for partition filed by the plaintiffs are in respect of partial partition, which is totally illegal. 19. 19. The appellants submits that, though the trial Court has clearly stated that it is mandatory upon the person who relies on the Will to prove it in accordance with Section 68 of Indian Evidence Act, 1872 and also under Section 63 of Indian Succession Act, 1925, the defendant No.7 has not made any efforts to prove the due execution of the Will and that the original Will has not been produced and the arguments advanced on behalf of defendant No.7 regarding proof of Will was not tenable and that the Will is more than 30 years old document, therefore presumption can be raised, and for that, the arguments of the learned counsel for defendant no.7 cannot be acceptable, because the original document itself is not produced and therefore, presumption cannot be raised on production of RFA NO.1979/2019 22 certified copy, as none of the attesting witnesses have been examined including the scribe. Therefore, mere production of the certified copy of the Will does not dispense with proof of the Will and that therefore, defendant No.7 has failed to establish her contention and having said so, the trial Court has clearly erred in dismissing the suit of the appellants, which is totally illegal. View from any angle, the judgment and decree rendered by the trial Court requires interference by this Court. 20. The appellants declare that the appeal filed by them is well within the period of limitation, as prescribed by the Limitation Act, 1963. 21. Heard learned counsels Sri Muddu Babu S. and Sri S.M. Babu for the appellants and learned counsel Sri Y.K. Narayana Sharma, for respondent Nos.14 and 15. 22. We have perused the material available on record. Plaintiff Bhagya examined herself on oath as PW1. In her evidence, she has reiterated the averments made in the plaint. In support of her oral evidence, the son of plaintiff No.2 by name Swamy was examined as PW.2. From the perusal of the RFA NO.1979/2019 23 evidence, the relationship of the plaintiff No.1 as daughter of Late Subbegowda and Maramma is admitted. The plaintiff No1 Bhagya claimed that she is the member of joint family alongwith defendant Nos.1, 2, 6, 7 and 8. She has stated that her father acquired the schedule properties in the year 1986, but she has not specifically stated as to what properties were acquired by her father in the year 1986. According to her, the land bearing Sy.No.91 to an extent of 2 acres 19 guntas was belonging to parents of Smt. Honnamma @ Maramma. They have gifted the said property in favour of the mother of the plaintiff by name Honnamma. Smt. Honnamma sold the property in favour of Jayaprakash on 21.11.1991. Hence, the land bearing Sy.No.91 was not available for alienation to Jayaprakash. Plaintiff No.1 Bhagya also contended that land bearing Sy.Nos.259 and 260 situated at Bogadi Village, were also acquired by her parents by gift deed. In this case, the plaintiff No.1 relied upon Exs.P1 to P3 relating to land bearing Sy.No.275. Exs.P1 to P3 are the RTC extracts of land bearing Sy.No.275. From the perusal of Exs.P1 to P3, it appears that the said land was standing in the name of Srinivasa Narasimhacharya. Thereafter, the property was RFA NO.1979/2019 24 transferred in the name of the plaintiffs’ father Subbegowda and her mother Maramma vide Ex.P5. Apart from these RTC extracts, the plaintiffs have not produced any title deed in support of those lands. The plaintiffs have produced RTC extracts in respect of land bearing Sy. No.260, wherein the name of the plaintiffs’ father Subbegowda is depicted and thereafter the said property was sold in favour of Bapuji Gruha Nirmana Sangha. Once the properties of Subbegowda and Maramma were alienated to the prospective purchasers, the said properties will lose the characteristics of the joint family property. Under such circumstances, heavy burden is cast upon the plaintiffs to prove that the suit schedule properties are the undivided joint family properties of the plaintiffs and defendants, wherein the plaintiff No.1 in her cross examination has categorically admitted that there were certain properties which were sold during lifetime of her parents. Further, the plaintiff No.1 is not sure as to whether the properties held by her father and mother were self-acquired property or undivided joint family properties. 'A' schedule property was purchased by Subbegowda and Maramma under registered sale deed dated 04.12.1969, but the plaintiff No.1 has RFA NO.1979/2019 25 not specifically averred that whether those properties were purchased out of joint family funds or those lands are considered as ancestral properties of her parents. Therefore, Ex.P26 clearly establishes that the schedule properties were purchased on 04.12.1969 in respect of 'A' schedule property. 23. So far as severance of status of joint family, the plaintiffs have admitted that defendant Nos.2 to 8 are her brothers and they are residing separately since the year 1979 and the present suit was filed in the year 2012 for partition. The parents of the plaintiffs died in the year 1979. Thus, it clearly establishes that prior to death of parents of the plaintiffs itself, defendant Nos.2 to 8 were residing separately. The plaintiff No.1 further admitted in her evidence that her father Subbegowda owns 2 acres 20 guntas of land in Sy.No.91 at Basavanahalli Village. But the said properties were not included in the suit and she is not aware of the acquisition of the lands. The plaintiff No.1 further admitted that after death of her father, the land situated at Bogadi Village to an extent of 3 acres 16 guntas was sold by defendant Nos.2 to 8. More importantly, she is also residing in land bearing Sy.No.275/17 by securing her share. She has RFA NO.1979/2019 26 further admitted that the property held by her parents were sold in favour of Bapuji Gruha Sahakara Sangha for formation of residential layout and those properties have not been included in the present suit. The admission portion of plaintiff No.1 itself clearly establishes that there was already partition among the family members and some of the joint family properties were sold to the prospective purchasers. 24. Admittedly, the plaintiffs have included some of the properties and have left out some of the joint family properties. Since the plaintiffs sought for partial partition, the same is not maintainable. Admittedly, the suit is one for partition and separate possession. The defendants have taken the stand that the plaintiffs have not included all the properties and therefore, the suit for partial partition is not maintainable. In the light of the defence set up by the defendants, the plaintiffs ought to have included all the schedule properties for just decision of the case. Further, the plaintiffs have not mentioned the boundaries for the schedule properties. Thus, the identity of the schedule properties is also not properly shown by the plaintiffs. The description of the schedule property without any boundaries is RFA NO.1979/2019 27 not admissible under Order 7 Rule 3 CPC. It appears that the parents of the plaintiffs, her brothers have alienated the schedule properties in favour of defendant Nos.14 to 16. Thus, the trial Court considering the oral and documentary evidence on record, has rightly dismissed the suit of the plaintiffs. Thus, no interference is called for in that regard and thus, the appeal is liable to be dismissed being devoid of merit. Accordingly, we pass the following:- ORDER 1. The appeal is dismissed. 2. Consequently, the judgment and decree dated 20.04.2019 passed by IV Addl. City Civil and JMFC, Mysuru in O.S.No.886/2012 is confirmed. 3. No order as to costs. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN/-