(A) Pleadings – New plea of oral partition – High Court placed much reliance upon the oral partition effected between the parties in the year 1965 – Held that the High Court committed a grave error in placing reliance upon the partition allegedly effected in the year 1965, in terms of which Schedule ‘A’ properties were allotted exclusively to the share of defendant No.1 -It is not even the pleaded case of the plaintiffs in the suit that there was any partition of the family properties in the year 1965 – The suit was filed on 26.05.1999 – Even the pleaded case of the defendants, especially defendant No. 1 who is the husband of plaintiff No. 3 and father of plaintiffs No. 1 and 2, in the written statement filed by him was not that there was any partition in the year 1965 – Quite late, the plaintiffs sought to amend the plaint seeking to raise pleadings regarding 1965 partition – The Trial Court, vide order dated 11.10.2006 rejected the application for amendment of the plaint – The aforesaid order was not challenged any further and the same attained finality as far as the case sought to be set up by the plaintiffs based on 1965 partition – In such a situation, the evidence with reference to 1965 partition cannot be considered – Trial Court had rightly ignored the plea taken in the replication by the plaintiffs regarding oral partition of 1965, as amendment sought to that effect had already been declined – What was not permitted to be done directly cannot be permitted to be done indirectly. (Para 14 to 16)
(B) Suit for partition – Pleadings – Family partition – Compromise decree – In the written statement filed by defendant No. 7, a specific plea was raised regarding 1984 partition and the property bearing Regular Survey No. 106/2 coming to his share – In the additional written statement filed by defendant No. 7 before the Trial Court, a specific plea was raised that the property bearing Regular Survey No. 44/4 had exclusively fallen to his share in the family partition effected on 30.08.1984 – This gets credence from a decree passed by the Civil Court in Civil Suit No. 80 of 1995, titled as “Sri Ramarao Vyasarao Desai v. Dr. Shriramarao Raghavendrarao Desi and another”, decided on 23.06.1995, which notices the partition of 1984 – In the aforesaid suit, father of defendant No. 1, who was the only son of Vyasrao and two sons of Raghvendrarao, namely, Prahlad and Srinivas Raghvendrarao were parties – The High Court had gone wrong in holding the aforesaid compromise decree to be bad without there being any challenge to the same by the parties – It is not even the case set up before the Trial Court – As a consequence, the finding recorded by the High Court that all Schedule ‘A’ properties were allotted to defendant No. 1 is liable to be set aside. (Para 17 and 18)
SUPREME COURT OF INDIA
2024 STPL(Web) 140 SC
[2024 INSC 165]
Srinivas Raghavendrarao Desai (Dead) By Lrs. Vs. V. Kumar Vamanrao @ Alok And Ors.
Civil Appeal No(S). 7293-7294 of 2010-Decided on 4-3-2024.
https://stpllaw.in/wp-content/uploads/2024/04/2024-STPLWeb-140-SC.pdf
