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Judgment
Ram Mohan Reddy, J.—Plaintiffs in O.S. 5220/92 aggrieved by the judgment and decree dt. 24/2/205 of the XXII Addl. City Civil Judge, Bangalore, in so far as it relates to dismissing the suit on the premise that no property is available for partition, have presented this appeal. Appellants instituted O.S. 5220/92 for declaration, partition and separate possession of their 3/4 share in the suit schedule immovable property being 3 acres 10 guntas of agricultural land in Sy. No. 3/3 situated opposite Arabic College at Nagawara, Kasaba Hobli, Bangalore North Taluk. Respondents arraigned as defendants, entered appearance and while admitting their relationship with the plaintiffs, nevertheless opposed the suit on the premise that not only the defendants, but there were several other cotenants entitled to shares in the said property who were not arraigned as parties and therefore suit was liable to be dismissed for non-joinder of necessary parties. The trial court framed 8 issues and two additional issues whereafterwards the 2nd plaintiff was examined as PW-1 and another witness as PW-2 and marked Exs.P1 to P5, while for the defendants, 1st defendant was examined as DW-1 and marked Exs.D1 to D10. The trial court, having regard to the pleadings of the parties and the evidence, both oral and documentary, returned findings in the affirmative over issues 1, 2, 3, 5 and additional issue No. 1 and in the negative over issues 4, 6 and additional issue No. 2, while answering issue No. 7 stating that "the plaintiffs were entitled to get the award amount to the extent of their share from the concerned", to dismiss the suit.
Sri. Ilyas Hussain, learned Counsel for the appellants, is correct in his submission that from out of 3 acres 10 guntas of land, BDA having admittedly acquired 2 acres 30 guntas there exists a remainder of 20 guntas available for partition. Learned Counsel is further correct in his submission that the trial court having returned a finding that the plaintiffs are entitled to 3/4 share out of 3 acres 10 guntas of land, ought to have resulted in a declaration, partition and separate possession of the remaining extent of land ie., 20 guntas and therefore the finding that no land was available for partition, in other words, no paritable estate was available, is contrary to facts established, unjust and unsustainable.
The trial court having answered in the affirmative, issue Nos. 2 and 3 by recording a finding that the plaintiffs are entitled to 3/4 share in the suit properties, was unjustified in dismissing the suit on the premise that plaintiffs could apply for and secure the award amount from the BDA as against their 3/4 share in the suit schedule properties, and that no property remained for partition.
In the circumstances, the judgment and decree calls for interference, in so far as it relates to (i) the finding on additional issue No. 1 that, since the property was acquired by the BDA, the same vest with the BDA, therefore the said property is not available for partition and such, the suit filed by the plaintiffs itself is not maintainable, is illegal and unjust; (ii) the finding on issue No. 7 that, as the property is not available for partition, the question of partitioning the property and putting the plaintiffs in separate possession of their share, does not arise and that the plaintiffs are at liberty to approach the concerned to secure the compensation amount to the extent of their share in respect of the suit schedule properties. In the result the judgment and decree of the trial court below is accordingly set aside to the extent noticed supra, and the proceeding remitted for consideration afresh and to record afresh findings over the additional issue No. 1 and issue No. 7, in accordance with law and in the light of the observations made supra and thereafter pass a judgment and decree.
No costs.