Dayanand and Others vs Baburao and Others

A.V. Chandrashekara, J—The matter is at the stage of admission. Heard the learned counsel appearing for the appellants and learned counsel for the respondent No. 2.

Perused the original records of O.S. No. 38/1998, which was pending on the file of Civil Judge Senior Division Court, Basavakalyan and also records of R.A. No. 21/2001, which was pending on the file of Fast Track Court at Basavakalyan, Bidar district.

The appellants herein are the plaintiffs in O.S. No. 38/1998 and they had filed a suit for partition and separate possession of the suit properties as mention in the plaint.

According to them, the partition deed entered into between defendant No. 1 - Baburao and defendant No. 2 - Trimbak is a false document and the sale deeds executed by defendant Nos. 1 and 2 in favour of defendant Nos. 5 to 7 do not bind on them.

Appellant Nos. 1 and 2 are the sons of plaintiff No. 1, appellant No. 3 is the daughter of plaintiff No. 1 and appellant No. 4 is the wife of plaintiff No. 4. The second respondent herein is the brother of defendant No. 1. The third respondent herein is the sister of defendant Nos. 1 and 2. The respondent No. 4 herein is the mother of defendant Nos. 1 and 2 and respondent Nos. 5 to 7 who are defendant Nos. 5 to 7 were the purchasers.

According to the plaintiffs, there was no legal necessity for defendant No. 1/respondent No. 1 to alienate the suit properties by different sale deeds. Therefore, they wanted their share to be partitioned by metes and bounds. The defendant No. 1 had consented for decree of the suit. The defendant No. 2 had contested the suit by filing the written statement. According to defendant No. 2, the suit was collusive, more particularly in the light of the stand taken by defendant No. 1. During the pendency of the suit, the plaintiffs compromised with defendant Nos. 5 to 7 and got the suit dismissed against them.

The trial Court has framed the following issues on the basis of the pleadings of the parties:

"1. Whether plaintiffs proves that suit properties are joint family properties?

Whether plaintiffs further proves that plaintiffs are owners in possession of the suit properties?

Whether plaintiffs further proves that defendants 1 to 4 in support of each other have created vexatious partition deed dated 17.06.1998?

Whether plaintiffs further prove that sale deeds dated 16.11.1988, 25.04.1989, 01.06.1990 and another also dated 01.06.1990 are without family necessity and are null and void?

Whether plaintiffs are entitled to 1/3rd each and over & above whether further they are entitled 1/4th each from 1/3rd share of defendant No. 1?

Whether defendant No. 2 proves the partition of 17.06.1988 and that each one is enjoying separate share?

Whether defendant No. 2 proves that tractor and trailer are self acquired properties of defendant No. 2?

Whether defendant No. 2 proves that Rs. 5,000/- was cash in existence and it was given as a share to defendant No. 4 in the partition?

Whether defendant No. 2 proves that defendant No. 1 was in need of money for family necessity and that therefore executed sale deeds?

Whether defendant No. 2 in entitled for compensatory cost of Rs. 5,000/-

What order what decree?"

The plaintiff No. 4 - Mangalabai has been examined as PW.1 and another witness as PW.2. On behalf of the defendants, defendant Nos. 2 and 3 have been examined as DWs. 1 and 2 respectively. Ultimately, the suit came to be dismissed.

Against the said judgment and decree dated 24.03.2001, an appeal in terms of Section 96 of C.P.C. was filed before the First Appellate Court by the plaintiffs in R.A. No. 21/2001 and the same had been withdrawn and transferred to Fast Track Court at Basavakalyan. The said appeal has been dismissed after contest. While dismissing the suit, the learned Judge of the trial Court has specifically referred to the admission elicited from the mouth of PW.1 i.e., plaintiff No. 4 and the wife of defendant No. 1. She has admitted that the suit was filed at the instance of her husband and she had clear knowledge of partition deed. She has further admitted that defendant Nos. 1 and 2 are living together in the same roof. She has further admitted that even as on the date of tendering the evidence, defendant No. 1 was the Karta of the family. The plaintiffs cannot blow hot and cold together by getting the suit dismissed against defendant Nos. 5 to 7 who are alienees of defendant No. 1 and therefore, the plaintiffs have been selective by getting the suit dismissed defendant Nos. 5 to 7 who are the alienees of defendant No. 1.

Thus, the suit of the plaintiffs became bad for non-joinder of necessary parties. It is very clear that the plaintiffs have been very selective in their approach in filing the suit and prosecuting the suit. These facts have been very well considered by the trial Court as well as the First Appellate Court Judge, who has reassessed the entire evidence.

The learned Judge of the trial Court has specifically held that if defendant No. 1 had turned hostile, he would not have any right to reside with the plaintiffs. Defendant No. 2 is residing in a separate house. Having sold the properties, defendant No. 1 has chosen to consent for decree instead of supporting the case of his purchasers.

The defendant No. 1 being the head of his branch, had very well participated in the partition and the same was effected with his mother and brother. He had been allotted suitable share and the same cannot be considered as insufficient or inadequate. Infact, 8 acres 28 guntas of land had been allotted to defendant No. 1 and 4 acres 24 guntas of land had been allotted to defendant No. 2. The value of defendant No. 1 share is assessed to Rs. 4,913.50 ps. and the value of share of defendant No. 2 is assessed to Rs. 4,861/- and a sum of Rs. 5,000/- was given to the share of the mother of defendant Nos. 1 and 2. If partition deed was false, defendant No. 1 could not have sold the land to defendant Nos. 5 to 7. The plaintiffs have not mentioned the value of share received by them from defendant Nos. 5 to 7.

The learned counsel for the appellants has vehemently argued that the burden is always upon the purchaser, whenever alienees purchases the share of the minor. There is no second opinion about this co-parceners. But, in the present case, PW.1 has admitted that respondent No. 1 has set up her in filing the suit and subsequently got the suit dismissed against respondent Nos. 5 to 7, who are none other than the alienees of defendant No. 1.

In this view of the matter, no grounds are made out to admit this appeal. No substantial question of law arises in this case to admit the appeal. Accordingly, the appeal is dismissed, as it is not fit for admission.