PRAVEEN Vs. MAHENDAR KUMAR

JUDGEMENT

(1.) This appeal is directed against the judgment in O.S.No.89/2014 by the learned Addl. Senior Civil Judge & CJM Bidar on 7/12/2017, thereby a suit for partition came to be decreed with a direction for equitable partition in the suit schedule property.

(2.) The brief facts are as under: The plaintiff Nos.1 and 2 are the sons of defendant No.1 and the defendant No.2 is the daughter of the defendant No.1. The defendant No.3 happens to be a purchaser of 1 acre of land in the suit schedule property. The suit schedule property measuring 2 acres 6 guntas in Sy.No.44 was the ancestral joint family property of the plaintiffs and defendant Nos.1 and 2. The grand father of the plaintiffs and defendant No.2 by name Lalappa was the propositus and owner of the suit schedule property and he died in the year 1970 leaving behind him the defendant No.1 and his wife Neelamma. After the death of Lalappa, his wife i.e. Neelamma also died. The defendant No.1 was an illiterate and a Group 'D' Employee in Railway Department. The defendant No.2 was married to one Shivakumar in the year 2000. Defendant No.1 started living with the defendant No.2 and taking undue advantage of his stay with the defendant No.2, the defendant No.2 got mutated her name to the suit land to the extent of 2 acres. Only 6 guntas remained with the defendant No.1 and it was behind the back of the plaintiffs during 2004. By virtue of the illegal entry, the defendant No.2 executed a registered sale deed on 30/9/2010 in favour of defendant No.3 for 1 acre of land. It is alleged that the said sale deed is sham bogus and without consideration and therefore the said sale deed executed by defendant No.2 in favour of defendant No.3 is not binding on the plaintiffs. Therefore, the defendant No.2 alienated another 1 acre of land in favour of defendant No.4 on 6/3/2012 through a registered sale deed. The said sale deed is also alleged to be without any consideration and defendant Nos.3 and 4 shall not derive any advantage from both the sale deeds. The plaintiff Nos.1 and 2 approached the defendant Nos.1 and 2 and requested for partition, but the defendant Nos. 1 & 2 refused saying that they have alienated the property. Therefore the plaintiffs filed the suit for partition and separate possession and cancellation of two sale deeds are not binding on their shares.

(3.) On issuance of suit summons, the defendants Nos.1 to 3 appeared through counsel and defendant No.4 did not appear despite of service of summons and therefore he was placed ex-parte. The defendant Nos.1 and 2 did not file any written statement, but the defendant No.3 filed his written statement denying the averments made in the plaint. He contended that the plaintiff Nos.1 and 2 are not the sons of defendant No.1 and that the defendant No.2 was the only daughter of the defendant No.1. He contended that after due diligence and verifying all the records, he purchased 1 acre of land from the defendant No.2 through registered sale deed dtd. 30/9/2010 by paying consideration of Rs.6,15,000.00 and he is in possession of the said 1 acre of land and as such he is a bonafide purchaser of the property. Interalia he also contended that the defendant No.2 also entered into an agreement of sale with the defendant No.3 and later executed a sale deed in favour of defendant No.4 to put the interest of defendant No.2 jeopardy. Therefore, the defendant No.3 filed O.S.No.174/2013 before the Prl. Senior Civil Judge, Bidar for specific performance of contract of agreement of sale. It is also contended that in the meanwhile one Ambavva had also filed a suit in O.S.No.154/2014 before Prl. Senior Civil Judge Court, Bidar seeking declaration of her title over the suit land. Therefore, the defendant No.3 sought for dismissal of the suit.