MAHADEVAGOUDA PATIL AND ORS. Vs. BASAVANAGOUDA AND ORS.

JUDGEMENT

(1.) THIS appeal is preferred by defendants against the judgment and decree dated 26.05.2011 in O.S. No. 50/2009 on the file of the Additional Senior Civil Judge, Ranebennur.

(2.) FOR the sake of convenience, parties shall be referred as per their status before the Trial Court. Father of the plaintiffs and 1st defendant was owning 3 acres 11 guntas of land which got in family partition. By a settlement deed dated 16.05.1990 he divided the said land into two pieces measuring 75 guntas and 56 guntas respectively. The land measuring 56 guntas was settled among the plaintiffs and 1st defendant herein, who were given 14 guntas each. The 1st defendant filed a suit in O.S. No. 243/1991 on the file of the Civil Judge (Jr. Dn.), Ranebennur against his father which was decreed in terms of a compromise arrived at between 1st defendant and his father as per judgment and decree dated 16.12.1991. The remaining area of 75 guntas was settled among other five sons. Plaintiffs who learnt about the collusive decree between the 1st defendant and their father, filed the instant suit for partition and also for a declaration that the decree in O.S. No. 243/1991 is not binding on them. Plaintiffs contended inter alia that the 1st defendant in order to deprive them of their valuable right in the property in question had obtained a sham and collusive decree and the same was not binding on them. The 1st defendant resisted the suit by filing written statement and contended that the suit schedule property did not belong to his brothers; that the 2nd defendant who is the son of the 1st defendant had constructed a building and running a cotton ginning mill. It was further contended that the suit schedule property had fallen to the share of father of the plaintiffs in the family partition held in the year 1980 which was settled among his children on 16.05.1990. However, in terms of the said settlement, the 1st defendant was entitled for payment of a sum of Rs. 50,000/ - and as a said sum was not paid to him, he had rightly filed the suit O.S. No. 243/1991 which had been decreed in terms of compromise arrived at between the 1st defendant and his father. It is the further case of the defendant that the plaintiffs did not raise their little finger from 1991, the year in which the said suit was decreed and therefore, the instant suit which has been filed beyond the period of three years from the date of the decree is barred by limitation. In sum and substance, the 1st defendant has stated that he has become the owner of the suit schedule property pursuant to the decree in O.S. No. 243/1991 and the said decree not having been challenged within three years, the instant suit was liable to be dismissed. Based on the pleadings, the Trial Court framed the following eight issues and one additional issue which are as follows:

(3.) WHETHER the plaintiff is entitled for mesne profits?