PRAKASH BASAPPA NARI Vs. HANAMANT AND ORS.

JUDGEMENT

(1.) This regular second appeal is filed by the 9th defendant against the judgment and decree dated 19.3.2011 made in R.A. No. 2/2009 on the file of the Addl. Senior Civil Judge, Saundatti, confirming the judgment and decree dated 31.3.2009 made in O.S. No. 18/2008 on the file of the learned Civil Judge, (Jr. Dn), Saundatti, decreeing the suit of the plaintiffs declaring that, the sale deed dated 31.12.2007 executed by defendant No. 2 Fakkirappa in favour of defendant No. 9 -present appellant, in respect of land bearing No. 280 measuring 11 acres 23 guntas situated at Jalikatti village is null and void and not binding on the plaintiffs' and defendants 1, 4 to 8's share. Accordingly, plaintiffs 1, and 2 and defendants 1, 4, 5 and 2 are entitled to 1/24th share each in all the suit schedule A' and 'B' properties and defendants 6, 7 and 8 have got 1/4th share each in all the suit schedule A' and 'B' properties. Further, the 9th defendant/present appellant, is restrained from interfering with the peaceful possession and enjoyment of the plaintiffs and defendants 1, and 4 to 8's shares in the suit properties and also directed the Sub -Registrar, Murgod, for cancellation of the sale deed standing in the name of 9th defendant in respect of the land bearing R.S. No. 280 measuring 11 acres 23 guntas situated at Jalikatti village as per Sec. 31(2) of the Specific Relief Act, 1963.

(2.) The respondents 1 and 2 who are the plaintiffs in O.S. No. 18/2008 filed suit for partition and separate possession and declaration and consequential relief of injunction contending that the suit properties are land bearing Sy. No. 194 measuring 2 acres 15 guntas, Sy. No. 280 measuring 11 acres 23 guntas, R.S. No. 559 measuring 10 acres 11 guntas situated at Jalikatti village and VPC Nos. 5 and 19 both situated at Jeevapur village in Soundatti taluk and they are ancestral joint family properties of plaintiffs and defendants 1 to 8 and there was no partition between them as on the date of the suit. The defendant No. 1 is the kartha of the joint family of plaintiffs and defendants 2 to 8. Defendant No. 2 is the son of defendant No. 1. On account of love and affection, in the year 1983 the 1st defendant has transferred the land bearing R.S. No. 194 and 280 of Jalikatti village in the name of 2nd defendant. Accordingly, said survey number was standing in the name of defendant No. 2. Defendant No. 2 was addicted to bad vices and for that reason there was no cordial relationship between plaintiffs and defendants -1, 4 to 8. Thus the plaintiffs and defendants 3 to 8 requested the defendants 1 and 2 to effect partition and separate possession of the suit schedule property by metes and bounds. But defendants 1 and 2 did not heed the request of the plaintiffs and defendants 3 to 8. Defendant No. 2 has no exclusive right, title or interest in the land bearing R.S. No. 194 and 280 of Jalikatti village. Behind the back of plaintiffs and defendants 3 to 8, the 2nd defendant alienated the property bearing R.S. No. 280 measuring 11 acres 20 guntas in favour of 9th defendant/present appellant on 28.11.2007. There was no family necessity for the sale of the land bearing R.S. No. 280 of Jalikatti village. Pursuant to the alleged sale deed, the 9th defendant started interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs and defendants 3 to 8 and therefore, they filed suit for partition and separate possession and also for declaration to declare that the sale deed dated 28.12.2007 executed by defendant - 2 in favour of 9th defendant as null and void and also for permanent injunction restraining 9th defendant from interfering with the peaceful possession and enjoyment of plaintiffs and defendants 3 to 8 over the suit schedule property.

(3.) The summons was served on the defendants. Defendants 1, 4, 5, 6, 7, 8 and 9 appeared through the Counsel. Defendants 2 and 3 were placed ex -parte since they remained absent inspite of service of summons. Defendant No. 1 filed the written statement which was adopted by defendants 4 and 5. Defendants 6 to 8 are legal heirs and defendant No. 9 is the subsequent purchaser of the land bearing R.S. No. 280 appeared through their Counsel but did not file written statement. Defendant No. 1 has filed the written statement and has stated that plaint paras 1 to 5 are true and correct and the suit schedule properties are ancestral joint family properties of plaintiffs and defendants and they are in possession of the suit properties as on the date of the suit. In the year 1988, the 1st defendant transferred the land bearing Sy. Nos. 194 and 280 of Jalikatti village in favour of defendant No. 2. Accordingly, mutation entry was effected in the name of 2nd defendant. Now the 2nd defendant taking undue advantage of his name appearing in the revenue records has the alienated land bearing Sy. No. 280 measuring 11 acres 23 guntas in favour of 9th defendant behind the back of the plaintiffs and defendants 1, and 3 to 8. The 9th defendant has no right, title or interest over the land bearing Sy. No. 280. As on the date of the suit, the plaintiffs and defendants 1 to 8 were in possession and enjoyment of the suit schedule properties. The defendant No. 9 was never in possession and enjoyment of land bearing Sy. No. 280 measuring 11 acres 23 guntas. Therefore, it is averred that defendant -1 is also entitled to legitimate share in all the properties and accordingly other defendants supported the case of plaintiffs.