SRINIVAS RAO Vs. DATTATRAYARAO

JUDGEMENT

(1.) THIS revision petition is directed against the judgment and order dated 27th september, 1993, whereby the learned munsiff, bidar has allowed the application under order vi, Rule 17 of the code of civil procedure (la. No. V) moved by defendant 3 in original suit No. 80 of 1987.

(2.) THE facts of the case in the nutshell are that the suit has been filed for declaration by the plaintiff-revisionist to the effect that the plaintiffs and defendants 1 and 2 have been the joint owners of the properties. The plaintiffs claim for declaration that plaintiffs along with defendants 1 and 2 in the suit are the joint owners in possession of land in dispute as mentioned in the relief clause. They further sought declaration that the registered sale deed bearing No. 402 of 1987 dated 24-4-1987, executed by the defendants 1 and 2. In favour of defendant 3 is ineffective, inoperative against the rights of the plaintiffs. He also sought perpetual injunction against defendants 1 to 3 from causing any obstruction and interference in the plaintiffs lawful possession and enjoyment of the suit property. Plaintiffs alleged that the suit property belonged to them and defendants 1 and 2 as joint members of the hindu undivided family and chat the suit property has never been divided between plaintiffs and defendants 1 and 2 as specified. It was asserted that defendants 1 and 2 property being joint had no right to sell the property to defendant 3 and so sale deed was illegal and no rights did pass to defendant 3, on the basis of the impugned sale deed,

(3.) DEFENDANTS filed the written statement denying the plaintiffs case. They have further taken the plea that defendants 1 and 2 being the owners and possessors absolutely of half portion of the entire property in the suit and have been competent to lawfully and rightly sell the said land in sy. No. 286 to the extent of their share in favour of defendant 3 and sale having been made for consideration of Rs. 7,000/-, the sale deed is genuine and valid and does not per se show that the suit property has not been divided or shares of defendants 1 and 2 and the plaintiffs have not been specified. It was also asserted that defendants 1 and 2 have delivered possession of the land under sale deed. The defendants claim to be in actual possession of the suit property. Defendant 3 also pleaded that plaintiffs case that the property was joint property is false and without any basis. Really defendants 1 and 2 have been in separate possession of their respective shares for several years and since after sale deed defendant 3 is in actual possession. Defendant 3 moved an application for amendment i. e. , i. a. No. 5, in which he has asserted that even if for a moment if it is found that the property is joint and the sale deed is entered to the extent of the share of defendants 1 and 2 who executed it, defendant 3 prayed for the partition of the land, which is coming to the share of defendants 1 and 2 being separated and its possession be given to defendant 3. Defendant 3 also paid the court fee for the counter-claim. Defendant 3 wanted after paragraph 10, new paragraphs 10 (a), (b), (c) and (d) be added, which read as under: