The XXVIII Addl. City Civil Judge, Mayohall, Bengaluru, by his judgment dated 26.9.2012 decreed the suit of the plaintiffs, O.S.16736/2005 for partition and separate possession of their 1/7th share in the suit schedule properties. Aggrieved by this judgment, the third defendant has preferred this first appeal.

2. For sake of convenience, the parties are referred with respect to their position in the suit. The suit was filed in respect of 11 items of property described in the schedule of the plaint (referred to as ‘the suit property’ hereafter). The plaintiffs 1, 2 and 3 are the sons of first defendant Gurumurthy Reddy. The plaintiffs 4 and 5 are the sons of second defendant Rajagopala Reddy. The plaintiffs pleaded that their grandfather was one Chikkaramaiah Reddy and that he owned number of immovable properties. He died intestate. No partition had taken place during his lifetime. On 8.9.1986 there took place a partition among defendants 1 to 3 and in this partition, properties described in schedule ‘A’ of that partition deed fell to the share of first defendant, schedule ‘B’ properties fell to the share of second defendant and schedule ‘C’ properties fell to the share of third defendant. But, the third defendant Thimma Reddy was a stranger to the family of Chikkaramaiah Reddy. Since he was not a member of the joint family, he was not entitled to share. The defendants 1 and 2 colluded with the third defendant and entered into a partition and thus the schedule ‘C’ property was allotted to him. This allotment of ‘C’ schedule property to third defendant was illegal. The plaintiffs were minors at the time when this partition deed came into existence. Only in the month of May 2005 they came to know of this partition and immediately they verified the documents and learnt that the partition effected in the year 1986 was true. They state that allotment of ‘C’ schedule property to the third defendant does not bind their interest and the allotment itself was illegal. All the plaintiffs claim 1/7th share each in the ‘C’ schedule properties.

3. The first and the second defendants did not file their written statement. The third defendant contended in his written statement that their father Venkatappa Reddy was the brother of Thimmakka who was the wife of Chikkaramaiah Reddy. He has also a brother by name V.Nagaraj and they were brought up by Chikkaramaiah Reddy since their childhood. Therefore, he and his brother Nagaraj became the members of joint family of Chikkaramaiah Reddy. After the demise of Chikkaramaiah Reddy, on 8.9.1986, there took place a partition of the joint family properties. The partition deed speaks that defendant No.3 and his brother Nagaraj were the members of the joint family and in fact they also worked for the improvement of the joint family properties. For this reason, in the partition that took place on 8.9.1986, ‘C’ and ‘D’ schedule properties of the partition deed were respectively allotted to his share and his brother Nagaraj’s share. Consequent to this partition, he and his brother obtained the revenue records transferred to their names. They were put in exclusive possession of their shares.

4. Third defendant has further pleaded that the plaintiffs have no right to claim share. They have suppressed the fact that defendant No.2 had earlier filed a suit O.S. 11302/1997 for partition claiming 1/3rd share. It was a collusive suit between the first defendant and the second defendant. Defendant No.3 was not made a party to that suit. After he came to know about the said suit, he got himself impleaded in that suit. Thereafter, the said suit was withdrawn and, therefore, the said proceedings operate as res judicata against defendants 1 and 2.

5. The third defendant further contended that the plaintiffs and the defendants sold the properties that were allotted to them in the partition dated 8.9.1986 for valuable consideration. His brother Nagaraj, who had been allotted properties, has not been made a party in the