This Regular Second Appeal is directed against the Judgment and Decree dated 10.11.2004 passed by the learned District and Sessions Judge, Jamakhandi in R.A.No.6 of 1997, whereby the Judgment and Decree dated 26.11.1996 entered by the learned Principle Munsiff, Jamakhandi in O.S. No. 113 of 1989 (Old O.S.No.101 of 1982) decreeing the suit have been reversed.

2. This Court admitted the matter vide order dated 09.01.2006 by framing the following substantial question of law :-

“Whether the finding of the first Appellate Court setting aside the Judgment and Decree passed by the trial Court and dismissing the suit of the Plaintiff is perverse and arbitrary being contrary to law and material on record as the Plaintiff had made alternative prayer for decreeing the suit for partition and separate possession of Plaintiff’s share in the schedule properties?”

3. The brief facts stated are :

The Appellants i.e. two sons and their mother had filed O.S.No.104 of 1968 against their father-Kareppa for partition and separate possession of suit land. It came to be decreed on 29.06.1968 in terms of a Compromise Petition, where under 04 Acres, 02 Gunthas of land was allotted to father-Kareppa and remaining 10 Acres, 31 Gunthas of land was allotted to Plaintiffs i.e., two sons and the mother.

4. Thereafter on 18.06.1976 their father sold 04 Acres, 02 Gunthas out of 10 Acres, 31 Gunthas of land that was allotted to plaintiffs under the said Compromise Decree. The suit in O.S.No.101 of 1982 is filed by the Appellants herein in which the after-born-son too is a party i.e. Plaintiff No.3 for setting aside the said alienation. The Respondents entered appearance and filed their separate Written Statements resisting the suit claim. Inter alia contending that, the family was a joint Hindu family notwithstanding the 1968 Partition Decree ; father-Kareppa was the karta of the family ; he has alienated a small portion of the joint family property, since there was a legal necessity for defraying the loans taken for the marriage of his sisters, the Compromise Decree is null and void.

5. The suit came to be decreed on 26.11.1996 whereby the Sale Deed dated 18.06.1976 was held not binding on the plaintiffs. Both the Plaintiff and the Defendants led the evidence in support of their respective versions. Several documents were also marked on either side.

6. The 1st Appellate Court reversed the Judgment and Decree of the trial Court on the ground that: the Compromise Decree dated 29.06.1968 was a nullity, since it was not drawn up on a duly stamped paper; the suit was a collusive proceeding, as contended by the Defendant alinee; the Compromise Decree was not acted upon by the parties; the after born son did not have any litigable right. The 1st Appellate Court further observed that, there was no disruption of joint family status inasmuch as Plaintiff No.3 was born subsequent to Compromise Decree and that the 1976 alienation was for the legal necessity of the family.

7. The counsel for the Appellants submits that, the Judgment and Decree of the 1st Appellate Court are bad because the Judgment and Decree of the trial Court remain to be valid and effective, though they are not engrossed on stamp paper although engrossment could be a condition precedent for the enforceability of the Decree. He draws difference between validity of a Decree and enforceability of a Decree based on paragraph No.14 of the Judgment of Apex Court in the case of Hameed Joharan v. Abdul Salam reported in (2001) 7 SCC 573 which reads as under :

“14. Needless to record that engrossment of stamped paper would undoubtedly render the decree executable but that does not mean and imply however, that the enforceability of the decree would remain suspended until furnishing of the stamped paper - this is opposed to the fundamental principle on which the statutes of limitation are founded.”

8. Per contra, the counsel for the Respondents submits that, a Decree if not engrossed on duly stamped paper is a nul