JUDGMENT :

The second defendant in O.S.No.13/2011, on the file of Senior Civil Judge, Bhalki has filed this appeal challenging the judgment in the said suit for partition.

2. The plaintiffs 1 to 4 are the daughters of defendants 1 and 4. The second and third defendants are the sons of defendants 1 and 4. The plaintiffs’ case is that 21 acres of land in Sy.No.44 and two houses bearing Nos.4130 and 4131 situated at Mehkar village, Bhalki taluk, Bidar district is their ancestral property and that each of them is entitled to a legitimate share. The defendants 1 to 3 created a partition deed dated 29.06.2000 among themselves. The plaintiffs were not parities to the said partition deed. Thereafter the second defendant, based on the said partition deed, filed a suit, O.S.54/2004 in the court of Senior Civil Judge at Bhalki for the reliefs of declaration of title and injunction. The said suit was decreed on 26.11.2009, but liberty was given to the plaintiffs to claim their shares in a proper manner by reopening the partition. Therefore they instituted the suit for partition.

3. The second defendant contended in his written statement that the plaintiffs have no right to seek partition as they themselves admitted about the partition in their former suits, O.S.No.39/2003 to O.S.No.43/2003. The decrees in the said suits were all collusive. They cannot take undue advantage of the judgment and decree in O.S.No.54/2004. He further stated that at the time of partition on 29.06.2000, defendants 1 to 3 undertook the responsibility of performing the marriages of the plaintiffs and therefore the plaintiffs relinquished their shares in the property in their (defendants 1 to 3) favour. In fact the marriages were performed by him. The partition deed was executed in the presence of respectable persons of their village. The plaintiffs colluded with first defendant after the said partition and then filed suits O.S.No.39/2003 to O.S.No.43/2003. The judgments in the said suits did not bind him and in fact, in the judgment in O.S.No.54/2004 it has been observed that the judgments in the said suits do not bind his interest. Therefore the plaintiffs cannot claim partition and the suit has to be dismissed.

4. The trial court assessed the oral and documentary evidence and decreed the suit declaring that the each of the plaintiffs is entitled to 1/8th share in the suit properties and hence this appeal by the second defendant.

5. The learned counsel for the appellant second defendant argued that the trial court has grossly erred in decreeing the suit in utter disregard of the findings given in O.S.No.54/2004 with regard to title of the second defendant. He argued that the said suit was for declaration of title, the first issue in the said suit with regard to title of the second defendant, who was plaintiff therein, has been answered in the affirmative upholding the partition dated 29.06.2000. This judgment was not challenged by the plaintiffs. As it attained finality, the court below should not have reopened the partition. Though it is a fact that the court while deciding O.S.No.54/2004 held that the plaintiffs could institute a suit for reopening of the partition, that observation was against the finding on issue no.1 and for this reason alone the court below should have dismissed the suit.

6. The learned counsel for the appellant submitted that reopening of partition is possible and permitted only when there was reunion of all the properties. Since in this case, after the partition dated 29.06.2000 and judgment in O.S.54/2004, there was no reunion of properties, plaintiffs could not have instituted the suit. They could have sought counter claim for partition in O.S.54/2004; but they did not and hence they lost their right to file a separate suit. When they filed written statement in O.S.54/2004, they did not seek leave of the court to file a separate suit for partition and therefore their suit is hit by Order 2 Rule 2 of CPC. He further argued that in view of