Point of Law: Option of seeking for setting aside the sale rests with the plaintiff and it is not mandatory for the plaintiff to seek for setting aside the sale.

JUDGMENT :

N.S. SANJAY GOWDA, J.

1. Defendants 4 and 5, who are the purchasers have preferred this second appeal.

2. Respondents 1 to 3 herein (Byanna, Sathish and Naveen) filed the suit seeking for partition.

3. They stated that Byrappa, the propositus, had two sons namely Bachappa (defendant No. 1) and Byanna (plaintiff No. 1).

4. It was stated that Bachappa, the first son, had a daughter and a son namely Dyavamma (defendant No. 2) and Byrareddy (defendant No. 3).

5. It was stated that Byanna, the second son, had two children namely Satish (plaintiff No. 2) and Naveen (plaintiff No. 3).

6. It was their case that they constituted a Hindu undivided family and they had divided their ancestral and joint family properties equally through an unregistered Memorandum of Partition dated 26.11.1982.

7. It was stated that the suit property was also an ancestral and joint family property that had been acquired by Byrappa but the same had not been included in the partition and had continued to be joint. They stated that despite a demand for effecting partition, there was no positive response from the defendant.

8. They stated that they had learnt that the name of defendants 4 and 5 had been entered in the revenue records and they had learnt that they were the purchasers of the suit schedule property from defendants 1 and 3. They stated that the property had been sold without their consent and was not binding on them and they were constrained to file a suit.

9. The 1st defendant-Bachappa remained absent and was placed ex-parte. His children, defendants 2 and 3 entered appearance and filed a written statement, through which they supported the assertions of the plaintiffs.

10. Purchasers-defendants 4 and 5 appeared and contested the suit. They admitted the relationship of the parties but denied the assertion that plaintiffs and defendants 1 to 3 constituted an undivided Hindu family. They also stated that the husband of the 4th defendant had purchased the suit property from Byanna-plaintiff No. 1 for a sale consideration of Rs. 2,000/- and they were put in possession. It was stated that the 4th defendant’s husband-Dodda Bachappa and the 5th defendant’s husband-Motappa had been in possession of the suit property.

11. They also stated that due to misunderstanding between the family of the plaintiffs and defendants 1 to 3, a registered Sale Deed was not executed in favour of Dodda Bachappa and the fact that the property was sold was evidenced by the non-inclusion of the suit property in the Memorandum of Partition dated 26.11.1982. They further stated that at the intervention of the elders of the village, in the year 1994, the 1st plaintiff-Byanna and the 1st defendant-Bachappa had executed two registered Sale Deeds dated 04.07.1994 in respect of 1 acre 3 guntas each and had also put them into possession of the property and from that day onwards, they were in lawful occupation. They also raised a plea that they had perfected the title by way of adverse possession.

12. The Trial Court, on consideration of the evidence, both oral and documentary, concluded that the plaintiffs had proved that the suit property was their ancestral property. The Trial Court held that defendants 4 and 5 had not proved that they were the absolute owners of the suit property by virtue of the Sale Deeds dated 04.07.1994. The Trial Court also held that defendants 4 and 5 had failed to prove that they had perfected their title by way of adverse possession. Accordingly, the Trial Court decreed the suit of the plaintiffs and granted them half a share in the suit property.

13. Defendants 4 and 5, being aggrieved, preferred an appeal.

14. The Appellate Court, on re-appreciation of evidence, concluded that defendants 4 and 5 had failed to prove that the suit property was not the ancestral and joint family property of the plaintiffs and defendants 1 to 3. The Appellate Court also concluded that defendants 4 and 5 had not established that they were the absolute owners of the suit property by