JUDGMENT :

P.N. DESAI, J.

1. This appeal lays challenge to the judgment dated 26.08.2009 passed by the learned IV Addl. District Judge, Gulbarga in R.A. No. 116/2006, wherein the appeal filed by the plaintiff against the judgment and decree in O.S. No. 246/2001 dated 10.06.2006 is allowed.

2. The appellant was defendant No. 2 before the trial court and respondent No. 1 was the plaintiff before the trial court. Respondent No. 3 is defendant No. 3 before the trial court.

3. The parties will be referred as 'plaintiff and 'defendants' as per their respective ranks before the trial court.

4. The brief case of the plaintiff before trial court is that the plaintiff is sister of defendant No. 1. Suit properties bearing Sy. No. 93, Hissa No. 1/1 measuring 8 acres 15 guntas and house property bearing No. 1-92/1 are situated at Itga (K) Tq. Gulbarga, are the ancestral properties of their father. Their father Omkarappa was in possession and enjoyment of the properties. Thereafter, he died. Plaintiff and defendant No. 1 are the only legal heirs and both of them have got equal share in the suit properties. There is no family partition between plaintiff and defendant No. 1. The defendant No. 1 without any family necessity and without the knowledge of plaintiff, sold house property to defendant No. 2. It is only a paper transaction. As the defendant No. 1 is denying her share, she filed a suit for partition.

5. Defendant No. 1 has not filed written statement. Only defendant No. 2 filed written statement. Defendant No. 3 remained ex parte. In the written statement, defendant No. 2 has denied that Omkarappa was the Kartha of the family and after the death of Omkarappa, plaintiff and defendant No. 1 succeeded to the properties. He also denied that the suit properties are the ancestral properties and also denied that the plaintiff is having half share in it. Defendant No. 2 contended that he is the bona fide purchaser of the suit property under a registered sale deed in the name of his son. Plaintiff had knowledge about it and she being the daughter of Omkarappa, she has no share in the suit house. Hence, he prayed to dismiss the suit.

6. On the basis of the above, the trial court framed the issues. There afterwards, the plaintiff got examined herself as PW-1 and got marked six documents as Exs. P1 to P6 and closed her side evidence. On behalf of defendants, defendant No. 2 got examined as DW.2 and another two witnesses were examined as DWs-1 and DW-3 including Mallanna/DW.1 who is the son of defendant No. 2 in whose name, the property was purchased through a registered sale deed dated 14.06.2001 and got marked one document as Ex. D1.

7. The trial court after hearing both sides decreed the suit in favour of the plaintiff with costs against defendant No. 1 only and the claim made by plaintiff in respect of declaration of House No. 1-92/1 of Itaga-K Village as illegal and void was dismissed. However, liberty was granted to the plaintiff to make an application at the time of F.D.P. proceedings and get her half share value in plaint item No. 2 property the dwelling house. Aggrieved by the same, the plaintiff filed regular appeal in R.A. No. 116/2006. The First Appellate Court allowed the appeal modifying the judgment and decree passed by trial court and decreed the suit in full. Aggrieved by the said judgment, defendant No. 2 has filed this regular second appeal.

8. Heard learned counsel Sri G.S. Biradar for Appellants. Sri C.A. Sagar, learned counsel for respondent No. 1.

9. Learned counsel for the appellant argued that Mallanna, S/o. Revansiddappa who is the purchaser of suit item No. 2 house property was not made party to the suit and appellant is a bona fide purchaser. It is further contended that there is also a clause in the sale deed purchased by him that if there is any defect in the title, the vendor shall indemnify. So the learned counsel contended that at least half share which defendant No. 1 will get in item No. 2 property shall be adjusted in res