Inpartition suits, all necessary parties and joint family properties must be included; dismissal for non-inclusion without adjudication on merits is legally improper.

JUDGMENT :

S.R. KRISHNA KUMAR, J.

1. This appeal by the plaintiffs in O.S.No.216/2013 is directed against the impugned judgment and decree dated 19.01.2018 passed by the I Additional Senior Civil Judge, Hubballi [Hereinafter referred to as “the Trial Court” for short] whereby the said suit filed by the appellants - plaintiffs against the respondents - defendants for partition and separate possession of their alleged share in the suit schedule immovable properties was dismissed by the Trial Court. So also, the review petition filed by the appellants - plaintiffs in Misc.No.16/2018 under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 [Hereinafter referred to as “the CPC” for short] seeking review of the impugned judgment and decree was also dismissed by the Trial Court.

2. Brief facts giving rise to the present appeal are as under:

The appellants - Plaintiffs are the daughters of defendant No.2 and defendant No.4, while defendant No.1 is the son of Raveendra Gouda, deceased brother of plaintiffs and defendant No.3 is the brother of the plaintiffs. The appellants - plaintiffs instituted the aforesaid suit for partition and separate possession of their alleged share in the suit schedule immovable properties comprising of 5 items of landed properties described as plaint ‘A’ schedule properties and 3 items of sites / plots / open spaces described as plaint ‘B’ schedule properties. The appellants - plaintiffs also sought for declaration that the sale deed said to have been executed by the mother of defendant No.1 in favour of defendant No.5 and the gift deeds dated 22.02.2007 and 30.03.2007 executed by defendant No.5 in favour of defendant No.6 were null and void and not binding upon the appellants - plaintiffs and for other reliefs.

3. The respondents - defendant Nos.1 to 4 entered appearance along with defendant Nos.6 and 7 and contested the suit, disputed and denied the various allegations and claims made by the plaintiffs.

4. Pursuant to the pleadings of the parties, the Trial Court framed the following issues:

(1) Whether the plaintiffs prove that the sale deed dt.22-2-2007 and registered on 4-4-2008 executed between deceased Kavita and defendant No.5 is declared as null and void and not binding on them?

(2) Whether the plaintiffs further prove that the gift deed dt.30-3-2019 is illegal, null and void and not binding on them?

(3) Whether the plaintiffs prove that the charge created by defendant No.5 in favour of defendant No.7 in respect of suit schedule 1 to 3 properties are declared as null and void and not binding on them?

(4) Whether the plaintiffs further prove that the properties are available for partition?

(5) Whether the plaintiffs are entitled the mesne profit?

(6) Whether the plaintiffs are entitled the relief of declaration and partition as prayed for?

(7) What order or decree?

ADDITIONAL ISSUE DT.19-9-2014:

(1) Whether defendant No.4 proves that he is entitled share in suit property, if so to what extent?

ADDITIONAL ISSUE DT.2-12-2016:

(2) Whether the defendant No.6 proves that the suit suffer from mis-joinder and non-joinder of necessary parties?

RECASTED ADDL. ISSUE DT.03-1-2018:

(1) Whether defendant No.6 proves that defendant No.5 is the bonafide purchaser of suit schedule properties Sl.No.1 to 3 for valuable consideration?

ADDITIONAL ISSUES DT.03-1-2018:

(1) Whether defendant No.6 proves that suit is barred by law of limitation?

(2) Whether defendant No.6 proves that suit is hit by non-inclusion of all the joint family properties as contended in the written statement?

5. Plaintiff Nos.1 and 2 got themselves examined as PWs1 and 2 and documentary evidence at Ex.P1 to P17 were