IMPORTANT POINT
Oral partition of property cannot be set up by two co-owners who are not members of a Hindu Undivided Joint Family.

K.L. Manjunath, J.—The appellant who was defendant 2 in O.S. No. 24 of 2000 on the file of the Civil Judge (Senior Division), Raichur is challenging the legality and correctness of the Judgment and decree passed by the Civil Judge (Senior Division), Raichur, dated 8th February, 2006.

2. The facts leading to this case are as follows:

Respondents 1 and 2 were plaintiffs before the Court below Respondent 3 was defendant 1 and the appellant herein was defendant 2 and the remaining respondents were respective defendants 3 to 40. During the pendency of this appeal, one Rajendra Kumar Patil who was not a party before the Court below has been arrayed as respondent 41.

3. The plaintiffs instituted. a suit for partition and separate possession of their 1/2 share in the plaint schedule properties and to declare that the sale deed executed by the second defendant in favour of defendants 3 to 39 are not binding on them.

4. The plaint schedule properties are non-agricultural lands measuring 2 acres 21 guntas situated in, Sy. No. 1130; 36 guntas in Sy. No.1136 situated at Raichur bounded on East by Road, West by Site Nos. 1132 and 1135; North by Site No. 1137 and South by Site No.1137 and also 0.3 guntas of land in Sy. No.1137 of Raichur Village bounded on East by Site No 1137, West by Site No.1137; North by Site No.1137 and South by Site No.1137 and also non-agricultural land measuring 11 acres 20 guntas in Sy. No.1137 bounded on East by Sy. No.1139, West by remaining portion of Sy.No.1137, North by proposed layout and South by remaining portion of the same Survey Number.

5. According to the plaint averments, defendants as close friends purchased about 16 acres of land in 5 different survey numbers of Raichur Village namely Sy. No.1130 measuring 2 acres 21 guntas, Sy. No.1131 measuring 36 guntas, Sy. No.1136 measuring 3 guntas, Sy. No.1337 measuring 12 acres 14.guntas and 6 guntas in Sy. No.138 from its previous owner Bade Raja Sab and Others under a registered sale deed dated 21.11.1981 vide documents No. 513/81-82 and 514/81-82 and they were enjoying the same as co-owners. Thereafter, defendants 1 and 2 got converted the said agricultural lands for non-agricultural purposes from the office of the Special Deputy Commissioner, Raichur and out of the aforesaid land purchased by them, the defendants 1 and 2 have sold 3 acres 34 guntas of land in Sy. No.1137 and 6 guntas of land in Sy. No.1138 and also 4 acres of land in Sy. No.1137. Thus, in all 8 acres of land was sold in favour of M/s Gulbarga Builders jointly and after selling the aforesaid 8 acres of land in favour of the M/s. Gulbarga Builders, defendants 1 and 2 were enjoying the remaining 8 acres of land together.

6. It is the case of the plaintiffs that in the month of December 1997, the first defendant learnt that the second defendant without his knowledge started alienating the sites carved out by them showing as if the sites are situated well within the CMC of Raichur and having come to know the illegal activities of the defendant 2 in selling the property, the first defendant approached the plaintiffs with a request to purchase his undivided ½ share in the suit schedule properties. Accordingly, defendant 1 sold his undivided ½ share in favour of the plaintiffs under a registered sale deed dated 22.2.1999 vide document No.2788 of 1998-1999 before Sub-Registrar, Raichur and thereafter the plaintiffs demanded the second defendant to divide their share by metes and bounds and to handover possession. Since, the second defendant refused to do so, they filed a suit for partition and separate possession contending that the alienation made by the second defendant in favour of the remaining defendants without the knowledge of the plaintiffs and the first defendant, does not bind on them. Accordingly, the suit was instituted.

7. The first defendant filed separate written statement and he supported the case of the plaintiffs. The second defendant also filed a detailed written statement.