A party must actively engage in litigation; negligence in prosecution cannot be attributed to counsel, and failure to appear can lead to dismissal of appeals.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

Defendant No.8 has preferred this appeal against the judgment and decree dated 06.01.2020 passed by the II Addl. Senior Civil Judge and JMFC., Gokak in OS No.373/2016.

2. Plaintiffs (respondents No.1 to 3 herein) have filed a suit for partition and declaration. Defendants No.3 to 6 and 7(a & b) have contested the matter. After hearing the matter, the trial court decreed the suit by the impugned judgment. Same is challenged in the present appeal, by the defendant No.8.

3. We refer to the parties as per their ranking before the trial court.

4. It is the case of the plaintiff that the defendant No.1 is the husband of plaintiff No.3 and father of plaintiffs No.1 and 2. From the marriage of defendant No.1 and plaintiff No.3, plaintiffs No.1 and 2 were born. Defendant No.2 was father of defendant No.1. In the partition of the year 1988 between defendant No.2, his brother and defendant No.1, suit properties were allotted to the share of defendant No.1 and his name was mutated in the records. Suit properties are the joint family properties and are in joint possession and enjoyment of the plaintiffs and defendant No.1.

5. It is further contention of the plaintiffs that defendant No.1 was ill treating and harassing the plaintiffs. He was been obstructing plaintiffs peaceful possession and enjoyment of the joint family properties. He is addicted to bad vices and acting against the interest of the joint family. He is torturing plaintiff No.3 and in her name used to raise loans to meet his bad vices. He was also trying to sell the suit properties. Hence plaintiffs demanded for partition and separate possession of their shares in the suit properties. Defendant No.1 did not agree to effect partition. Therefore plaintiffs were constrained to file the suit.

6. Plaintiffs have amended the plaint and included item Nos.2 to 7 of joint family properties in the suit for partition. It is further contended that defendant No.1 and his father Satyappa alienated property bearing Sy.No.112/1 vide sale deed dated 08.01.2000 in favour of one Venkappa Hosamani. However, the said Venkappa never came in possession of the said property. The said sale deed executed by the defendant No.1 without knowledge and consent of plaintiffs is not binding on the rights of the plaintiffs.

7. It is further contended by the plaintiffs that defendant No.1 also sold property bearing R.S.No.97/6. He had no right to transfer the said property. It is also contended that another suit was filed in respect of suit property in OS No.260/2006, wherein the plaintiffs were not made as parties. Therefore, mutation effected by virtue of decree passed in the said suit is not binding on the rights of the plaintiffs. Plaintiffs also included R.S.No.14/6B and 14/4 to claim share in the said properties. With these reasons, they prayed for partition and separate possession of their 1/4^th share in the said properties by metes and bounds and to declare that the sale deed executed by the defendant No.1 in respect of R.S.No.112/1 dated 08.11.2000 is not binding on the rights of the plaintiffs.

8. The defendants No.3 to 6 have filed a common written statement. Their contentions are that defendant No.2’s wife had a snake bite during the year 2005 and, to treat her, he required money. Defendants No.5 and 6 gave Rs.3,00,000/- which he had spent for her treatment. Therefore, defendant No.2 relinquished his right in respect of suit item No.7 property in favour of he defendant Nos.5 and 6 with the consent of defendant Nos.1, 3 and 4. Accordingly, their names were mutated in the revenue records. Defendant Nos.3 and 4 are the sisters of defendant No.1 and each are entitled for 1/3^rd share in the suit schedule properties. Sale deed executed in favour of defendant Nos.5 and 6 is binding on the rights of the plaintiffs.

9. It is further contended that defendant No.1 has sold suit item Nos.5 and 6 properties not for the benefit of the family. The sale deed execut