In a partition suit, failure to include all joint family properties and necessary parties renders the suit not maintainable under Hindu Succession Act and Civil Procedure Code.

ORAL JUDGMENT

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

The plaintiffs in O.S.No.16/2014 have filed this appeal challenging the judgment and decree dated 28.04.2018 passed by the learned Principal Senior Civil Judge, Saundatti in O.S.No.16/2014. The plaintiffs filed the suit for partition, declaration and permanent injunction. By the impugned judgment, the said suit was dismissed by the trial Court. Same is challenged by the plaintiffs in the present appeal.

2. We refer the parties as per their rankings before the trial Court.

3. The brief facts of the case of plaintiffs are that: The original propositus was one Siddaramappa @ Seemanna Veerabadhrappa Pattanshetti (for short `Siddaramappa’). He had four sons and four daughters by names Malakajappa, Gurupadappa, Veerabhadrappa Dundappa, Sonavva, Neelavva, Shakuntala and Mahadevi respectively, plaintiff No.1 is the son of Siddaramappa. He got married to Smt. Irabasavva. From the said wedlock, he has two children i.e. Mahantesh and Jyothi, who are defendant No.1 and 2 respectively. The said Irabasavva died during the year 1995. Thereafter, plaintiff No.1 got married to Smt. Shobha and from the said wedlock, he has two sons i.e. plaintiff No.2 Ravi and plaintiff No.3 – Manjunath.

4. Siddaramappa was a tenant at Sy.No.21 of Muragod village to an extent of 27 acres and 25 guntas. Similarly one Channappa Madiwalar was also a tenant in the some portion of Sy.No.21. After coming into force of Land Reforms Act, both Siddaramappa and Channappa filed Form No.7 claiming to grant occupancy rights. The Land Tribunal, Saundatti, in the proceedings bearing No. KLR-SDT/18-19+20+21+18, dated 04.02.1982, jointly granted occupancy rights in the name of Siddaramappa and Channappa. The name of Siddaramappa was entered in the revenue records as per ME No.1027/19.03.1982. Both of them jointly cultivated their respective area in Sy.No.21. During the year 1983, both Siddaramappa and Channappa effected partition in respect of Sy.No.21. The portion of Sy.No.21 measuring 27 acres and 25 guntas was subdivided and it was given as Sy.No.21/2. Accordingly, ME No.10345 dated 14.07.1983 was ordered.

5. The said Siddaramappa died on 15.02.1995 leaving behind his four sons and four daughters. After the death of Siddaramappa, there was a partition between sons and daughters of Siddaramappa in respect of Sy.No.21/1. As per the said partition, revenue records were mutated by M.No.183 dated 17.10.1995. In the said partition, to an extent of 4 acres was allotted to the share of the plaintiff No.1 – Dundappa. Thereafter, plaintiff No.1 and defendant No.1 and 2 were been in lawful possession and enjoyment of the said land. It was renumbered as Sy.No.21/3, measuring 4 acres.

6. During the year 2012 defendant No.1 started claiming absolute right over the suit property and posing to others that he is the absolute owner of the said property and started obstructing to the peaceful possession of plaintiffs. The plaintiffs also came to know that defendant No.1 got mutated the revenue records in his name only. Plaintiffs also came to know that defendant Nos.1 and 2 were intending to sell the suit property. Therefore, plaintiffs gave public notice in ‘Vijaya Vani’, Kannada Daily Newspaper dated 29.11.2013, cautioning the public not to purchase or deal the suit property with defendant No.1 and 2; Despite of such publication, defendant No.1 and 2 sold the suit property in favour of defendant No.3 on 26.11.2013. Defendant No.3 on the strength of the said Sale Deed tried to interfere in the peaceful possession and enjoyment of the property. Therefore, the plaintiffs were constrained to file the suit. With these reasons, plaintiffs prayed for following reliefs:-

(a) Relief of declaration that sale deed executed by defendant No.1 in favour of defendant No.3 in respect of suit property is not binding on the share of the plaintiff.

(b) To pass a decree of partition and separate possession of the 3/5^th share of plaintiff in the suit schedule pro