This appeal is filed by the appellant challenging the

judgment and preliminary decree dated 09.06.2016

passed in OS No.120/2011 by the Additional Senior Civil

Judge, Gadag.

2.

For the sake of convenience parties are

referred to as per their ranks before the trial Court.

3.

Appellants are defendants, respondent Nos.1

to 5 and plaintiffs and respondent No.6 is the defendant.

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4.

Plaintiff filed a suit for partition and separate

possession and claiming 1/2^nd share along with defendant

Nos.2 to 5 in the suit schedule property and also sought

for a declaration that the sale deed and gift deed dated

04.04.2008 executed in favour of defendant No.1 is illegal

and not binding on them. It is the case of the plaintiff that

original

propositus

Bsappa

had

two

wives

namely

Shivamma and Yallawwa. Shivamma had a son by name

Shivaputrappa and Yallawwa had a son by name Devappa

i.e., defendant No.1 and Shivaputrappa had two wives

namely Ningawwa and Mahadevi and Ningawwa had five

children namely defendant No.2 to 5 and plaintiff No.4 had

four children i.e., plaintiff Nos.2 to 5 and Devappa who is

the brother of Shivaputrappa. Shivaputrappa and Devappa

were together and after the demises of Basappa got

divided the properties. Defendant Nos.1 and 6 were having

1/2 share in RS No. 397/1B of Dambal village in Mundargi

Taluka and after the death of Shivaputrappa plaintiff No.1

succeeded to his property and getting pension form the

Government. During the life time of Shivaputrappa

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plaintiffs were living along with him at Belagavi. Plaintiff,

defendant No.2 and defendant No.1 were staying at

Halligundi and was making a wahiwat in the respective

shares. There was a partition between Shivaputrappa and

Devappa, defendant No.1 was not in cordial terms with

plaintiffs. Defendant No.1 in collusion with henchmen got

created a false and bogus sale deed and gift deed dated

04.04.2008 and got registered the same and the parties

have not acted upon the sale deed and gift deed. The

defendant No.1 is trying to interfere on the strength of the

sale deed, in the possession of the suit property. Plaintiff

and defendant Nos.2 to 5 have got the share in the suit

property. Hence, plaintiff requested the defendant to

effect a partition. But, the defendant refused to effect the

partition. Hence, the plaintiff filed a suit.

5.

The defendant Nos.1, 2, 3 and 5 have filed a

written statement denying the averments made in the

plaint and it is contended that proposed Basappa had two

wives and admitted the relationship of the Shivawwa and

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Yallawwa with Basappa and also admitted about the

Shivawwa begotten a son of Shivaputrappa and Yallawwa

begotten a son by name Devappa and a daughter by name

Iramma and the said Iramma is not made as a party to

the proceedings. Hence, a suit is not maintainable for non-

joinder of necessary parties. The plaintiff No.1 initiated the

legal proceedings against the said Shvaputrappa. The

relation between the said Shivaputrappa and the plaintiff

No.1 was strained, Shivaputrappa used to live with

defendant No.1. Defendant No.1 and his children i.e.,

defendant Nos. 2 to 5 look after the said Shivaputrappa in

his fag time till his death. The suit properties which were

allotted to the share of Shivaputrappa, were in possession

and enjoyment of defendant No.1 and he has authorized

his brother defendant No.1 to cultivate the same. In the

year 2008 the Shivaputrappa was in need of money to

pay off petty loans and family necessities. So he requested

the son of defendant No.1 to purchase the property.

Accordingly, Hemanna purchased the suit property for

valuable consideration and he is in possession of the said

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property. The plaintiff had a knowledge of the registered

sale deed executed by Shivaputrappa in favour of

Hemanna and as well as registered deed executed by

Shivaputrappa in favour of defendant No.1. The plaintiff

taking the undue advantage of death of the Shivaputrappa

with a ulterior motive to have a il