JUDGMENT

Being aggrieved by the dismissal of claim for partition inter alia in respect of schedule 'C' properties described in O.S. No. 134/2008 vide Judgment and decree dated 31.07.2015 on the file of the Principal Sr. Civil Judge, Bengaluru Rural District, Plaintiff, Defendant No.2 and Defendant No.6 have jointly preferred this appeal.

2. So for as claim of the plaintiff in respect of 'A'

and 'B' schedule properties described in the schedule appended to the plaint in the aforesaid suit granting 1/8th share to the plaintiff, no appeal is preferred by any of the parties to the suit. Thus, judgment and decree in respect of the aforesaid 'A' and 'B' schedule properties has become final.

3. The parties to this appeal are referred as per their rank before the trial Court for convenience.

4. According to plaintiff, the schedule properties were the properties purchased by the father of the plaintiff and herself purchased under registered sale deed dated 18.02.1955. Her father by name Francis.R. died intestate on 29.07.2004 leaving behind plaintiff and defendants No.1 to 7 as his legal heirs. It is they who inherited the schedule properties by way of succession. It is alleged, that all the legal heirs are entitled for equal share in the schedule properties. It is alleged, that Defendants No. 1, 5 and 7 behind the back of the plaintiff, to deprive her share created a false Partition Deed dated 09.11.2004 without allotting any share to the plaintiff. Though there was a demand to give her share, they denied. It is further alleged that, behind the back of plaintiff, defendant No.5 sold 'C' schedule property to defendant No.8 under registered sale deed dated 05.11.2007. Thus, it is claimed by the plaintiff to decree the suit by granting 1/8th share in all the suit schedule 'A', 'B' and 'C' properties.

5. In response to suit summons defendant no.5, 7 and 8 appeared through their counsels before the Trial Court.

6. Despite service of suit summons defendant no.1 to 4 and 6 remained absent and therefore, they were placed Ex-parte.

7. Defendant Nos.5 and 7 jointly filed their written statement admitting some of the plaint averments. It is contended that, they are the absolute owners of the schedule property by virtue of the sale deed 18.02.1955.

Plaintiff is already married and residing in her matrimonial home for more than 30 years and hence she has no right in the properties. She is not the member of family of these defendants. It is contended that, in view of the registered partition deed dated 09.11.2004, their name is appearing in the revenue records. Plaintiff cannot maintain the suit.

8. Defendant no.8 in her written statement contended that, plaintiffs claim is barred by limitation. It is further contended that, she is a bonafide purchaser of schedule 'C' property from defendant No.5 and hence plaintiff cannot maintain the suit in respect of the said property. Therefore, it is prayed to dismiss the suit.

9. Based upon the rival pleadings of both the parties, the learned trial court framed the following:

Issues

1. Whether the plaintiff proves that the partition deed dated 19.11.2004 entered between defendant No.1, 5 and 7 with respect to the suit schedule properties is not binding on her?

2. Whether the plaintiff proves that the sale deed dated 05.11.2007 executed by 5th defendant in favour of 8th defendant is not binding on her?

3. Whether the plaintiff is entitled for partition and separate possession of her 1/8th share in the suit schedule properties?

4. Whether the defendant No.5 and 7 prove that they are the bonafide purchasers of suit 'A' schedule property?

5. Whether the 8th defendant proves that she is the bonafide purchaser of suit 'C' schedule property?

6. Whether the suit is hit by Order 2 Rule 2 of C.P.C.?

7. Whether the suit is barred by law of limitation?

8. Whether the court fee paid is insufficient?

9. Whether the suit is bad for miss-joinder and non-

joinder of necessary parties?

10. What order or decree?

10. To prove the case of the plainti