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2025 Supreme(Online)(Kar) 13444
KARNATAKA HIGH COURT
MS. JUSTICE JYOTI MULIMANI, J
SRI. SUHAS K.V. – Appellant
Versus
1. SMT. BHAGYALAKSHMI, 2. SMT. MANJULA THEJAS KUMAR N, 3. SMT. GIRIJA, 4. SRI. M.RAMAIAH – Respondent
REGULAR FIRST APPEAL NO. 858 OF 2017 (PAR)
For the Appellants/Petitioners: SRI. DR.PRAJWAL ARADHYA., SRI. S.KALYAN BASAVARAJ.
For the Respondents:
A partition suit cannot be sustained if property has been sold prior to litigation, and failure to involve proper parties or to prosecute can lead to dismissal.
Headnote:(A) Code of Civil Procedure, 1908 - Section 96 - Partition and separate possession - Plaintiffs filed a suit against their father for partition; the suit was decreed on the basis that the property was available, but the property had been sold to a pre-suit purchaser - The trial court's decree is unsustainable in law since the vendor was not made a party - the suit was dismissed for non-prosecution after remand. (Paras 2, 5)
(B) The appellant contends the suit was collusive and that the prior sale obliterates the basis for partition. (Para 3)
Findings of Court:
The trial court's decree was set aside due to lack of proper parties and failure to prosecute.
Issues: The primary issue was whether the partition suit can be sustained given the prior sale of the property.
Ratio Decidendi: The court ruled that failure to involve the pre-suit purchaser and subsequent dismissal for non-prosecution invalidates the partition claim, leading to the appeal's allowance.
Result: The appeal is allowed.
| Table of Content |
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| 1. arguments presented regarding collusion and pre-suit purchasers. (Para 3) |
| 2. review of proceedings and flaws identified. (Para 4) |
| 3. court's reasoning leading to invalidation of the decree. (Para 5) |
ORAL JUDGMENT
Sri.Prajwal Aradhya., counsel on behalf of Sri.S.Kalyan Basavaraj., for the appellant has appeared in person.
Notice to the respondents was ordered on 08.11.2017. A perusal of the office note depicts that respondents 1 to 3 are served and unrepresented. They have neither engaged the services of an advocate nor conducted the case as a party in person.
2. The short facts are these:
The plaintiffs filed a suit against their father Ramaiah in O.S.No.15923/2003 on the file of XXVIII Addl. City Civil and Sessions Judge, Mayo Hall, Bengaluru seeking partition and separate possession. On the trial of the action, the Trial Court vide Judgment and Decree dated 29.06.2009 decreed the suit. The appellant has assailed the Judgment and Decree of the Trial Court in this appeal on several grounds as set-out in the memorandum of appeal.
3. Counsel for the appellant in presenting his arguments strenuously urged that the suit filed by the plaintiffs against their father seeking partition and separate possession is a collusive suit. He contended that the father Ramaiah had sold the property in favor of appellant's vendor prior to filing of the suit and the appellant's vendor being the pre-suit purchaser was not made as a party to the original suit. He argued by saying that the Division Bench of this Court in R.F.A.No.686/2017 C/w. 759/2017 has set-aside the Judgment and Decree dated 29.06.2009 in O.S.N.15923/2003 and the Final Decree dated 19.03.2016 in F.D.P.No.25001/2010 and the suit in O.S.No.15923/2003 was restored. Counsel further submits that after the remand, the suit has been dismissed for non-prosecution. Counsel therefore, submits that an appropriate order may be passed.
4. Heard the arguments and perused the appeal papers with care.
5. It is not in dispute that the plaintiffs filed a suit against their father seeking partition and separate possession. Suffice it to note that Ramaiah had sold the property in favor of appellant's vendor before filing of the suit. Though the appellant's vendor was pre-suit purchaser, he was not made as a party to the proceedings in O.S.No.15923/2003. However, the Trial Court decreed the suit and granted share. This is unsustainable in law. The appellant's vendor was pre-suit purchaser and the property was not available for partition. Moreover, after the remand, the suit has been dismissed for non-prosecution. A perusal of the E-court status of O.S.No.15923/2003 reflects that after the remand, the plaintiffs did not appear before the Trial Court and hence, the suit has been dismissed for non-prosecution on 08.03.2019.
The Judgment and Decree dated 29.06.2009 passed by the XXVIII Addl. City Civil and Sessions Judge, Mayo Hall, Bengaluru in O.S.No.15923/2003 is set-aside.
