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2025 Supreme(Online)(Kar) 13445
KARNATAKA HIGH COURT
MS. JYOTI MULIMANI, J
SRI. YENDAMURI VENKATA SIVA RAVI PRASAD – Appellant
Versus
SMT. BHAGYALAKSHMI D/O. M.RAMAIAH – Respondent
REGULAR FIRST APPEAL NO. 859 OF 2017 (PAR)
For the Appellants/Petitioners: SRI. DR.PRAJWAL ARADHYA., SRI. S.KALYAN BASAVARAJ.
For the Respondents: None
The trial court erred by decreeing a partition suit as the property had already been sold to a pre-suit purchaser, making the judgment invalid.
Headnote:(A) Partition Act, 1893 - Section 27 - Appeal against partition decree - Plaintiffs filed suit against father for partition; however, father had sold property to appellant’s vendor prior to suit - Pre-suit purchaser was not included in the original suit - Trial Court's decree set aside due to lack of jurisdiction. (Paras 5, 6)
(B) Jurisdiction - The Trial Court improperly decreed a partition claim where a prior sale occurred, denying the pre-suit purchaser’s right. (Para 5)
Facts of the case:
The appellant challenged the trial court's decree for partition after the vendor's prior purchase was disregarded, and the trial court dismissed the case for non-prosecution post-remand.
Findings of Court:
The court found the trial court's actions unsustainable and set aside the decree, affirming that the property was not available for partition after the sale.
Issues: The main issues included determining the validity of the partition suit considering the pre-suit sale and the necessity of including the vendor as a party.
Ratio Decidendi: The failure to join a necessary party to the suit rendered the trial court's decree flawed and void.
Result: The Regular First Appeal is allowed.
| Table of Content |
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| 1. arguments on the legitimacy of the partition due to previous sale. (Para 3) |
| 2. court's observations on the dismissal due to non-prosecution. (Para 4 , 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 30.07.2018. 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.
