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2025 Supreme(Online)(Kar) 13446
KARNATAKA HIGH COURT
MS. JUSTICE JYOTI MULIMANI, J
SRI. R.SREENIVASAN S/O. LATE. S.RANGASWAMY – Appellant
Versus
SMT. BHAGYALAKSHMI D/O. M.RAMAIAH – Respondent
REGULAR FIRST APPEAL NO. 862 OF 2017 (PAR)
For the Appellants/Petitioners:SRI. DR.PRAJWAL ARADHYA., ADVOCATE FOR SRI. S.KALYAN BASAVARAJ., ADVOCATE
For the Respondents:
In partition suits, pre-suit purchasers must be included as parties; failure to do so renders decrees invalid.
Headnote:(A) Partition Act - Principles of partition - In a suit for partition, all pre-suit purchasers must be made parties to avoid decreeing a share in property already sold - Action of trial court in dismissing suit for non-prosecution after remand held unsustainable. (Paras 5, 6)
(B) Appeal - Court's authority to reassess the lower court's action - An appellant must demonstrate the unreasonableness of the trial court’s decree to warrant a setting aside. (Paras 4)
Facts of the case:
The plaintiffs filed a suit against their father seeking partition; the appellant contended the suit was collusive since property had been sold to his vendor before the suit.
Findings of Court:
The suit was dismissed for non-prosecution as plaintiffs failed to appear post-remand.
Issues: The key issue was the validity of the partition suit due to the absence of pre-suit purchasers.
Ratio Decidendi: The court concluded that since the property was sold before the suit commenced, granting a share was legally unsustainable.
Result: Regular First Appeal allowed.
| Table of Content |
|---|
| 1. arguments focus on alleged collusion and property sale. (Para 3) |
| 2. review of the procedural context and trial proceedings. (Para 4) |
| 3. finding that the suit was dismissed due to procedural failures. (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 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 (CCH-29) 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.
