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2025 Supreme(Online)(Kar) 13448
KARNATAKA HIGH COURT
JYOTI MULIMANI, J
SRI. V.ARVIND – Appellant
Versus
SMT. BHAGYALAKSHMI – Respondent
REGULAR FIRST APPEAL NO. 868 OF 2017
For the Appellants/Petitioners: SRI. DR.PRAJWAL ARADHYA, SRI. S.KALYAN BASAVARAJ
For the Respondents:
A partition suit is unsustainable if it excludes a pre-suit purchaser as a party, leading to the dismissal for non-prosecution.
Headnote:(A) Code of Civil Procedure, 1908 - Section 96 - Regular First Appeal filed against Judgment and Decree for partition and separate possession against father - Appellant contended the suit is collusive and the pre-suit purchaser was not made a party - Trial Court's decree was set aside based on wrongful exclusion of essential parties and non-prosecution after remand. (Paras 2, 3, 5)
(B) Collusive Suit - Suit against a party in ownership is unsustainable if not made a party during proceedings - Pre-suit purchaser's rights should be upheld to ensure fair trial and justice. (Para 5)
Facts of the case:
The plaintiffs filed a suit for partition against their father, which was erroneously decreed despite prior sale of property to the appellant's vendor, who was excluded from proceedings.
Findings of Court:
The prior sale rendered the partition suit unsustainable since the property cannot be partitioned after being sold, leading to dismissal for non-prosecution after the remand.
Issues: Whether excluding the pre-suit purchaser from the proceedings constituted a legal error and justified the appeal.
Ratio Decidendi: The court found that the dismissal of the suit was proper due to lack of representation of the necessary parties, undermining the suit's legitimacy.
Result: Regular First Appeal is allowed.
| Table of Content |
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| 1. arguments regarding collusion and non-inclusion of parties in partition suits. (Para 3) |
| 2. court's reflection on the case and the need for essential parties. (Para 4) |
| 3. ruling on the invalidity of the decree due to missing pre-suit purchaser. (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. 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.
