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2025 Supreme(Online)(Kar) 13450
KARNATAKA HIGH COURT
MS. JUSTICE JYOTI MULIMANI, J
SRI. BASAVARAJ.R.KUMBAR – Appellant
Versus
SMT. BHAGYALAKSHMI D/O R.RAMAIAH – Respondent
REGULAR FIRST APPEAL NO. 876 OF 2017 (PAR)
For the Appellants/Petitioners: SRI. DR.PRAJWAL ARADHYA., SRI. S.KALYAN BASAVARAJ.
For the Respondents: None
A property sold before the filing of a partition suit cannot be subjected to partition, leading to dismissal of the suit.
Headnote:(A) Partition Act, 1893 - Sections relating to partition and separate possession - Plaintiffs filed a suit against their father seeking partition - Court found that the property was sold before filing suit, making the suit unsustainable in law - Suit dismissed for non-prosecution post-remand. (Paras 2-5)
(B) Appeal - Nature of appeal and potential for setting aside Trial Court decisions - Appeal allowed, Judgment and Decree set aside due to procedural discrepancies. (Paras 5-6)
Facts of the case:
The plaintiffs filed a suit seeking partition against their father who had previously sold the property to another party. The original suit was decreed, but the vendor was not included. On remand, the case was dismissed for non-prosecution.
Findings of Court:
The Court found that the Plaintiffs' suit was unsustainable as the property was already sold to a pre-suit purchaser and due to non-prosecution, the original case was dismissed.
Issues: Whether the plaintiffs' suit for partition was valid considering the prior sale of property and subsequent dismissal for non-prosecution.
Ratio Decidendi: The court ruled that once a property has been sold prior to the suit, it cannot be the subject of partition, thereby validating the dismissal of the suit based on procedural lapses.
Result: The Regular First Appeal is allowed.
| Table of Content |
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| 1. the facts establish that a prior sale affects the partition claim. (Para 3 , 5) |
| 2. court observed the unsustainability of the decree due to non-inclusion of necessary parties. (Para 4) |
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 and 2 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.
