The plaintiffs must prove that the property is ancestral joint family property, failing which their claim for partition will be dismissed.

ORAL JUDGMENT

1. This Regular Second Appeal is filed by the Appellants challenging the judgment and decree dated 05.10.2012 passed in R.A. No. 125 of 2011 by the learned IV Additional District Judge, Mysore and the judgment and decree dated 29.01.2011 passed in O.S. No. 976 of 2005 by the learned III Additional Civil Judge (Sr. Dn.), Mysore.

2. For convenience, the parties are referred to, based on their rankings before the Trial Court. The appellants were the plaintiffs and the respondents were the defendants.

3. Brief facts, leading rise to the filing of this appeal, are as follows:

4. The plaintiffs filed a suit against the defendants seeking the relief of partition and separate possession. It is the case of the plaintiffs that late Mudukegowda and his wife Smt.Karagamma- defendant No. 1 herein, have got three sons, namely 1) Kalegowda, who is the husband of plaintiff No.2 and father of plaintiff Nos.3 and 4; 2) Shivanna, who is the father of defendant Nos.2 and 3; and 3) Javaregowda, plaintiff No.1 herein.

5. It is contended that after the death of Late Mudukegowda, the schedule property mutated in the name of defendant No.1. Defendant No.1, taking advantage of the change of khata in her name, colluding with other defendants, created a document styled a sale deed in 2004. The same is created, misconceived and has taken place behind the back of the plaintiffs. It is contended that the suit schedule property is the ancestral joint family property of the plaintiffs and the defendants. The plaintiffs requested the defendants to effect a partition. However, the defendants did not give any heed to the request made by the plaintiffs. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

6. Defendant Nos.2 and 3 filed a consenting written statement contending that the sale deed executed in favour of defendant No.4 is not binding on the plaintiffs and these defendants, and accordingly pray to grant their shares in the suit property.

7. Defendant No.5 filed a written statement denying the averments made in the plaint. It is contended that he purchased the property from defendant No.4 after taking all precautionary measures before purchasing the suit property. He is the bona fide purchaser for a value without notice. He has improved the property by investing huge money. Accordingly, on these grounds, prays to dismiss the suit.

8. The Trial court, based on the pleadings of the parties, framed the following issues:

(i) Whether the plaintiffs prove that the schedule property is the joint ancestral property of them and defendant Nos.1 to 3?

(ii) Whether the plaintiffs prove that the sale deed dated 04.10.2004 is created and fraudulent one?

(iii) Whether the fifth defendant proves that he is the bona fide purchaser of the suit property from the fourth defendant?

(iv) Whether the 5^th defendant proves that the court fee paid on the court is insufficient?

(v) Whether the plaintiffs are entitled for plaint reliefs?

(vi) What order or decree?

9. The plaintiffs to prove their case, plaintiff No.1 was examined as PW1, examined one witness as PW2, and marked 9 documents as Exhibits P1 to P9.

10. Conversely, the defendants to prove their defence, examined a witness as DW1 and marked 23 documents as Exhibits D1 to D23.

11. The Trial Court, after recording the evidence of the parties, hearing both the sides and appreciating the verbal and documentary evidence, answered issue No.3 in the affirmative and issue Nos.1, 2, 4 and 5 in the negative and issue No.6 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 29.01.2011.

12. The plaintiffs, aggrieved by th