DECREE

DATED:

11.8.2009

PASSED

IN

O.S.NO.505/2001 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) &

JMFC., KUNIGAL.

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

J U D G M E N T

Even though the matter is listed for admission, with the

consent of learned counsel for both the parties, it is taken up

for final disposal.

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2.

The appellants - plaintiff Nos.1 and 3 are before this

Court impugning the judgment and decree dated 11.08.2009

passed in OS No.505 of 2001 on the file of the learned Principal

Civil Judge (Jr.Dn.) and JMFC at Kunigal, (hereinafter referred

to as 'the Trial Court' for brevity), dismissing the suit of the

plaintiffs filed for declaration and for setting aside the judgment

and decree passed in respect of the suit property with

exemplary costs which was confirmed in RA No.65 of 2009 vide

judgment dated 02.07.2011 on the file of learned Senior Civil

Judge and JMFC, Kunigal (hereinafter referred to as 'the First

Appellate Court' for brevity).

3.

For the sake of convenience, parties are referred to

as per their status and rank before the Trial Court.

4.

Brief facts of the case are that, plaintiff Nos.1 to 3

filed the suit for declaration that they are the joint owners/co-

owners in respect of the suit property and consequently,

declaring that the judgment and decree passed in OS No.458 of

1993 is not binding on them. It is the contention of the

plaintiffs that the suit schedule property is their ancestral

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property and they constitute undivided joint family. They were

not having any necessity to alienate the schedule property.

Defendant No.2 managed to influence the first defendant and

obtained agreement for sale in respect of the suit property

fradulently and with an intention to defeat the rights of the

plaintiffs. Since the defendants do not represent the rigths of

the plaintiffs over the suit property, the agreement for sale was

not binding on the plaintiffs nor the judgment and decree

passed in OS No.458 of 1993 passed by the learned Civil Judge

(Jr.Dn.), Kunigal. Therefore, he sought for relief as stated

above.

5.

On service of notice, defendant No.1 appeared

before the Trial Court and filed written statement denying the

contention taken by the plaintiffs. It is contended that with an

intention to discharge legal debt, defendant No.2 entered into

an agreement with defendant No.1. Defendant No.2 had

executed the mortgage deed in favour of defendant No.1.

When defendant No.2 failed to comply with the terms of the

agreement, defendant No.1 filed OS No.458 of 1993 on the file

of learned Civil Judge (Jr.Dn.), Kunigal. The said suit was

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contested by defendant No.2, but the suit came to be decreed

as prayed for in favour of defendant No.1. Defendant No.2

preferred RA No.18 of 2001 before the learned Civil Judge

(Sr.Dn.), Kunigal, which also came to be dismissed. Defendant

No.1 filed Execution Petition No.1 of 2002 and since defendant

No.2 failed to execute the sale deed, the sale deed was got

executed through the Court Commissioner appointed by the

Executing Court. It is contended that all these proceedings

were within the knowledge of the plaintiffs and in collusion with

defendant No.2, the present suit came to be filed. The finding

in the suit and the appeal reached finality and even the decree

is executed. Under such circumstances, the plaintiffs cannot

maintain the suit. Therefore, he prays for dismissal of the suit

with exemplary costs.

6.

On the basis of these pleadings, the following issues

were framed by the Trial Court:

"1.

Whether the plaintiffs prove that the

suit schedule property is the ancestral property of

themselves and defendant No.2?

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2.

Whether the plaintiffs further rprove the

allegations made against the defendants as alleged

in the plaint?

3.

Whether the plaintiffs furhter prove that

there is no necessity for the plaintiffs and

defendants to sell the suit property?

4.

Whether the plaintiffs further prove th