The unsuccessful plaintiffs in O.S.No.14/1996 on the file

of the Civil Judge (Sr.Dn.), Sirsi have filed this Regular First

Appeal challenging the judgment and decree dated 02.12.2006

passed therein.

The plaintiffs filed the suit for declaration that the

sale deeds dated 26.09.1989 and 31.12.1992 executed by the

2^nd defendant were illegal and does not affect their rights under

the partition of the year 1966 and to restrain defendants No.1

and 2 from alienating the suit properties. Plaintiff No.2 is the

son of plaintiff No.1. The plaintiff No.1 contended that

defendant No.2 was his brother’s wife, while defendant No.3

was his brother. The plaintiffs claimed that in the year 1966,

the parties had partitioned the properties of the family and had

agreed not to sell their portions to third parties without first

offering to either of them. The plaintiffs claimed that the

husband of defendant No.2 died somewhere in the year

1984-1985 and she succeeded to his estate. The plaintiffs

claimed that the 2^nd defendant created a collusive and make

believe sale deed dated 31.12.1992 and 26.09.1989 in favour

of Shri Mahabalanand Swamiji which came to the knowledge of

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plaintiffs

on

14.07.1995.

The

plaintiffs

contended

that

defendant No.2 was bound by the recitals contained in the

partition deed of the year 1966 and therefore, the sale deeds

executed by her were not binding upon the plaintiffs. They also

alleged that there was no need for defendant No.2 to encumber

the suit ‘A’ and ‘B’ schedule properties. Hence, the suit was

filed for the reliefs mentioned above.

The suit was contested by defendant No.1 who filed

his written statement contending that the agreement between

the parties in the partition of the year 1966 was illegal.

Defendant No.1 admitted the fact that the husband of

defendant No.2 had expired in the year 1984-1985 and that in

order to meet the legal expenses of her children, defendant

No.2 had encumbered the suit properties. He admitted that the

suit schedule ‘B’ property was subject to the provisions of the

Karnataka Land Reforms Act. Defendant No.1 denied the

averments of the plaint and contended that the sale deeds were

not concocted, but were lawfully executed by defendant No.2

for valid consideration. It was also contended that the suit was

highly belated as it was filed in the year 1996. It was also

contended that the plaintiffs did not seek enforcement of their

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alleged right of pre-emption and therefore, the suit under the

present form was not maintainable.

4.

Defendant No.3 supported the case of the plaintiffs

by contending that the ‘A’ schedule properties was not clearly

bifurcated. He also contended that there was a pre-emption

clause in the partition which prohibited the parties from

alienating their respective shares to strangers, but had to be

conveyed amongst themselves at the price fixed by panchayat

of the village. He also contended that any transaction made in

violation of this condition was illegal. He also contended that

even if the sale of the suit properties by defendant No.2 in

favour of defendant No.1 was for legal necessity, since such

sale was against the conditions stipulated in the partition, the

sale deeds were illegal. He contended that he was willing to

purchase the suit properties.

5.

Based on the rival contentions, the trial Court

framed the following issues:

(1) 2£Éà ¥ÀæwªÁ¢AiÀÄÄ ªÀiÁrzÉÝA§ zÁªÁ ‘C’ ¥Àj²µÀÖ D¹ÛUÀ¼À PÀÄjvÀÄ

DzÀ ¢£ÁAPÀ: 26.09.1989gÀ zÀ¸ÀÄÛ ªÀÄvÀÄÛ ¢£ÁAPÀ: 31.12.1992 gÀAzÀÄ

DzÀ zÁªÁ ‘©’ ¥Àj²µÀÖ D¹ÛUÀ¼À PÀÄjvÀÄ DzÀ zÀ¸ÀÛ EªÀÅUÀ¼ÀÄ

- 6 -

¨ÉÃPÁ¬ÄݲÃgÀ EzÀÄÝ CªÀÅ vÀªÀÄä ºÀQÌUÉ ¨Á¢¸À¯ÁgÀzÉAzÀÄ ªÁ¢UÀ¼ÀÄ

gÀÄdĪÁvÀÄ¥Àr¹gÀĪÀgÉÃ?

(2) ¥ÀæwªÁ¢UÀ¼ÀÄ ªÁ¢UÀ½UÉ vÉÆAzÀgÉ CxÀªÁ DvÀAPÀ ¥Àr¹zÁÝgÉAzÀÄ

ªÁ¢UÀ¼ÀÄ gÀÄdĪÁvÀÄ¥Àr¹gÀĪÀgÉÃ?

(3) zÁªÁzÀ°è

PÉÆÃjzÀ

¥ÀjºÁgÀUÀ¼À£ÀÄß

ºÉÆAzÀ®Ä

ªÁ¢UÀ¼ÀÄ

CºÀðjzÁÝgÉAiÉÄÃ?

(4) K£ÀÄ DYÉÕ? K£ÀÄ rQæ?

6.

Plaintiff No.2 was examined as PW1 and he marked

Exs.P1 to P9, while the power of attorney of defendant No.1

was examined as DW1 who marked Exs.D1 to D4. Based