IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD DATED THIS THE 16TH DAY OF JUNE 2011 BEFORE THE HON’BLE MR. JUSTICE K. GOVINDARAJULU RFA NO.875/2002 BETWEEN Ashok S/o Dattaram Kalgutkar Agriculturist and service Aged 38 years, Permanent resident of Shidwad village In karwar taluka Presently serving at United agency, P.B.No,240 Panjim, Gao. Appellant (By Sri V.P. Kulkarni, Adv.) AND I. Kalyani w/o Dattaram Kalgutkar aged about 61 years household duties r/of.Shirwad, Tq.Karwar 2. Rajan s/ o.Dattaram Kalgutkar aged about 25 years Agriculturist, r/of.Shirwad village, Karwar tq 3. Shobha o. shashikant rawal (shobha cl/ o.dattaram kalgutkar) aged about 34 years, household duties. r/of.moira via hapusa Bardez, (ba 4. Alaka (d swarupa w/o.Babu Tamakar (alaka swarupa d/o.dattaram kalgutkar) aged about 30 years, household duties r/ of. Ramanagar. Kolvale Bardez, Goa 5. Bharti d/o.Dattaram Kalgutkar aged about 27 years household duties, r/o.Shirwad village, Tq. Karwar 6. Deepa dilip naik w/o.sri.Dilip Arjun Naik major, household duties reptd by her gpa holder Dilip Arjun Naik, r/o.Kone Nala Road, Karwar 7. Datta kashinath kadwadkar major, r/o.Shirwad Karwar Tci 8. Lakshmi w/ o.Ganapati Revankar major, aged about 45 years household duties, near pikie Hospital, Karwar. Respondents (By Sri.Harsh Desai, Adv. for R8, Ri to R4 served, R5 —Notice d/w R6-appeal dismissed, R7(A-E) are sd.) 3 This REA is filed u/s.96 of CPC against the judgment and decree dated 19.4.2002 passed in Os No.61/92 on the file of the Prl. Civil Judge(5r.Dn.), Karwar, dismissing the suit for partition. This RFA coming on for final hearing this day, the Court delivered the following: JUDGMENT The plaintiff in OS No.61/1992 on the file of the Prl. Civil Judge (Sr.Dn4, Karwar is the appellant in this appeal u/s.96 CPC. 2. The parties will be referred to according to their status found in the court below for convenience. 3. The case of the plaintiff is that defendant No.1 is the mother of the plaintiff, defendant Nos.2 to 5 are the children of defendant No.1. Defendant No.1 ‘s husband died on 25.8.1986. Plaintiff is the eldest son of defendant No.1. They remained jointly and they were in possession 4 and enjoyment of the properties jointly. After the death of the father Dattaram Atmaram Kalgutkar, defendant No.1 has given a vardi dated 23.9.1986 stating that herself and remaining defendants 2 to 5 are the IRs. of Dattaram Atmaram. While so, declaring A schedule properties inc1uding the land in survey No.216/B and 2 18/9 of Shirawad village and two lands in survey No.216/8 belonging to one Maldar family. That family is different from the family of the plaintiffs. Defendant no.1 is also claiming title in regard to the said properties and the said subject is pending consideration before the land tribunal. While so, dealing with the property by the defendant No.1 is bad in law. So, pray for declaration of the share of the plaintiff in regard to the plaint schedule properties, for possession of the share of the plaintiff, costs and for such other reliefs. 4. Defendant No.8 has filed written statement, deny the claim of the plaintiff. Contend that the defendant No.8 is a bonafide purchaser of the property. The suit as the one framed is not maintainable, also contend that the suit for partial partition is not maintainable, two landed properties mentioned by the plaintiff as the properties which are the subject matter before the land tribunal are not added, without including those two lands, the suit for partition is not maintainable. 5. On the basis of the said pleadings, the learned trial Judge has framed issues, has upheld the contention of the defendant No.8, held all the properties are not brought in while claiming partition, has dismissed the suit. 6. The learned advocate Sri Kulkarni for the plaintiff contend that there is no dispute in regard to the proposition that in a suit for partition, all the properties have to be incorporated, but in the facts of the case, there is a positive mention by the plaintiff that two landed properties are the subject matter of proceedings before the 6 land tribunal. So, these properties cannot be considered as joint family properties. When such a specific contention is taken, the contention of the defendant No.8 that two properties are not incorporated in the schedule to the plaint, so the suit is not maintainable. Accepting such plea by the learned trial Judge is not proper. So, prays for setting aside the order of dismissal of the suit, for decision on merits of the case. 7. In response, Sri Harsha Desai, submit that in the facts of the case it is the positive case of the plaintiff that defendant No.8 is a bonafide purchaser, so, it is for the defendant to take the pleas available under law. Two properties being not incorporated is found from the avennents in plaint itself, so the approach of the learned trial Judge is proper. 8. The learned advocate do not dispute the position of law that a purchaser of a property from a Hindu family p 7 should make a reasonable enquiry, find out whether it is an ancestral property/joint family property. 9. In the light of the above, the points that arise for consideration by this court are: (1) Whether the suit as the one claimed by the plaintiff is maintainable. (2) Whether the approach of the learned trial Judge in dismissing the suit for partition in accordance with law. (3) What order.? 10. POINT NOS. 1 & 2: Both the points are taken up together for discussion at a stretch. The case of the plaintiff is that plaintiff is the son of defendant No.1. property claimed by the plaintiff in the plaint schedule are the ancestral properties. Absolutely, there is no reply on the subject by the contesting defendant No.8. So, prima fade the material placed by the plaintiff would probabilise that properties are ancestral properties. 8 11. In view of the above finding, the defendant No.8 contends that he is a bonafide purchaser. The defendant No.8 should prove that he has made reasonable enquiries. The defendant No.8 ought to have produced the sale deed to show the defendant while purchasing the property has also traced out the property. No such effort is made. Defendant No.8 has not entered the witness box. Her husband deposes, why document of title claimed by defendant No.8 is with held is not found from the evidence of DW1. The primary evidence on which, the defendant No.8 claims title being not produced, defendant No.8 failed to substantiate the reasonable enquiry in regard to the purchaser of the property. In this situation, the trial court ought to have found out, the claim of defendant No.8, and also plea of the plaintiffs in regard to other two properties. To clarify further, trial court has to fmd whether the other two properties are the properties of the family of the plaintiff or the properties of Maldar family as the one contended by the plaintiff. No such enquiry or finding is found from the reasoning of the learned trial Judge. So, the technical approach adopted by the learned trial Judge would probahilise that the law in regard to the framing of the suit is mis read by the learned trial Judge . So, the court holds that the plaintiff has proved the two points raised in his favour, the judgment recorded by the learned trial Judge is set aside. 9. The learned trial Judge is directed to decide the case in accordance with law after recording evidence of all the parties. It is made clear that the decision and finding is limited for considering the appeal only, it shall not have any bearing when the case on merits is heard by the learned trial Judge. 10. The learned advocate for the plaintiff contend that the suit is very old one and the court may fix up a time schedule. In view of the submission, the learned trial Judge is directed to decide the case within a period of one I0 year from the date of receipt of the records from this Court. Office is directed to send the LCRs. Forthwith along with the copy of the judgment. Both sides are at liberty to lead evidence in regard to the disputed properties. Appeal is allowed. In the light of the above, the plaintiff is entitled for the costs throughout. Sd! JUDGE P1* I