SRINIVAS RAGHAVENDRARAO DESAI (DEAD) BY LRS. [ Appellant(s)]  Vs.  KUMAR VAMANRAO @ ALOK AND ORS. [ Respondent(s)]

CIVIL APPEAL NO(S). 7293-7294 OF 2010

(2JB, C.T. RAVIKUMAR and RAJESH BINDAL JJ., delivered by Rajesh Bindal, J.)

Facts: The appeals filed by the plaintiffs having been partly allowed by the High Court, the defendant No. 7 has challenged the judgment and decree of the High Court before this Court.

Issue: Whether the present appeal is liable to be set aside?

Arguments on behalf of counsel for appellant:

Learned counsel for the appellants submitted that the judgment of the High Court deserves to be set aside for the reason that reliance has been placed upon 1965 partition which was not the pleaded case in the plaint initially filed. No evidence led, which was beyond pleadings could be considered. An application seeking amendment of the plaint was filed to take up that plea, however, the same was declined by the Trial Court vide order dated 11.10.2006 and the order was not challenged any further. Even the pleadings to that effect sought to be taken in the replication filed by the plaintiffs were struck off by the Trial Court. The pleaded case of the defendants before the Trial Court was that there was a partition amongst the family members on 30.08.1984. The aforesaid partition deed was subject matter of litigation in Civil Suit No. 80 of 1995 filed by the defendant No. 2 wherein the same has been noticed and an order passed thereon.

Arguments on behalf of counsel for respondent:

On the other hand, learned counsel for the respondents No. 1 to 3/plaintiffs submitted that the entire effort of the appellants is just to deprive respondents No. 1 to 3 of their rightful share in the family property. The partition of 1965 was rightly relied upon by the High Court as against the partition of 1984, the genuineness of which is quite doubtful. In fact, all the family members had connived to deny rightful claim of the plaintiffs. It was further submitted that the sale deed which was executed by the appellant-defendant No. 7 in favour of defendant No. 9 in violation of the interim order passed by the Trial Court is non-est and deserves to be ignored

Held: The court allowed the present appeal and held that, “The order passed by High Court in Writ Petition No. 11431 of 1977 filed by Sudheendra, decided on 25.03.1983, does not come to the rescue of the respondents for the reason that the same was passed before the partition was effected between the parties on 30.08.1984. Secondly, it was a Writ Petition filed by defendant No. 1 through his grand father as he was minor at that time. The Writ Petition was filed against the State seeking quashing of order dated 21.05.1976 passed by Special Land Tribunal, Dharwad. Without there being any material and the parties affected or beneficiary of 1965 partition being party, the Court recorded that there is no dispute that there was such a partition.”