(Prayer: This RSA is filed under Section 100 of CPC, against the judgment and decree dated 03.06.2020 passed in r.a.no.10021/2019 on the file of the v additional district and Sessions judge, Tiptur, dismissing the appeal and confirming the judgment and decree dated 02.02.2019 passed in o.s.no.41/2017 on the file of the senior civil judge and JMFC, Chikkanayakanahalli.)

Oral Judgment

1. This matter is listed for admission. I have heard learned counsel for the appellant and learned counsels for the respondents.

2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs filed the suit for the relief of partition in respect of all the suit schedule properties claiming that suit schedule properties are ancestral properties and claiming 1/5th share each in the suit schedule properties. The plaintiffs also contend that sale deed dated 06.09.2017 executed by defendant Nos.1 and 2 in favour of defendant No.3 in respect of suit item No.1 will not bind upon their share.

4. The defendant Nos.1 to 3 appeared before the Court and defendant Nos.1 and 2 did not contest the matter. But, defendant No.3, who is the purchaser filed the written statement and contested the matter. The defendant No.4, who is the agreement holder was placed ex-parte.

5. The Trial Court having considered both oral and documentary evidence comes to the conclusion that plaintiffs have proved that suit schedule properties are ancestral and joint family properties and they are in joint possession and enjoyment of the same along with defendant Nos.1 and 2 and further comes to the conclusion that the sale deed is not binding on the plaintiffs, since they are not parties to the sale deed. The Trial Court also comes to the conclusion that defendant No.3 has not proved the fact that sale was made for the benefit of the family. Hence, granted the relief of 1/5th share in respect of all the suit schedule properties in favour of the plaintiffs.

6. The judgment and decree of the Trial Court is challenged   before   the   First   Appellate Court  in R.A.No.10021/2019. The First Appellate Court also having reassessed both oral and documentary evidence keeping in view the grounds which have been urged in the appeal, formulated the points whether the Trial Court has erred in decreeing the suit of the plaintiffs without properly appreciating the evidence and material available on the record and whether it requires interference. On re- appreciation of both oral and documentary evidence, the First Appellate Court comes to the conclusion that the plaintiffs have proved the case and the Trial Court has not committed any error. Even the First Appellate Court also in paragraph No.21 taken note of recitals of document Ex.D3, wherein it is stated that item No.1 of the suit schedule property was sold for improvement of the property of the family and for purchasing the property for the family, but to prove the said fact, not placed any documents before the Court that out of the sale consideration, any of the properties are purchased for the family. Hence, comes to the conclusion that when the plaintiffs are not parties to the sale deed and no property is purchased for the reason as set out in Ex.D3, cannot contend that the purchaser is a bonafide purchaser and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding, present second appeal is filed before this Court.

7. The main contention of the counsel appearing for the appellant before this Court is that both the Courts have committed an error in considering the material available on record. The counsel also would vehemently contend that nothing is observed in the judgment and decree of Trial Court and First Appellate Court that when the sale was made and entire consideration was paid and it was an absolute sale deed. Both the Courts ought to have taken note of the said fact into consideration. The counsel also vehemently contends that the reasoning of both the Courts is that sale is not for the legal necessity of the family but burden is on the plaintiffs to establish the same. Instead of that comes to the conclusion that sale is not for the family necessity. Hence this Court has to admit the appeal and to frame substantial question of law.

8. Per contra, the learned counsel appearing for respondent Nos.4 and 5 would contend that the Trial Court not committed any error in passing such a judgment since the sale was made for the family necessity and recital of the document is also very clear in this regard.

9. The counsel appearing for respondent No.6 who is an agreement holder would contend that an agreement was taken place even before filing of the suit and there could have been an observation by both the Courts for having sold the property that is Item No.1 and share ought to have been adjusted in other properties of the family and the same was not taken note of.

10. Having heard the appellant’s counsel and also the counsel appearing for the respective respondents and also considering the material available on record, it discloses that there is a concurrent finding and material also discloses that defendant No.1 while selling the property not included the plaintiffs as parties to the sale deed. Apart from that the Trial Court and First Appellate Court also taken note of recital of the document of Ex.D3 wherein though it is mentioned that the sale is for the improvement of the property of the family and purchasing of other property, no material is placed by defendant Nos.1 and 2 before the Court to substantiate the same and defendant No.3 also not substantiated that out of the said sale consideration, property was purchased for the family. The recitals of document are not fulfilled with regard to the fact that the same is for the legal necessity. Hence, both the Courts come to the conclusion that in the absence of signatures or consent of the plaintiffs, they are not entitled for share in all the suit schedule properties. Thus, I do not find any error on the part of the Trial Court as well as the First Appellate Court. However, both the Courts failed to take note of the fact that when the property was sold by defendant No.1 in favour of appellant could be adjusted in respect of the property of defendant No.1 and while considering the allotment of shares in the properties in respect of the plaintiffs in other properties also can be taken note of while apportioning and allotting the shares of each of the parties as well as defendant No.1 and in respect of other properties also, can be made use of the same in favour of the appellant and the appellant also can plead before the FDP Court with regard to the allotment of the share in respect of other properties while drawing up of final decree in order to protect his interest. With this observation, this second appeal is disposed of.

11.    In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed.