K.M. Joseph, J. - (1.) This appeal by special leave is directed against the judgment and order dated 31.08.2012 passed by the High Court in Second Appeal No. 5 of 1995. By the impugned judgment, the High Court has set aside the concurrent findings of the Courts below resulting in dismissal of the suit filed by the respondents (plaintiffs) on the ground that the suit was barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to 'the CPC') as also constructive res judicata. The High Court has remanded the matter to the First Appellate Court to decide on merits.
(2.) One Tikaram was the husband of respondent No.4 and the father of respondent Nos. 1 to 3. He was holding 8.22 acres of land in Khasra No.189 at Village Gondia in his name. On 21.01.1959, he sold the land to the extent of 3.20 acres out of the total 8.22 acres to the appellants and thereafter, on 11.02.1959, he sold the remaining portion of 4.82 acres of land, which was the balance out of 8.22 acres, also to the appellants. Tikaram passed away on 15.07.1959. 2. The respondents filed a suit (bearing Civil Suit No. 131 of 1963) for setting aside the Sale Deed dated 21.01.1959 and for other reliefs. The allegation made by the respondents in the suit was that the land was a joint family ancestral property and he had sold it for immoral purposes and in a manner prejudicial to the interest of joint family. He was addicted to drink and there was no necessity to sell the property.
(3.) On 31.01.1969, the Trial Court dismissed the said suit holding that Tikaram was the owner of the property due to the partition effected in the year 1957. Hence, he had the right to sell the suit land. The appellants were bona fide purchasers.;