- (1.) This appeal is preferred by the plaintiffs challenging the judgment and decree of the Trial Court which has dismissed the suit of the plaintiffs for partition and separate possession.
(2.) The case of the plaintiffs is that they are sisters and daughters of defendant No.1, the 2nd defendant is their mother, defendant Nos.3 to 5 are their undivided brothers and defendant No.6 is the sister of defendant No.1. The suit properties are the joint family properties and also ancestral properties of the plaintiffs and defendants No.1 to 6. Defendant No.1 being the head of the family used to look after the family as well as the property and there was no partition of the joint family. Recently, defendant No.1 absconded. Defendants No.2 to 5 were looking after the affairs of the properties. Defendant No.1 is not reported to be dead so far. They believe that he is still alive. Defendants No.2 to 5 began to neglect the plaintiffs, they are not properly taking care of the property and also they are not making any attempt to search defendant No.1 inspite of the request made by them. Therefore, they demanded partition. They were told that there is already a partition of the suit properties in FDP No.1/2000 before the Civil Judge (Jr. Dn.). They were shocked to know about it. Thereafter, they obtained a certified copy of the orders in FDP No.1/2000. It revealed that defendant No.6 had filed a suit in O.S.No.70/1989 on the file of the Munsiff, Sirsi, for partition. The said suit came to be dismissed. In R.A.No.16/1991 filed by defendant No.6 before the Civil Judge (Sr. Dn.), the judgment and decree of the Trial Court was set aside and the suit was decreed. Against the said judgment and decree, a second appeal in R.S.A.No.296/1997 was preferred by their father which came to be dismissed confirming the judgment of the lower Appellate Court. Thereafter defendant No.6 filed F.D.P. No.1/2000 which came to be allowed by allotting A schedule property to defendant No.1. The plaintiffs were not aware of these things since they were not parties to the said proceedings and they came to know only after obtaining a certified copy of the orders. They contend that the final decree proceedings in FDP No.1/2000 is a collusive one between defendant Nos.2 to 6. Though defendant No.1 is not dead, defendants No.2 to 5 are brought on record as legal heirs by keeping away the plaintiffs, though they are also the legal heirs. Even defendant Nos.2 to 5 have not contested the said petition by filing their objections. Even the Court Commissioner allotted the more extent of property to defendant No.6. That has not been opposed by defendants No.2 to 5. The partition held in FDP 1/2000 is unequal and improper and only meager extent being allotted to defendant Nos.2 to 5 and no share being allotted to the plaintiffs and they have not impeladed as necessary party in the said suit. Hence, the final decree passed in FDP No.1/2000 is not binding on the plaintiffs. These plaintiffs are also the coparceners along with defendant No.3 to 5 they are also entitled for equal share. The judgment and decree is passed behind their back, hence it is not binding on them and is liable to be declared as null and void and to allot legitimate share of the plaintiffs in the suit properties.
(3.) After service of summons, defendant No.6 entered appearance and filed a detailed written statement. She contended that there is no existence of C schedule property, it is only an imagination of the plaintiffs. She denied that the suit properties are the joint family properties of the plaintiffs and this defendant No.6 and entitlement of 1/11th share in the suit properties. It is learnt, that defendant No.1 is absconding and his whereabouts are not known to her. The allegation that defendants No.2 to 5 were not looking after the plaintiffs properly is also denied. The wife of defendant No.1 and his sons are impleaded in the FDP proceedings as per the order dated 17.08.2006. It was denied that the share allotted to defendant No.1 is meagre when compared to the share allotted to defendant No.1. Defendant No.1 was the manager of the family and represented his branch in the earlier suit. The order passed in final decree proceedings is binding on the plaintiff as well as defendants No.2 to 5. At the instance of defendants No.1 to 5, plaintiffs have instituted the present suit against defendant No.6 to cause loss to her. The suit was filed in the year 1989 and it was pending for the last 20 years. The plaintiffs were aware of the pendency of the litigation. If the plaintiffs had any right over the property they could have approached the Court by impelading themselves as necessary parties. Even now, the plaintiffs are having any right, they can claim the share out of the share of their father. Therefore, the present suit filed by the plaintiffs is not maintainable. Therefore, she sought for dismissal of the suit.;