K V SUDHARSHAN Vs. A RAMAKRISHNAPPA

JUDGEMENT

(1.) Leave granted.

(2.) This is an appeal by special leave against the judgment and final order dated 24th of July, 2006 of the High Court of Karnataka at Bangalore in RFA No. 126/2006 whereby the High Court had affirmed the decision of the Trial Court dismissing the suit of the appellant for partition and separate possession along with mesne profits.

(3.) The relevant facts leading to the filing of this appeal, as emerging from the case made out by the appellant in the plaint, are as under :- Late Anjanappa had two sons viz., Ramakrishnappa and Venkataramachar, arrayed as defendant Nos. 1 and 2 in the suit. Defendant No.2/respondent No.2 is the father of the plaintiff/appellant. Defendant No. 3/respondent No.3 is the wife of Defendant No. 1/respondent No.1. When Anjanappa was alive, he was serving as an Archak of Sri Anjaneya Swamy Temple situated in Belesivalaya and there were Devadaya inam lands attached to the temple, which were cultivated by him. After Anjanappa's death, the said lands were granted to the respondent No. 1 with the consent of the Tehsildar obtained on the ground that he was the eldest son of Anjanappa. Apart from these inam lands, Late Anjapppa also possessed ancestral and self acquired properties and after his demise, the respondent No.1 was acting as the manager of the family but the joint family of the appellant and the respondents possessed all these properties as joint family properties described in Plaint Schedule A to D of the plaint. Schedule A consisted of ancestral properties viz., two agricultural lands measuring 4.11 acres and 1.34 acres respectively and five house sites. Schedule B property was a vacant site. Schedule C property consisted of two agricultural lands, which were inam lands, granted subsequently in the name of respondent No.1. Schedule D properties were moveable properties. There was no partition effected by metes and bounds and the respondent No.1, taking advantage of the simplicity of respondent No.2 was managing all the properties and had also refused to effect partition. On 4th of July, 1988, the appellant issued a legal notice to the respondent No.1 demanding partition of the joint family properties. The respondent No.1 replied to the said notice alleging that the moveable properties had already been partitioned on 23rd of April, 1962 and subsequently on 8th of May, 1996, the immoveable properties were also partitioned. Since the respondent No. 1 refused to partition the immovable properties, the appellant was constrained to file the suit for partition and separate possession of his share in Plaint A to D schedule properties along with mesne profits.