MUNIGA ALIAS ABBAIAH Vs. MUNIRAJA

JUDGEMENT

(1.) THIS appeal by the plaintiffs is directed against the dismissal of their suit for partition and separate possession of the suit schedule properties which were agricultural lands but lost the character of agricultural lands in view of the comprehensive development plan of Bangalore city.

(2.) THE case of the plaintiffs is that item 1 of the suit schedule properties was purchased by munigiddamma, the grandmother of defendants 1 to 4 and that the second item of the suit schedule properties belonged to the joint family consisting of themselves and defendants. It is their further case that one krishnappa alias munikrishnappa and appaiah were the sons of munigiddamma. The said krishnappa had two sons viz. , annaiah and abbaiah. Krishnappa's brother appaiah had two sons viz. , muniga alias abbaiah and venkatesha, the plaintiffs. Annaiah had four sons viz. , defendants 1 to 4 and 5th defendant is his wife and that his younger brother abbaiah had one son viz. , krishna-defendant 6. The parents of plaintiffs and the father of defendants 1 to 4 and 6 are dead. it is contended that the property purchased by munigiddamma, the grandmother of plaintiffs was in possession and enjoyment of joint family members so also the second item of the property and after the death of their parents, plaintiffs and defendants succeeded to own "the movable and immovable properties and continued to enjoy them as joint family till recently when the defendants refused to partition and put them in separate possession of the suit properties. It is contended that the plaintiffs and defendants were the members of the mitakshara coparcenary and also the members of the hindu undivided family. The properties mentioned in the schedule were acquired with the help of the ancestral property and also of the joint family of the plaintiffs and defendants. It is further submitted that the father of defendants 1 to 4 viz. , annaiah being ,the elderly person of the joint family was managing the entire property as kartha of the joint family who also died in Bangalore about a year ago. Thereafter defendants 1 to 5 took over the management of the property and started denying the plaintiffs' right to the suit schedule properties. It is thereafter that the plaintiffs claimed fair and equitable share in the suit schedule properties which was refused by defendants 1 to 5. Plaintiffs therefore convened a panchayat wherein the elders who are well-wishers to both the plaintiffs and the defendants advised the defendants not to misuse the illiteracy of the plaintiffs and further advised the defendants to give the plaintiffs' legitimate share which was refused by the defendants. Defendants 1 to 5 are acting prejudicial to the interests of the plaintiffs and therefore the plaintiffs were obliged to file the suit for necessary reliefs.

(3.) DEFENDANTS 1 to 5 and 6th defendant filed the written statements separately. Defendants 1 to 5 have assailed the suit as false, frivolous and not maintainable as the suit is barred by limitation. It is their contention that the genealogical tree furnished by the plaintiffs is false and cooked up with ulterior motives. The defendants disputed the claim of the plaintiffs that they are the members of the joint family of which these defendants are members. The assertion of the plaintiffs that they are the children of appaiah is denied as false. They have specifically disputed that the plaintiffs are the children of late appaiah who was the son of munigiddamma. However they admitted that the plaintiffs are the children of vajramma but are not born to appaiah. They further contended that the said appaiah having passed away at an early age, the said vajramma left the family, went elsewhere and later on married one muniyappa alias muniyappa setty and the plaintiffs are the children of said muniyappa alias muniyappa setty. Under the circumstances, the plaintiffs cannot claim to be the members of the joint family of which the defendants are members. According to them, the suit properties have been in exclusive possession continuously in their occupation. hence the defendants have disputed the plaintiffs' right or title over the properties in any manner and contended that the plaintiffs are incompetent to prosecute the suit and therefore prayed for dismissal of the suit.