AJJAWWA YALLAPPA DAWOONAVAR Vs. KAMALAWWA

JUDGEMENT

(1.) THIS appeal is filed by defendants 2 to 6 in O.S.No. 124/1992 on the file of the learned Civil Judge (Senior Division), Hubli, being aggrieved by the judgment and decree dated 23/11/2001 wherein the suit filed by respondents 1 to 3 herein has been decreed declaring that plaintiffs and defendant No.7 are entitled to half share in the schedule properties and defendant No.1 shall be entitled to remaining half share in the suit schedule properties and properties shall be divided by metes and bounds by appointing commissioner.

(2.) THE material facts of the case leading up to this appeal are as follows: Respondents 1 to 3 herein who are plaintiffs 1 to 3 filed a suit in O.S.No. 124/1992 averring that Yellappa died in the year 1990 leaving behind him his wife and children Basappa-defendant No.1, Mallappa (dead), Yallawa-wife of Ranappa Ghorpade, Seethawwa-wife of Hanumantappa Garge, Girijawwa-wife of Bhimappa and Parawwa wife of Basappa. Plaintiffs 1 to 3-respondents 1 to 3 and defendant No.7 in the suit as plaintiffs 1 to 4 filed a suit against Basappa and subsequently defendants 2 to 6 were impleaded and plaintiff No.2 was transposed as defendant No. 7. It is averred that suit schedule properties comprised of one house property situated at Devaragudihal bearing VPC No. 1 and 2 agricultural lands in block No. 167 situate at Devargudihal village of Hubli taluk and another agricultural land in block No. 179 measuring 6 acres 1 gunta in the same village belong to Yellappa and after his death, the plaintiffs who are the legal representatives of Mallappa along with defendant No.7 have succeeded to the property and they are entitled to half share in the suit schedule properties. It is their case that though they requested the defendant to give their share, defendant No.1 refused to give share and wherefore suit is filed for partition and separate possession of their half share. Defendant Nos.2 to 6 did not file any written statement. However, defendant No.1 filed written statement admitting that the suit schedule properties are the ancestral properties in the hands of the plaintiffs and the defendant, being the property of Yallappa, all the heirs are entitled to equal share Having regard to the above said pleadings, the following issues were framed:

(3.) THE trial Court after considering the contention of the Counsel appearing for the parties and appreciating the oral and documentary evidence on record held that the schedule properties are the properties of Yellappa and the legal representatives are entitled to equal share in the suit properties. However, the trial Court held that since defendants 2 to 6 have not filed statement, they may be presumed to have given up their share in respect of the suit properties and accordingly held that plaintiff and defendant No.7-being the legal representatives of Mallappa, and Basappa-defendant No.1 is entitled to half share being the son of Yellappa and passed the decree as referred to above and accordingly passed the judgment and decree dated 23/11/2001. Being aggrieved by the same, defendants 2 to 6 have preferred this appeal.