KUMAR Vs. PAPANNA

JUDGEMENT

(1.) Plaintiffs are the appellants. They filed O.S. 239/93 in the Court of Prl. Civil Judge (Jr.Dn.) at Devanahalli against the defendants - respondents, for partition and separate possession of the plaint schedule property. Defendants 2 and 3 filed the written statement and alleged that, the suit property is the self acquired property of their father - the 1st defendant, who has executed a will in favour of the 3rd defendant and therefore, the plaintiffs have no share in the suit property. In the written statement, there was also plea with regard to lack of pecuniary jurisdiction to try the suit and also with regard to sufficiency of the payment of court fee. During the pendency of the suit, first defendant - Ramagondanahalli Muniswamappa, having passed away, his daughters were brought on record as the legal representatives. They adopted the written statement filed by defendants 2 and 3. The learned Trial Judge initially raised 12 issues and thereafter, 2 additional issues. Issue Nos. 8 and 9, pertaining to the sufficiency of court fee and the pecuniary jurisdiction to try the suit respectively, were ordered to be tried as preliminary issues. At that stage, the defendants filed a memo dated 14.02.2000 stating that, issue Nos. 8 and 9 are not pressed. In view of the said memo, the learned Trial Judge deleted the said issues on 14.02.2000. The suit was posted for trial on the other issues. For the plaintiffs, PW-1 deposed and Exs.P1 to P5 were marked. For the defendants, DWs 1 and 2 deposed and Exs. D1 to D12 were marked. After appreciation of the evidence, learned Trial Judge answered all the issues (other than the deleted issues) and held that the plaintiffs are entitled for partition by metes and bounds and get possession of 1/6 th share each, in respect of the first item of suit property and decreed the suit in part.

(2.) The said judgment and decree was questioned by the 3 rd defendant, in R.A. 76/06, in the Court of Civil Judge (Sr.Dn.), Devanahalli. I.A.II was filed under Order 41 Order 27 CPC, with a prayer to permit the appellant to lead the evidence of one Gopalappa, an attestor to the will allegedly executed by 1st defendant. Said application having been opposed, the appeal and I.A.II, were together taken up for consideration. Learned first appellate Judge raised the following points for consideration:

(3.) Learned Counsel for the appellants contended that;