MOHAMED SHARMASTH Vs. MOHAMED KHASIM

JUDGEMENT

(1.) The appellant has challenged the decree for partition granted in favour of respondents No. 1(a) to (j) on a suit instituted by deceased Mohamed Khasim, the plaintiff in the lower Court. The parties will be referred as per their rank before the trial Court.

(2.) The facts relevant for the purpose of this appeal are as under-

(3.) The relationship between the parties is not in dispute. The plaintiff and the 1st defendant are the sons of late Abdul Khadersab, whereas the 2nd defendant is his daughter. The other defendants were the tenants in some of the suit properties. The suit properties are door No. 1 to 6 in T.S. No. 955/1B situated at Tezab compound, Cowl Bazaar, Bellary, referred to as Schedule-A to F with the boundaries mentioned in the schedule to the plaint. The deceased plaintiff being the successor of late Abdul Khadersab and his mother Imambi, claims share in the suit schedule properties and therefore instituted the suit. After the demise of the parents though the plaintiff and 1st defendant were residing jointly in the suit property a dispute arouse between them and therefore the plaintiff requested for his share and as the defendants No. 1 and 2 were postponing the division of the properties on one or other pretext, hence the plaintiff was constrained to issue a notice on 22/06/1990 claiming 2/5th share in the suit properties. There was no response by defendants No. 1 to the notice issued. It is in these circumstances that the deceased plaintiff instituted the suit claiming his share and separate possession by appointing a Commissioner.