GIRYANNA DEAD BY L.RS. S/O ERANNA (HANUMANTHAYAPPA S/O GIRIYNNA AND OTHERS) Vs. BHEEMAPPA S/O ERANNA, SRI THIMMARAYAPPA S/O GIRIYANNA AND SMT. NAGAMMA W/O THIMMARAYAPPA

JUDGEMENT

(1.) AGGRIEVED by the judgment and decree dated 04.11.2008 passed by the Civil Judge (Jr Dn.), & JMFC, Madhugiri in R.A. No. 178/99 confirming the judgment and decree dated 05.08.1999 passed by the Principal Civil Judge (Jr. Dn.) & JMFC. Pavagada in O.S. No. 359/94, the defendants have filed the present appeal.

(2.) THE parties are referred to as they were referred to in the trial Court.

(3.) DEFENDANTS 1 to 3 and 5 to 9 adopted the written statement of the 4th defendant by denying the plaint averments. They denied the division of the property between the plaintiff and the defendant No. 1 and contended that the plaintiff and defendant No. 1 being co -parceners continued to be in joint possession and enjoyment of the suit schedule properties. In the absence of any partition, the plaintiff could not claim a right of declaration. Since the suit is not one for partition, the decreetal of the suit is erroneous. They set up a counter claim that defendants 1 to 4 also have a joint right in yet another property and the same is not disclosed in the plaint viz., Survey No. 33/1A. The trial Court on framing as many as seven issues decreed the suit of the plaintiff. Aggrieved by the same, the defendants preferred an appeal before the First Appellate Court in R.A. No. 178/1999 wherein by the impugned order the appeal was dismissed and the judgment and decree of the trial Court was confirmed. Hence the present appeal.