KALAKAVVA Vs. CHANNABASAVVA AND ORS.

JUDGEMENT

(1.) This appeal is filed by the plaintiff challenging the judgment and decree dated 19.01.2005 passed by the Civil Judge (Sr.Dn.) Ron in R.A.No.47/2004.

(2.) The facts of the case are that the suit properties are agricultural lands situated at Ron. The properties shown at item No.(a) and (b) are the joint family properties of plaintiff and defendants. The suit properties shown at item No.(c) and (d) are the joint family properties of plaintiff and defendant No.3. That one Panchappa Wali was the original propositus. He had a wife by name Solabavva and three sons and one daughter. The original propositus died in the year 1986 leaving behind his wife, three sons and a daughter. Plaintiff is the daughter of Panchappa and defendant Nos.1 and 3 are the sons of Panchappa. Defendant No.2 is the daughter-in-law of Panchappa, i.e., wife of Basavaraj who is the son of Panchappa. After the death of propositus Panchappa there was a notional partition in the family and which is referred as M.E.No.12310 including the deceased Solabavva and as such after the death of Sovabavva, the suit properties 1(a) and 1(b) are in joint wahiwat and enjoyment of the plaintiff and defendants pertaining to the said Solabavva and after her death there was no partition since 1986 even till today in the suit properties 1(a) and 1(b) by metes and bounds. The plaintiff is having her 1/4th share in the suit properties along with the defendants who are having their 1/4th share in them. The suit properties 1(c) and 1(d) lands are in joint possession of plaintiff and defendant No.3. There is no partition by metes and bounds in the said 1(c) and 1(d) suit properties between plaintiff and defendant No.3. The plaintiff requested the defendants to effect partition in the suit properties, but the defendants have refused to effect a partition. Hence, the plaintiff constrained to file a suit for partition and separate possession.

(3.) The defendants appeared and filed written statement admitting the relationship of the parties but denied that the suit schedule properties are the joint family properties of the parties to the suit and they are in joint owners and in joint possession of their properties to the suit. It is further denied that plaintiff and defendants are the members of the Hindu joint family. It is further contended that deceased Solabavva had filed O.S.No.7/1977 for partition and possession of the suit properties and residential house as well. In the said suit, defendant No.1 alone contested the suit. The rest of the defendants admitted the suit to be decreed. After evidence, the trial Court decreed the suit. Accordingly, the plaintiff was entitled to 3/10th share. Defendant No.3 and plaintiff therein and defendant No.3 in this suit were entitled to 1/10th share each in the suit properties. The total extent of all the suit lands being 18 acres 28 guntas, the plaintiff was entitled to only 1/20th of this extent, i.e., to an area, less than one acre. After the death of Solabavva, the plaintiff is entitled to a further 1/4th share in Solabavva's share of 3/10th share in the suit lands, i.e., to 1/20 + 3/10 x 1/4 = 1+6/20 = 1/8th of the suit properties, i.e., to a little more than 2 acres in total. After decreeing the suit O.S.No.7/1977 a final partition by metes and bounds which is given effect to at M.E.No.12310, the plaintiff has got equal 1/2 share in the suit properties, viz. in R.S.No.762/1A measuring 6 acres and 11 guntas and R.S.No.762/1B measuring 2 acres 2 guntas, i.e., to 4 acres 6 1/2 guntas. The said mutation has become final and binding on the parties to the suit. Hence, there is no cause of action to file a suit.