PUTTE GOWDA Vs. JAVAREGOWDA

JUDGEMENT

(1.) This Regular Second Appeal is filed by the legal representatives of the deceased defendant challenging the Judgment and Decree dtd. 25/6/2001 passed by the Civil Judge (Sr. Dn.) and Addl. JMFC., Holenarasipura, in O.S. No. 51/1994 and the concurring Judgment and Decree dtd. 28/9/2010 passed by the Fast Track Court, Arakalagud, in R.A. No.2/2009 (old No.47/2001). Both the Trial Court and the First Appellate Court declared that the plaintiff was entitled to half share in the suit schedule properties excluding Sy. Nos.250/5, 256/22, 204/1 and 205/17. (According to appellants, correct Survey numbers are 257/5, 256/2C and not Survey numbers 250/5, 256/22 respectively).

(2.) The parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellants herein were the legal representatives of the deceased defendant while the respondents herein are the legal representatives of the deceased plaintiff.

(3.) A suit for partition was filed in O.S. No.51/1994 for partition and separate possession of the share of the plaintiff in the suit schedule properties. The contention of the plaintiff as is evident from the plaint is that the plaintiff and the deceased defendant were brothers and their father died about 45 years prior to the filing of the suit. The deceased defendant being the eldest male member of the family had acquired properties out of the joint family ancestral nucleus. The plaintiff contended that the nucleus of the family was huge and the family was compact and there was surplus income from the joint family estate which was sufficient and enough to purchase properties. He contended that the deceased defendant was the Patel of the village and was drawing salary from the village office. It is contended that the suit properties were all along enjoyed by the plaintiff and deceased defendant as joint family properties. The plaintiff contended that the plaintiff and deceased defendant were cordial and due to the differences amongst the younger generation, the plaintiff intended to partition the suit properties. However, the deceased defendant did not agree for an amicable settlement. Hence, the plaintiff sought for declaration that he is entitled to half share in the suit schedule properties. After the suit was filed, the defendant died and his legal representatives were brought on record.