KAMALA Vs. VITTAMMA

JUDGEMENT

(1.) This second appeal has been preferred by the legal representatives of the plaintiff and by defendant Nos. 3 to 19 against the judgment and decree passed by the Civil Judge, Mangalore in Regular Appeal No. 122/1975. The main grievance of the appellants in the appeal is against that part of the judgment and decree of the learned Civil Judge, whereby it was held that Schedule-C properties were the self-acquired properties of defendant No. 1 and were therefore not available for partition. It is not necessary to go into the detailed facts of the case since the only submission urged before me was that the substitution of the legal representatives of defendant No. 2 during the pendency of the appeal was contrary to law and vitiated the judgment and decree passed by the appellate Court.

(2.) One Muthanna Shetty - plaintiff filed O.S. 230/69 for partition of Schedule B,C,D and E properties. It was contended that the plaintiff and defendants constituted an undivided Aliyasanthana family and the schedule properties belong ed to such family. He therefore prayed that a decree for partition be passed and the properties be divided into 20 equal shares by metes and bounds. He also prayed for other reliefs, such as accounting etc., Defendant No. 1 contested the suit and inter alia claimed that schedule-C properties were his self-acquired properties and therefore could not be partitioned. Defendant No. 2 did not appear to contest the suit. The other defendants also supported the plaintiff. There was no dispute that schedule-B and E properties belonged to the family and there was no objection by the parties to the partition of those properties. The real dispute was only in relation to schedule-C and D properties.

(3.) The learned trial Judge held that schedule-C properties belonging to the family and therefore was also liable for partition alongwith Schedule-B and E properties. So far as Schedule-D properties were concerned, he held that the plaintiff's family was entitled to only the land value of the compensation amount of the properties, which had been acquired and that defendant No. 1 was entitled to the improvements effected by him over the family properties. The trial Court therefore decreed the suit to the extent indicated above. It may be noticed defendant No. 1 disd during the pendency of the suit and his legal representatives were brought on record as defendants-20 to 23.