VAHANNAPPA NINGAPPA BOLI Vs. MAHALINGAPPA MAHADEVAPPA BOLI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree in R.A. No. 39/2002 dated 22.12.2009 on the file of the Fast Track Court-II, Dharwad, whereby the judgment and decree in O.S. No. 80/1977 dated 25.9.2002 on the file of the Additional Civil Judge (Sr. Dn.) at Hubli has been set aside. The Appellants were the Defendants in the suit and the Respondents were the Plaintiffs. For the sake of convenience, the parties are referred to by their respective ranking before the Trial Court.

(2.) The Plaintiffs filed the above suit for partition and separate possession of the suit schedule property. The genealogical tree of the family is as under:

(3.) It is contended that the suit properties are ancestral properties of the joint and undivided Hindu family of the Plaintiffs grand father Neelappa. He died on 21.6.1955 leaving behind him his three sons, Ningappa, Basvanneppa and Mahadevappa. Mahadevappa was the genitive father of the Plaintiffs. Mahadevappa was given in adoption to another family after the Plaintiffs were born to him. The Plaintiffs remained in their genitive family and became heirs and surviving co-parceners after the death of their grand father Neelappa. After the death of Neelappa, Plaintiff Nos. 1 to 3, Ningappa and Basavanneppa continued to be the members of Hindu coparcenery. Ningappa died on 30.3.1969. It is contended that though the Plaintiffs are in joint and undivided possession and enjoyment of the suit properties along with the Defendants, the property in question was divided into two sub-divisions. The first Defendant's name was entered in respect of RS No. 5/1 and the name of Defendant No. 3 was entered in respect of RS No. 5/2. It is contended that Plaintiffs have l/3rd share in the suit schedule property.