CHINNAPPA REDDY Vs. SRI C. NANJUNDAPPA

JUDGEMENT

(1.) THE unsuccessful defendants have approached this Court in second appeal challenging the judgment and decree granting 1/2 share to the respondent in the suit properties and to effect the division by metes and bounds.

(2.) THE facts relevant for the purpose of this appeal in brief are as under: The parties are referred to as per their rank before the Trial Court for the purpose of convenience. The appellants herein were the defendants, whereas, the respondent is the plaintiff who instituted a suit for partition and separate possession of two Items of properties, i.e., S. No. 1/2 measuring 0.12 guntas and S. No. 1/19 measuring 1 gunta with the boundaries described in the schedule to the plaint. The plaintiff and father of defendants are the full brothers. The father of the defendants was the eldest member in the family and they were living jointly and it. is claimed that the father of the defendants being the eldest member was managing the affairs of the joint, family and in view of some differences amongst the members, there was a partition between the parties under the registered partition deed dated 17.7.1974. In the said partition, the suit properties were not included. The plaintiff contends that the suit, properties alongwith S. No. 4/1 and 45/2 measuring 6 acres 35 guntas and 2 acres 24 guntas respectively were granted by an order of the Tahsildar dated 4.2.1959 in the name of Dodda Avalappa the father of the defendants, as they were inam lands. In the partition that, was held the land bearing S. No. 4/1 and 45/2 were partitioned and the share of the plaintiff was given in the said properties in addition to the other joint family properties as mentioned in the partition deed dated 17.7.1974.

(3.) THE relationship between the parties is not in dispute. But any how, it is the contention of the defendants that all the ancestral and joint family properties were divided and the partition deed to that effect was registered on .17.7.1974 and as the suit items were not the joint family properties, the plaintiff has no right or title to claim any share in the said properties. It is their further contention that in the registered partition deed, the plaintiff himself has admitted that there are no other joint family properties except those which were partitioned and hence, the question, of granting share does not arise at all. So also, it is the contention of the defendants in the written statement that when once the partition was held in the year 1974, the suit to he instituted cannot be for partition again and that the plaintiff has to institute a suit for reopening the partition and the present suit in the present form is not. maintainable in law. So also, it is their contention that since from the year 1974 onwards, the suit properties were exclusively in possession and enjoyment of the defendants, and the suit instituted is barred by limitation. It is also contended that, their father Dodda Avalappa submitted an application for grant of occupancy rights of the suit lands and that the said survey numbers were exclusively granted to their father and the plaintiff having not applied for the registration of the rights is barred from claiming any share in the suit properties. On these grounds, the defendants sought for the dismissal of the suit.