MALLAMMA Vs. MALLEGOWDA

JUDGEMENT

(1.) This appeal under Sec. 96 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for short) has been filed against the order dtd. 3/1/2013 passed by the Trial Court by which suit filed by the appellants seeking the relief of partition and separate possession has been dismissed in exercise of powers under Order 7 Rule 11(d) of the Code.

(2.) The subject matter of the appeal pertains to an agricultural land measuring 2 acres and 30 guntas situate at Mydanahalli Village Yelawala Hobli, Mysore Taluk. The aforesaid land was recorded in the revenue records in the name of defendants 1 to 3. The defendants 1 to 3 by a registered sale deed dtd. 8/7/1996 sold the aforesaid land to defendant No.4 for a consideration of Rs.2,75,000.00. The sale deed contains a recital as to delivery of possession. Thereafter, the name of respondent No.1 was mutated in the revenue records.

(3.) On 5/11/2011, the plaintiffs / appellants who are children of defendant Nos.1 to 3 viz., the vendors of defendant No.4 filed a suit seeking the relief of partition and separate possession inter alia on the ground that plaintiffs and defendants 1 to 3 constitute a Joint Hindu Undivided Family (HUF). It was pleaded that late Javeregowda who was the common ancestor of plaintiffs and defendants 1 to 3, was the owner of land measuring 2 acres and 30 guntas situate at Mydanahalli Village Yelawala Hobli, Mysore Taluk. On death of Javeregowda, the aforesaid land devolved on defendants 1 to 3 by survivorship. It was further pleaded that plaintiffs being the children of defendants 1 to 3 have got undivided right, title and interest in the aforesaid property and no partition or division of the land in question has taken place amongst the plaintiffs and the defendants 1 to 3. It was also pleaded that for couple of months preceding filing of the suit, defendant No.4 is trying to interfere with the possession of the plaintiff on the ground that he has purchased the land in question. It was averred that cause of action for filing of the suit accrued on 5/11/2011 i.e., the date on which the plaintiffs demanded partition. Accordingly, the relief of partition and separate possession in respect of 5/18th share of plaintiffs as well as 6/21st shares of plaintiffs 6 to 17 was sought.