MALLAPPA DURGAPPA Vs. DURGAVVA

JUDGEMENT

(1.) This appeal by defendants 1, 2, 4 and 5 is directed against the judgment and decree dated 31.10.74 passed by the Civil Judge, Haveri in R. A. No. 273 of 1971 on his file, dismissing the appeal on confirming the judgment and decree dated 3.9.70 passed by the Munsiff, Ranebennur in L.C. Suit No. 14 of 1964 on his file, decreeing the suit of the plaintiff for l/3rd share and for partition of the suit properties by metes and bounds.

(2.) The plaintiff Mayappa Maradappa Mayannavar filed L. C. Suit No.14/64 on the file of the Munsiff, Ranebennur for declaration that he had 1/3rd share in the suit properties and for separate possession of the same along with future profits, ignoring the alienations done by the first defendant in favour of defendants 4 & 5. According to him, one Maradappa, the propositus of (he family had four sons, viz Durgappa, Mayappa, Nimbappa and Bharmappa. Mayappa is the plaintiff. Durgappa died in about 1956. His sons are defendants 1 and 2 Nimbappa is Deft. 3. Bharmappa died in about 1943 leaving behind him his. widow Chowdawwa. She is not a party to the suit. It appears that her claim' was settled in an earlier suit, namely, L. C. Suit No. 115/57.

(3.) The suit was resisted by the defendants. According to them, the suit properties were not joint family properties. They were the acquisition of Durgappa. The plaintiff had no title or interest in them. There was already severance of status in the femily" long ago. They further contended that even the immoveable properties were divided in the year 1944. They further contested the right of the plaintiff, in challenging the alienations. The trial court raised the following issues as arising from the pleadings.