THAMMEGOWDA Vs. SIDDEGOWDA

JUDGEMENT

(1.) at the stage of admission the respondent has put in appearance. Necessary records are also produced before us. Therefore, this appeal is admitted and heard for final disposal.

(2.) this appeal is preferred against the judgment and decree dated 30th january,1991 passed by the learned principal civil judge, mandya in o.s. No. 139/1986. The appeal is preferred by defendants 1 and 2. The respondent is the plaintiff. The 1st defendant is no other than the father of the plaintiff and defendant No. 2. The suit was for partition and separate possession of the 1/3 rd share of the plaintiff. The suit properties consisted of moveables and immoveables. 'A' schedule consisted of immovable properties and *b' schedule consisted of movable properties. At the out set Sri M. Shivappa, learned counsel for the respondent submitted that even though the trial court has passed a decree and awarded 14rd share in the moveable properties as described in 'b' schedule, to the plaintiff, in the light of the evidence on record, the plaintiff gives up his claim for his share in the moveables. In view of this submission, we do not consider it necessary to examine the correctness of the finding recorded by the trial court in respect of moveables comprised in 'b' schedule. We proceed to decide this appeal on the basis that 'b' schedule does not form part of the suit claim, in the light of the aforesaid submission that the plaintiff gives up his claim for moveables.

(3.) the trial court has held that the properties comprised in 'a' schedule are the joint family properties; therefore, the plaintiff is entitled to l/3rd share. Sri Shankara Narayana Bhat, learned counsel for the appellant submitted that the finding of the trial court that items 4, 6, 8, 11, 12 and 16 are joint family properties is not correct both on facts and in law. It is contended that items 12 and 16 were granted by the government under the land grant rules on an upset price to the 1st defendant and therefore, they could not be considered as joint family properties inasmuch as a grant made by the government is always made in the name of an individual and not to the family. The other properties comprised in items 4, 6, 8 and 11 are the self-acquired properties of the 1st defendant. Therefore, it is contended that the trial court is not justified in holding that these properties are also joint family properties. It is also contended that in a suit for partition and separate possession, the direction to enquire into mesne profits issued by the trial court is not justified.