T.RATHAN Vs. CHIKKAMUTHA

JUDGEMENT

(1.) Appellants are the plaintiffs in O.S.No.313/1998. Being aggrieved by the judgment and decree dated 8-4-2005 passed by the II Additional Civil Judge (Sr.Dn.), Bangalore Rural District, wherein the suit filed by the plaintiffs for partition and separate possession was dismissed, the plaintiffs have filed this appeal.

(2.) The plaintiffs filed a suit seeking for partition and separate possession of half share by metes and bounds in respect of the suit schedule property. In the plaint, it was contended that one A.K.Thimma was the propositus of the property. He had two sons by name Thimmaraya and Chikkamutha. Plaintiffs are the children of Thimmaraya and first defendant is the brother of Thimmaraya. It is the case of the plaintiffs that, Thimmaraya died leaving behind the plaintiffs as his legal heirs. After the death of Thimmaraya, the plaintiffs and defendant No.1 became the members of Hindu Joint Family and they are in joint possession and enjoyment of the suit schedule property. In spite of the request made by the plaintiffs, the first defendant denied their half share in respect of the suit schedule property. The total extent of the land bearing Sy.No.49/5 situated at Anjanapura village, Uttarahalli Hobli, Bangalore South Taluk is 04 acres. The plaintiffs are entitled for half share. The first defendant in order to defeat the rights of the plaintiffs over the property, trying to alienate the suit schedule property in favour of defendants 2 to 4 and they are trying to form a private layout. Further, it was averred in the plaint that the plaintiffs had filed a suit in O.S.No.79/1983 on the file of the Principal II Munsiff, Bangalore seeking for declaration and possession in respect of land bearing No.5, 29, 58/2 and 62 situated at Anjanapura village. The said suit came to be dismissed by the Trial Court on 23-3-1994 against the said judgment and decree, a regular appeal in R.A.No.48/1998 was filed by the plaintiffs which is pending consideration before the Civil Judge (Sr.Dn.), Bangalore. The property claimed in that suit is different from the property claimed in the present suit and sought for half share in the suit schedule property.

(3.) The first defendant entered appearance and filed written statement inter alia contending that the suit filed by the plaintiffs is not maintainable, since the plaintiffs are not the children of Thimmaraya and they are not entitled for any share in the suit schedule property. The first defendant admitted that A.K.Thimma is the owner of the suit schedule property and he has got two sons by name Thimmaraya and Chikkamutha. Thimmaraya married one Kempamma, she predeceased her husband and they had no issues. Hence, the first defendant became the sole surviving son of A.K.Thimma succeeding the estate of A.K.Thimma. The revenue entries were mutated in the name of the first defendant from the year 1984-85. The plaintiffs are not the children of Thimmaraya and Kempamma and they are not entitled for any share in the properties. Hence, he sought for dismissal of the suit.