RUDRAPPA Vs. H.R. SHIVAKUMAR

JUDGEMENT

(1.) THIS appeal is filed against the judgment and decree dated 25.10.2005 in O.S. No. 127/2000 on the file of the Prl. Civil Judge (Sr. Dn.), Davanagere (hereinafter referred to as the 'Trial Court ' for short). Respondent Nos.1 and 2 filed the suit against the appellant and others for partition of the suit schedule properties by metes and bounds after cancelling the registered partition deed dated 29.12.1969. For the sake of convenience, the parties are referred to as per their ranking in the original suit.

(2.) THE plaintiffs are the son and daughter of the third defendant Ramachandrappa, who is the son of defendant No.1 through his first wife Gangamma. After the death of Gangamma, the first defendant married one Ningamma and the second defendant is the son of the said Ningamma. The step mother of defendant No.3 never treated him with love and affection and she used to harass and beat him for trivial reasons. The first defendant father of the third defendant was always acting under the influence and instructions of his second wife Ningamma and under her pressure, the first defendant was forced to execute a registered partition deed dated 29.12.1969, when second defendant Rudrappa was minor. All the suit schedule properties being the ancestral and joint family properties were allotted to the share of second defendant and no share was allotted to the third defendant i.e., father of the plaintiffs, but a sum of Rs.1,500/- was given to him without assigning any reasons in the partition deed and that the third defendant was forced to sign in the partition deed under the influence of his father and his stepmother. After execution of the partition deed dated 29.12.1969, the first defendant drove the third defendant out of the house. Therefore, he took shelter at the house of his late mother Gangamma. The plaintiffs who are son and daughter of the third defendant came to know about the fact of the execution of the registered partition deed through their relatives Onkaramma, Nagamma and Nagarajappa and therefore, they approached defendant Nos.1 and 2 and enquired about the injustice caused to them, but the second defendant refused to give share of the third defendant. Therefore, the plaintiffs filed the suit for partition and separate possession of the share of their father i.e., third defendant Ramachandrappa.

(3.) THE plaintiff No.1 was examined as PW1 and another witness was examined as PW2 and documents at Exs.P1 to P7 were marked. On behalf of the defendants DWs.1 to 3 were examined and Exs.D1 to D10 were marked. Considering the oral and documentary evidence adduced by both the parties, the Trial Court decreed the suit of the plaintiffs for partition holding that plaintiffs and defendant No.3 are entitled for partition and separate possession of their 1/3rd share + three share out of 1 /3rd share of defendant No.1 in the suit schedule property by metes and bounds. The Trial Court further ordered that the partition deed dated 29.12.1969 effected between defendant Nos.2 and 3 is liable to be cancelled. Aggrieved by the judgment and decree passed by the Trial Court, the second defendant Rudrappa has filed the present appeal.