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.

(2.) The third defendant remained exparte in the suit. The second defendant filed written statement denying the allegation that the third defendant is not pragmatic in worldly affairs and incapable of understanding worldly things and also denied about the ill-treatment as narrated in the plaint. He further denied the allegation in the plaint that all the schedule properties are joint family properties. It was further contended that item No. 3 of the schedule properties is his self-acquired property and there is no cause of action for the plaintiffs to file the suit for partition. The second defendant further contended that the third defendant after partition voluntarily left the house by taking Rs. 1,500/- towards his share and was residing at his mother's house and he never claimed a share in the joint properties. On the basis of the above pleadings, the Trial Court framed the following issues:

(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.