PUTTAKKAIAH Vs. BASAMMA

JUDGEMENT

(1.) This is a first defendant's appeal against the judgment and decree in O.S. No. 120/1997 wherein the Trial Court has decreed the suit of the plaintiff for partition and separate possession granting equal share in the suit schedule property. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. The father of the plaintiff Patel Puttappa had two wives viz., Smt. Nanjamma and Smt. Boramma. The plaintiff is the daughter of the first wife Smt. Nanjamma. The first defendant Smt. Puttakkaiah is the daughter of Smt. Boramma, the second wife. The case of the plaintiff is plaintiff and defendant constitute an undivided Hindu family and all the ancestral properties are in their joint possession and enjoyment. There has been no partition or division of the joint family properties. The joint family properties are set out in the schedule to the plaint. After their marriage, the plaintiff and the defendant are living separately at different places i.e., plaintiff at Rajegowdana Hundi and the defendant is at Bheemanahally. Under a family arrangement, the plaintiff and defendant looked after and cultivated lands situated at Bheemanahally and Muskere villages tentatively taking into consideration their respective nearness to the lands. The plaintiff and the defendant are in joint possession and enjoyment of the plaint schedule joint family lands. Since no partition or division has taken place, their joint family status still continues and subsists. Even after the family arrangement, the entries in the RTC disclose that they are in joint possession and cultivation of the schedule lands.

(2.) In paragraph 5, the plaintiff has set out in sub-paragraph A and B the lands which are exclusively cultivated by the plaintiff's son Guruswamy and the lands which are exclusively cultivated by the defendant according to the family arrangement. It is their case that the income derived from the lands were equally shared by the plaintiff and the defender. The plaintiff alleges that there arose ill-will and misunderstanding between the women folk of both the families and therefore, they started living separately. But the properties continued in their joint possession and enjoyment. Since the properties are situated in two villages and they are living in different villages, the RTC entries were made as per family arrangement. There has been no partition. The plaintiff requested the defendant to effect the partition and give her half share. The defendant did not comply. Therefore, she got issued a legal notice dated 25.01.1992 demanding equal share in the schedule properties. A reply was sent on 02.03.1996 denying the claim. Therefore, the plaintiff was constrained to file a suit for partition to declare that the entries in the RTC extract are only family arrangement and no partition has taken place and requested for partition of the suit schedule property by metes and bounds and to put the plaintiff in actual physical possession of her lawful half share in all the schedule properties. In the schedule, they have set out ten items of the properties out of which eight items are landed properties and two are house properties.

(3.) After service of summons, the defendant has entered appearance and filed detailed written statement. She admitted the relationship between the parties. But she denied that the plaintiff and the defendant constitute Hindu undivided family and that all the ancestral properties are in joint possession and enjoyment of both the plaintiff and the defendant. She specifically pleaded that there was already partition between plaintiff and the defendant on 10.08.1974 and both of them have divided their ancestral joint family properties and are cultivating their respective shares. In para 2 of the written statement, the defendant has specifically set out what are the properties which have fallen to the share of the plaintiff and what are the properties which are fallen to her share in the said partition. Mutation entries have been made accordingly and each of them are in enjoyment of the properties exclusively. She denied all other allegations in the plaint. She admitted the issue of legal notice and reply to that notice. She has also contended that the plaintiff has not included Sy. No. 9 measuring 10 acres and 38 guntas in the schedule and the Court fee paid is insufficient. In the alternative, she has also claimed adverse possession. She contended that the suit is to be dismissed on that ground itself.