ALLABAKSH KHASIMSAB KHUDAVAND Vs. MOHAMMADGOUS HASIMSAB KHUDAVAND

JUDGEMENT

(1.) This Regular First Appeal is filed challenging the Judgment and decree of the dismissal of the suit passed in O.S. No. 112/1994 dtd. 13/7/2005 on the file of the II Additional Civil Judge (Sr. Dn.), at Dharwad.

(2.) The parties are referred in the original rankings for the convenience of the Court in order to avoid confusion.

(3.) The factual matrix of the case of the plaintiffs before the trial Court seeking for the relief of partition and separate possession of their half share in the suit schedule properties. It is contended by the plaintiffs that, the suit schedule properties are the house properties situated at Navalagund, district Dharwad comprising of CTS number in detail, in total five suit schedule properties and the suit schedule properties are the residential house and the open space, Darga, Burial ground, etc., It is contended by the plaintiffs that the suit properties are the ancestral properties of the plaintiffs and the defendant Nos. 1 to 8 and no partition has been taken place between the plaintiffs and the defendants in respect of the suit schedule properties and that they are enjoying the suit schedule properties as tenant in common. The parties belongs to Muslim community and hence, they are bound by Mohammadan Law. It is contended that, the ancestors of the plaintiffs and defendants got divided the agricultural lands for their convenience, but the house properties and open space etc., have not been divided. The property bearing CTS No. 1557 is the property kept for Darga and Burial ground. The defendant No. 9 was appointed to look after into the affairs of the Darga and open space by the ancestors of the plaintiffs and defendants. The defendant Nos. 1 to 9 in collusion with defendant No. 9 are trying to dispose of the said open space to third parties, keeping the plaintiffs in dark and also denying the rights of the plaintiffs over the suit properties. The defendant No. 9 is claiming that, he himself is the owner of CTS No. 1557. In the said property, there are tombs of Khudavand's family. The said property kept only for the purpose of performing the festivals and for burial ground of Khudavand's family. The plaintiffs have requested the defendants to effect partition but they denied, hence constrained to file suit. In the suit, description of the genealogy is also given and during the pendency of the suit, defendant No. 5 passed away and hence, his L.Rs. have been brought on record. Defendant Nos. 5 and 9 and their L.Rs. have been brought on record. Defendant Nos. 10 to 15 have been added as parties, subsequent to the filing of the suit. In pursuance of the claim made by the plaintiffs, defendants have appeared and defendant No. 1 has filed written statement, contending that neither plaintiffs nor the defendant No. 8 are concerned to the suit properties at all and denied all the allegations. The property of defendant No. 8 is quite different. They are concerned only with CTS No. 1114. Another CTS No. 1087 has been sold by the plaintiffs themselves to one Mallappa Basappa Hallad on 15/6/1960 and hence, the claim made by the plaintiffs are false and no cause of action for the suit and hence, prayed the Court to dismiss the suit.