R SRAMAKRISHNA Vs. KRAJAGOPAL

JUDGEMENT

(1.) Plaintiffs 1 to 6 are the sons and plaintiff 7 is a daughter of defendant 4 and plaintiff 8 is his brother. The plaintiffs 1 to 7 have brought a suit for partition and separate possession of their 13/15th share in the plaint schedule four items of property consisting of about 172 acres of wet and dry lands situate in Gundulpet Taluk, for mesne profits for four years before suit aggregating Rs. 20,000/- and for recovery of Rs. 2000/- claimed as compensation in respect of some anecuts which are the source of irrigation for the suit lands ana which the defendants wantonly neglected to repair.

(2.) The facts leading to the present litigation are briefly as follows: Defendant 1 filed a summary suit under the provisions of Order 37 R. I, Civil P. C., in the Court of the Subordinate Judge, Mysore, on the foot of a pronote executed by defendant 4 in his favour. Defendant 4 was allowed to contest that suit only on his furnishing security, which he did, by executing in favour of the Court on 31-3-1933 a mortgage bond whereby the plaint schedule properties and a house were given as security towards the satisfaction of any decree that may be passed in that suit. That suit was subsequently decreed and in Ex. Case No. 66/39-40 those properties were sold through Court and the right, title and interest of defendant 4 as on 31-3-1938 was purchased by defendant 1 and the sale was duly confirmed. He then applied for and obtained possession of the plaint schedule properties on 18-2-14 and subsequently sold the said properties to the father of defendants 2 and 3.On behalf of the family of plaintiffs 1 to 6, plaintiff 8 filed an application protesting against their wrongful dispossession in Mis. Case No. 124/41-42 when it was ordered that plaintiff 8 be put in possession jointly with defendant 1 and the father of defendants 2 and 3 which decision was confirmed in C. R. P. No. 238/42-43 by the High Court. Defendant 1 and the father of defendants 2 and 3 then brought a suit in C. S. No. 26/42-43 on the file of the District Judge, Mysore, against defendant 4 and plaintiffs 1 to 6 and 8 to set aside the order of the Subordinate Judge in the said miscellaneous case and to declare that they were entitled to exclusive possession of the entire schedule property. That suit was dismissed and that decision was confirmed in R. A. No. 101/44-45 by the High Court which held that only the interest of the lather of the plaintiffs had passed to defendant 1 as a result of the execution sale and not the right, title and interest of his sons therein. Plaintiff 8 then applied for re-delivery of the property and he was put in symbolical possession of the property on 31-6-46. The plaintiffs have now brought the present suit for partition and possession of their share and for mesne profits as stated above.

(3.) Defendants 1 to 3 did not deny that the plaint schedule properties are the joint-family properties of plaintiffs 1 to 7 and defendant 4 or that as a result of the decision of the High Court the plaintiffs are not entitled to a share therein. But they contended that plaintiffs 6 and 7 were not bom on 31-3-38, the date of the mortgage by defendant 4 in favour of the Court. They also pleaded that plaintiff 7 cannot in any event claim a share in the suit properties as she had no rights by birth in them; that the plaintiffs have not included in this suit a house referred to above and that, therefore, the suit is not maintainable as it amounts to one for partial partition. They also pleaded that defendant 4 had mortgaged all his properties which he got in a family partition to the Bangalore Central Co-operative Bank Ltd. for Rs. 8000/- on 16-4-37. That loan had been incurred to discharge certain ancestral debts binding on the family. Some payments had been made towards that debt and a sum of Rs. 3462-12-0 was still outstanding. The father of defendants 2 and 3 who had purchased the suit properties from defendant I had paid this sum to the Bank on 4-3-42 and was entitled to be reimbursed the said sum by the plaintiffs before they could claim possession of their share. The defendants also denied that they were liable to pay any damages or mesne profits and that these claims were very heavy.