HUSSAIN SAB Vs. JALALUDDIN

JUDGEMENT

(1.) This second appeal has arisen out of the judgment and decree, dt. 31-7-1980 of the Civil Judge Yadgir, in R.A. No. 114 of 1979 on his file, By that judgment the Civil Judge has confirmed the judgment and decree of the Munsiff, Chittapur, dated 31-3-1978 in O.S. No. 34 of 1976 on his file. The appellants 1 to 3 herein were, defendants 1 to 3 respectively in the court below and the respondent herein was the plaintiff there. In the course of this judgment I shall be referring to the parties in the rank in which they stood in the trial court.

(2.) The facts that have led to this liligation may briefly be, stated. The plaintiff and the defendants are brothers. They are sons of one Budansab Yadgir of village Dandojti in Chittapur Taluk. In the suit he had filed, the plaintiff claimed a declaration that he was the owner of the suit lands and an injunction restraining . the defendants from interfering with his rights in respect of the said lands, they being Sy. No. 378 measuring 6 acres 32 guntas and Sy. No. 399 measuring 12 acres 13 guntas. According to him the defendants had absolutely no manner of right, title, or interest over these lands, but, in spite of that, were trying to interfere with his possession and enjoyment of the same. Is response to this claim the defendants contended in their written statement that the plaintiff was not the absolute owner of the lands in question claimed by him; that he was alsd not in possession of the same; that the propertiss had been jointly acquired by the father of the plaintiff and themselves (defendants); that, when these properties were purchased under two separate sale deeds, they were purchased only in the name of the plaintiff; that these lands and other properties belonging to the family came +o be partitioned in the month of May 1974, and that at that partition one half of Sy. No. 378 was allotted to the 1st defendant and the other half to the 3rd defendant; that one half of Sy. No. 399 was allotted to the plainif and the other half to the 2nd defendant; that evidencing this fact of partition a writing had been made on 1.5.74; that since the date of partition the persons, who had been allotted sep arate shares in the two survey numbers as stated above, have been in possession and enjoyment of their respective shares; that allegations made contrary to this by the plaintiff in his plaint were all not true; that mutation entries in the revenue records have been effected on the basis of the said partition and that in these circumstances the plaintiff's suit be dismissed with costs. A further statement, in reply was given by the plaintiff, in answer to the written statement of the defendants, theredn asserting the averments he had made in the plaint and denying the contentions raised by the defendants.

(3.) The learned Munsiff had framed the following eight issues;