SHRI MALLAIAH Vs. MARISWAMAIAH AND OTHERS

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree dated 11.12.2008 passed by the learned Civil Judge (Sr.Dn.), Ramanagaram, dismissing the regular appeal filed by the appellant in R.A.No.42/2005 and confirming the judgment and decree dated 24.3.2005 passed by the learned Civil Judge (Jr.Dn.), Ramanagaram decreeing the suit in O.S.No.312/1993.

(2.) O.S.No.312/1993 was filed by the plaintiffs respondents 1 to 3 herein seeking partition and separate possession of their share in the joint family properties claiming that they were the sons of late Marimallaiah, born to his third wife by name Siddamma. They also alleged that the first defendant Mallaiah @ Nathappa was the son born to the first wife of Marimallaiah and defendants 2 and 3 Thammaiah and Kempaiah were the sons born to the second wife of Marimallaiah. They sought partition and separate possession in respect of 11 items of immovable properties including Sy.No.117 measuring 1 acre 30 guntas which is described at item 8-A in the suit schedule. The first defendant Mallaiah alone filed a written statement denying the assertions made by the plaintiffs that they were the sons of Marimallaiah born to his third wife. They also denied the fact that Marimallaiah had more than one wife and that plaintiffs and defendants 2 and 3 were the chil- dren born to the second and third wife of Marimallaiah. It was further asserted by the defendant that the property described in item No.8-A to the suit schedule was not the joint family property and that it was his absolute property.

(3.) Based on the pleadings, the trial Court framed the issues with regard to the proof by the plaintiffs that the suit schedule properties were their ancestral properties and they were entitled to 1/6th share in each of the suit schedule property. The first defendant was called upon to prove that he was the absolute owner in possession of the suit schedule property. It is necessary to notice here that defendants 2 and 3 did not file any written statement.