NEELAMMA AND SMT. VASANTHI Vs. SANNAMUNIYAMMA AND OTHERS

JUDGEMENT

(1.) THIS is a defendants' appeal challenging the judgment and decree passed by the Fast Track Court III, Tumkur in RA 232/2006 (Old No. 37/1004) on 15.3.2008. Suit OS 308/989 was filed by the plaintiffs seeking for a partition and separate possession of the respective shares. The suit was contested. The trial court having raised as many as four issues, after inquiry, decreed the suit. Against the said order, defendants filed an appeal before the Fast Track Court Judge, Tumkur. The lower appellate court after inquiry, modified the decree declaring that deceased Erappa had five children and two wives who are entitled for 1/12th share each and defendants/respondents 2 to 6 are entitled for 2/12th share each.

(2.) ACCORDING to the appellants' counsel, item No. 4(a) has been introduced by the plaintiffs in the lower appellate court although it was the self acquired property of the defendants. It is also submitted, item 5 is also self acquired property and that should also be taken note of and it ought not to have been the subject matter of partition.

(3.) IT appears, property in items 4(a) and 5 could not have been the subject matter of partition. The contention of the appellants herein is, these two items are self acquired properties. The appellants had no occasion to meet out the case of the respondents before the trial court as they were placed exparte as such, they have not agitated the issue and this item 4(a) has been newly introduced in the appeal though it is self acquired property. Without hearing, such an order has been passed and it affects the interest of the appellants. However, no substantial question of law is raised so far after the appeal is filed except some interim orders now and then. Also, an attempt has also been made by this Court itself directing the parties to go for a settlement.