ALTHAF PASHA Vs. CHIKKATHAYAMMA AND OTHERS

JUDGEMENT

(1.) THE 16th defendant in O.S. No. 40/1995 aggrieved by the judgment and decree dated 22.01.2007 of the Addl. Civil Judge (Sr. Dn.), Ramanagaram, Bangalore Rural District, allowing R.A. No. 12/1999 to set aside the judgment and decree dated 16.04.1999 dismissing O.S. No. 40/1995 of the Civil Judge (Jr. Dn.) and JMFC., Channapatna, and allowing the suit, has presented this second appeal. Respondent No. 1 instituted O.S. No. 40/1995 for declaration, partition and separate possession of her 1/6th share in the immovable property bearing No. 1439, 'B' Division, Channapatna Town, Kothanahalli Road, measuring East to West 50 feet and North to South 50 feet. The immovable property was asserted to be the absolute property of one Mayegaiah, since deceased leaving behind six children of which, the plaintiff is the last child while the first son by name, Chikkamayegaiah, since deceased, is represented by his widow arraigned as the third defendant and two children as defendants 4 and 5; the second son by name Kalaiah, since deceased, represented, by his widow, defendant No. 7 and children, defendants 8 to 15; the third son by name, Channaiah arraigned as first defendant and a fourth son by name Bannaiah arraigned as second defendant, while, the fifth child being Hombamma, the sister of the plaintiff, arraigned as defendant No. 6 and the purchaser of the western half portion measuring 25 feet x 50 feet from out of the suit schedule property as defendant No. 16.

(2.) THE suit was opposed by filing written statement of the 16th defendant (appellant) inter alia contending that defendants 2 and 3 i.e., Bannaiah, the fourth son of Mayegaiah and defendant No. 3, the widow of the deceased Chikkamayegaiah, the first son, jointly executed a sale deed dated 29.01.1992 conveying the western half of the suit schedule property for a valuable consideration, covenanting that under a palupatti dated 06.01.1992 recording a prior partition, that occurred on 13.12.1981 whence the suit schedule property fell to the share of the executants. In addition, it was contended that Ex. D1, sale deed contained the signature of the consenting witness, none other than the plaintiff and the other children of late Mayegaiah. It was further asserted that the palupatti having been given effect to between the deceased Mayegaiah as well as the legal representatives of the deceased male children and there being a prior partition, the plaintiff was disentitled to claim 1/6th share in the suit schedule property.

(3.) THE trial Court returned findings in the negative over issues 1 and 2 and in the affirmative over issues 3 to 5 observing that except for the self -serving statement of the plaintiff and in the absence of any other evidence of witnesses while defendant No. 3 Boramma examined as DW. 2 was a coparcener accepted the existence of a prior partition under the palupatti Ex. D1 and as credible evidence the oral testimony of DW. 3, Scribe that the plaintiff and defendant No. 7 - Venkatamma, daughters of 'Mayegaiah' affixed their signature and L.T.M. respectively on Ex. D2, the sale deed as consenting witnesses, which was not disproved by rebuttal evidence and accordingly dismissed the suit.