NANJAIAH Vs. SRI BORAIAH

JUDGEMENT

(1.) THE appellant has challenged the judgment and decrees of the Courts below granting one half share to the respondent in item No. 2 of the suit properties and refusing his request for the share in the RCC building situated at Rajajinagar, Bangalore. The facts relevant for the purpose of these appeals are as under: The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellant herein is the defendant and respondent is the plaintiff who instituted the suit for partition and separate possession of his half share in the suit schedule properties i.e., item Nos. 1 to 5 described in the schedule to the plaint. It is not in dispute that the parties are the only legal representatives being the sons of late Mariyappa and that the suit properties item Nos. 1 to 5 are the joint family properties. The plaintiff was a Government servant and admittedly the suit properties belonged to father of the parties. The plaintiff requested the defendant to effect division in the suit properties. As the defendant did not do so, the suit came to be instituted.

(2.) THE defendant appeared in the trial Court and contended that the plaintiff has agreed to sell item No. 2 of the suit property for a consideration of Rs. 63,000/ - and on 21.9.2000 under the agreement he has received a sum of Rs. 43,500/ - agreeing to sell the said item of the suit property within a period of three months by executing a sale deed on receiving the remaining sale consideration and it was also his contention that the plaintiff purchased a site in Rajajinagar, Bangalore and constructed a building over the said site and the income of joint family was utilized to purchase the site and to put up construction of the building. Therefore, he has sought for dismissal of the suit of the plaintiff so far as item No. 2 of the suit property and requested to award share in the building situated at Rajajinagar, Bangalore.

(3.) AT the time of admission, the following substantial question of law has been raised in both the appeals. Whether the judgment and decree of the first appellate Court is perverse in misreading the evidence and material on record in grant of decree for partition?