MAHANTAPPA Vs. VENKAPPA

JUDGEMENT

(1.) The plaintiff, aggrieved by the dismissal of his application seeking temporary injunction against the defendants is before this Court in an appeal under Order XLIII Rule 1 of the Code of Civil Procedure.

(2.) The suit of the plaintiff is one for partition and separate possession of two properties described in Schedule. The plaintiff is the brother of defendants No.1 to 4. All the plaintiff and defendants are the children of late Sangappa Shankaraguli. Sangappa Shankaraguli died on 29/7/2013. It is claimed by the plaintiff that on 28/8/1986, there was a partial partition in respect of certain family properties and the suit schedule properties are not partitioned and they were standing in the name of their father.

(3.) It is the case of the plaintiff that, after the death of their father in the year 2013, the plaintiff and defendants inherited 1/5th share each in the suit schedule properties. The defendants did not dispute the partition of 1986. The defendants also did not dispute the fact that the suit schedule properties were standing in the name of their father at the time of his death. There is no dispute over the fact that the father died intestate. However, the defendants have contested the suit on the premise that all the joint family properties are not included in the suit, as such, the suit is not maintainable without including those properties.