GOPI Vs. SRIDHARA SHETTY

JUDGEMENT

(1.) Heard the learned counsel for the appellants and learned counsel for respondent Nos.1, 2 and 5.

(2.) This appeal is filed challenging the judgment and decree dtd. 30/8/2017 passed in R.A.No.19/2013, on the file of Principal Senior Civil Judge and JMFC, Bantwal, D.K.

(3.) The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of partition is that, father of the plaintiff, defendant Nos.2 to 6 and husband of the defendant No.1, Arai Shetty was a chalageni tenant in respect of plaint 'A' schedule property. In the advent of Karnataka Land Reforms Act, Arai Shetty has filed declaration under Form No.7 before the Land Tribunal and accordingly, the Land Tribunal granted occupancy right in his favour. Now, the father of the plaintiff, Arai Shetty is no more. Upon using the funds of the joint family properties, item No.1 of the plaint 'B' schedule property improvements were made in the kumki land by the defendant No.1 and on the advent of Sec. 94-B of KLR Act, the defendant Nos.1 and 4 have filed application under Form No.53 for and on behalf of all the members of the family and accordingly, the Land Grant Committee, Bantwal granted item Nos.3 and 4 of the plaint 'B' schedule property in favour of defendant Nos.1 and 4 respectively. The said grant is for and on behalf of all the members of the family of late Arai Shetty. Hence, all the parties to the suit have got equal 1/7th share in item Nos.3 and 4 of the plaint 'B' schedule property. The plaintiff is one of the co-owner of plaint 'B' schedule property after the death of Arai Shetty. The plaintiff and the defendant Nos.1 to 6 are in joint and constructive possession of the plaint 'B' schedule property. When the matter stood thus, the plaintiff on 15/9/2006 through his relative applied for RTC of plaint 'B' schedule property and he was shocked to see that the name of the defendants were entered in the RTCs of plaint 'B' schedule property and then only, the plaintiff came to know that there was an alleged partition entered between defendant Nos.1 to 6. He applied for copy of the partition and found that without considering the right of the plaintiff, a registered alleged partition deed was entered between the defendant Nos.1 to 6 which was done behind the back of the plaintiff and the plaintiff was not aware about the said partition deed, until he obtained the certified copy of the said deed. It seems that the defendants have taken advantage of the fact that the plaintiff is residing at Mumbai for his livelihood. The said partition deed is not acted upon, as the plaintiff is one of the co-sharer of the plaint 'B' schedule property and also has not signed the said partition deed. Hence, the same has no legal sanctity in the eye of law. It is contended that there is residential house situated in plaint 'B' schedule property worth of Rs.2,00,000.00. All the improvements are made in the plaint 'B' schedule property from the income of plaint 'B' schedule property. The plaint 'B' schedule properties are the Hindu Undivided Co-parcenary properties of the plaintiff and the defendants. Inspite of demand made by the plaintiff to partition the property and issued legal notice, the defendants have given false reply. Hence, the suit is filed.