DODDAMMA Vs. MUNIYAMMA

JUDGEMENT

(1.) THESE appeals by the plaintiff are directed against the judgment and decree passed by the I Additional Civil Judge (Senior Division), bangalore, in R. A. Nos. 207 of 1997 and 2 of 1998, dated 18-12-1999 setting aside the judgment and decree passed by the Court of Civil judge (Junior Division), Bangalore, in O. S. No. 50 of 1987, dated 26-11-1997 and dismissing the suit of the plaintiff.

(2.) THE essential facts of the case leading upto these appeals with reference to the rank of the parties before the Trial Court are as follows: the plaintiff filed the suit for partition and separate possession of half share in the suit schedule properties by metes and bounds averring that one Buddappa. The grandfather of the plaintiff had three sons by name Thimmappa, Thayappa and Junjappa. They had ancestral properties and were living together enjoying the ancestral properties. After some time Junjappa the youngest son of Buddappa took his share in the joint family property and started living separately. The other two sons Thimmappa and Thayappa have taken their shares jointly and they have not partitioned the property between them. The plaintiff was the only issue to Thayappa, he had no male issues. Thayappa died about ten years next before filing of the suit. The suit filed on 7-2-1987. Thimmappa the brother of the plaintiffs after expiry about two years next before filing of the suit. After the death of her father and mother the plaintiff was living in the house in which father was living and thimmaiah was looking after her. Thimmaiah promised to give her share in the family properties and hence after the marriage of the plaintiff, the plaintiff was living in her parents house. The marriage of the plaintiff was performed by her father Thayappa her husband was living with her parents. But, after some years after the death of thayappa without tolerating the trouble given by the plaintiffs sons, plaintiff was driven out of house and plaintiff went out of the house. After the death of Thimmaiah, the defendant drove out the defendants from her house and demanded her share in the suit schedule properties.

(3.) THE defendant who had promised to give her share started evading partition of the property under one pretext or the other. The plaintiff is entitled to half share in the suit schedule property as they are the joint family properties of their father and his brother Thimmaiah. Her father and Thimmaiah were living together after Junjappa their younger brother separated from the family. The katha in respect of the suit schedule properties stands in the name of Thimmaiah as he was elder brother. The lands bearing No. 20 measuring 0. 10 guntas, Sy. No. 17 measuring 0. 19 guntas, Sy. No. 216 measuring 2. 12 guntas, Sy. No. 221 measuring 0. 05 guntas, Sy. No. 49 measuring 1. 32 guntas, Sy. No. 3/1 measuring 3. 36 guntas and Sy. No. 3/2 measuring 3. 38 guntas are the ancestral properties. Out of the income of the ancestral properties, the father of the plaintiff and Thimmaiah have purchased some land which is morefully described in the schedule and therefore all the suit schedule properties are the joint family properties in which the plaintiff is entitled to half share. It is further averred that after the plaintiff demanded partition and separate possession of her share in the suit schedule properties, defendants are trying to alienate some of the items of the suit schedule properties with an intention to deprive her right and if they do so the purchaser will take possession of the same which will give rise to complication and purchaser claims to be bonafide purchase for value. Accordingly, the suit was filed. The plaint was got amended in view of certain alienations made during the pendency of the suit by including para 2-b to the effect that the plaintiff's father and his brother thimmaiah sold the property situated at Ulumenahalli and thereafter out of that amount they purchased 12 acres of land at Kommaghatta in the name of Thimmaiah as he is the eldest male member in the joint family and the property situated at Kommaghatta is the joint family property. The plaintiffs father and Thimmaiah were cultivating the land situated at Kommaghatta during the lifetime of plaintiffs father. The property situated at Bettanapalya were being cultivated by their family since long time by their father Thayappa and Thimmaiah were together cultivating the land situated at Bettanapalya since the time of plaintiffs childhood and after the death of Thayappa plaintiffs father thimmaiah got the property granted in his name situated at bettanapalya and also the joint family property. Land situated at bhemankuppe village as joint family properties in which 2 acres of land had fallen to the share of Junjappa, Thimmaiah's brother. Junjappa's wife is still cultivating 2 acres of land in Sy. No. 221. It is further averred that the plaintiffs father Thayappa and his brother Thimmaiah were jointly cultivating the lands.