ANNEPPA CHANNAPPA SHETKAR Vs. BANDEVVA

JUDGEMENT

(1.) APPELLANTS in these appeals were the plaintiffs before the trial Court. Appellants in R. S. A. 216/1999 were the plaintiffs in O. S. No. 74/78 on the file of the Pr1. Civil Judge (Sr. Dn.), Bidar and they were also the appellants before the addl. Dist. Judge, Bidar in R. A. 24/87. Appellant in RSA 215/99 was the plaintiff in O. S. No. 73/78 on the file of the Prl. Civil judge (Sr. Dn. }, Bidar and appellant in R. A. 23/87. Appellants in RSA 214/99 were the plaintiffs in O. S. No. 72/78 on the file of the Prl. Civil Judge (Sr. Dn.), Bidar and appellants before the Addl. District Judge, bidar in R A. 22/87. Appellants in RSA 213/99 were the plaintiffs in O. S. No. 69/78 on the file of the Prl. Civil Judge (Sr. Dn.), Bidar and appellants in R. A. 21/87 on the file of the Addl. District Judge, Bidar. O. S. Nos. 69, 72, 73 and 74/1978 were filed by the plaintiffs against the common defendants to declare them as owners in respect of Sy. No. 59 and 68 of Ballur village, Aurad Taluk and to further declare that the decree passed in o. S. No. 11/1967 on the file of the Civil judge, Bidar does not bind them and for cancellation of the said decree. According to plaint averments, one Sangappa had 4 sons by name Veershetty, Channappa, gundappa and Shamrao. Veershetty had two wives viz. , Ratnamma and Bandawwa. Through Ratnamma Veershetty had two sons by name Malshetty and Shankarappa and two daughters by name Tarabai and kamlai through his second wife Bandewwa. Sons and daughters of Veershetty are defendants 2 to 4 in the suits, Bandewwa, 2nd wife of Veershetty was the 1st defendant in the suits. Second son of Sangappa viz. , channappa has three sons by name shivbasappa, Anneppa and Vishwanath. They are the plaintiffs in O. S. No. 74/78. Third son of Sangappa viz. , Gundappa is the plaintiff in O. S. No. 72/78. Ramshettys sons viz. , Subhash and Mahadeva were the plaintiffs in O. S. No. 69/78 and Ramshetty is the 4th son of Sangappa, 5th son of sangappa i. e. Shamrao is the plaintiff in O. . No. 73/78. According to the plaint averments, Sangappa died long back and he had no ancestral property and after his death certain properties were acquired jointly by his sons viz. , Veershetty, Channappa, gundappa, Ramshetty and Shamrao with their joint efforts and they considered the properties as joint family properties and all the properties were enjoyed by the plaintiffs and defendants during the life time of veershetty, Channappa and Ramshetty. In addition to the lands mentioned therein, a house property situated in Chamkuri Galli, bidar was also acquired jointly and that the family had an ancestral house at chitakhane, Bidar and also a house at Bellur which house was acquired jointly by all the members of the family.

(2.) DUE to the differences arose among the women-folk of the family, sons of channappa demanded partition of the joint family properties from his elder brother veershetty and that a partition was also effected in the first week of June, 1958. Accordingly certain extents of lands were allotted to the shares of the brothers and that they are enjoying the properties as per the shares allotted to them. It is the further case of the plaintiffs that defendants 1 to 3 filed o. S. No. 11/1967 against defendants 4 and 5 claiming partition and separate possession of their share without impleading the plaintiffs in these suits. The suit filed by defendants 4 and 5 came to be decreed on 29-9-1972 and defendants 1 to 3 were the plaintiffs in the suit in O. S. 11/67 and were declared to be entitled for 3/5th share in all the properties. Against the judgment and decree passed in O. S. 11/67 an appeal was also preferred by defendants 4 and 5 appeal preferred by them was also dismissed by high Court in 1976 and thereafter a final decree proceedings were initiated by defendants 1 to 3. After obtaining the fnal decree proceedings an execution petition was also filed in Exc. 72/77 for recovery of possession and costs. When the defendants 1 to 3 made an attempt to interfere with the plaintiffs possession and enjoyment of the property, plaintiffs came to know of the decree passed in O. S. No. 11/67, therefore, they filed a suit for declaration. Defendants con tested the case. Though the defendants admitted the relationship between the parties, they denied the rights of the plaintiffs in all the suit properties. According to them, suit properties were the self acquired properties of Veershetty and that there was no partition during the life time of Veershetty as contended by the plaintiffs. Therefore, they requested the Court to dismiss the suit.

(3.) BASED on the pleadings, following issues were framed by the trial Court in different cases : in O. S. No. 69/78 :