MUNIYAPPA Vs. PILLAPPA

JUDGEMENT

(1.) DEFENDANTS 1(a) to 1(g) and defendant No. 3 in O.S. No. 283/2000 on the file of Civil Judge, Devanahalli, have come up in this second appeal impugning the concurrent finding of both the courts below in decreeing the suit of plaintiff for the relief of partition.

(2.) THE fact that plaintiff and defendants are the descendants of propositus Munivenktappa is not in dispute. It is further not in dispute that there appears to be an oral partition between them in the year 1965. It is also seen that said partition is not acted upon though shares in some of the suit schedule properties is shown to have been allotted to the shares of some of the children of propositus Munivenkatappa. It is further seen that earlier to filing of O.S. No. 283/2000, another suit in O.S. No. 28/1986 was filed by some of the parties to the suit for the relief of partition, wherein a defence was taken regarding earlier oral partition. It is seen that said O.S. No. 28/1986 came to be dismissed on the ground that suit is not maintainable in view of earlier oral partition of 1965 -1966. Though earlier suit was dismissed as not maintainable, it is not in dispute that no finding was given regarding the oral partition having taken place in the year 1965 -66 and shares being allotted to the children of deceased Munivenkatappa and said partition being acted upon.

(3.) HEARD the learned Counsel for appellants. Perused the judgment and decree of both the courts below. On going through the same, it is clearly seen that defendants have failed to establish before the trial court that suit in O.S. No. 28/1986 filed by some of the members of joint family of Munivenkatappa is dismissed with reasoned finding on the issue to the effect that in fact there was an oral partition in the year 1965 -66 and pursuant to which the parties to partition have been put in possession and enjoyment of their respective share. Instead, it would indicate that merely on the basis of defence raised in the written statement filed in O.S. No. 28/1986, said suit is dismissed as not maintainable. Since there is no finding in respect of the claim of plaintiff in O.S. No. 28/1986, mere dismissal of original suit in O.S. 28/1986 as not maintainable would not act as res judicata in Pillappa filing O.S. No. 283/2000 on the ground that alleged oral partition of 1965 -66 is not acted upon, no share is passed on to any of the members of joint family and suit properties continued to be in joint possession and enjoyment of the members of joint family.