N V NARASIMHA MURTHY Vs. HANUMANTHAIAH

JUDGEMENT

(1.) APPELLANTS were the plaintiffs No.3 to 7 in O.S.No.375/1993 on the file of I Addl. Civil Judge (Sr. Dn), Bangalore Rural District, Bangalore along with the respondents No.4 and 5 in this appeal were also the plaintiffs. The suit was filed by them for partition and separate possession of their share in all the plaint schedule properties. The suit filed by the appellants and respondents No.4 and 5 was dismissed by the Court below by its Judgment and Decree dated 5.4.2005. Challenging the legality and correctness of the same, the appellants alone are filed the appeal and respondents No.4 and 5 have not challenged.

(2.) ACCORDING to the plaint averments one Sanna Hanumaiah had 5 sons by name Doddachikkanna; Muddaiah; Veerappa, Hanumanthaiah and Narasimhaiah. The eldest son -Doddachikkanna died in the year 1971; second son -Muddaiah died earlier in the year 1970 and third son -Veerappa died in the year 1992. The eldest son4 Doddachikkanna died unmarried. Plaintiffs No.1 and 2 are the sons of Muddaiah and plaintiffs No.3 to 6 are the sons of Veerappa. Defendants No.1 and 2 are the sole surviving sons of Sannahanumaiah. According to the plaint averments, the plaintiffs and defendants are the members of a Hindu joint family and the suit schedule properties are all ancestral properties, except 2 acres in Sy.No.143 of Nagarur village which was granted by the Government in favour of Doddachikkanna and it is also considered as joint family property. On the ground that after the death of Doddachikkanna, there is no partition between the plaintiffs and defendants No.1 and 2, the suit came to be filed by the plaintiffs contending that the plaintiffs No.1 to 6 and defendants No.1 and 2, each entitled for 1/4th share. According to the plaintiffs, in November 1993, they learnt that certain revenue entries were mutated in the name of defendants No.1 and 2 and also that a sale deed is executed by Doddachikkanna on 9.8.1971 by playing fraud on the plaintiffs. According to the plaintiffs, the defendants have set up an oral partition and sale deed does not bind to their share and they are entitled to equal share in all the plaint schedule properties. Therefore, they filed the suit declaring that the sale deed executed by Doddachikkanna does not bind their rights and they are entitled for their respective shares.

(3.) THE defendants contested the suit. They denied the rights of the plaintiffs in the suit properties. According to them, there is no joint family and joint family properties. It is the specific case of the defendants that in the year 1968, there was an oral partition. In the partition, the then joint family properties were divided and parties are enjoying the properties fell to their share and later Doddachikkanna under a registered sale deed dated 9.8.1971 sold the property which had fallen to his share and the land granted to him. From then onwards the first defendant is enjoying the property purchased by him from Doddachikkanna and no fraud is played by the defendants in getting the sale deed and mutating his name in the name of pahanidars. The defendants also gave the details of the property, which has fallen to the share of father of the plaintiffs and defendants in detail under the earlier partition. In the circumstances, they requested the Court to dismiss the suit. The second defendant also supported the case of the first defendant. In the circumstances, the trial Court framed the following issues: -