MAILA ALIAS MALLARAPPA Vs. MANJA

JUDGEMENT

(1.) THE 1st defendant of an original suit bearing O.S.No.147/2008, which was pending on the file of the Court of Senior Civi l Judge, Sirsi is before this Court challenging the judgment and decree passed in O.S.No.147/2008 and conf irmation of the same in Regular Appeal fi led under Section 96 of CPC in R.A.No.45/2010. Respondent No.1 is the plaintiff in the suit. Remaining respondents are defendants 2 to 4 in the said suit. Parties wi l l be referred to as plaintiff and defendants 1 to 4 as per their ranking given in the trial Court.

(2.) ONE person by name Irappa was the propositus. He died in the year 1954. He had wife by name Choudi and through his f irst wife he has three sons namely Manja Ira, Mailarappa and Durga. Manja is the plaintiff and Mai larappa and Durga are defendants 1 and 2. After the death of Choudi, Irappa married another lady by name Durgi. Manja Bhat and Krishna Bhat, who are defendants 3 and 4 are the sons through his second wife. Manja, son of Irappa through his f irst wife chose to fi le a suit for partition and separate possession seeking 1/5th share in al l the schedule properties. The said suit was resisted by the defendants by f i l ing a detai led written statement. According to the defendants, there was already partition of the suit properties and that the properties of Koralakai vi l lage Siddapur Taluka are joint fami ly properties and they are to be included. Accordingly these properties were already included in the suit by getting the plaint amended. On the basis of the above pleadings, fol lowing issues came to be framed:

(3.) SURESH , son of plaintiff is examined as PW1 and has got marked 19 exhibits. 1st defendant is examined as DW1 and Shivappa is examined as DW2. In al l 8 exhibits have been got marked on behalf of the defendants. After hearing the arguments and perusing the records, issues 1 to 3 have been answered in the affirmative and issue No.4 has been answered in the negative. Issue No.5 is treated as having not survived for consideration in view of the properties being included by getting the plaint amended. Ultimately the suit came to be decreed granting 1/5th share to the plainti ff. Against the said judgment and decree, an appeal was fi led under Section 96 of CPC before the Court of District Judge of U.K. District and the same was withdrawn and transferred to Fast Track Court at Sirsi and numbered as R.A.45/2010. Several grounds had been urged in the said appeal memo fi led under Section 96 of CPC. During the pendency of the said appeal, an appl ication came to be fi led under Order 41 Rule 27 of CPC to adduce additional evidence on the basis of few documents f i led along with the said appl ications. Those appl ications came to be numbered as I.As. 3 and 4 and both of them have been dismissed along with merits. It is these concurrent f indings, which are cal led in questions on various grounds as set out in the appeal memo.