MUNINANJAPPA Vs. ASHWATHANARAYAN

JUDGEMENT

(1.) PLAINTIFFS aggrieved by the Judgment and Decree dated 28.1.2008 of the II Additional Civil Judge [Sr. Dn.,], Kolar, dismissing OS No.186/2003 for declaration, partition and separate possession, preferred R.A. No.25/2008 before the Principal District Judge, Kolar, which when dismissed by Judgment and decree dated 12.2.2009, have preferred this second appeal.

(2.) APPELLANTS instituted OS No.186/2003 arraigning respondents as defendants 1 and 2 for declaration, partition and separate possession of the suit schedule properties, asserting that one Sonnapillappa was the Propositus who had two sons by name Narasappa and Muninanjappa. Narasappa is said to have had two sons by name Muniyappa and Byatappa, while Muniyappa died, Byatappa has two sons, i.e., Defendants 1 and 2. Muninanjappa second son of Sonnapillappa is said to have had two children by name Venkatagiriyappa and Poojappa of whom Poojappa died issue less. Venkatagiriyappa's two sons are none other than 1st and 2nd plaintiffs. In the light of the aforesaid genealogy, it was further asserted that on the death of the Propositus, his first son by name Narasappa, the Kartha of the joint family purchased suit schedule properties from out of the income of the joint family properties. According to the plaintiffs, their grandfather and father along with defendants' grandfather and father continue to be in joint possession and enjoyment of the suit schedule properties by jointly cultivating the agricultural lands. In addition, it was asserted that the plaintiffs being the legal heirs of Venkatagiriyappa, continue in joint with the defendants' father by name Byatappa and jointly cultivate the suit schedule properties, though the revenue records disclose the name of Narasappa the Manager of the joint family. On the death of Narasappa, his son by name Byatappa is said to have his name recorded as Kartha. Differences, it is said, arose between the women folk of the respective families, leading to plaintiffs and defendants taking separate residence since August 2001 and the demand of the plaintiffs for partition, when not met with, led to the defendants trying to alienate the suit schedule properties, hence the suit.

(3.) THE suit was resisted by filing written statement of the defendants, inter alia, denying existence of the joint family and that Sonnapillappa did not have a son by name Muninanjappa the grandfather of the plaintiffs and that after lapse of decades with an oblique motive had triggered the suit for partition. According to the defendants, the properties were purchased by Narasappa while the revenue records corroborate the same and on his death, devolved on his legal heirs, none other than father of the defendants. In addition, it was asserted that the plaintiffs were strangers to the suit schedule properties. In the premise of pleadings of parties, the trial court framed the following issues: