R DHANALAKSHMI Vs. P GOPAL

JUDGEMENT

(1.) THOUGH this matter is listed for orders, by consent of both sides, this matter is heard on merits.

(2.) THE appellant has filed O.S.No.2531/1995 before the I Addl. City Civil and Sessions Judge at Bangalore claiming partition and separate possession of 1/6th share in the plaint schedule and 1/7th share in the plaint B schedule property. The suit filed by the plaintiff has been dismissed by the Court on 9.10.2007. Against correctness and illegality of the order, the present appeal is filed.

(3.) ACCORDING to the plaint averments, the plaintiff and defendants 1 to 5 are the children of late C. Peraiah and 6th defendant Smt Rajamma. Two properties bearing Nos 27 and 28 situated at Stephens Road and Frazer Town which are described as A schedule property were bequeathed to her late father C.Peraiah by his father late A.M Chinnaiah under the Will dated 13.9.1947. Similarly, the property bearing Nos. 85, 86, 87 and 88 situated at Dharmaraja Koil Street, Bangalore were allotted to the share of said C. Peraiah in a partition registered on 2.8.1959 which is described as plaint B schedule property. Her father Peraiah enjoyed the suit properties till his death and he died on 24.6.1964 intestate. It is also her case that defendants 1 and 2 got divided all the properties and that partition is only temporary arrangement so as to avoid income and wealth tax and in order to evict the tenant from B schedule property. By playing fraud on her, a registered partition deed came to be registered on 1.10.1982 which document was registered before the Sub -Registrar, Shivajinagar. Bangalore. It is also her case that defendants 1 to 4 have taken lion share and that plaintiff and defendants 5 to 6 have been given lessor shares. According to her, the partition dated 1.10.1982 was executed on account of fraud played by defendants 1 to 3. even though the partition took place, all the parties were residing together and enjoying the properties in joint possession. On 29.10.1994 , the plaintiff called upon the defendants to effect partition and to give her legitimate share . However, the defendants have sent an untenable reply. Therefore, the plaintiff filed suit claiming property and separate possession of 1/7th share in A schedule property and 1/6th share in plaint B Schedule property.