CHALUVEGOWDA @ RAJU Vs. CHANDREGOWDA @ CHALUVEGOWDA AND GUNDEGOWDA @ SANNEGOWDA

JUDGEMENT

(1.) DEFENDANT No. 1 in O.S. No. 64/2002 aggrieved by the Judgment, and decree dated 1.1.2008 of the Additional Civil Judge [Sr. Dn.,], Hassan, allowing the suit for declaration, partition and separate possession, filed RA No. 31/2008 before the Additional District Judge, Hassan, which when dismissed by Judgment and decree, dated 18.9.2010, has presented this second appeal. 1st respondent instituted OS No. 64/2002 for declaration, partition and separate possession of the suit schedule properties alleging to be properties belonging to the Joint Hindu Undivided Family, by arraigning appellant and the 2nd respondent as defendants 1 and 2 respectively. It was the assertion of the plaintiff that defendants 1 and 2 are his siblings and children of one Melegowda and Thimmajamma and that whereabouts of their father was not known since 25 years, while their mother's whereabouts was not known since three months prior to institution of the suit. It was further asserted that the suit schedule properties are joint family ancestral properties, possession of which is jointly held by all the siblings. Plaintiff, claimed to be serving as a 'waterman' in Hassan City Municipality, and Defendants 1 and 2 clandestinely secured change of katha of the suit schedule properties into their name by creating a false palupatti, leading to plaintiff filing R.A. No. 63/2001 before the Assistant Commissioner, Hassan, which is pending. Plaintiff having sought for accounts of the income of the joint family properties from the defendants, when threatened with dire consequences, is the cause for the suit.

(2.) THE suit was opposed by filing written statement of the 1st defendant while the 2nd defendant did not offer any resistance. According to the 1st defendant, suit was not maintainable since it was misconceived and liable to be dismissed, while admitting the relationship between the parties, denied the existence of the joint Hindu family on the premise that parties are living separately and hence no jointness in the properties. In addition, it was asserted that the joint family had separated during the year 1980 and the katha of the properties was changed long back, dependent upon the enjoyment of their respective shares of the properties. In addition, it was asserted that the plaintiffs share as per palupatti was agreed to be conveyed to the 1st defendant on receiving cash of Rs. 4,000/ -, where afterwards, plaintiff left the village and migrated to his sister's house where he got properties in his name from his sister. The 1st defendant, further asserted that the plaintiff is a signatory to the palupatti and that during the year 1992 -93, in RRT No. 47/1992 -93, the Tahsildar initiated proceeding, whence the plaintiff conceded to the partition and the dispute was closed. R.A. No. 63/2001 filed before the Assistant Commissioner is said to be after a lapse of 21 years and is subject matter of revision petition No. 1/2003 before the Deputy Commissioner, who stayed the proceeding before the Assistant Commissioner.

(3.) WHAT order or decree?