GULABI Vs. APPI

JUDGEMENT

(1.) This second appeal is filed by the appellants challenging the judgment and decree dtd. 6/10/2009 passed in R.A.No.2/2006 by the Prl. District Judge, Managlore, D.K., wherein, the First appellate Court has allowed the appeal with costs and set aside the judgment and decree dtd. 29/11/2005 passed in O.S No.218/2001, by the Trial Court insofar as item Nos.15 and 16 of the plaint 'A'-schedule properties and also dwelling house and held that the plaintiffs are entitle for 1/5th share each in item Nos.1 to 14 of the plaint 'A'-schedule properties.

(2.) For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the defendants and respondents are the plaintiffs.

(3.) The brief facts leading rise to filing of this appeal are as under: Plaintiffs filed the suit for partition and separate possession in respect of suit schedule properties. It is the case of the plaintiff that one Ithu Naik was the original propositus, he had five children namely, Appi-plaintiff No.1, Bittamma-plaintiff No.2, Vasanthi-plaintiff No.3 and Leela-plaintiff No.4 and Jinnappa Naik died leaving behind the defendants as his LR's and defendant No.1 is the wife of Jinnappa Naik, defendant Nos.2 to 7 are the children of Jinnappa Naik. It is the case of the plaintiffs that the father of the plaintiffs and Jinnappa Naik were the agricultural chalageni tenants in respect of 'A'-schedule properties and after the amendment in the Karnataka Land Reforms Act in toto, he i.e. Ithu Naik filed a declaration before the Land Tribunal Mangalore in form No.7 under Sec. 48A of the Karnataka Land Reforms Act and the Land Tribunal confirmed the occupancy right as per the order dtd. 16/9/1981. In pursuance of the order of the Land Tribunal, Tahasildar issued occupancy certificate in form No.10. The Ithu Naik was in the possession, enjoyment and cultivation of the suit schedule properties till his death by changing the revenue records in his name. He died intestate leaving behind the plaintiffs herein and Jinnappa Naik. It is contended that the plaintiffs and Jinnappa Naik are the members of Hindu Undivided Family and the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants. The plaintiffs and defendants are in joint possession of suit schedule properties. Plaintiffs demanded for partition and separate possession, but the defendants denied to effect partition. Hence, cause of action arose for the plaintiffs to file the suit for partition and separate possession.