YAMANAVVA Vs. CHANDRAWWA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by the Court of Prl. Civil Judge, Bijapur, in RA. No. 84/1988 dated 25. 6. 1993 confirming the judgment and decree passed by the Court of Prl. Munsiff, Bijapur, in O. S. 181/81 dated 16. 8. 1988.

(2.) THE material facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows: the plaintiff filed the suit O. S. 181/81 seeking for a declaration that plaintiff has half share in the suit properties and for partition of his share by metes and bounds and to direct defendants to put plaintiff in possession of the said share and for mesne profits and costs. The suit schedule property comprises of land bearing Sy. No. 4 measuring 15 acres 37 guntas, situate at Babalad village in Bijapur Taluk and a house as per the description given in para-2 of the plaint situated in Babalad village in Bijapur District.

(3.) IT is averred that the suit schedule property was the Walikarki sites in the land and it is partible. Walikarki has been abolished by the village offices Watan Abolition Act, 1961, which come into force from 1. 2. 1963. It is averred that Yellappa was the propositus. He had two sons Ramappa and Bhimappa. Ramappa died in 1978. He had two wives Gangawa who died in 1971 and Somawa died in 1965. The defendant-Chandrawa is the daughter of Ramappa though the first wife-Gangawa. Shantawa-second wife died in 1965 leaving behind Yellappa who died in 1990. It is averred that Yellappa died undivided from the plaintiff and on his death is son Ramappa succeeded to half share in Yellappas interest by survivorship and in additional 1/4th share by succession. The defendant and Ramappas interest by succession on the death of Yellappa, the defendant succeeded to his interest. Thus, on the date of the suit, plaintiff is entitled to half share and defendant is entitled to half share in the suit schedule property. It is averred that family of the plaintiff and defendant all along joint and said properties are joint ancestral properties. The suit properties have all along been in joint undivided interest of Ramappa, the plaintiff claims that he is having half share in the suit properties. The suit land being Walikerki inam land was resumed by the vested in the State and it has been regranted to Ramappa as he was Manager of the joint family. That regrant enures to the benefit of the plaintiff as Ramappa and the plaintiff were the undivided members of Hindu Mithakshara family. It is further averred that one Laxman the son of paternal cousin of Ramappa and plaintiff had filed O. S. 168/67 and claimed partition arid possession of his alleged half share in the suit properties. Rarnappa, was defendant No. 1 and plaintiff was defendant No. 2 in the said suit. The said suit was compromised and compromise decree was passed and the suit is dismissed against plaintiff and it was decreed that Laxman had no right, title or interest and is entitled to be paid Rs. 250/- per year from Ramappa during his lift time and Laxmari died 3 years next before filing of the suit. Since the said suit is dismissed against the plaintiff, the terms of the compromise decree between Ramappa and Laxman would not in any was affect the undivided interest of the plaintiff in the suit property. The plaintiff demanded all the defendants that he be given his half share by partition and separate possession in the suit properties, defendants are evade to give share of the plaintiff and therefore it has become necessary to file a suit seeking half share in the suit schedule property. The cause of action in the suit arose in April, 1981 when the plaintiff demanded separate possession of his share which was not complied with the defendant.