M S VISHWANATHA RAO Vs. M S NAGARAJ

JUDGEMENT

(1.) THE lone plaintiff of an original suit bearing O.S.No.65/1994 which was pending on the file of Court of Civil Judge (Jr.Dn.), Tarikere has filed this appeal under Section 100 of CPC, being aggrieved by the dismissal of his suit filed for relief of partition and separate possession and confirmation of the same by the Court of the FTC, Tarikere in R.A.30/1998. Respondents herein are the defendant Nos.1 to 11 in the said suit.

(2.) DURING the pendency of the suit, Nagaraj defendant No.1 died and his legal representatives were brought on record. Defendant Nos.6 to 11 are stated to be the purchasers of the suit schedule property. Parties will be referred to as per ranking before the Trial Court.

(3.) PLAINTIFF , defendant No.1 to 5 are the sons of one late Shankar Rao. As described in schedule appended to the plaint, item Nos.(a) to (f) were the joint family properties of the plaintiff and defendant Nos.1 to 5. Originally, the lands stood in the name of Late Shankar Rao. According to the plaintiff, joint family properties were divided through a registered partition deed dated 25.6.1986 and by mistake and by oversight, properties as described in the schedule appended to this plaint were left out in the said partition. It is his case that partition dated 25.6.1986 evidenced through registered partition deed is unjust and unfair and therefore he has filed separate suit in O.S.106/1989 against defendant Nos.1 to 5 for reopening of the said partition. Plaintiff is stated to have 1/6th share in the properties described in item Nos.(1) to (f). It is his case that defendant Nos.1, 3 and 5 have sold the properties to defendant Nos.6 and 11 through separate sale deeds dated 23.3.1991 and they do not bind him. He is stated to have come to know of this of late after obtaining copies of the sale deeds. Hence, he got issued legal notice dated 13.10.1983. With these pleadings, he had requested the Court to grant 1/6th share and divide the properties by metes and bounds.