BOMMAKKA Vs. RAMANNA

JUDGEMENT

(1.) THE appellants -plaintiffs being aggrieved by the judgment and decree dated 25.10.2005 passed in R.A. No. 1/2003 by the Civil Judge (Sr. Dn.) at Challakere, modifying the judgment and decree dated 15.11.2002 in O.S. No. 276/1995 on the file of the Civil Judge (Jr. Dn.) at Challakere, have preferred the present second appeal, on the following grounds:

(2.) WHILE admitting the present appeal, this Court has framed following substantial question of law for consideration:

(3.) DEFENDANT No. 2 filed written statement admitting the relationship between the original plaintiff and defendants. The allegations made in para No. 3 of the plaint had been denied. It was contended that the plaintiffs suit was not properly valued and there was no cause of action. It was further contended that the plaintiff Papanayaka was the eldest son of defendant No. 1 and his marriage was solemnized about 30 years back and there after, plaintiffs family and defendants were residing in the same roof as joint family members and also enjoying the suit schedule property jointly for a period of 5 -6 years. Thereafter, due to differences between the women folk, original plaintiff left the joint family about 25 years back. But they were jointly cultivating the suit schedule property for a period of 5 -6 years. Thereafter, original plaintiff demanded his share in the suit schedule property and convened panchayat in the village. But defendant No. 1, as prestige of the family, without giving any room for dispute, had divided the properties orally about 20 years back. In the oral division, original plaintiff was allotted to an extent of southern 29 guntas in the suit schedule property and one coconut tree. Defendant No. 2 was allotted middle portion to an extent of 31 guntas and defendant No. 3 was allotted 29 guntas of northern side of the suit schedule property. From the date of said allotment, original plaintiff had been in possession and enjoyment of the same as owner. But defendant Nos. 2 and 3 were jointly cultivating their shares. After their marriage, they were cultivating separately as per the allotment. Defendant Nos. 2 and 3 had, by their own efforts, improved their shares by spending huge amount. Defendant No. 2 had no objection to change katha to an extent of 29 guntas and one coconut tree in favour of the original plaintiff. Hence, sought to dismiss the suit.