GOWRAMMA Vs. RANGAPPA

JUDGEMENT

(1.) This appeal is preferred being aggrieved by judgment and decree dated 1.8.2007 passed by the Civil Judge (Sr. Dn.) and Additional CJM, Arasikere in R.A. No.62/2003 dismissing the appeal and confirming judgment and decree dated 30.6.2003 passed by the Principal Civil Judge (Jr. Dn.) at Arasikere in O.S.No.235/1999.

(2.) Appellant Nos. 1(a) to 1(g) are the legal representatives of plaintiff No.1 and appellant No.2 was plaintiff No.2. The respondent herein was the defendant. The case of the parties before the trial court was that the 1st plaintiff filed the aforesaid suit for declaration that she is having half share in the suit schedule properties and also for partition and separate possession of the suit schedule properties and also for mesne profits.

(3.) It is the case of the Appellants-plaintiffs that suit schedule property originally belonged to one Chennabasappa son of Nanjappa of Byrapur village. The said Chennabasappa sold the suit schedule property under registered sale deed dated 26.1.1956 in favour of 1st plaintiff and the defendant. From the date of purchase, the 1st plaintiff and defendant were in joint possession and enjoyment of the suit schedule property. The defendant is the son of Shivapooje Basappa through another wife. The 1st plaintiff and defendant had got equal share in the suit schedule property and no partition was effected between them. Defendant without the knowledge of the 1st plaintiff got changed the katha in his name alone in respect of suit schedule property and one month earlier to the filing of the suit, the defendant denied the 1st plaintiff's right over the property. When the 1st plaintiff verified the RTC, she came to know about the change of katha in respect of suit schedule property in favour of defendant alone. When the 1st plaintiff enquired with defendant, he gave evasive reply. Hence, plaintiffs filed the aforesaid suit. The defendant denied the plaint allegations and contended that originally schedule property belonged to one Chennabasappa, who sold the said property in favour of the 1st plaintiff and himself through a registered sale deed dated 26.1.1956. He denied that the schedule property was jointly enjoyed by himself and the 1st plaintiff. The property was not purchased by the 2nd plaintiff and hence, the 2nd plaintiff was not a necessary party to the suit. The suit was bad for mis-joinder of party. It was contended that the defendant was first wife's son of Shivapooje Basappa. Through the 1st plaintiff, Shivapooje Basappa had got four male and four female children namely, Nanjundappa, Shankarappa, Lokanathappa, Lingaraju, Sidramakka, Siddamma, Gangamma and Channabasamma, who were all married. The plaint schedule properties were the joint family properties of plaintiffs and defendant. It was further contended that at a partition held in the family, plaint schedule properties and survey Nos. 23/2 and 22/1 had been allotted to the share of defendant. Following the oral partition, 1st plaintiff had given statement before the revenue officer and katha of the properties were changed in favour of the defendant under MR No.7/1998-99. The other properties, which were in the family were also divided and fallen to the share of the 1st plaintiff. The names of the 1st plaintiff's children were also mutated and they were enjoying their respective shares independently. Hence, it cannot be said that the suit schedule properties were to be divided between the plaintiffs and defendant. It was also contended that after partition, defendant had invested huge sums of money and improved his land. The 1st plaintiff with ulterior motive and in collusion with her sons, filed the false suit. Suit schedule properties were not available for partition. There was no cause of action for the suit, it was time barred, and court fee paid by the plaintiffs was not correct and hence sought to dismiss the suit.