FAKIRAPPA BAILAPPA KAMBAR Vs. KRISHTAPPA BAILAPPA KAMBAR

JUDGEMENT

(1.) Defendant Nos 1, 2 and 4 in O. S. No. 90 of 1970, on the file of II Additional Civil Judge, Beleaum, have filed this appeal against the judgment and decree for partition dated 30-6-1975, made by the Civil Judge.

(2.) Respondent Nos. 1 and 2, hereinafter referred to as plaintiffs-1 and 2 as in the court below, are related among themselves as full brothers, brought the above suit O.S. 90/70 for partition of three agricultural lands, bearing S. Nos. R. 40 257/1-measuring 25 Gs., 257/2-measuring 24 Gs. and 258 -measuring 10 acres 14 Gs, and four houses, bearing VPC Nos. 11, 111, 112 and 147, situated at Salapur village in Ramadurg taluk, Belgaum District, contending inter alia that the properties were the joint family properties and although they were living separately and messing separately for the sake of convenience, the family and the properties were still joint and there was no partition of the joint family properties. According to them, the open site, on which a house bearing VPC No. 147 was standing, was purchased in the name of Balappa, the father of 1st defendant, and the house thereon was constructed out of joint family funds. The cause of action for the suit accrued to them when, after the Sanadi land in S. No. 258 was regranted in favour of defendant No. 1, defendant No. 2, mother of defendant No. 1, who is the grant-son of their brother Fakirappa, in collusion with defendant No. 4, obtained permission to alienate the same and inspite of demanding partition have refused to give share in the month of July, 1970.

(3.) Defendant Nos. 1 and 2 filed written statement contesting the suit and contended that the properties in suit were no longer joint family properties. According to them, there was already a partition in the year 1936 ard in the said partition, while the land S No. 257/1 and house bearing VPC No. 112 had been allotted to the share of plaintiff No. 1, the land S.No. 257/2 and house bearing VPC No III had been allotted to plaintiff No. 2, and the land in S. No. 258 being a Sanadi Watan lard had been allotted to the share of grand-father of defendant No. 1 along with heuse bearing VPC No. 11 and eversince the partition the properties were in possession of the respective parties according to their respective shares. They also denied that either any open site was purchased or the house bearing VPC No. 147 existing thereon was later on constructed by the joint family funds. On the other hand, they contended that the open site and the house were there since the time of grand father of defendant No. 1 and the suit for partition was not, therefore, maintainable.