K RAMAIAH Vs. S ANJANEYA

JUDGEMENT

(1.) THIS is a regular first appeal filed under section 96 of CPC against the Judgment and Decree dated 7-3-1996 passed in O. S. No. 111/93 on the file of the Small Causes and Addl. Civil Judge, mysore, partly decreeing the suit for partition. Parties are referred to as per their ranking in the Trial Court.

(2.) THE case of the plaintiff in the Trial Court is as follows: one Anjanappa was the common ancestor of the plaintiffs and defendants 1 to 11. The said Anjanappa died leaving behind his sons namely A. Sanjeevaiah and A. Kenchaiah. The said A. Sanjeevaiah and A. Kenchaiah werethe members of the joint Hindu Family. A. Sanjeevaiah died in the year 1950 and A. Kenchaiah died in the year 1963. Since the elder brother namely A. Sanjeevaiah was not well acquainted with worldly affairs, his younger brother A. Kenchaiah was the manager of the joint family looking after the joint family properties and managing the same on behalf of the members of the joint family. Plaintiffs 1 to 4 are the children of late A. Sanjeevaiah and defendants 1 to 6 are the children of late A. Kenchaiah. Defendant no. 7 is the wife of late Kenchaiah and defendants 8 to 11 are the legal representatives of deceased daughter of A. Kenchaiah, namely lalithamma. There was no division of the joint family properties between the two brothers A. Sanjeevaiah and A. Kenchaiah and both the brothers died undivided.

(3.) THE schedule mentioned i. e. , immovable properties belongs to the joint family consisting of two brothers. The katha of the schedule properties stood in the name of late A. Kenchaiah, who was managing the joint family properties. After the death of A. Kenchaiah, the plaintiffs and defendants 1 to 11 continued as members of the Hindu joint family and are in joint possession of all the immovable properties mentioned in the schedule. After the death of late A. Kenchaiah, plaintiffs 1 to 3 and defendants 1 to 4 jointly mortgaged some of the schedule properties for the purpose of joint family consisting of plaintiffs and defendants 1 to 11, as per the registered mortgage bond dated 12-1-1972 in favour of one Nagaraja Setty and in the said deed of mortgage defendants have admitted that the plaintiffs and the defendants are the members of joint Hindu Family both the plaintiffs and defendants have jointly discharged the said debt on 7-12-1988. On 16-10-1984, defendants 1 to 4 and plaintiffs 1 and 3 have executed a power of Attorney appointing plaintiff No. 2 as their power of attorney holder and empowered him to collect the rent from the tenants in respect of some of the items of the plaint schedule property. In the said power of attorney, defendants 1 to 4 have clearly admitted that the plaintiffs are the joint family members along with them. The second plaintiff and 2nd defendant have filed a suit in O. S. No. 352/81 on the file of Civil Judge, Mysore against the other plaintiffs and defendants for partition and separate possession of their share in the schedule properties. The said suit was dismissed on the ground of default under Order 9, Rule 8 of CPC. Plaintiff states that the said dismissal of the above suit is not a bar to the plaintiffs for filing this suit for partition. Plaintiffs together are entitled for half share in all the items of the plaint schedule properties and defendants 1 to 11 together are entitled for half share in the said properties. Defendants have taken a hostile attitude against the plaintiffs and defendants 1 to 4 have changed the katha of some of the schedule properties behind the back of the plaintiffs and have issued notices to the plaintiffs demanding rent from them. Hence, this suit is filed for declaration, partition and possession of plaintiffs' share in the plaint schedule properties and for mesne profits.