M BASAVEGOWDA Vs. SHIVALINGAMMA

JUDGEMENT

(1.) THIS appeal by defendants 1, 3, 4 and 7 is directed against the judgment and decree dated 19-2-2003 passed by the Court of District Judge, chikmagalur in R. A. No. 17/2001 dismissing the appeal and confirming the judgment and decree passed by the Court of Civil judge (Senior Division), Chikmagalur, in o. S. No. 11/1997 dated 29-6-2001 wherein the suit of the plaintiffs has been decreed for partition and separate possession of 'x1/4th share in the suit schedule properties and for mesne profits from the date of suit to the date of delivery of possession.

(2.) THE essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows : the plaintiffs filed suit O. S. No. 11/1997 seeking for partition land separate possession of their 1/4th share in the suit schedule properties and for mesne profits and costs. It is averred that Muddalinge Gowda was the propositus and he has four sons by name malle-gowda (dead), Ninge Gowda, Putta gowda and Byre Gowda. Said Putte Gowda died issueless and Malle Gowda has 2 sons by name Basave Gowda i. e. defendant No. 1 and one Sidde Gowda. Ning Gowda got one son by name Chikke Gowda i. e. husband of defendant No. 6. Defendant No. 1-Basave gowda has got 3 sons, who are defendants 2, 3 and 4 and plaintiff No. 1 is the wife of byre Gowda and son of Muddalinge Gowda. Said Byre Gowda died leaving behind his wife plaintiff No. 1- and plaintiff No. 2 by name gowr-amma. The properties shown in the schedule are the joint family properties of said Muddalinga Gowda and his legal heirs i. e. the plaintiffs and the defendants. Schedule properties are the joint family and ancestral properties of the plaintiffs and the defendants and the plaintiffs are entitled to 1/4th share together in the schedule properties. However, in family arrangement, certain properties were allotted to the first plaintiff but no partition and separate possession of schedule properties is made to the first plaintiff by the defendants and wherefore the suit. On behalf of the defendants, defendants 1 and 3 appeared through their counsel on 4-6-1997 and defendants 2, 5 and 6 appeared through their counsel on 16-7-1997. Defendant No. 7 appeared through another counsel. Defendant No. 5 died and his legal representatives were brought on record. Notice was issued to the legal representatives of deceased 5 (a), (b) and (c), 5 (b and c)remained ex parte and 5 (a) was represented by the counsel. However, now of the defendants filed any written Statement and the matter was posted for the evidence of the plaintiff and the second plaintiff was examined as P. W. 1 and got marked Exs. P-1 to p-17 and accepting the unciments evidence of P. W. 1 and the documents produced by the plaintiff, the trial Court decreed the suit by judgment dated 29-6-2001 by declaring that the plaintiffs are entitled to 1/4th share and for mesne profits from the date of suit to the date of delivery of possession.

(3.) BEING aggrieved by the said judgment and decree, defendants 1, 3, 4 and 7 preferred R. A. No. 17/2001 on the file of the learned District Judge, Chikmagalur and the first appellate Court by judgment dated 19-2-2003 held that defendants did not file any written statement despite the opportunity given and negatived the contention of the appellant that they could not file the written statement, as they could not obtain the documents and their counsel was hospitalised. Accordingly, confirmed the judgment and decree passed by the trial court by dismissing the appeal.