G YOGESHWARAPPA @ YOGENDRA Vs. MALLAMMA

JUDGEMENT

(1.) Defendant No.3 in O.S.No.39/1993 has filed this second appeal, assailing the judgment and decree passed by the Prl. District Judge at Shimoga, in R.A.No.21/2006, dated 08/01/2010, by which, the appeal filed by the appellant herein was dismissed by confirming the judgment and decree passed by the Civil Judge (Sr.Dn.), Sagar, in O.S.No.39/1993 dated 14/08/2006.

(2.) For the sake of convenience, parties herein shall be referred to, in terms of their status before the Trial Court.

(3.) Respondent Nos.1 to 5 herein are the plaintiffs, who filed the suit seeking declaration and separate possession of the suit schedule properties. According to them, the husband of plaintiff No.1 and father of plaintiff Nos.2 to 5, Veerabasappa is the son of Doddeerappa, through his first wife Basamma. Defendant Nos.2 to 5 are the sons of Doddeerappa through Smt. Siddamma i.e., second wife of defendant No.1. Veerabasappa and Doddeerappa died long time ago. Defendant No.2 was adopted by Rudrappa, brother of Doddeerappa on 21/05/1951 as he had no children. In fact the wife of Rudrappa, Smt. Gangamma took defendant No.2 in adoption on behalf of her husband. Rudrappa and Doddeerappa were divided and residing separately. According to the plaintiffs, defendant No.2 ceased to have any right in his natural family i.e., in the family of Doddeerappa after his adoption to Rudrappa's family. Doddeerappa, Kadappa, Rudrappa and Basappa are four brothers who were children of their father Veerabasappa. Kadappa had adopted Maheshappa on 21/10/1977 as he had no children. Maheshappa is plaintiff No.5. Veerabasappa, husband of defendant No.1 has been living separately as there were differences in the family. According to the plaintiffs on 10/04/1984, defendant Nos.1 to 3 and 5 got 'Jubhani Parikath' of the suit schedule properties, but ignored the share of husband of plaintiff No.1 and the said 'Jubhani Parikath' is not binding on the plaintiffs' share. Plaintiffs challenged the mutation in favour of defendants before the Assistant Commissioner and the said matter is pending. In the circumstances, they filed the suit seeking partition and separate possession of the suit schedule properties.