A.R. REVANNAIAH Vs. A .R. HIRIYANNAIAH

JUDGEMENT

(1.) The plaintiff in O.S. No.461/1995 on the file of Civil Judge (Jr. Dn.), Beluru, has come up in this second appeal impugning the divergent finding rendered in R.A. No.368/2005 (old No.101/2002) on the file of Fast Track Court-I and Additional District Judge, Hassan, wherein the judgment and decree passed by the trial Court dated 17.09.2002 in decreeing the suit of the plaintiff is modified by redistributing the suit schedule properties amongst appellant (defendant No.2), respondent No.1 (plaintiff) and respondent No.2 (defendant No.1) in the manner shown in the judgment dated 24.08.2005 in the said Regular Appeal.

(2.) The plaintiff - A.R. Revannaiah, defendant No.1 - A.R. Hiriyannaiah, defendant No.2 - Smt. Sowbhagya and one Channabasavaiah are the children of the propositus, namely Rudraiah. Defendant No.3 - Mohan Kumar, who was subsequently impleaded in the suit, is none other than the son of defendant No.1 - A.R. Hiriyannaiah. The plaint averments indicate that during the year 1984-85, there was partition of all the properties of the family amongst Rudraiah and his three sons, namely A.R. Revannaiah, A.R. Hiriyannaiah and Channabasavaiah and in the said partition, suit schedule item Nos.1 to 3 had fallen to the share of Channabasavaiah and suit schedule item Nos.3(a) to 5 had fallen to the share of Rudraiah. So far as suit schedule item No.6, which is house with vacant site is concerned, it is stated that the same had fallen to the joint share of Rudraiah and his three sons viz., plaintiff, defendant No.1 and Channabasavaiah. The khata of the house stood in the name of Rudraiah. Rudraiah died in the year 1993. The third son of Rudraiah, namely Channabasavaiah, died as bachelor on 15.07.1994.

(3.) It is the case of the plaintiff that himself and defendant No.1 are the only legal heirs of their father, Rudraiah, as well as their brother, Channabasavaiah, and hence, they are entitled to half share each in all the suit schedule properties. According to the plaintiff, defendant No.1, who is his elder brother, refused to give him his share in the suit properties and in spite of legal notice got issued to him, he did not give any reply. Hence, plaintiff filed the suit for partition and separate possession of his half share in the suit schedule properties and also sought for enquiry under Order 20 Rule 12 of the Civil Procedure Code with reference to the income that is derived from the suit properties from the date of the suit till the date of possession.