T.C. GOPALAIAH Vs. THAMMANNA

JUDGEMENT

(1.) This appeal is preferred against the concurrent findings of the judgment rendered by Senior Civil Judge, Maddur, in O.S. No.38/2007 dated 27.01.2012 dismissing the suit of the plaintiff for partition and delivery of separate possession of his half () share in the suit schedule property, which is confirmed by the Principal District Judge, Mandya, by its judgment dated 25.04.2013 in RA No.33/2012.

(2.) The brief factual matrix of the case is that, the plaintiff and the 1st defendant are the direct brothers. After the death of their father-Channegowda in the year 1976, they have partitioned the suit schedule property and other ancestral properties in the year 198 As per the partition, in the Suit Schedule Site, plaintiff has got 65 ft. x 45 ft. and the remaining extent of 65 ft. x 125 ft. was allotted to the 1st defendant. Since long, they have been in possession and enjoyment of their respective shares. It is also admitted that after the said oral partition, the plaintiff has sold some of his properties fallen to his share and likewise, the 1st defendant also sold some properties fallen to his share. It is the further case of the plaintiff that the 1st defendant became the Mandal Panchayat Member and thereafter it appears he made an application colluding with the officials and got changed the katha of the entire suit schedule property into his name, as if he is the absolute owner of the entire extent of 70 ft. x 170 ft.. The said order of the panchayath has been challenged in GPA No.6/1998 and the said case came to be allowed. Aggrieved by the said order, the 1st defendant preferred an appeal before the Zilla Panchayat in Appeal No.30/1998- 99,which came to be dismissed. The 1st defendant again preferred a writ petition in W.P. No.12351/2004 before the High Court of Karnataka, Bengaluru and the High Court has disposed of the said writ petition vide order dated 30.11.2006 with a direction to restore the katha in respect of the said site in the name of the father of the plaintiff and the 1st defendant, leaving open to the parties to prove their case respectively before the competent Court. By that time, the plaintiff had already filed a suit in O.S. No.83/2001 for the relief of declaration and consequential relief of injunction in respect of the property allotted to him. However, the said suit came to be dismissed for non-prosecution and it appears the plaintiff did not persuade the Court for restoration of the said site allotted to him and as such it logically came to an end. to appears thereafter, the plaintiff has filed this suit claiming equal share in the said site measuring 70 ft. x170 ft. by way of partition and separate possession.

(3.) The defendants appeared through their counsel and filed the written statement specifically the 1st defendant has taken up a contention admitting the partition in the year 1982 and allocation of certain ancestral properties in favour of the plaintiff and the 1st defendant. It is his claim that as per the partition, the entire suit schedule property had fallen to his share and katha of the said property has been effected in the name of the respective parties and the defendant was accordingly got changed the katha in his favour. It is contended by the 1st defendant that after partition, the plaintiff has sold a portion of his property to one Shivaraj, wherein, he has categorically shown the western boundary to the said property as vacant site belonging to the plaintiff, which is the suit schedule property. The 1st defendant has also taken up a contention that the suit filed by the plaintiff claiming only the right over the property measuring 65 ft. x 45 ft. has been totally given up during the course of evidence and the plaintiff has claimed that at the time of oral partition between the parties, the suit schedule property has been excluded from the said partition. Therefore, he is entitled for half share in the said property. It is contended that the plaintiff cannot blow hot and cold at a time. For all these reasons, he has submitted that, the plaintiff- s suit is not maintainable and the same is liable to be dismissed.