RAMA BHAT Vs. VIJAYA KUMAR

JUDGEMENT

(1.) THE appellants were the defendants 1 and 2 in the Trial Court and respondents 1 and 2 in the first appellate Court. Respondents 1 and 2 herein were the plaintiffs in the Trial Court and appellants in the first appellate Court. 3rd respondent herein was defendant 3 in the Trial Court and respondent 3 in the first appellate Court. This second appeal has been preferred challenging the judgment and decree dated 25-7-2003 passed in R. A. 23/2001 by the Principal District judge, Dakshina Kannada, Mangalore, allowing the appeal filed by the plaintiffs and modifying the judgment and decree dated 16-9- 1988 passed in o. S. 23/1982 by the Civil judge, Puttur. For the sake of convenience, the parties in this judgment will also be referred by their status in the suit/trial Court.

(2.) FACTS in a nutshell are as follows : the case of the plaintiffs is that, they and the 3rd defendant are members of an undivided hindu family, which owned immovable properties detailed in schedule A to the plaint, which is their ancestral property. According to them, both themselves and 3rd respondent had 6/15th share inherited from Subbanna bhat, late father of the 3rd defendant. Contending that, the release deed dated 28-8-1961 executed by 3rd defendant in favour of the 2nd defendant, insofar as the plaintiffs 4/15th share is concerned is not binding on them and for a consequential decree of partition of the plaint A schedule properties into 15 fair and equal shares and allot them their 4 such shares and also to render accounts in respect of the income received by defendants 1 and 2 from the property, the suit was filed, which was contested by the defendants 1 and 2 by filing written statement. However they have not disputed the relationship between the parties, the deed dated 28-8-1961, having come into existence during the period of minority of the 1st plaintiff. Though, 3rd defendant filed the written statement, he has virtually conceded the claim of the plaintiffs. Based on the pleadings of the parties, the Trial Court framed as many as 19 issues. On behalf of the plaintiffs, pws. 1 to 5 have deposed and Exs. P1 to P19 were marked. For the defendants, DWs. 1 to 6 have deposed and Exs. D1 to D28 were marked. On assessing the evidence, the Trial court decreed the suit declaring that the release deed dated 28-8-1961 (Ex. P1/d1)executed by the 3rd defendant in favour of defendant 2 insofar as plaintiffs 1/15th share is concerned, is not valid and binding on the plaintiffs and that the plaint A schedule property be divided into 15 fair and equal shares with reference to good and bad soil and the plaintiffs be allotted one such share. Issue Nos. 10, 12 and 14 concerning the income from the suit property, the improvements effected by defendants 1 and 2 thereon and the liability or otherwise to pay mesne profits, were left open to be decided in the final decree proceedings.

(3.) THE defendants did not challenge the said judgment and decree passed by the Trial court either by filing the appeal or by preferring any cross objection. Plaintiffs alone preferred an appeal under Section 96 r/w Order 41 Rule 1 CPC in the first appellate court. The first appellate Court after perusing the record and hearing the arguments on both sides, has allowed the appeal and has passed the decree holding that the plaintiffs are entitled to 4/15th share in the plaint A schedule properties and not l/15th share as ordered by the Trial Court and the decree of the trial Court was thus modified and leaving open the remaining portion of the trial Court's decree undisturbed. This second appeal by the defendants is against the said judgment and decree.