S SUSHEELAMMA Vs. M R SHIVAKUMAR

JUDGEMENT

(1.) THIS second appeal is by the L. Rs. of the first defendant before the trial Court and they are aggrieved by the lower appellate Court reversing the judgment of the trial Court and decreeing the suit of the plaintiffs for declaration and separate possession of their 1/3rd share in the suit schedule property. The trial Court had dismissed the suit of the plaintiffs as having been barred by limitation.

(2.) THE facts, which are not in dispute, are as to the parties relationship with one another, inasmuch as the original propositus of the family was one Nanjegowda and his sons were one Patel Mallegowda, Mogannagowda alias puttaswamygowda. One Chikkegowda is the brother of Nangegowda and one M. C. Rudrappa is the son of said Chikkegowda. The plaintiffs viz. , Shivakumar, Mallesha, Vinoda and Chidananda are the sons of M. C. Rudrappa and so also the fourth defendant rajashekar. The other defendants were shanthappa and Puttappa, who are the sons of Patel Mallegowda, and M. P. Basavaraj, son of Mogannagowda and Rajeshekar, son of rudrappa. Thus, the parties have no grouse regarding their relationship.

(3.) THE paries do not' further dispute the fact of a partition having taken place in the family in the year 1961 and, as per the said partition, the joint family properties were partitioned and this partition did not include one item, which is the subject matter of the present suit. It is also an admitted fact that the suit property was mortgaged to one Sooranna shetty and that is why the said item did not find a place in the partition effected in 1961.