SEETHARAMA NARAYAN HEGDE (SINCE DECEASED BY HIS LRS AND OTHERS) Vs. VENKATARAMANA SESHAGIRI SHET (SINCE DECEASED BY HIS LRS AND OTHERS)

JUDGEMENT

(1.) THIS second appeal is by the 1st defendant in O.S. No. 26/1972 on the file of the Court of Munsiff at Kumta, which suit was decreed by the trial Court not once but twice. Once earlier the Lower Appellate Court had remanded the matter to the trial Court and it has been affirmed by the Lower Appellate Court in the second round of first appeal by the 1st defendant and to get over this decree, the present second appeal.

(2.) SUIT is one for separate possession of 1/9th share of the plaintiff in the suit schedule properties, which were described to be joint family properties of the plaintiff and defendants 8, 9, 10, 11, 12 and 13 and three other members, who did not figure as defendants in the suit. Defendants 1 and 2 who are described as the purchasers of shares of two other members of the family viz., one Mahabaleshwar Ganapathi Shet and Manjunath Ganapathi Shet have been arrayed as defendants for the reason that the shares of those members of the family who it was conceded have sold their share in the family property in favour of defendants 1 and 2, while another member of the family who according to the plaintiff was entitled for a share viz., Chidambara Sheshagiri Shet was also not included as a defendant on the premise that the share of this member of the family had been given even earlier and that was suit item No. 9 of the properties in the schedule and therefore, there was no need to implead that member of the family as a defendant. Plaintiff had impleaded defendants 3, 4 and 5 as persons who had purchased suit items 1, 2, 4 and 5 from the 1st and 2nd defendants and therefore, they were added as defendants to the suit and defendants 6 and 7 are pleaded to be the purchasers of suit Item No. 3 from defendants 1 and 2 again and therefore they were also added as parties in as much as the plaintiff was claiming a share in respect of the suit items 1 to 8 in the schedule to the plaint. It was pleaded that suit item No. 9 was given to Chidambara Sheshagiri Shet who was not impleaded as a defendant to the suit in terms of partition suit 17/1947 and therefore, the plaintiff did not claim any share in the suit item and thus there was no need to implead the said Chidambara Sheshagiri Shet as a party to the suit. Plaintiff also sought for mesne profits for the past three years from the date of filing of the suit

(3.) THE 2nd defendant virtually reiterated the defence of the 1st defendant by filing a separate statement but defendants 6 and 7 through a memo adopted defence of defendants 1 and 2. The other defendants did not file any statement either contesting or supporting the case of the plaintiff.