KARIBASAPPA Vs. DYAMAKKA

JUDGEMENT

(1.) This is a plaintiff's second appeal assailing the correctness and legality of judgment and decree dated 18.11.2009 passed by Civil Judge (Sr. Dn.), Hiriyur, in R.A.No.110/2006 whereunder appeal filed by defendants 1 and 2 in O.S.No.244/2003 came to be allowed by setting aside the partial decree passed by the trial Court in decreeing suit for partition, insofar as, item No.4 of suit schedule property is concerned by declaring that partition effected between defendants 1 to 3 on 25.03.1988 is not binding on the plaintiff having been set aside by the appellate Court.

(2.) Facts in brief which has led to filing of this second appeal can be crystalised as under:

(3.) After evaluating entire evidence tendered by parties both oral and documentary, learned trial Judge decreed the suit in part and held that insofar as partition dated 25.03.1988 effected between husband of first defendant and father of second defendant and grandfather of plaintiff i.e., third defendant, is not binding on plaintiff insofar as item No.4 of the suit schedule property by arriving at a conclusion that said property was allotted to the share of son of Sri.Kariyappa i.e., Sri.P.K.Rudrappa (second defendant). Plaintiff though suffered a dismissal of suit insofar as item Nos.1 to 3 of suit schedule properties are concerned, did not challenge the same for reasons best known. However, suit having been decreed in respect of item No.4 of the property is concerned, defendants 1 and 2 preferred an appeal in R.A.No.110/2006. Learned appellate judge after considering the rival contentions raised formulated following points for determination: