PRADEEP Vs. S B LALITHAMMA

JUDGEMENT

(1.) The defendant No.3 filed the present writ petition against the order dated 11.10.2017 on I.A.No.7 made in O.S.No.166/2011 dismissing the application filed by the defendants under Order 6 Rule 17 of Code of Civil Procedure.

(2.) The first respondent, who is the plaintiff before the trial Court filed suit for partition and separate possession in respect of her 1/3rd share in all the suit schedule properties morefully described in the schedule to the plaint i.e., item Nos.1 to 9 contending that the plaintiff and defendants are members of the joint family and there was no partition between joint family members at any point of time. Therefore, filed the suit for the relief sought for.

(3.) The defendants filed written statement and denied the plaint averments and contended that there was no cause of action and suit filed by the plaintiff is not maintainable. At para 12, it is specifically stated that the grand mother of the defendant Smt. Marulasiddamma died on 23.08.1999 and she died leaving behind her only legal heirs the father of the 3rd defendant lat Maheshwarappa and plaintiff and defendant she had own and possess land in Sy.No.52/1B measuring 2 acres and she died without executing any testamentary documents in favour of anybody. Hence, the plaintiff's father, the 3rd defendant and defendant No.5 are having equal 1/3rd share in the said Sy.No. i.e., suit schedule item No.6 only, and in other suit schedule properties either the plaintiff or the defendant No.5 have no right to claim any share and sought for dismissal of the suit.