PANDITRAYA Vs. SRIMANTHRAYA

JUDGEMENT

(1.) The appellants are before this Court under Sec. 100 of Code of Civil Procedure assailing the judgment and decree dated 26.03.2011 in O.S.No.20/2009 passed by the Civil Judge (Sr.Dn.), Aland by which suit of the plaintiff is dismissed and judgment and decree dated 17.11.2011 in R.A.No.65/2011 passed by IV Addl. District Judge.

(2.) Plaintiff filed suit in O.S.No.20/2009 before the Civil Judge (Sr.Dn.), Aland seeking the relief of declaration of title and injunction in respect of the suit schedule property measuring to an extent of 10 acre 28 guntas in Sy.No.457/1 situated at Kadaganchi village, Tq. Aland, Dist. Gulbarga. It is further stated that during the life time of father of the original plaintiff and defendants there was oral partition in the year 1984 in respect of the joint family properties and given to their respective shares of the plaintiff and defendants and another brother Hanamanthappa who is missing as on the date of the filing of the suit. It is the case of plaintiff that the land measuring 28 acres 39 guntas in Sy.No.159 has been purchased by the joint family before partition and the same was purchased out of the family funds in the name of defendant No.1-Srimanthraya. It is further averred that in the year 1996 a memorandum of partition was prepared on a stamp paper, which is in respect of partition taken place in the year 1984. The father of the plaintiff and defendants died on 26.01.1989. Even though partition had taken place in the year 1984, no changes were made in the record of rights. The four brothers are in absolute possession of their lands fallen to their shares in the partition. It is further case of the plaintiff that plaintiff is cultivating the suit land Sy.No.457 without interference by the defendants or from anybody. It is stated that in the month of May, 2009 the defendants interfered with the possession of the plaintiff seeking partition including the land in possession of the plaintiff. With the said cause of action, the plaintiff filed the suit for declaration and injunction against the defendant Nos.1 and 2. Defendants' case in nutshell:

(3.) The defendants appeared through their counsel. Defendant No.1 filed his written statement, which is adopted by the defendant No.2. The defendants denied the plaint allegations and also denied the oral partition alleged to have taken place in the year 1984 between the plaintiff, defendants and one more brother Hanamanthappa during the life time of their father Sharanappa. It is the contention of the defendants that the family is joint family in all respects and all of them are in joint possession of the properties. It is also contended that the suit schedule properties are the Hindu undivided joint ancestral properties and land in Sy.No.159 has been purchased by the father of the plaintiff long back in the name of defendant No.1 with joint family income. It is also stated that land Sy.No.125 has been purchased by the father of the parties during his life time in the name of defendant No.2. It is further contended that the defendants are illiterate and the plaintiff is the only literate person in the family. It is stated that plaintiff being the Manager of the family has purchased the land measuring 04 acres situated at Bailkund village in the name of his son out of the joint family fund which is suppressed in the plaint. It is further averred in the written statement that the suit is filed only to grab the share of Hanamanthappa who is unsound mind and issueless.