NEELAM RAGAVAIAH ALIAS GUNDAIAH Vs. NEELAM KRISHNAIAH

JUDGEMENT

(1.) The appellants are the legal heirs of Neelam Ragavaiah @ Gundaiah, the sole plaintiff who filed the suit before the lower court for the relief of partition of the suit property on the ground that the suit property alone was kept in common, while the other properties belonging to the family were divided among the members of the family. The sole defendant also is no more and the respondents herein are the legal representatives of the deceased sole defendant. The original plaintiff and the original defendant were brothers.

(2.) Admittedly, the properties they owned jointly including the suit property were their ancestral properties and each one of them was entitled to half share. It is also admitted that there was a division not only in status, but also in respect of the properties in metes and bounds in respect of all other properties excepting the suit property which measures around 0.34.5 hectares. The contention of the original plaintiff (deceased) was that the said property was left to be enjoyed in common as a thrashing floor.

(3.) Per contra, the original defendant (deceased), besides disputing the above said contention of the plaintiff, contended that the suit property was one of the properties allotted to him in the oral partition that admittedly took place 10 years prior to the filing of the suit. When such is the case, the onus of proving that the parties decided to leave one of the properties alone, namely the suit property alone, as a common property to be enjoyed by them jointly, lies heavily on the person asserting the same. In this case, the predecessor of the appellants viz. plaintiff should have adduced evidence to prove the same. Except the ipse dixit of the plaintiff, who figured as the sole witness on his side and documents obtained subsequent to the filing of the suit, namely chitta, adangal, etc., the plaintiff had not adduced sufficient evidence to prove that the suit property was left to be enjoyed in common by the deceased plaintiff and the deceased defendant.