MARAPPA Vs. CHOODANATH

JUDGEMENT

(1.) The Second Appeal has been preferred as against the decree and judgment dtd. 25/4/2014 passed in A.S. No.15 of 2013 on the file of the Subordinate Judge, Hosur wherein the 1st respondent herein, being the Plaintiff, had filed the Suit for partition and separate possession and alternatively to declare the title of the Plaintiff to the 2nd schedule of the properties and for costs. The trial Court decreed the Suit for the alternative relief of declaration. Aggrieved by the said decree and judgment, the defendants 1, 6 and 11 have preferred the Appeal Suit in A.S. No.15 of 2013 before the Subordinate Judge, Hosur. The First Appellate Court dismissed the appeal Suit by confirming the decree and judgment of the trial Court. Aggrieved by the said decree and judgment, the present Second Appeal has been preferred by the said defendants.

(2.) The case of the Plaintiff before the trial Court is that the Plaintiff is the son of the 1st defendant. The defendants 2 to 5 are the brothers of the Plaintiff and sons of the 1st defendant. The 1st defendant had three daughters and they got married before 1989. Therefore, they are not entitled to any share over the Suit properties. The 6th defendant is the son of one Kenchamma, who is the daughter of the 1st defendant. The Suit properties are the ancestral properties of the Plaintiff and the defendants 1 to 5 and they have been jointly possessing and enjoying the Suit properties. There is no partition took place between the Plaintiffs and the defendants. The 1st defendant being the father of the Plaintiff and the defendants 2 to 5 has been managing the Suit properties as a Joint Family Kartha. The 6th defendant is a proforma defendant in the above Suit for the purpose of adjudication of the Suit. The Plaintiff is in joint possession and enjoyment of the Suit properties along with the defendants 1 to 5. The defendants 1 to 5 were on eremitical terms due to women folk with the Plaintiff. The Plaintiff had been demanding the partition of the schedule properties, but the defendants refused for the amicable partition. On the other hand, they tried to alienate the properties in favour of the 6th defendant or to third parties. Therefore, Suit has been instituted by the Plaintiff for partition.

(3.) The ancestral nature of properties and joint possession are denied by the defendants. The case of the 1st defendant is that the Plaintiff is not in joint possession and enjoyment of the Suit properties along with the defendants. The Plaintiff is not entitled to 1/6th share over the Suit properties. There is no cause of action for the Suit. The Suit property has not been properly valued and the Court fee paid is not correct. In fact, about 7 years ago, the properties were divided and on the basis of the said division, a Panchayat Muchalika was taken place. In the family arrangement, the Plaintiff was allotted and he has been in possession and enjoyment of the same. As such, the defendants 1 to 5 also got properties and they were in separate possession and enjoyment of the same. The properties of the 1st defendant's wife were divided among the daughters of the 1st defendant. Thereafter, all the parties are in separate possession and enjoyment of their respective shares. The 2nd defendant sold a portion of his share to one Krishnappa of Nagandapalli. As such other transactions were also taken place after their family arrangement. The 1st defendant got his share and he is in separate possession and enjoyment of the same and he is entitled to alienate the properties as per his wish. After obtaining their respective shares, the parties made several developments by spending huge amount. The Plaintiff is in out of possession in others' shares. If the Plaintiff has got any grievance, he should have sought for the relief to set aside the partition. Therefore, the Suit is liable to be dismissed.