GOTIKA SHANKAR Vs. GOTIKA MALLAIAH

JUDGEMENT

(1.) The appellant, respondents 1,2 and 4 and the husband of the 3rd respondent are brothers. The 2nd respondent, by name Gotika Narsoji, filed O.S.No.90 of 1993 in the in the Court of Junior Civil Judge, Manthani against the appellant and respondents 1,3 and 4, for partition of 16 shops said to have been constructed over an area of 14 guntas of land in the limits of Manthani Gram Panchayt and allotment of one-fifth share to him. The appellant figured as defendant No.3 in the suit. The 2nd respondent pleaded that the 1st respondent (D1) purchased 71/2 guntas of land, the husband of the 3rd respondent (D2) purchased 41/2 guntas and himself (D3) and 4th respondent (D4), an extent of 2 guntas; and that with the contributions made by all the co-owners, the shops were constructed. It was also alleged that permission was obtained from the Gram Panchayat in the name of 'Gotika Narsoji and Brothers' and that the investment was made in such a way that the inequalities in the shares in the land of the co-owners are balanced. He alleged that the 1st respondent initiated steps with the gram panchayat claiming the entire property exclusively for himself.

(2.) The main contest to the suit was by the 1st respondent. The 3rd respondent remained ex parte. Though the appellant and the 4th respondent filed written statements, they did not depose. The trial Court passed a preliminary decree through judgment, dated 05.11.2004 allotting 1/5th share in favour of the 2nd respondent i.e. plaintiff. No shares were allotted to any other parties.

(3.) The 1st respondent (D1) filed A.S.No.2 of 2004 in the Court of Senior Civil Judge, Manthani. He pleaded that the suit schedule property belongs to him exclusively and that the joint family properties were already partitioned though a decree passed in O.S.No.22 of 1993. The lower appellate Court allowed the appeal, through judgment, dated 11.10.2006. Hence, this second appeal.