Dismissed

Patalappa C v. Muniyappa Since Dead by His Lrs

Karnataka HC13 Sept 2024RSA/1623/2009

Case brief

AI extract

What is this about?

Second appeals by defendants against reversal of the dismissal of a partition suit. The High Court found the defendants failed to plead a date for or prove an alleged prior partition with any document, upheld the finding that suit schedule properties were ancestral, and confirmed the plaintiffs' entitlement to 1/5th share each.

What did the court decide?

None to appellants; judgment and decree of First Appellate Court granting plaintiffs 1/5th share each in suit schedule properties confirmed.

Patalappa C Vs Muniyappa Since Dead by His Lrs — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1623 OF 2009 (PAR) C/W REGULAR SECOND APPEAL NO. 96 OF 2010

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IN RSA No. 1623/2009

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BETWEEN:

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PATALAPPA C S/O LATE CHIKKAPPANNA SINCE DEAD BY HIS LEGAL REPRESENTATIVES

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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1(A) SMT. PATALAMMA W/O LATE C. PATALAPPA AGED ABOUT 70 YEARS R/AT DODDA GUBBI VILLAGE BENGALURU EAST TALUK BENGALURU DISTRICT.

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1(B) SMT. RAJESHWARI D/O LATE C PATALAPPA AGED ABOUT 30 YEARS R/AT DODDA GUBBI VILLAGE BENGALURU EAST TALUK BENGALURU DISTRICT.

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…APPELLANTS

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(BY SRI. H.P. LEELADHAR, ADVOCATE)

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AND:

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MUNIYAPPA SINCE DEAD BY HIS LRS

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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1(A) SRI RAMESH S/O LATE MUNIYAPPA AGED 40 YEARS

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1(B) SRI RAVIKUMAR S/O LATE MUNIYAPPA AGED ABOUT 36 YEARS

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1(C) SRI CHANDRASHEKAR S/O LATE MUNIYAPPA AGED ABOUT 28 YEARS

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RESPONDENTS 1(A) - (C) ARE R/AT DODDAGUBBI VILLAGE, BANGALORE SOUTH TALUK - 562 149

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1(D) SMT RATHNAMMA W/O RAMANJANAPPA D/O LATE MUNIYAPPA SINCE DEAD BY HER LRS

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1D(a) SRI. RAMANJINAPPA S/O MUNISWAMAPPA AGED ABOUT 72 YEARS

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1D(b) SRI. MANJUNATHA S/O RAMANJINAPPA AND RATHNAMMA AGED ABOUT 36 YEARS

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1D(c) SRI. DAMODHAR S/O RAMANJINAPPA AND RATHNAMMA AGED ABOUT 29 YEARS

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1D(d) CHAITHRA

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S/O RAMANJINAPPA AND RATHNAMMA AGED ABOUT 26 YEARS

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RESPONDENTS 1D(a) TO 1D(d) ARE R/AT DODDAGUBBI (V)

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3 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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BENGALURU SOUTH TALUK NOW BENGALURU SOUTH TALUK BENGALURU - 560 077

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1(E) SMT VENKATAMMA W/O VENAKTESH D/O LATE MUNIYAPPA AGED ABOUT 48 YEARS R/AT RAMAPURA VIRGOA NAGAR POST BIDARAHALLI HOBLI, BANGALOER EAST TALUK.

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1(F) SMT VENAKTESHAMMA W/O NARAYANSWAMI AGED ABOUT 44 YEARS R/AT CHANNARAYAPATNA VILLAGE AND HOBLI DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT- 562 110

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RESPONDENTS No.1(B) TO (F) ARE REP. BY THEIR GPA HOLDER SRI. RAMESH, WHO IS RESPONDENT No.1(a)

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SRI. LAKSHMAIAH S/O LATE MUNISHAMAPPA AGED ABOUT 70 YEARS R/AT DODDAGUBBI VILLAGE BANGALORE SOUTH TALUK

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SRI CHIKKAPATALAPPA SINCE DEAD BY LEGAL REPRESENTATIVE

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3(A) KEMPAMMA W/O LATE CHIKKAPATALAPPA AGED ABOUT 60 YEARS,

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SRI RAJESHEKAR S/O DODDAPATALAPPA AGED ABOUT 31 YEARS

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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RESPONDENT Nos. 3(A) & (4) ARE R/AT DODDAGUBBI VILLAGE, BANGALORE SOUTH TALUK - 562 149.

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N. GOVARDHAN REDDY S/O SRI. N. RAGHAVAREDDY AGED ABOUT 37 YEARS R/AT No.008, 'B' BLOCK, NCC APARTMENT SAHAKARNAGAR BANGALORE - 560 092

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…RESPONDENTS

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(BY SRI. P.M. GOPI, ADVOCATE FOR SRI. P.M. SIDDAMALLAPPA, ADVOCATE R1(A) TO R1(C), R1(E) AND R1(F)

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SRI. GOPALA GOWDA H.K., ADVOCATE FOR R2 SRI. C.N. KESHAVA MURTHY, ADVOCATE FOR R3(A) & R4 R1D(a) TO R1D(d) AND R5 ARE SERVED BUT UNREPRESENTED)

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THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.8.2009 PASSED IN R.A.NO.273/2003 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.09.2003 PASSED IN O.S.588/1997 ON THE FILE OF THE ADDL. II CIVIL JUDGE (JR.DN) BANGALORE RURAL DISTRICT, BANGALORE.

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IN RSA NO. 96/2010

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BETWEEN:

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CHIKKAPATALAPPA SINCE DEAD BY LRS

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1(A) SMT. KEMPAMMA W/O LATE CHIKKAPATALAPPA, AGED 61 YEARS,

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5 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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SRI. RAJASHEKAR S/O DODDAPATALAPPA, AGED 32 YEARS

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BOTH ARE R/A DODDAGUBBI VILLAGE, BANGALORE SOUTH TALUK-562149

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...APPELLANTS

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(BY SRI. C N KESHAVA MURTHY., ADVOCATE)

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AND:

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MUNIYAPPA SINCE DEAD BY LRS

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1(A) RAMESH S/O LATE MUNIYAPPA, AGED 40 YEARS,

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1(B) RAVIKUMAR S/O LATE MUNIYAPPA, AGED 36 YEARS

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1(C) CHANDRASHEKAR S/O LATE MUNIYAPPA, AGED 28 YEARS

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1(D) RATHNAMMA W/O RAMANJANAPPA, D/O LATE MUNIYAPPA, SINCE DEAD BY LRS

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1D(a) SRI. RAMANJINAPPA S/O MUNISWAMAPPA AGED ABOUT 73 YEARS

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1D(b) SRI. MANJUNATHA

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S/O RAMANJINAPPA AND RATHNAMMA AGED ABOUT 37 YEARS

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1D(c) SRI. DAMODHAR S/O RAMANJINAPPA AND RATHNAMMA AGED ABOUT 30 YEARS

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6 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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1D(d) CHAITHRA S/O RAMANJINAPPA AND RATHNAMMA

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AGED ABOUT 26 YEARS

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ALL ARE R/AT DODDAGUBBI (V) BENGALURU SOUTH TALUK NOW BENGALURU SOUTH TALUK BENGALURU - 560 077

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1(E). SMT VENKATAMMA W/O VENAKTESH D/O LATE MUNIYAPPA AGED ABOUT 48 YEARS R/AT RAMAPURA VIRGOA NAGAR POST BIDARAHALLI HOBLI, BANGALOER EAST TALUK.

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1(F) SMT VENAKTESHAMMA W/O NARAYANSWAMI AGED ABOUT 44 YEARS R/AT CHANNARAYAPATNA VILLAGE AND HOBLI DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT- 562 110

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SRI. LAKSHMAIAH S/O LATE MUNISHAMAPPA AGED ABOUT 70 YEARS R/AT DODDAGUBBI VILLAGE BANGALORE SOUTH TALUK - 562 149

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SRI C PATALAPPA SINCE DEAD BY LEGAL REPRESENTATIVE

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3(A) SMT. PATALAMMA W/O LATE PATALAPPA AGED ABOUT 72 YEARS, R/AT DODDA GUBBI VILLAGE BENGALURU EAST TALUK BANGALORE DISTRICT - 562 149

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7 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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3(B) SMT. RAJESHWARI W/O SRI. RAJESH D/O LATE C. PATALAPPA AGED ABOUT 31 YEARS

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…..RESPONDENTS

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(BY SRI. H.P. LEELADHAR, ADVOCATE FOR R3(A), R3(B) SRI. GOPALA GOWDA H.K., ADVOCATE FOR R2)

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THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.8.2009 PASSED IN R.A.NO.273/2003 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.9.2003 PASSED IN O.S.588/1997 ON THE FILE OF THE ADDL. II CIVIL JUDGE (JR.DN) BANGALORE RURAL DISTRICT, BANGALORE.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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These regular second appeals are filed by the appellants challenging the judgment and decree dated 19.08.2009 passed in R.A.No.273/2003 by the learned Presiding Officer, Fast Track Court-III, Bangalore Rural District, Bangalore and the judgment and decree dated

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8 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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26.09.2003 passed in O.S.No.588/1997 by the learned Additional II Civil Judge (Jr. Dn.), Bangalore.

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For convenience, parties are referred to as per their ranking before the trial Court. In RSA.No.1623/2009, the deceased appellant is defendant No.1 and deceased respondent No.1 and respondent No.2 are plaintiff Nos.1 and 2, deceased respondent No.3 is defendant No.2 and respondent No.4 is defendant No.3. In RSA.No.96/2010, deceased appellant No.1 is defendant No.2, appellant No.2 is defendant No.3 and deceased respondent No.1 is plaintiff No.1, respondent No.2 is plaintiff No.2, deceased respondent No.3 is defendant No.1. The plaintiffs filed a suit for partition and separate possession regarding the suit schedule properties.

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The brief facts leading rise to the filing of the appeal are as follows:

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It is the case of the plaintiffs that the suit schedule properties are the ancestral properties of the plaintiffs and the defendants. The plaintiffs and the defendants are

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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members of the Hindu Undivided Family, and no partition has been effected between the plaintiffs and the defendants. The plaintiffs demanded for partition and separate possession, but the defendants refused to effect the partition. It is contended that defendant No.1, colluding with the other defendants, started acting adverse to the interest of the plaintiffs and making an attempt to create encumbrance over the suit properties to deprive the legitimate right, title, interest of the plaintiffs to the extent of their 1/5th share each in the suit schedule properties. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession.

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The defendants filed the written statement admitting the relationship of the plaintiffs with the defendants and it is denied that the suit schedule properties are the joint family properties of the plaintiffs and the defendants. It is contended that after the demise of their grandfather Muthappa, the only surviving son Appanna was not having any ancestral property to succeed and out of his six children, only surviving sons namely

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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Munishamappa, who is the father of the plaintiff acquired certain land bearing Sy.No.90/2 registered in the name of Munishamappa S/o Chinnappa, who is none than the father-in-law of the plaintiffs. It is contended that the properties bearing Sy.No.90/3, 34/1 and 34/2 are sold by the plaintiffs and their father in favour of one Seenpappa to an extent of 1 acre in Sy.Nos.90/3 and 2 acres 4 guntas in Sy.No.34/1 in favour of K.Thyagaraja and 1 acre 36 guntas in Sy.No.34/2 in favour of S.Gopal and having sold all their properties, now alleging that the suit schedule properties are the joint family properties, though there is no existence of joint family. Hence prayed to dismiss the suit.

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Defendant No.2 filed the written statement

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admitting the case of the plaintiffs, and defendant No.3 filed the written statement admitting the written statement filed by defendant No.2 and defendant Nos.2 and 3 have made a counterclaim regarding partition and separate possession.

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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The trial Court, on the basis of the pleadings of

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the parties, framed the following issues:

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1) Whether the plaintiff proves that the suit property is ancestral property as on the date of the suit?

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2) Whether the plaintiff proves that the geneology of his family?

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3) Whether the plaintiff proves that he is entitled to claim 1/5^th of share from the suit property?

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4) Whether the plaintiff proves that the physical and actual possession of the suit property?

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5) Whether the defendant proves that the suit is not properly valued and there is no cause of action?

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6) Whether the plaintiff proves that he is entitled to claim the relief as prayed for?

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7) What order or decree?

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The plaintiffs in order to substantiate their case,

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plaintiff No.1 was examined as PW.1 and got examined 2

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witnesses as PW.2 and PW.3 and got marked 15 documents as Exs.P1 to P15. In rebuttal, defendant No.1

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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was examined as DW.1 and got examined three witnesses as DW.2 to DW.4 and got marked 25 documents as Exs.D1 to D25. The trial Court after recording the evidence, hearing on both side and on assessment of oral and documentary evidence, I answer issue Nos.1, 3, 4 and 6 in the negative, issue Nos.2 and 5 in the affirmative and issue No.7 as per the final order. Consequently, the suit of the plaintiffs was dismissed vide judgment dated 26.09.2003. The plaintiffs aggrieved by the judgment and preliminary decree passed in O.S.No.588/1997 preferred an appeal in R.A.No.273/2003 on the file of learned Presiding Officer, Fast Tract Court-III, Bangalore Rural District, Bangalore.

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The First Appellate Court after hearing the parties framed the following points for consideration:

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1. Whether the trial Court is justified in dismissing the suit?

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1. Whether the judgment and decree of the trial Court is required to be interfered with in this appeal?

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13 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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9. The First Appellate Court, on re-assessment of

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the oral and documentary evidence, answered point No.1 in the negative and point No.2 in the affirmative. The First Appellate Court allowed the appeal vide judgment dated 19.08.2009 and set aside the judgment and decree passed by the trial Court and suit of the plaintiff was partly decreed with costs. It is ordered that the plaintiffs are entitled for 1/5^th share in the suit schedule properties and the suit was dismissed for relief of permanent injunction.

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The legal representatives of defendant No.1

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aggrieved by the judgment and decree passed in R.A.No.273/2003 preferred regular second appeal in RSA.No.1623/2009 and the legal representatives of defendant No.2 aggrieved by the judgment and decree passed in R.A.No.273/2003 preferred regular second appeal in R.A.No.96/2010.

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This court admitted the appeal on 03.10.2016 to consider the following substantial question of law :

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14 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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"Whether the lower appellate Court was right in reversing the finding of the trial Court that there was a separation between the parties and the joint family properties have been possessed separately and dealt with by the respective parties?"

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Heard learned counsel for the defendants and

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also the learned counsel for the plaintiffs.

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Learned counsel for the defendants submits that there was a prior partition between the ancestors of the parties. The said aspect was not considered by the Courts below. When the parties acted on the partition effected between the ancestors of the plaintiffs, the revenue records were held in the name of the respective parties. He submits that the First Appellate Court has not properly appreciated the material placed on record. He submits that the defendants have produced the revenue records to establish a prior partition between the ancestors of the plaintiffs and the defendants. He submits that PW.2 and PW.3 have admitted that there was a prior partition about 40 to 50 years back, and the said admission has not

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15 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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been properly appreciated by the trial Court, and the First Appellate Court has committed an error in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the plaintiffs

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submits that though the defendants have taken defence regarding prior partition, but the defendants have not produced any single document to establish that the prior partition between the ancestors of the plaintiffs and the defendants. He submits that the trial Court has committed an error recording a finding that PW.2 and PW.3 have admitted that there had been a previous partition among the parties. He submits that there is no such admission by PW.2 and PW.3. He submits that the parties have resided separately for about 40 to 50 years, and it is not an admission regarding the prior partition. He submits that there is no such admission on the part of PW.2 and PW.3 regarding the alleged prior partition. Hence, the First Appellate Court, considering the evidence of PW.2 and

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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PW.3, rightly held that there was no partition as alleged by the defendants. He submits that the impugned judgments

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passed by the First Appellate Court are just and proper and do not call for any interference. Hence, on these grounds, he prays to dismiss the appeals filed by the defendants.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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Substantial question of law : The plaintiffs in

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order to prove their case, plaintiff No.1 was examined as PW.1, and he has deposed that the suit schedule properties are the ancestral properties of the plaintiffs and

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the defendants, and they are the members of a Hindu Undivided joint family, and there is no partition effected in the suit schedule properties. The plaintiffs demanded for partition and separate possession, but the defendants refused to effect the partition. In order to establish that the suit schedule properties are the ancestral properties of the plaintiff and the defendants, the plaintiffs have

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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produced Ex.P1 is the genealogical tree, Ex.P2 is the mutation extract, Exs.P3 to P5 are the RTC extracts, Ex.P6 is the copy of legal notice, Exs.P7 and P8 are the acknowledgements, Exs.P9 and P10 are two Katha extracts, Exs.P11 to P15 are the RTC extract. In the course of cross-examination, it was elicited that the grandfather owned item No.4 of the properties and the said properties were self acquired properties of his grandfather, and he does not know the survey number of the said properties, and it was also elicited that first item, land measuring 3 acres 2 guntas and second item measuring 2 acres 2 guntas, third item measuring 3 acres, all the members of the joint family were enjoying the same except suggesting that there was a prior partition between the members of the parties. Nothing has been elicited from the mouth of this witness.

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Further, the plaintiffs also examined one

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Muniyppa as PW.2, and he has deposed that he knows the plaintiffs and the defendants and the grandfather of

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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plaintiff Nos.1 and 2, i.e., late Appanna, and he has deposed that all the six sons were jointly cultivating the suit properties. It is contended that defendants Nos.1 and 2 are the actual possession and enjoyment of the suit schedule properties, and no partition and division of the property took place amongst the joint families of the plaintiffs and the defendants. In the course of crossexamination, it was elicited that from 40 to 50 years, Badigappa, Chikkapatalappa and Munishamappa were residing separately, and PW.2 has denied the suggestion

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that there was a partition effected amongst Badigappa, Chikkapatalappa and Munishamappa in respect of their joint family and residing separately with their respective shares. Further, the plaintiffs also examined one Mariyappa as PW.3, who has deposed in the same line as PW.2, and it was elicited that the parties have resided separately for 30 years, but the said witness was also denied that there was partition effected in respect of agricultural lands.

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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In rebuttal, defendant No.1 was examined as DW.1, and he has reiterated the written statement averments in the examination-in-chief and in order to establish that there was a prior partition, the defendants have produced the copy of registered sale deed marked as Ex.D1, Exs.D2 to D4 are the RTC extracts, Ex.D5 is the certified copy of the RTC, Exs.D6 to D11 are the RTC extract, Exs.D12 and 13 are the tax paid receipts, Exs.D14 to D18 are the land tax assessment extracts, Exs.D19 and D20 are the endorsements, Exs.D21 to 23 are the certified

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copy of the sale deed, Ex.D24 is the pahani and Ex.D25 certified copy of supplementary deed. DW.1 has contended that the partition was effected between the family members, but DW.1 has not produced any records to establish the prior partition and in the course of crossexamination, he pleads ignorance about the proposed property owned by Appanna and DW.1 volunteers that whatever the properties owned by Appanna was partitioned among his children and he has pleaded ignorance about the survey numbers of the properties

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20 - NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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owned and partitioned by the Appanna and he is not a member of the survey number of the properties, which fallen to the share of the plaintiffs property and it is elicited that except Ex.D21 to D24, he had no other documents to establish that the suit schedule properties are the ancestral properties and it was suggested that there was no partition effected between the plaintiffs father and father of DW.1.The said suggestions was denied by DW.1. Further, the plaintiff also examined one Bahhcappa as DW.2 and he has deposed that the plaintiffs

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and the defendants have owned the agricultural land at Gubbi village and his land is situated adjacent to the property of defendant No.1 and he had seen the father of defendant No.1 and father of the plaintiffs. For several years, the plaintiff's father and the father of defendants Nos.1 and 2 were residing separately and independently, and they were cultivating the land fallen to the respective shares. In the course of cross-examination, it was elicited

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that he pleads ignorance that one Muthappa was the original owner of the suit schedule properties, and he does

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

¶161

not know how the defendants have acquired the suit schedule properties and he do not know that the suit schedule properties are the ancestral properties of six brothers and he also admits that during the lifetime of above six persons, the joint family properties are not partitioned and he do not know the six brothers are jointly cultivating and enjoying the properties and how many extent of land owned by six brothers and he do not know the partition effected among six brothers and he admits that he has not seen any revenue records in respect of the

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suit schedule properties. The defendants have examined one Rajanna as DW.3, and he has deposed that item No.2 of the plaint schedule property was cultivated by defendant No.1, and the plaintiffs are never in possession of item No.2 of the suit schedule properties. In the course of cross-examination, he has pleaded ignorance regarding the properties. He admits that the suit properties are the ancestor's properties of the plaintiffs' father, and he has not seen the revenue records with respect to the suit schedule properties. He admits that the plaintiffs' father

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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and the defendants' father are the brothers and it was suggested to DW.3 that the plaintiffs and defendants are in joint possession and enjoyment of the suit schedule properties. The defendants also examined one Chikkapatalappa as DW.4, and he has deposed in the same line of DW.1 from the perusal of the evidence of the parties and further from the defence taken by the defendants that the suit schedule properties are the ancestral properties of the plaintiffs and the defendants. It is the case of the plaintiffs that the plaintiffs and the defendants are the members of Hindu undivided family and there is no partition effected. The defendants have taken the defence that there was a prior partition.

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From the perusal of the written statement filed by the defendants, the defendants have not pleaded in the written statement when the alleged partition took place between the ancestors of the parties, and further, no document has been produced by the defendants to establish that there was a prior partition between the

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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plaintiffs and the defendants ancestors. Further, the defendants have not examined witnesses who were present at the time of alleged partition. The defendants, except pleading, have not produced any records to establish the prior partition.

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Admittedly, the plaintiffs and the defendants are members of a Hindu undivided family. As observed above, the defendants have failed to prove the prior partition. When the defendants failed to prove the prior partition, the suit schedule properties are the ancestral properties of the plaintiffs and the defendants. Hence, the plaintiffs are entitled to share the properties in the suit schedule. The First Appellate Court, considering the entire material on record, was justified in holding that the suit schedule properties are the ancestral properties of the parties to the suit. There is no partition effected between the parties and rightly decreed the suit of the plaintiffs. I do not find any error in the impugned judgment, and I answer the substantial questions of law in the affirmative.

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NC: 2024:KHC:37771 RSA No. 1623 of 2009 C/W RSA No. 96 of 2010

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Given the facts above and circumstances, I

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proceed to pass the following:

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ORDER

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i. The appeals are dismissed.

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ii. The judgment and decree passed by the First Appellate Court is hereby confirmed.

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iii. No order as to the costs.

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In view of dismissal of the appeals, pending I.As., if any do not survive for consideration and are accordingly disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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SSB

Patalappa C v. Muniyappa Since Dead by His Lrs

Case brief

What is this about?

What did the court decide?

Patalappa C v. Muniyappa Since Dead by His Lrs

Case brief

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What did the court decide?

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