JUDGMENT:

TARUN CHATTERJEE, J.

1. Leave granted.

2. This is an appeal by special leave against the judgment and final order dated 24th of July, 2006 of the High Court of Karnataka at Bangalore in RFA No. 126/2006 whereby the High Court had affirmed the decision of the Trial Court dismissing the suit ofthe appellant for partition and separate possessionalong with mesne profits.

3. The relevant facts leading to the filing of thisappeal, as emerging from the case made out by theappellant in the plaint, are as under:-

Late Anjanappa had twosons viz.,Ramakrishnappa and Venkataramachar, arrayed asdefendant Nos. 1 and 2 in the suit. DefendantNo.2/respondent No.2is the father of theplaintiff/appellant. Defendant No. 3/respondent No.3 isthe wife of Defendant No. 1/respondent No.1. WhenAnjanappa was alive, he was serving as an Archak ofSri Anjaneya Swamy Temple situated in Belesivalayaand there were Devadaya inam lands attached to thetemple, which were cultivated by him. AfterAnjanappas death, the said lands were granted to the respondent No. 1 with the consent of the Tehsildarobtained on the ground that he was the eldest son ofAnjanappa. Apart from these inam lands, LateAnjapppa also possessed ancestral and self acquiredproperties and after his demise, the respondent No.1was acting as the manager of the family but the jointfamily of the appellant and the respondents possessedall these properties as joint family properties describedin Plaint Schedule A to D of the plaint.

4. Schedule Aconsisted of ancestral properties viz., two agriculturallands measuring 4.11 acres and 1.34 acres respectivelyand five house sites. Schedule B property was a vacantsite. Schedule C property consisted of two agriculturallands, which were inam lands, granted subsequently inthe name of respondent No.1. Schedule D propertieswere moveable properties. There was no partitioneffected by metes and bounds and the respondent No.1, taking advantage of the simplicity of respondent No.2was managing all the properties and had also refused toeffect partition.

5. On 4th of July, 1988, the appellantissued a legal notice to the respondent No.1 demandingpartition of the joint family properties. The respondentNo.1 replied to the said notice alleging that themoveable properties had already been partitioned on23rd of April, 1962 and subsequently on 8th of May,1996, the immoveable properties were also partitioned.Since the respondent No. 1 refused to partition theimmovable properties, the appellant was constrained tofile the suit for partition and separate possession of hisshare in Plaint A to D schedule properties along withmesne profits.

6. The respondent no.1 and 3 entered appearance byfiling a written statement in which they denied the material allegations made in the plaint. In the writtenstatement, it was alleged by them that since partitionhad already been effected between respondent no.1 andrespondent no.3 i.e. the father of the appellant and thatthey were separately enjoying the properties that hadfallen to their respective shares. It was further allegedthat after the death of Anjanappa, respondent No.1,became the archak of the said temple and he waslooking after and cultivating the lands attached to thesaid temple i.e. `C schedule properties of the plaint.

7. After coming into force of the Mysore (Religious andCharitable Inams) Abolition Act, 1955, (in short `theAct) the respondent No.1 filed an application for grantof occupancy rights in respect of `C scheduleproperties as the Archak of the temple which wasconferred on him.

8. The respondent No.2 supported the plaint caseand deposed that there was no partition of theproperties by metes and bounds and that therespondent No.1 did not allow him to cultivate thelands belonging to the joint family but only a smallportion of the same was allowed to be cultivated. Thereason behind staying under separate mess was statedto be the quarrel between the women in the family.

9. The Trial Court by the judgment and order dated25th of January, 19