( 1 ) THIS appeal is directed against the judgment and decree dated 6-4-1991 passed in o. s. No. 3 of 1987 on the file of the civil judge and judicial magistrate first class, chintamani. In passing the said judgment and decree the civil judge was pleased to decree the suit in part.

( 2 ) I heard the learned counsel for the appellants Sri p. Subba rao and the lecarned counsel for the respondent Sri padubidri raghavendra rao. I have also perused the case records including the case records of the court of the civil judge and jmfc, chintamani, hereinafter referred to for convenience as the civil judge.

( 3 ) THE brief facts of the case are as follows : the appellants here in are the l. rs of the original plaintiff by name k. r. rajalakshmi devi. The appellants 1 and 2 are her sons and the appellant 3 is her husband. The original plaintiff-raj alakshmi devi died on 26-12-1987 during the pendency of the suit. She had filed originally o. s. No. 5 of 1973 before the court of civil judge, kolar, as against her brother chandrashekar, the respondent herein. When she had so filed the suit, the appellant 3 herein was arrayed as defendant 2. In the meantime, the said o. s. 5 of 1973 on the file of the civil judge at kolar was transferred to the civil judge, jmfc at chintamani, whereupon, the said suit was renumbered as o. s. No. 3 of 1987. When the suit was pending before the said court, the original plaintiff-raj alakshmi devi died and therefore the appellants herein were brought as her l. rs and in the process, the original defendant 2 stood transposed as the plaintiff 3 and therefore in the instant appeal, the l. rs of the original plaintiff are the appellants.

( 4 ) THE plaint allegations are as here under: the original plaintiff had filed a suit as against the respondent and the appellant 3 herein for partition and separate possession of four items of the immovable properties, more fully set out in schedule 'a' to plaint and further for partition and separate possession of suit schedule 'b' movable properties.

( 5 ) THE suit schedules 'a' and 'b' properties have been set out in the plaint as here under : "schedule 'a'1. Eleven shops with vacant sites of eastern and western sides of the shops built of s. no. 11/1 (since alienated) and bearing municipal No. 20/b (ii division) 83 sub-nos. 1 to 11, bounded on the east by appaiah's vacant sites, west by chelur road, north by shop belonging to muddalapalli reddappa, south by site of s. s. nanjundaramasetty. 2. Thirteen shops built on s. no. 73 sub-2 since alienated with vacant site on the eastern side bearing municipal No. 118, sub-nos. 1-13 in ii division, chelur road, chintamani town (sonnasettihally) bounded on the east: chelur road, west by chikka venkataswamy's buildings, north: k. Srinivasaiah's vacant land and buildings, south by chikka venkataswamy's buildings. 3. Twenty-five shops with compound with big building in chintamani town constructed on s. nos. 73/2 and s. no. 14 since alienated and now numbered as municipal No. 112 sub-nos. 1 to 30 bounded on the east : by chelur road, west by thope No. 10, north by nekkundi boundary, south by srinivasaiah's land and buildings. There are two rooms in this item built on the southern side within the compbund, with well and pumpset and power house with mulberry cultivation in the vacant land within the compound. 4. Residential building in n. r. extension, chintamani town municipal No. 107 in I division bounded on the east by : chitroji rao's building west by : kumbaria gopalakrishnaiah's land north by : conservancy road south by : municipal road. household utensils consisting of brassware, silverware and stainless silver wares, two copper boilers and other utensils worth Rs. 5,000/ -. 2. Cash in the hands of the 1st defendant, Rs. 5,000/- 3. Gold jewels in the custody of the 1st defendant worth Rs. 12,000/- 3 (a) water pipes 1/2" and 3/4" 21 lengths, Rs. 800/-".

( 6 ) THE appellant 3 had been arrayed as defendant 2 in the