JUDGMENT :

H B PRABHAKARA SASTRY, J.

1. This is the 1st defendant's appeal. The present respondent No.1 as a plaintiff, had instituted a suit against the present appellant and present respondent No.2 arraigning them as defendant Nos.1 and 2 in O.S.No.16950/2004, in the Court of learned XXVIII Addl.City Civil Judge, at Mayohall Unit, Bengaluru, (hereinafter for brevity referred to as 'trial Court'), and had sought the relief of specific performance in the form of execution of a registered Rectification Deed and in the alternate, for partition and separate possession of 1/3rd share in Schedule Item Nos.1 to 3 properties and also for permanent injunction.

2. The summary of the case of the plaintiff in the trial Court is that, himself and defendant Nos.1 and 2, are the sons of one Sri U.Ramakrishna. Defendant No.1 i.e., the appellant, is the eldest among the three to the suit. All the three were residing jointly and acquired three sites out of their joint earnings, however, those sites were got registered in the name of defendant No.1/ appellant, since he being the elder member of the family and was also the Karta of the joint family. All the three sites i.e., Site No.25, Site No.13 and Site No.16, located in Mariyappanapalya, Kempapura Agrahara, Magadi Road, Bengaluru, were purchased from out of the joint family funds, however, in the name of defendant No.1.

The plaintiff and the defendant Nos.1 and 2 partitioned the joint family properties i.e., Site Nos.16, 25 and 13, through a registered Partition Deed dated 28.7.1981. In the said partition 'A' Schedule property i.e., Site No.16 (Schedule Item No.1 property), was allotted to the share of defendant No.1 and 'B' Schedule property i.e., Site No.25 (Schedule Item No.2 property), was allotted to the share of the plaintiff. However, while preparing the Partition Deed, the Site No.25 was wrongly mentioned as 'Site No.35' in the Partition Deed. Schedule 'C' property i.e., Site No.13 (Schedule Item No.3 property) was allotted to the share of the 2nd defendant. The 1st defendant constructed a residential house in 'A' Schedule property i.e., Site No.16 and started residing there. The plaintiff constructed four houses in Schedule Item No.2 property i.e., 'B' Schedule property, out of his self earnings and he started residing in one house and let out the remaining three houses. Item No.3 i.e., Site No.13, which was allotted to the share of defendant No.2, was sold by him. Taking undue advantage of the typographical error in the Partition Deed in respect of the property allotted to the share of the plaintiff, the defendants refused to execute the Rectification Deed and denied the title of the plaintiff and also caused interference in the said property of the plaintiff.

The plaintiff had entered into an Agreement of Sale of the said property i.e., 'B' Schedule property, in favour of one Smt.Rajamma, in which regard, he executed an Agreement of Sale on 4.9.2004. However, due to the wrong mentioning of the site number in the Partition Deed, the plaintiff was unable to execute a Sale Deed in favour of said Smt.Rajamma. The defendants refused to execute a Rectification Deed, as such, the plaintiff was constrained to institute the suit. The plaintiff alternatively prayed in his plaint for 1/3rd share in Schedule-'A to C' properties in case the Court comes to the conclusion that the Rectification Deed cannot be executed.

3. In response to the summons, defendant No.1 on his appearance through his counsel, filed a written statement, wherein he admitted his relationship with the plaintiff and the 2nd defendant. However, he specifically denied that all the parties were jointly residing and out of their joint earnings, they had purchased suit item properties at Schedule-'A to C' and that all those three properties were registered in the name of defendant No.1 only because he was elder among them. The defendant No.1 stated that there was no joint family status between the plaintiff and the defendants and tha