JUDGMENT :

K. S. Mudagal, J.

This second appeal of plaintiff arises out of judgment and decree dated 19.06.2006 in R.A.No.146/2001 passed by the Fast Track Court-II, Bangalore Rural District, Bangalore. By impugned judgment and decree, the First Appellate Court allowed the appeal of defendant No. 3 and reversed the judgment and decree dated 04.07.2001 passed by Additional Civil Judge (Junior Division) & J.M.F.C., Anekal in O.S.No.209/1989 and dismissed the suit of plaintiff.

2. By the judgment and decree in O.S.No.209/1989, the trial Court decreed the suit of the plaintiff for declaration and permanent injunction.

3. Appellant was plaintiff. Respondent No. 1 was defendant No. 3. One Rama Reddy was defendant No. 1 and respondent No. 3 Kamal-amma was defendant No. 2 in O.S.No.209/1989. During the pendency of this appeal, Ramareddy died and his wife Gullamma was brought on record as his legal heir. She also died during the pendency of this appeal. She was survived by other parties on record.

4. For the purpose of convenience, parties will be henceforth referred to with their ranks before the trial Court.

5. Subject-matter of the suit was land bearing Survey No. 136/2 measuring 1 acre 35 guntas situated at Bikkanahalli village, Anekal Taluk and Survey No. 11/1 measuring 0.28. guntas situated at Samanahalli Village, Anekal Taluk.

6. Plaintiff, defendant No. 3 and Venkatesh Reddy husband of defendant No. 2 were sons of defendant No. 1 Rama Reddy and his wife Gullamma. Suit schedule properties were properties purchased by plaintiff’s paternal grandfather Muniswamy Reddy under sale deeds Ex.P5 and Ex.P6 on 26.06.1935 and 08.06. 1929. Muniswamy Reddy died in the year 1958.

7. Plaintiff filed suit claiming that Muniswamy Reddy has bequeathed suit schedule properties in his favour under Ex.P1 registered Will dated 06.10.1956. He further contended that since he was minor his mother Gullamma was appointed as his guardian in the Will and on he attaining majority, he was in exclusive possession and enjoyment of the properties. He contended that of late, defendants started to interfere in his possession and enjoyment of the properties without any right and sought decree of declaration of title and permanent injunction.

8. Defendant No. 1 filed written statement conceding the case of plaintiff. Defendant Nos. 2 and 3 filed written statement contesting the suit denying absolute ownership of Muniswamy Reddy and execution of the Will by him.

9. Defendant No. 3 contended that there was partition in the suit schedule properties on 03.07.1987 and in that partition, plaint schedule item No. 1 was allotted to the share of plaintiff and plaint schedule item No. 2 was allotted to the share of defendant No. 2, whereas defendant No. 2 contended that properties are joint family properties and her husband had share in the properties which she succeeds as his legal heir.

10. On the basis of such pleadings, the trial Court framed the following issues:

(1) Whether the plaintiff proves that his late grandfather Muniswamy Reddy executed a Will on 06.10.1956 and bequeathed the suit properties, thereby he is the owner in possession of the suit properties on the date of suit?

(2) Whether the plaintiff proves interference of defendants?

(3) Whether the plaintiff is entitled for Permanent Injunction?

(4) Whether the defendant proves that the suit properties are the joint family properties liable for partition?

(5) What Order or Decree?

11. Parties adduced evidence. Plaintiff was examined as PW.1 and got marked Ex.P1 to Ex.P6. Defendant No. 2 was examined as DW.1 and defendant No. 3 was examined as DW.3. Two witnesses DW.2 and DW.4 were examined. On their behalf, alleged partition deed was marked as Ex.D.1.

12. The trial Court after hearing the parties, decreed the suit on the following grounds:

(i) Defendant No. 1 who is the father of plaintiff, defendant No. 3 and Venkatesh Reddy conceded the case of plaintiff;

(ii) Defendant Nos. 2 and 3 have failed to prove Ex.D1 alleged partition d