JUDGMENT :

SREENIVAS HARISH KUMAR, J.

1. The plaintiff in O.S. No. 219/1987 on the file of Principal Civil Judge (Senior Division), Shivamogga, has preferred this appeal. He brought a suit for re-opening of the partition dated 19.5.1955 and claimed 1/6th share in the properties described in schedule ‘A’ to the plaint except items No. 2 and 3, and another 1 acre 16 guntas of land in Item No. 18; for directing the defendants to pay to him Rs. 31,000/- being the value of his 1/6th share in the proceeds of sale of properties described in schedule ‘B’ and for enquiry into mesne profits.

2. The pedigree filed by the plaintiff shows that one Imanna was the common ancestor and his wife was Nagu Bai. They had three sons namely Keroji Rao (deceased), Nemoji Rao, i.e. defendant No. 1 and K. Kaloji Rao, defendant No. 15. Plaintiff is the son of K. Kaloji Rao. Defendant No. 14 Laxmi Rao is the third wife of Keroji Rao. Defendants 7 to 13 are the children of Keroji Rao. Defendants 2 to 6 and 16 and 17 are the children of Nemoji Rao.

3. The plaintiff stated that on 19.5.1955 there took place a family partition according to which his senior uncle Keroji Rao was allotted plaint schedule item No. 1, Shankar Rao, i.e. defendant No. 7 and son of Keroji Rao was allotted plaint schedule items 2 to 5, the first defendant Nemoji Rao was allotted items 16 to 19 and K. Kaloji Rao, i.e. plaintiff’s father was allotted item No. 20. The wife of the propositus, i.e. Nagu Bai was allotted items 6 to 10. The seventh defendant Shankar Rao was still a minor at the time of partition. Since the value of the properties given to the first defendant was more than the values of the shares of other parties, the first defendant was assigned with a debt of Rs. 6,500/-.

4. The plaintiff pleaded that he was not at all aware of this partition till the year 1986. His father Kaloji Rao was not intelligent and lacked worldly knowledge. His elder brothers used to dominate him. Taking advantage of the innocence of Kaloji Rao, his two brothers arrived at a partition which was not fair. After coming to know about the partition, when the plaintiff enquired defendants 1 to 7, there was no proper response from them. He searched for the papers and also obtained certified copy of the partition deed and other documents pertaining to family properties. He came to know that even after 19.5.1955, some properties had been acquired from the business of the joint family. He alleged fraud on his father by his two uncles in effecting partition dated 19.5.1955 and therefore sought for re-opening of the partition.

5. Defendants 1 to 6 in their written statement admitted the relationship of parties stated by the plaintiff, but denied any fraud in effecting partition in the year 1955, they contended that the said partition was fair and just and stated further that acquisition of properties after 19.5.1955 did not belong to the joint family and all those properties belonged to them exclusively. They stated that the plaintiff was very much aware of the partition and the suit filed in the year 1987 was highly time barred. Defendants 7, 16 and 17 also filed written statement refuting all the plaint allegations and prayed for dismissal of the suit. Defendant No. 15, i.e. the father of the plaintiff filed written statement supporting the plaintiff and stated that he was not aware of the partition deed effected in the year 1955. Defendant No. 8 in her written statement stated that she was not aware of the partition deed and sought for allotting 1/8th share in her father’s 1/3rd share.

6. The trial court raised 20 issues and then framed three additional issues on 21.7.1994 and two more additional issues on 6.6.2002. Three witnesses PWs. 1 to 3 adduced evidence from plaintiff’s side and got marked Exs.P1 to P135. From defendants’ side, two witnesses DWs. 1 and 2 adduced evidence and produced 22 documents Exs.D1 to D22.

7. The trial court, upon appreciation of evidence came to conclusion that the partition deed da