The main legal point established in the judgment is that the burden of proof lies with the parties claiming a partition, and without convincing evidence, the court may decree the suit in favor of the party claiming entitlement to the joint family properties.

JUDGMENT

1. This appeal is filed by the defendant Nos.1 and 2 in O.S.136/2012 challenging the concurrent finding of fact recorded by both the Courts that the plaintiff is entitled to an undivided share in the suit schedule properties.

2. The parties shall henceforth be referred to as they were arrayed before the Trial court.

3. The plaintiff contended that he and defendant Nos.1 to 4 are the children of Venkatappa, who was the propositus of a joint family which owned the properties mentioned in the suit as 'A' Schedule properties. The 'B' Schedule properties were purchased by Venkatappa out of the income generated from the 'A' Schedule properties. He claimed that the revenue records of the 'A' Schedule properties stood in the name of his grand father Govindaiah and was not transferred to the name of Venkatappa, but he managed the suit properties as a Kartha till his death in 1994. It was alleged that the suit properties were not partitioned, and therefore, they continued to be the joint family properties of plaintiff and defendant Nos. 1 to 4. The plaintiff was a Government employee, and therefore, he could not apply himself for the up-keep and management of the joint family properties. He claimed that he retired in the year 2006 and then he came to know that defendant Nos.2 and 3 were making arrangements to alienate the suit properties. It was then that the plaintiffs realized that based on some concocted documents, the defendant Nos.2 and 3 had managed to get the revenue entries of the suit properties transferred to their names and were attempting to alienate the suit properties behind his back. An attempt made by the plaintiff for amicable settlement through a panchayat proved futile. Hence, he filed a suit for partition and separate possession of his share in the suit schedule properties.

4. The Defendant Nos. 1 to 4 filed their written statement and admitted the relationship between them and plaintiff. They also admitted that 'A' schedule properties were the properties of the grandfather of the plaintiff and defendant Nos. 1 to 4. However, they claimed that during the lifetime of their father they had divided the suit properties in terms of a Panchayath Parikath dtd. 20/4/1981. They claimed that this partition was acted upon and the parties were put in separate possession and enjoyment of their respective shares. They claimed that as per the desire of Venkatappa, no property was allotted to the share of defendant No.4. The Defendant No.4 also did not want any share in the suit properties.

5. During the pendency of the suit, the defendant No.5 was impleaded at the instance of the plaintiff, since she had purchased suit item Nos.20 and 21 from the defendant No.2 in terms of a sale deed dtd. 25/7/2007. The defendant No.5 claimed that she had demolished the old house situate in the property purchased by her and had constructed a cattle shed. She claimed that she was the owner of said item Nos.20 and 21 and that the plaintiff was not entitled for a share therein. Alternatively, she prayed that suit Item Nos. 20 and 21 be allotted to the share of defendant No.2 in the event of suit being decreed.

6. Based on these rival contentions, the Trial Court framed the following issues;

i. Whether the plaintiff proves that suit schedule properties are ancestral and the joint family properties of plaintiff and defendants No.1 to 4

ii. Whether the defendants No.1 to 4 prove that during lifetime of late Venkatappa, plaintiff and defendants with the exclusion of 4th defendant have divided the suit schedule properties under Panchayath Parikath dtd. 20/4/1981?

iii. Is the plaintiff entitled for the relief of partition and separate possession of the suit schedule properties?

iv. What order or decree?

Additional Issue i. Whether 5th defendant prove that she is a bonafide purchaser of the suit schedule item No.20 and 21 properties?

6. The plaintiff was examined as P.W.1 and he marked documents as Exs.P-1 to Ex.P.18. The defendant No.2 was examined