The main legal point established is that a plea of earlier partition must be supported by proper evidence and cannot be accepted without proof of full effect.

JUDGMENT

Neranahalli Srinivasan Sanjay Gowda, J. - This is a second appeal by defendant No. 1.

2. Smt. Venkatamma and Smt. Lakshmamma (the sisters of the appellant herein) instituted a suit for partition against the appellant and their other brother Sri. Ramakrishna. They stated that their father Sri. Kunnappa had got the properties in his name in the year 1984-85 and they were joint family properties, as evidenced by the entries in the revenue records. They stated that there had been no division of properties and they were thus entitled to an equal share in the said joint family properties.

3. The suit was contested by defendant No. 1/appellant herein. It was stated that on 25.07.1983, there was a partition and in the said partition, the plaintiffs had already got their share and hence, the question of ordering for one more partition would not arise. It was also contended that Item Nos. 1 and 2 had been granted to defendant No. 1 under the Land Reforms Act, while Item Nos. 3 and 4 had been granted by the Government to Kunnappa. It was stated that since the plaintiffs were signatories to the partition deed dated 25.07.1983, the plaintiffs were not entitled to any share.

4. The other brother/defendant No. 2--through his legal representatives also supported the case of defendant No. 1.

5. The Trial Court on consideration of the evidence adduced before it came to the conclusion that the plaintiffs had admitted affixture of their left hand thumb impressions on Ex.D-4, the unregistered partition deed dated 25.07.1983 and hence, the partition stood proved. The Trial Court took the view that the father of the plaintiffs had died prior to 09.09.2005 and the partition had also taken place in the year 1983 and therefore, the suit for partition could not be entertained. Accordingly, the Trial Court dismissed the suit.

6. Being aggrieved by the dismissal of their suit, the plaintiffs preferred an appeal.

7. The Appellate Court, on re-appreciation of the evidence, came to the conclusion that though the defendants had set up the plea of earlier partition, as per R.T.C. extracts, it was revealed that defendant No. 2 had got his name entered in the revenue records on the basis of I.H.C. No. 2/1985-86. Similarly, in respect of the suit schedule Item No. 4, it was held Ex.P-7 revealed that the entry in the names of defendant Nos. 1 and 2 had also been made based on I.H.C. No. 87/1983-84, whereas the case set up by the defendants was one of the partition.

8. The Appellate Court also took the view that despite the earlier partition set up, the records had not been changed as per the partition and therefore, the plea of the earlier partition could not be accepted, at least in respect of suit schedule Item Nos. 3 and 4 are concerned.

9. The Appellate Court also took the view that as per the R.T.C. extracts, suit schedule Item Nos. 1 and 2 were stated to have been acquired through a grant and therefore, these properties would have to be considered as the separate properties of the defendants. The Appellate Court accordingly allowed the appeal in part and decreed the suit only in respect of item Nos. 3 and 4, while rejecting the claim of the partition in respect of suit schedule Item Nos. 1 and 2.

10. It is against this divergent finding, the present second appeal has been preferred.

11. It is also pertinent to state here that as against the very same judgment, challenging the denial of share over suit schedule Item Nos. 1 and 2, R.S.A. No. 670 of 2021 has been preferred by the plaintiffs, which shall be considered separately.

12. By virtue of the fact that the defendants set up the plea that there was an earlier partition, the fact that the suit properties were joint family properties stood automatically admitted. If the suit schedule properties were joint family properties, the defendants would have to establish that the suit schedule properties had been subjected to a partition and the partition had been given effect completely so as to disentitle a fresh cla