JUDGMENT :

The appellant has preferred this appeal being aggrieved by the impugned judgment and decree dated 09.04.2007 passed in O.S.No.200/2001 on the file of the learned Civil Judge (Sr.Dn.), Kunigal (hereinafter referred to as 'trial Court' for brevity) decreeing the suit of the plaintiffs and allotting them 1/6th share in the suit schedule properties and directing to hold an enquiry to determine the mesne profits relating to 'B'-schedule properties, which was confirmed by judgment dated 15.09.2010 in R.A.No.283/2007 on the file of the Principal District Judge, Tumkur (hereinafter referred to as 'First Appellate Court' for brevity) by dismissing the appeal.

2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.

3. Brief facts of the case are that respondent Nos.1 to 3 as plaintiffs have filed O.S.No.200/2001 before the trial Court against the appellant and respondent Nos.4 to 9, seeking declaration that A, B and C schedule properties are the joint family properties and for partition and separate possession of their 1/6th share in the same. Further to declare that the sale deeds dated 03.04.1976, 02/08.09.1986, 01.06.1991 and 20.06.1991 got executed in the name of defendant No.1, judgment and decree passed in O.S.No.657/1993 will not affect the rights of the plaintiffs, their shares and for mesne profits, partition and separate possession of the schedule properties. The plaintiffs contended that they are the children of Basamma, the second wife of Hymagiraiah. Defendant Nos.1 to 5 are the children of Basamma and defendant Nos.6 and 7 are the children of late Chennamma, the first wife of Hymagiraiah.

4. It is the contention of plaintiff Nos.1 to 3 that their predecessor Hymagiraiah died in the year 1965. His first wife Chennamma died in the year 1992 and the plaintiffs and defendants were the members of the Hindu undivided family. It is also contended that defendant No.1 was the Kartha and he got the income from the joint family properties. From out of the said income, he purchased some of the schedule properties under the registered sale deeds dated 03.04.1976, 02/08.09.1986, 01.06.1991 and 20.06.1991. However, the sale deeds were got executed in the name of defendant No.1 for and on behalf of all the members of the undivided family.

5. It is also contended that defendant No.1 instituted the suit in O.S.No.657/1993 behind the back of other members of the family in respect of 'B' schedule properties and managed to get a decree in his favour to the effect that those properties are his self acquired properties. But since these properties, fully described in the 'B' schedule were purchased by defendant No.1 from out of the joint family income, all the members of the family are having right over the same.

6. It is contended that there was no partition amongst the members of the joint family in respect of the schedule properties. Deliberately, defendant No.1 had not arrayed the other members of the family in O.S.No.657/1993 and refused to give the legitimate share to the coparceners. The plaintiffs and other defendants are also entitled for equal share in the schedule properties and therefore, the plaintiffs prayed for decreeing the suit and allotting their share in the schedule properties.

7. Schedule 'A' appended to the plaint describes 08 items of the agricultural properties. 'B' schedule contains item Nos.9 to 13 and Schedule 'C' contains item Nos.14 to 16 situated at Huliyurdurga Hobli, Hulikatte and Anthralli Villages.

8. Defendant No.1 has appeared before the trial Court and filed his written statement denying the contentions taken by the plaintiffs in toto. It is contended that there is no cause of action for the suit. Defendant No.1 admitted that suit item Nos.1 to 8 are the joint family properties but contended that the same were divided amongst the plaintiffs and defendant Nos.1 and 6 about 30 years back and khatha in respect of the same were changed in their respective na