IMPORTANT POINT
The plaintiff failed to establish ownership of the suit properties through oral partition, leading to the dismissal of his appeal against concurrent findings of fact.

JUDGMENT :

Rajendra Badamikar, J. - This is the plaintiff's second appeal challenging the judgment and decree dated 28.02.2005 passed by the Civil Judge (Jr.Dn.) and JMFC, Nagamangala, in OS No.109/1999, which is confirmed by the Senior Civil Judge and JMFC, Nagamangala, in RA No.67/2006 vide Judgment dated 30.07.2007.

2. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the trial Court.

3. The brief factual matrix leading to the case are as under:

The plaintiff-Chikkaboraiah has filed a suit for declaration and consequential relief of permanent injunction pertaining to suit schedule properties measuring 8 guntas in Sy. No.142/3 and 38 guntas in Sy. No. 249 of Bheemanahalli Village with specific boundaries referred thereunder. It is the contention of the plaintiff that the land measuring 1 acre 24 guntas in Sy. No.142/3 and land measuring 4 acres 27 guntas in Sy. No.249 situated in Bheemahahalli Village were originally owned by Boregowda, son of Muddegowda, who was the grand father of the plaintiff. The said Boregowda had six sons namely Chikkamuddegowda, Kallugudigowda, Javaregowda, Ningegowda, Chikkaboregowda and Chikkananjegowda. Out of them, Chikkaboregowda is the father of plaintiff. It is alleged that, in the oral partition between the father of plaintiff and uncles, the suit said schedule properties had fell to the share of the father of the plaintiff. But, in spite of oral partition, the katha and RTC continued in the name of the grandfather of the plaintiff. It is alleged that, after the death of his grand father and father, the plaintiff got changed the katha in M.R. No.13/1994-95 and he continued in possession as absolute owner of said suit properties. It is alleged that the defendants are in no way related to the family of plaintiff and they have no right, title and interest over the suit properties. It is further alleged that, the name of the father of defendants is also Boregowda, as such, by taking advantage of the same, the defendants have created frivolous and fictitious documents in order to get the katha changed in their names and hence, they have no right, title or interest over the suit schedule properties. It is alleged that, by taking advantage of the order of the Assistant Commissioner of Pandavapura, in R.Mis. No.117/97-98 dated 27.10.1998, the defendants attempted to dispossess the plaintiff from the suit schedule properties, and hence, he filed a suit for declaration and permanent injunction in respect of suit schedule properties.

4. The defendants appeared before the trial Court and filed their written statement disputing the claim of the plaintiff. It is disputed that the suit schedule properties were originally owned by Sri. Boregowda, son of Muddegowda and they have also denied the alleged oral partition between the plaintiff's father and his uncle and the suit schedule properties being fallen to the share of plaintiff's father. It is also contended that the mutation in the name of plaintiff was challenged before the Assistant Commissioner, Pandavapura, and the said mutation was set aside by the Assistant Commissioner by order dated 10.09.1998. According to the defendants, the plaintiff has given a false Genealogical Tree and it is further asserted that the writ petition filed by the plaintiff challenging the said order of Assistant Commissioner came to be dismissed. According to the defendants' case, Kenchegowda, who was the propositus, had two sons by name Manjegowda and Boregowda and the suit schedule properties belong to Kenchegowda, the grand father of defendants. It is contended that the suit schedule properties were in joint possession of defendants' father and their uncle and on 10.03.1965, there was a partition of schedule properties and as per partition deed, in Sy. No.142/3, out of 1 acre 26 guntas, the land measuring 16 guntas had fallen to the share of 1st defendant and the land measuring 17 guntas had fallen to the share of 2nd defendan