JUDGMENT :

Mr Anant Ramanath Hegde, J. - Appeal in RFA No.3046/2010 is filed by defendant No.1 challenging the judgment and decree in O.S.No.42/2005 on the file of Senior Civil Judge, Bilagi. The suit for partition filed by the plaintiffs seeking partition and separate possession of suit schedule properties is decreed in part awarding 4/5th share in Item No.1 property to the extent of 3 acres 17 guntas and in respect of Item No.2, the suit is decreed to the extent of entire property measuring 7 acres 23 guntas. The total extent of Item No.1 suit property is 6 acres 17 guntas. In other words, the suit is dismissed in respect of 3 acres in Item No.1 property.

2. RFA No.3044/2010 is filed by the plaintiffs in the said suit challenging the very same judgment and decree, in respect of rejected claim.

3. Genealogy of the parties is as under:

4. One Ramachandra was the propositus. He died on 17.06.1998. His wife Mandakini died on 02.11.1981. The couple had four sons, namely, Vijaya, Gururaj, Muruli, Partha and two daughters, namely, Vasanti and Shree. Among four sons Muruli died issueless in the year 1955. There was a partition in the family. In the said partition, Partha the fourth son of Ramachandra was allotted 6 acres 27 guntas in Sy.No.121/3 and 7 acres 23 guntas in Sy.No.200/3 and Gururaj the second son of Ramachandra, who is defendant No.2 in the aforementioned suit was allotted 8 acres 3 guntas in Sy.No.117/1 as reflected in M.E.No.616. This mutation would also reveal that other than three properties referred above, there were other properties in the family, namely, Sy.No.121/1 and 300/1. It is also evident from the records that the aforementioned properties bearing Sy.No.121/1 and 300/1 were allotted to the other members of the family. Those properties are not the subject matters of the present suit. It is also forthcoming from the records that defendant No.2 Gururaj made a claim over the properties bearing Sy.No.121/3 to the extent of 3 acres 10 guntas on the basis of M.E.No.2314 of the year 1994. It is forthcoming that M.E.No.2314 is said to be a mutation based on the partition between Partha and Gururaj, who have separated in 1955 itself.

5. Sons of Partha have challenged this M.E.No.2314 by filing an appeal before the Assistant Commissioner, where they failed in their challenge. In the revision before the Deputy Commissioner also, they were unsuccessful. That being the position, they filed a suit claiming partition in respect of properties allotted to the share of their father Partha as per the partition which took place in 1955. Claim was opposed by Gururaj, the second defendant and claim was supported by Partha, the first defendant. Second son Gururaj took a defence that the partition of 1955 was inequitable, as such, father again in the year 1994 effected partition in respect of Sy.No.121/3 and in that partition, he allotted 3 acres 17 guntas in Sy.No.121/3 in favour of Partha and 3 acres 10 guntas in the same survey in favour of his son Gururaj. Thus, he prayed for dismissal of the suit.

6. The trial Court on appreciation of evidence, has decreed the suit in part as indicated above. It is interesting to note that issue No.4 is framed as under:

"Whether defendant No.2 proves that fresh partition was effected between defendants No.1 and 2 on 26.12.1990 and in that partition an extent of 3 acres 10 guntas was allotted to defendant No.2 and 3 acres 17 guntas was allotted to defendant No.1, since then they are in exclusive posse