A plaintiff can only establish entitlement to partition if they demonstrate joint ownership and the failure to do so, particularly through admissions and evidence of prior partition, warrants dismissal of the suit.

JUDGMENT :

R. NATARAJ, J.

The plaintiff in O.S.No.229/2011, on the file of the I Additional Senior Civil Judge & CJM, Belagavi, at Belagavi (hereinafter referred to as the ‘trial Court’ for short) has filed this regular first appeal challenging the judgment and decree dated 17.04.2017 passed in the above suit, by which his suit for partition and separate possession of his share in the suit properties was dismissed.

2. The parties shall henceforth be referred to as they were arrayed before the trial Court.

3. The suit in O.S.No.229/2011 was filed for partition and separate possession of the plaintiff’s share in the suit schedule properties. The suit schedule properties were land bearing R.S.No.534/3 and R.S.No.534/4, both situate at Honga, Belagavi Taluk. The plaintiff claimed that he and defendants were members of a coparcenery. He claimed that Sy.No.534 measuring 1 acre 38 guntas was the joint family ancestral property of four brothers namely Topanna, Siddappa, Paramanna and Omanna who were sons of Bhairu. They were cultivating separate strips of the above land and their names were entered in the revenue records as per cultivation and enjoyment, though there was no actual partition by metes and bounds. He claimed that he and the defendants succeeded to the properties and they continued to be in possession. Defendant No.1 who is the descendent of Topanna was in possession of 32 guntas which is numbered as R.S.No.534/3. The plaintiff who is the descendant of Paramanna was in possession of 22 guntas which is numbered as R.S.No.534/2. The father of defendants No.2 and 3 namely Sri.Siddappa was in possession and cultivation of 8 guntas of land which is numbered as R.S.No.534/4. The father of the defendants No.4 to 7 namely Sri.Omanna was in possession of R.S.No.534/1. The plaintiff claimed that the father of defendants No.2 and 3 had sold away the land bearing R.S.No.534/4 without the consent, notice and knowledge of the plaintiff and other defendants. He contended that the suit lands lay in adjacent to the National Highway No.4 and due to the formation of the road, the land became uncultivable and the portions of land possessed by the plaintiff and the defendants could not be identified. He contends that defendant No.1 with an intention to make illegal gain tried to alienate R.S.No.534/3 without the notice and knowledge of the plaintiff. On coming to know of such attempt, the plaintiff demanded partition and separate possession of his lawful share in the suit properties which were refused by the defendants. Therefore, the plaintiff was advised to file a suit for partition of his 1/4^th share in the suit schedule properties by metes and bounds.

4. Defendant No.1 contested the suit and claimed that there was no joint family comprised of the plaintiff and the defendants since the last more than 100 years. He also claimed that the plaintiff and the defendants were in possession of their respective properties and they were cultivating them. He claimed that the plaintiff who got R.S.No.534/2 as his share, got it converted for non- agricultural purposes and formed three plots and sold one of them to a Muslim gentleman and constructed building in the remaining portion. He contended that Sy.No.534 of Honga measuring 1 acre 38 guntas was not