In partition suits, the burden of proof initially rests with the plaintiff to establish relationship and property rights, which, once substantiated, shifts to the defendants to disprove.

JUDGMENT :

ASHOK S.KINAGI, J.

This Regular Second Appeal is filed by the appellants, challenging the judgment and decree dated 17.09.2013 passed in R.A.No.04/2008 by the First Additional District Judge, Chikkamagaluru.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos.4 and 6, respondent No.1 was the plaintiff and the other respondents were the other defendants.

3. Brief facts leading rise to the filing of this appeal are as follows:

The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that his father, Mohammed Hayath Sab had acquired the property by way of grant. The plaintiff and defendant Nos.1 to 5 are the legal representatives of the deceased Mohammed Hayath Sab . It is contended that after the death of the Mohammed Hayath Sab and Fathima Bi, plaintiff and defendant Nos.1 to 5 succeeded as legal heirs and are enjoying suit schedule property as tenants in common. It is further contended that defendant Nos.1 to 5 are trying to alienate the suit schedule property in favour of defendant No.6 vide sale deed dated 14.10.2003. It is contended that the plaintiff is entitled to a share in the suit schedule property and no partition is effected between the plaintiff and defendant Nos.1 to 5. It is contended that the plaintiff's father, Mohammed Hayath Sab died on 04.02.1995 and as on the date of the execution of the alleged registered sale deed dated 18.04.1995, in favour of defendant No.4. Mohammed Hayath Sab was not alive.

Therefore, defendant No.4 has no right or title of the suit property by virtue of said sale deed and hence, is not eligible to sell the suit property in favour of defendant No.6. Hence, prays to decree the suit.

4. Defendant No.4 filed a written statement admitting the relationship between the parties to the suit. It is contended that the suit schedule property was acquired by Mohammed Hayath Sab and he died on 04.02.1995, leaving behind his widow Fathima Bi, his sons - plaintiff and defendant Nos.1, 4 and 5 and late Mohiyuddin Sab, who died leaving behind defendant Nos.2 and 3. It is contended that, Mohammed Hayath Sab died intestate, after the demise of Mohammed Hayath Sab , Fathima Bi, the plaintiff and defendant Nos.1 to 5 succeeded as the legal representatives and are enjoying the suit schedule properties as tenants in common. The plaintiff is now residing at Mayasandra, Turuvekere Taluk, Tumkur District and working at Jamia Maszid, Mayasandra, while carrying out a flower decoration business through his hard work.

5. It is contended that, defendant No.4 had purchased a portion of the suit schedule property from his father, Mohammed Hayath Sab , under a registered sale deed dated 18.04.1996 and the remaining portion of the suit property was purchased by 1^st defendant from Mohammed Hayath Sab . It is further contended that the plaintiff has relinquished his right of share in defendant No.4's property, under an agreement alleged to have been executed by him, dated 07.01.1988 in favour of defendant No.4. It is further contended that the plaintiff executed the "Hakkukulase Kararu Pathra" in favour of his father and defendant No.4 on 03.07.1989, relinquishing his right and share in the suit property. The plaintiff has no right, title or interest over the suit schedule property and therefore, prays to dismiss the suit against defendant No.4.

6. Defendant No.6 filed a memo adopting the written statement filed by defendant No.4. Defendant No.5 filed a written statement denying the averments made in