Partition claims require substantial evidence of family status and prior division; mere admissions during cross-examination do not prove separation.

JUDGMENT :

Ashok S.Kinagi, J.

This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 19.12.2013 passed in R.A.No.26/2012 by the learned Principal District and Sessions Judge, Davangere, having concurrent charge of I Additional District Judge, Davanagere.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the defendant No.8, respondent Nos.1 and 2 were the plaintiff Nos.2 and 3 and the other respondents were the defendants.

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

The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that one Kumbar Nagappa was the propositus of the family of the plaintiffs and defendants and the said Kumbar Nagappa had 9 children. The suit schedule properties were ancestral properties of Kumbar Nagappa who was the original propositus. During his life time, the first and second plaintiffs and third plaintiff's father, Channabasappa, came to Davangere and started residing there. It is contended that after the death of original propositus, the defendants have changed the khatha of the lands in the back of the plaintiffs by giving false information to the revenue officers. It is contended that the plaintiffs and defendants are the members of the Hindu Undivided Family and no partition has been effected between them. The Plaintiffs demanded partition and separate possession, claiming 1/4^th share in the suit schedule properties. The defendants refused and sold 'A' schedule property to defendant Nos.2 and 3, without the plaintiffs' knowledge. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

4. Defendant No.1 filed a written statement denying the averments made in the plaint and it is denied that the suit properties were belonged to the original propositus and before the death of Kumbar Nagappa, plaintiffs No.1 and 2 and the father of plaintiff No.3, by name Channabasappa came to Davangere and started residing for their livelihood. It is contended that there was an oral partition between the plaintiffs and the husband of defendant No.1 about 50 years back and by virtue of oral partition, the husband of defendant No.1 became the absolute owner of the suit schedule properties. After the demise of her husband, defendant No.1 succeeded to the suit schedule properties, and Katha was changed in the name of defendant No.1. It is contended that, when there was an alleged prior partition, hence, the question of claiming the share in the suit schedule properties is not tenable. She submits that the suit filed by the plaintiff is barred by limitation and bad for non joinder of necessary parties and properties. Hence, on these grounds, she prays to dismiss the suit against defendant No.1.

5. Defendant Nos.2 and 3 filed a written statement reiterating the 1^st defendant's written statement and contended that they are the bonafide purchaser of 'A' schedule property by virtue of sale deed dated 23.01.2002. Accordingly, pray to dismiss the suit regarding 'A' schedule property.

6. Defendant Nos.4 to 7, 14 to 16 ( c ), 17 (a ) to 17 (c) filed a confronting written statement and also made a confrontation for partition and separa