The court concluded that re-granted lands to an individual from a joint family shall benefit all family members, allowing junior members to seek partition under personal law.

JUDGMENT :

Ashok S. Kinagi, J.

This Regular First Appeal is filed by the appellants challenging the judgment and the preliminary decree dated 23.02.2017 passed in O.S.No.109/2007 by the learned Principal Senior Civil Judge, Chikodi.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendants and the respondents were the plaintiffs.

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

The plaintiffs filed a suit against the defendants for the relief of partition and separate possession. It is the case of the plaintiffs that one Appa was the head of the family of the plaintiffs and the defendants. Appa had three sons, namely, Balu, Jahgali and Suleman. Balu had three sons namely, Rasool, Badasha and Appasaheb. Badasha and Appahaseb are the plaintiffs. Balu died on 02.12.1953, leaving behind his children as his legal heirs. After the demise of Balu, Rasool, being the elder son, was appointed as Sanadi by the Assistant Commissioner, Chikodi, vide order dated 04.09.1954. The elder brother Rasool started rendering the services of Sanadi on behalf of the entire family. After the introduction of the Karnataka Village Offices Abolition Act, 1961, the suit lands given to the family of the plaintiffs and the defendants, came to be vested in the Government. Thereafter, the suit lands were re-granted to the family of the plaintiffs and the defendants by the Assistant Commissioner by order dated 28.09.1970, and the order passed by the Tahasildar, Chikodi dated 17.10.1970, in the name of the elder son Rasool, enure to the benefit of the junior members of the family. The plaintiffs and their brother Rasool were the tenants in common and are in joint possession and cultivation of the suit lands. Till today, there is no partition by metes and bounds amongst the plaintiffs and their brother. The elder brother of the plaintiffs, i.e., Rasool, died in 2007. The defendants, being the legal heirs of Rasool, taking undue advantage of the entry of their father’s name alone in the revenue records, to the suit lands, are acting adverse to the interest of the plaintiffs in the suit lands. The plaintiffs requested the defendants to effect partition and separate possession, but the defendants refused to effect partition in the suit properties. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession.

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4. Defendant No.4 filed a written statement denying the averments made in the plaint. It is contended that the plaintiffs have not given the details of the death of the Balu and Rasool, and they have not mentioned the name of the wife of Balu, and the date of her death. The deceased Rasool and defendant No.1 Mahaboobi had no son by the name Baksh. The deceased Rasool had a daughter by the name Shahanaz. The plaintiffs have not shown her name in the genealogy, and she was not impleaded as a party to the suit. Hence, the suit filed for partition and separate possession is not maintainable for non-joinder of necessary parties. It is denied that Balu Appa Jamadar and his sons Rasool, Badasha and Appasaheb are all members of the family and were living jointly. It is contended that suit lands came to be re- granted in favour of Rasool, and it is denied that it was granted enure to the benefit of any members of the family, except Rasool Balu Jamadar. It is contended that the plaintiffs have no right, title or interest over the suit schedule properties. It is contended that