Co-ownership rights are upheld in joint family property claims, and previous partitions must be established with clear evidence; mere conversion of property does not negate an heir's share.

JUDGMENT :

V. SRISHANANDA, J.

Heard Sri Visweswariah, learned counsel for the appellant. Defendant No.4 is the appellant in this present second appeal.

2. This second appeal is filed challenging the judgment and decree passed in O.S.No.187/2018, whereby respondent/plaintiffs have been granted 1/5^th share in the suit properties which was confirmed in R.A.No.8/2023.

3. The facts which are utmost necessary for disposal of the present appeal are as under:

3.1. Respondent Nos.1 and 2 were the plaintiffs before the Trial Court who filed suit for partition and separate possession in respect of the suit schedule properties by contending that the suit properties are joint family properties and plaintiff Nos.1 and 2 are the daughters and defendants Nos.1 to 3 are the sons of late P. Chinnappa which is not in dispute.

3.2. During the lifetime of P. Chinnappa, he was in possession and enjoyment of the suit schedule properties. After the death of the parents of plaintiff Nos.1 and 2 and defendants 1 to 3, first defendant being the eldest member of the joint family, got mutated the revenue entries in his name on ‘pavathi varasu’ without the knowledge of the plaintiffs. 3.3. It is further contention of the plaintiffs that after the marriage, they started residing in their respective husbands place. However, they being the members of joint family, they were in joint possession of suit properties even though they were residing with their respective husbands.

3.4. Defendants 1 to 3 started alienating the suit property which has come to the knowledge of the plaintiffs and therefore they demanded their legitimate share in the suit properties. The same was denied. As such, suit was filed.

3.5. Defendant Nos.4 to 7 have purchased portion of the suit properties and therefore, they were also arraigned as party-defendants to the suit.

4. Upon receipt of the suit summons, there was a common written statement filed by defendant Nos.1 to 7, setting up the plea of previous partition and after the partition, the suit properties fell to the share of defendants 1 to 3. Therefore, they had the absolute right, title over the suit properties and they got the suit item No.1 of the suit properties converted for non agriculture purpose and they formed the layout and sold the individual sites to the parties for defendants Nos.4 to 7.

4.1. They denied the rights of the plaintiffs in the suit properties by virtue of the previous partition wherein plaintiffs have also derived rights, title and interest over the other suit properties left behind by P. Chinnappa.

5. Learned Trial Judge based on the rival contentions of the parties, raised necessary issues and after recording the evidence of the parties, appreciated the material evidence on record in proper perspective and recorded a categorical finding that the plea of previous partition set up by defendants 1 to 3 has not been established. Therefore, decreed the suit of the plaintiffs granting 1/5^th share to each of the plaintiffs in all the suit schedule properties.

6. Being agreed by the same, defendant No.4 alone filed an appeal before the First Appellate Court in R.A.No.8/2023.

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7. Learned Judge in the First Appellate Court after securing the records from the Trial Court heard the arguments of the parties in detail, re-appreciated the factual aspects and the material evidence on record and dismissed the appeal of the defendant No.4.

8. Being further aggrieved by the same, defendant No.4 is before this court in the second appeal on the following grounds.

- The courts below have committed a serious error in Decreeing the suit of the Respondent No.1 and 2 without properly appreciating EXHIBI