Counter claims must be against plaintiffs and not co-defendants; prior partitions cannot be reopened based solely on alleged inequities.

JUDGMENT :

B. MURALIDHARA PAI, J.

1. The Defendant Nos.1, 6, 10, 12 and the legal representatives of Defendant No.5 have preferred this regular first appeal praying to set aside the judgment and decree dated 19.12.2019 passed by learned Principal Senior Civil Judge, Jamkhandi in O.S.No.97/2011 and consequently dismiss the counter claim.

2. For the sake of convenience, parties in this appeal are referred to as they are referred to in the original suit.

3. The suit in O.S. No.97/2011 was maintained by the Plaintiffs namely Sri Ramappa and Sri Laxaman, claiming partition and separate possession of their 1/5^th share in 18 items of properties more fully described in Schedule B of the plaint by meets and bounds and for other consequential reliefs on the ground that there was no equitable partition between parties to the suit.

4. The suit summons was served on all the Defendants. In spite of the same, Defendant Nos. 2,3,7,11,17 to 19 remained absent before the trial Court. As such they were placed ex-parte. Defendant No.3 is the mother of minor Defendant No.4. As she failed to appear before the court and protect the interest of minor Defendant No.4, an advocate by name Sri S.B.Muttikalli, Advocate, Jamkhandi was appointed as Court Guardian for him. He has filed a formal written statement on behalf of Defendant No.4 praying to decree the suit and to allot a share even to Defendant No.4.

5. Defendant Nos.1, 6, 10 and 12 have filed their common written statement in the case. Defendant No.5 has adopted their written statement by filing a memo. These defendants have contended that there was already a partition in the family during the life time of Sri Basalingappa i.e, during the year 1979 and that in the said partition all the sons of Sri Basalingappa have taken their respective shares and enjoying the properties fallen to their share exclusively. They have further stated that in the said partition Sri Basalingappa had retained properties bearing Sy.No.73/2/2, 125/2/2, 172/2/A and 206/2 for himself, which were also partitioned amongst his sons during the year 1985. They contended that Sy.No.235/2+3 is the property purchased by Sri Basappa from his individual efforts and without any aid of the joint family and as such neither the Plaintiffs nor Defendant Nos.13 to 19 have got any share in the said property. They also submitted that the Plaintiffs and Sri Mallappa have sold the properties allotted to their share in the partition and therefore the suit is liable to be dismissed. 6. Initially, Defendant No.14 filed a written statement in the case on 23.6.2012 and prayed for dismissal of the suit on the ground that there was already a partition in the family and that all the branches of the family are in possession and enjoyment of their respective hissas in accordance with the partition and that all the parties to the partition have acted upon such partition. Defendant Nos.13, 15 and 16 adopted the written statement filed by Defendant No.14 by filing a memo on the same date.

7. Subsequently, on 18.10.2016 Defendant No.14 filed Counter Claim under Order VIII Rule 6A of CPC praying the relief of declaration that property bearing R.S. No.235/3A was joint family property of the Plaintiffs and the Defendants and it wa