The absence of conclusive evidence for a prior partition entitles the plaintiff to a share in joint family properties, reaffirming the principle that the burden of proof lies with the defendants.

JUDGMENT :

V.SRISHANANDA, J.

Heard Sri I.S.Devaiah, learned counsel for the appellants and Sri Venkatesh R. Bhagat, learned counsel for the contesting respondents.

2. Parties are referred to as plaintiff and defendant as per their ranking before the Trial Court.

3. Facts of the case in brief which are utmost necessary for disposal of the present Appeal are as under:

4. A suit in O.S.No.37/1999 came to be filed on the file of the Civil Judge (Senior Division), Kodagu, Madikeri, for the relief of partition and separate possession in respect of the following properties.

(1) 03 Acres of wet land comprising in S.No.216/1 of 9.15 acres and S.No.218 of 2.20 acres.

This 3 acres of wet land comprises of 4 flats called Anja Theva Kodanga, Yaka and Pali.

(2) 0.80 cents of coffee land in S.No.135/2.

(3) 0.62 cents of coffee land in S.No.222/3.

(4) 0.67 cents of coffee land in S.No.215/2.

(5) 1.00 acres of coffee land in S.No.135/1.

(6) 4.80 acres of coffee land in S.No.222/6.

(7) 0.60 acres of coffee land in S.No.222/4.

Properties are situated at Balamuri village N. Coorg.”

5. In the plaint, it is contented that about 140 years ago, three brothers called Mandanna, Appachu and Kuttappa in Chenganda family owned wetlands and bane lands at Balamuri Village. Those brothers were holding those properties by oral partition about 100 years ago. Among them one of the brothers viz., Appachu died about 80 years back leaving behind his five sons viz., Subbayya, Chengappa, Kunjappa, Kalappa and Machayya who succeeded to the properties left behind by Appachu.

6. According to the plaint averments, these five brothers made a oral partition of the immovable properties about 60 years ago in which arrangement, the third brother viz., Kunjappa received his share which are the suit schedule properties. Kunjappa died about 56 years ago leaving behind his three sons who are the plaintiff and defendants.

7. It is also contented in the plaint that plaintiff and defendants are thus joint owners of the suit properties and they are deemed to be in joint possession of the properties. Plaintiff demanded the first defendant for partitioning the schedule properties into three equal shares and also issued a notice in that regard on 17.04.1998.

8. Defendants did not heed to the request of the plaintiff and therefore, suit for partition came to be filed.

9. Pursuant to the suit summons, defendants entered appearance through their advocate and first defendant filed written statement.

10. During pendency of the suit, second defendant died. Legal representatives of second defendant were brought on record. They appeared through an advocate and adopted the written statement filed by first defendant.

11. However, at the first instance, they were not brought on record properly due to inadvertence which was cured by filing necessary application. In the written statement filed by the first defendant, relationship is disputed. The first defendant denied that the suit properties are the joint family properties of plaintiff and defendants. Defendants further denied that plaintiff is not entitled for any share in the suit properties.

12. It is further contented that the suit is filed only to harass the defendants.

13. Based on the rival contentions of the parties, learned Trial Judge raised the following issues.

(i) Whether the plaintiff proves that, the suit properties are joint family properties?

(ii) Whether the defendant No.1 proves that, oral partition took place long back, which has been suppressed by the plaintiff?

(iii) Whether the plaintiff is entitled for 1/3^rd share in suit properties as prayed for?

(iv) What order or decr