IMPORTANT POINT
Trial Court accepted evidence as led in by defendants, justified in holding that prior partition taken place and even material on record would show that plaintiff as well as defendants received property in lieu of their share, would not be entitled for second partition.

Aggrieved by the judgment and decree of the lower Court in dismissing the plaintiff’s suit for partition, the plaintiff has filed this appeal.

2. The case of the plaintiff is that the suit schedule properties were owned by her father and the defendants. Defendants 1 and 2 are her brothers and defendants 3 and 4 are her sisters. Their father died intestate leaving behind the plaintiff, defendants and their mother, Smt. Bandamma. Their mother had filed a suit in O.S. No. 76 of 2003 before the II Additional Civil Judge (Senior Division), Hubli, seeking for partition and separate possession. During the pendency of the suit, she died. The plaintiff filed an application to transpose herself as a plaintiff. However, the suit came to be abated and was dismissed with liberty to file a fresh suit. Hence, the present suit.

3. The case of the plaintiff is that defendants 1 and 2 namely her brothers are unnecessarily wasting the suit properties by creating a lease in favour of third parties by taking undue advantage of their names entered in the record of rights and they are threatening and arranging to dispose off the entire suit schedule properties being the joint family and the ancestral property to which the plaintiff is entitled to a share. Since her request for a share was denied, the instant suit for partition was filed. On service of summons, the defendants entered appearance. They denied the suit averments. They contended that there was a dispute raised by the plaintiff much prior to the filing of the suit which was settled in the Panchayat, in terms whereof, five tolas of gold in lieu of their share in the joint family property was given to the plaintiff also. Consequently, the properties were divided in terms of a palu patti vide Ex. D3. Hence, they sought for dismissal of the suit. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:

“1. Whether the plaintiff proves that the suit schedule properties are owned by her father during his lifetime and he was in possession of the suit properties?

2. Whether the plaintiff proves that she is having a share in suit schedule property along with the defendants?

3. Whether the second defendant proves that the suit schedule properties are divided about 10 years back i.e., in the year 1998 Ugadi Festival time and he got the share in the properties and those properties are his separate properties as stated in para 8 of the written statement?

4. Whether the second defendant proves that suit is hit by principle of res judicata as contended in his written statement?

5. Whether the second defendant proves that the suit schedule R.S. No. 13/10 was acquired for the purpose of extension of Bangalore-Poona National Highway by the concerned Highway Authorities and he received the award amount of Rs.87,067 likewise the first defendant has also received the compensation amount for the acquisition of the land belonged to him?

6. What relief’s the parties are entitled to?”

4. The plaintiff examined herself as PW1 and got marked six documents. The defendants examined five witnesses and marked three documents. Issues 1, 3 and 5 were held in the affirmative and Issues 2 and 4 were held in the negative. By the impugned judgment, suit of the plaintiff was dismissed. Hence, the present appeal by the plaintiff.

5. Learned Counsel for the plaintiff/appellant contends that the impugned judgment and decree being erroneous is liable to be dismissed; that the Trial Court failed to appreciate the material and evidence on record and that the document Ex. D3 relied upon by the Trial Court is an unregistered document which cannot be relied upon. When there was no material to show that 5 tolas of gold was given to the appellant in lieu of her share in the joint family properties, the Trial Court could not have dismissed the suit. Hence, he prays that the appeal be allowed.

6. Counsel for the respondents are absent.

7. Heard the learned Counsel for the appel