The court affirmed the plaintiff's right to a 1/4th share in specific ancestral properties, while excluding claims over others based on prior partitions.

These appeal and cross objection are arising out of judgment and decree dated 9th October 2019 in O.S. No.390/2015 on the file of the II Additional Senior Civil Judge & JMFC, Gokak (for short, hereinafter referred to as ‘the Trial Court’) decreeing the suit of the plaintiff in part.

2. For the sake of convenience, the parties in this appeal are referred to in terms of their status and ranking before the Trial Court.

3. Facts, in nut-shell, are that, one Uddappa was original propositus, died leaving behind his children viz.,

Ramappa, Parasappa and Balappa. All these children of Uddappa are no more. Defendant No.18 is the wife of late Balappa (third son of Uddappa). Plaintiff, defendant No.19 and defendant No.20 are the children of late Balappa and Tangewwa (defendant No.18). It is averred in the plaint that, defendants No.1 to 9 and 24 are the legal heirs of late Ramappa (first son of Uddappa). Defendants No.10 to 17 and 21 to 23 are the legal heirs of late Parasappa (second son of Uddappa). It is the case of the plaintiff that suit properties are the ancestral properties of plaintiff and defendants and there is no partition in the joint family and the plaintiff and defendants are cultivating the suit schedule properties jointly. It is further stated in the plaint that item Nos.5 and 6 of the schedule properties were transferred into the name of defendant No.19, and after the death of Balappa (father of the plaintiff), item Nos.1 to 4 of the schedule properties are standing in the name of defendant No.19 and therefore, the plaintiff sought for share in the property belonging to her father – late Balappa, and same was refused by defendant No.19. Hence, the plaintiff has filed O.S. NO.390/2015 seeking relief of partition and separate possession in respect of the suit schedule properties.

4. After service of summons, defendants No.2, 4, 6, 7 and 15 to 19 appeared through their counsel. Defendant No.1, 3, 5(a), 8 to 14 and 20 to 24 remained absent and accordingly placed ex parte. During the pendency of the suit, defendants No.5 and 10 were dead and their legal representatives were brought on record as defendants No.5(a) to 5(d). Insofar as deceased defendant No.10, the legal heirs are defendants No.11 to 17 and 21 to 23.

5. Defendant No.19 has filed the written statement denying the averments made in the plaint and the same was adopted by defendants No.2, 4, 6, 7 and 15 to 18. It is the specific contention of defendant No.19 that, after the death of Ramappa (first son of Uddappa), the lineal descendants of late Ramappa got divided the property in terms of the judgment and decree in O.S. No.57/2012 and therefore, the present suit filed by the plaintiff is not maintainable. It is also contended by defendant No.19 that, the plaintiff and defendant No.20 had executed consent deed and relinquished their right in respect of the suit schedule property in favour of defendant No.19 and therefore, defendant No.19 urged in the written statement that he had perfected his title by way of adverse possession. It is also contended in the written statement that there was a partition between the original propositus Uddappa and his children as per registered partition deed dated 22.12.1954 and therefore, it is contended that the suit is not maintainable for suppressing the material fact. It is further pleaded by defendant No.19 that, item No.5 and 6 of the properties are not the ancestral properties and accordingly, sought for dismissal of the suit.

6. Defendant No.5(b) to 5(d) filed separate written statement, denying the genealogical tree and further contended that the suit is liable to be dismissed for lack of cause of action. It is also contended by defendant No.5(b)to 5(d) are minors and therefore, sought for safeguarding their interests and accordingly sought for dismissal of the suit.

7. The Trial Court, after considering pleadings on record, formulated the following issues and additional issues:

“ISSUES

1. Whether the plaintiff proves that th