This appeal is filed by the appellants challenging the

judgment and preliminary decree dated 08.02.2017

passed in O.S.No.461/2017 by the I Addl. Senior Civil

Judge and CJM, Dharwad.

2.

For the sake of convenience, the parties are

referred to as per their ranking before the trial Court.

Appellants are the plaintiffs and respondents are the

defendants.

3.

The plaintiffs filed a suit for partition and

separate possession. It is the case of the plaintiffs that,

propositus Narayanarao Deshpande died in the year 1938

leaving

behind his only son Bhimarao

Deshpande.

Bhimrao Deshpande married Lakshmibai and out of the

wedlock, he had begotten four sons and a daughter,

namely, Narendra (died unmarried), Krishna (plaintiff

No.1), Srinivas (plaintiff No.2), Pralhad (defendant) and

Sudha (mother of plaintiff No.3). The propositus Bhimarao

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Deshpande died in the year 1985. His wife Lakshmibai

died in the year 1975. The elder son Narendra died

intestate in the year 1990. The mother of plaintiff No.3

died in the year 1970. The plaintiffs' family and defendant

are originally from Amminabhavi village in Dharwad

Taluka. The family of plaintiffs had about 400 acres of land

in Amminabhavi village and surrounding villages of

Dharwad

Taluk

and

had

a

very

big

agricultural

establishment. Bhimarao Deshpande was looking after the

agricultural establishment and managing the affairs of the

family at Amminabhavi village. However, he was residing

at Malamaddi in Dharwad along with his family. Bhimarao

Deshpande after coming to know that Bombay Karnataka

is proposing to bring the Urban Land Ceiling Act, effected

partition on

31.03.1956, amongst

the joint

family

members in respect of agricultural lands. The lands were

divided amongst Bhimarao, Narendra, Krishna, Srinivas,

Pralhad and Lakshmibai and the plaintiffs were minors at

the time of partition. In the partition, no share was

allotted to the mother of plaintiff No.3 and defendant and

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the land situated at Aralikatti village measuring 18 acres

18 guntas was not divided and was kept in common.

Even pursuant to the partition, waradi was given to the

authorities to change names in the Record of Rights.

Plaintiffs No.1 and 2 and defendant continued living

together in Malamaddi village at Dharwad and they were

enjoying the properties jointly. The partition dated

31.3.1956 was the nominal partition and was not at all

acted upon by the parties. In the year 1974, Bhimarao

effected partition in respect of urban properties situated at

Dharwad. The said partition was nominal one and the

same was also effected to overcome the Urban Land

Ceiling Act. During the life time of Bhimarao, some of the

properties were sold to different persons by the father of

the plaintiffs. During the year 1976 to 1996, defendant

was incharge of agricultural operations and reported loss

in agriculture for the most of the years. There is no actual

partition by metes and bonds amongst the members of the

joint family and earlier partition was nominal one and the

same was unjust and unequal. Plaintiff No.1 was given

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31 acres of land, plaintiff No.2 was allotted 34 acres of

land and defendant was allotted 53 acres of land. The

lands which have been allotted to the defendant were

more fertile lands than the plaintiffs. He has been allotted

larger extent of land than the plaintiffs without there being

any valid reasons. Similarly in the division of urban

properties, defendant and plaintiff No.2 were allotted

about 8 and ½ guntas of valuable land each in Malamaddi,

Dharwad along with residential building, whereas plaintiff

No.1 was given 4 guntas of land in Hale Taluk Kacheri Oni.

The plaintiffs and defendant even after partition of

agricultural lands and urban properties continued to enjoy

the agricultural lands and urban properties jointly as the

partition was nominal one. The father of plaintiff No.1, 2

and

defendant,

Bhimarao

had

relinquished

all

his

properties on 13.08.1947 in favour of his chi