ORAL JUDGMENT

Challenging judgment and decree dated 19.09.2014 passed by Senior Civil Judge, Gubbi, in R.A.no.84/2009 and judgment and decree dated 16.06.2009 passed by Additional Civil Judge (Jr.Dn.), Gubbi, in O.S.no.17/2003, this appeal is filed.

2. Brief facts as stated are appellant was plaintiff in suit for partition and separate possession of land bearing Sy.no.24/2 measuring 3 acres 30 guntas situated at Kallugudi village, Chellur Hobli, Gubbi Taluk (hereinafter referred to as 'suit property'). In plaint, it was stated, propositus Kanimemaregowda died leaving behind three sons namely, Papalingegowda (plaintiff herein), Rangappa (defendant no.2) and Ganganna (defendant no.1). It was stated, defendant no.2 had separated after allotment of share in family partition deed, while plaintiff and defendant no.1 continued to reside together and jointly cultivating family properties, when suit property was granted under LNDSR.no.11/1982-83 and name of defendant no.1 mutated vide MR.no.17/1990-91.

3. It was stated, plaintiff and defendant no.1 invested Lakhs of rupees of joint family funds, developed suit property. They were jointly cultivating it prior to and after grant. But, on strength of revenue records, defendant no.1 was trying to alienate suit property without consent and for legal necessity. Since suit property was joint family property of plaintiff and defendant no.1, it was liable for partition and plaintiff entitled for half share in it. Hence, suit was filed.

4. On appearance, defendant no.1 filed written statement denying plaint averments, but admitted grant of suit property to him. It was stated apart from three sons propositus had a daughter, who was not arrayed as party. Therefore, suit was hit by non-joinder. It was stated, due to misunderstanding in family, defendant no.1 had left house during lifetime of his father and residing in Ranganahalli. It was stated, as he was bonded labour for few years, authorities had granted suit property to him. It was stated, he had invested huge amount by borrowing hand loans and developed it and that same remained unpaid.

5. It was stated, plaintiff, defendant no.1 and other brother Ranganna had divided ancestral and joint family properties under registered palupati. As house property was not included in palupati, there was further partition in which new house was allotted to plaintiff along with outstanding loan except to extent of Rs.20,000/-, which was to be paid by defendant. It was further stated that defendant no.1 paid same and obtained acknowledgment. It was stated, suit property was not ancestral or joint family property of plaintiff and defendant no.1 and therefore, not included in palupatti. It was stated on basis of palupatti, revenue records were mutated and parties were in possession of their respective shares as absolute owners. On above grounds, defendant no.1 sought dismissal of suit.

6. Defendant no.2 in his written statement denied plaint averments, stating that on strength of palupatti, names of parties were mutated in revenue records. It was stated, suit was bad for non-joinder of all parties mentioned in palupatti. It was also stated, suit property was absolute property of defendant no.1 and plaintiff filed suit to harass and knock off property of defendant no.1. On above grounds, sought dismissal of suit.

7. Based on pleadings, trial Court framed following recasted issues:

1. Whether the plaintiff proves that suit schedule property is the ancestral joint family property of plaintiff and defendants?

2. Whether the defendants proves that already partition was affected in between plaintiff and defendants in their ancestral joint family property?

3. Whether this suit bad for non-joinder of necessary party?

4. Whether the plaintiff proves that he is entitle for

1/ share in the suit schedule property?

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5. Whether the plaintiff is entitled for the reliefs as claimed in the suit?

6. What order or decree?

8. In support of his case, plaintiff examined himself and one witness a