ORAL JUDGMENT

(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)

Suit is one for partition and separate possession seeking 8/21st share in the suit property. The family genealogy is as under:

2. The defendant has set up a plea of prior partition having taken place between the two brothers namely Doddagouda and Basanagouda. The trial Court framed necessary issues and issue No.3 was ‘‘Whether the defendant No.1 proves that there was partition taken place in the year 1985 between both the parties?’’. The trial Court considering the oral and documentary evidence arrived at a conclusion that the defendant No.1 failed to prove that in the partition effected in the year 1985, the Schedule – A(1) property and ½ share in Schedule – A(2) property fell to his share.

3. The trial Court however by taking notional partition held that the plaintiffs are entitled for 8/21st share in the suit property. The appeal preferred by the defendants came to be affirmed by the First Appellate Court. Both the Courts on facts held that the defendants have failed to prove about the prior partition effected and held that the plaintiffs are entitled for share. It is relevant to note that the trial Court and the First Appel