This appeal is filed under section 96 read with Order

41 of the Code of Civil Procedure, 1908, by the plaintiff in

O.S.No.39/2016, challenging the judgment and decree

dated 28.04.2018, passed by the Prl. Senior Civil Judge

and JMFC, Mudhol, whereby the suit filed by the plaintiff is

dismissed.

For the sake of convenience, parties are

referred as per their ranking before the Trial Court.

The case of the plaintiff is that, Kariyappa Pujari

is the propositus, he died on 11.05.2003. His wife

Gangawwa died on 09.12.2007 leaving behind Gadigeppa,

Siddappa and Dundawwa, the plaintiff. Defendants No.1 to

3 are children of Gadigeppa. Further case of the plaintiff is

that, suit schedule properties are the joint family

properties. The plaintiff and the defendants are the

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members of joint family. Since the plaintiff has a share in

the suit schedule properties, she demanded her share on

01.03.2016. The defendants denied her share. Hence she

has filed a suit for partition and separate possession.

Defendants No.1 to 3 appeared through counsel and filed

a common written statement, wherein they have denied

the relationship between the plaintiff and defendants. They

have also denied that the plaintiff is the daughter of

Kariyappa and she has no right, title over the suit schedule

properties. Hence they sought for dismissal of the suit.

4.

On the basis of the pleadings of the parties, the

Trial Court has framed the following issues:

“1.

Whether plaintiff proves that, herself

and defendants No.1 to 3 form Hindu

joint family?

2.

Whether

the

suit

properties

are

ancestral

Hindu

joint

family

properties

3.

Whether the defendants prove that

plaintiff is not the sister of deceased

Gadigeppa and she is not member of

joint family?

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4. Whether the defendants prove that

there is no cause of action to file this

suit?

5.

Whether the defendants prove, the

valuation made and Court fee paid

on plaintiff is not correct?

6.

Whether the plaintiff is entitled for

the relief sought for?

7.

What order or decree?”

5.

To prove the case, the plaintiff has examined

herself as PW1 and she examined one witness as PW2 and

got marked Exs.P1 to P7. Defendant No.2 has been

examined as DW1 and examined another witness as DW2

and have not marked any documents. On the basis of the

oral and documentary evidence, the Trial Court has

answered issue Nos.1, 3, 5 and 6 as negative and issue

Nos.2 and 4 as affirmative.

6.

Smt.Deepa Pavan Doddatti, learned counsel

appearing for the plaintiff contended that plaintiff is

daughter of Kariyappa Pujari. She has equal share in the

suit schedule property with her brother. One of the brother

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Siddappa

has

died

issueless

and

another

brother

Gadigeppa has died leaving behind the defendants. She

further contended that Trial Court after considering the

evidence of the parties has rightly held that plaintiff has

proved that she is the daughter of Kariyappa. Hence, she

is entitled for 1/5^th share in the suit schedule property.

The Trial Court has erred in dismissing the suit only on the

ground that non-joinder of necessary parties. She further

contended that no opportunity has been given to the

plaintiffs to implead other necessary parties to the suit.

Hence, sought for allowing the appeal.

7.

Per contra, Sri.Arun L. Neelopant, learned

counsel appearing for the defendants has contended that

the plaintiff is not a daughter of Kariyappa. Kariyappa died

leaving behind Gadigeppa and Siddappa. The defendants

has taken a specific plea that plaintiff is not a daughter of

Kariyappa and the Trial Court has not framed any issue in

this regard. Even though the Trial Court has answered

issue No.1 as negative and has erred in giving a finding

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that plaintiff is the daughter of Kariyappa. Since Siddappa

died issueless, the defendants are entitled for entire extent

of the property. Hence, she sought for dismissal of the

appeal.

8.

Heard the learned counsel for the parties.

Perused the judgment and decree and original records