This appeal is filed challenging the judgment and

preliminary decree dated 01.09.2017, passed in

O.S.No.208/2016 by the II Additional Senior Civil

Judge, Hubballi (hereinafter referred to as ‘the trial

Court’, for short).

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For the sake of convenience the parties are referred

to as per their rankings before the trial Court.

Appellants are defendants No.1, 2 and 4. Respondent

No.1 is the plaintiff. Respondent No.2 is defendant

No.3.

The brief facts leading to the filing of this appeal are

under:

3.1. The plaintiff filed a suit for partition and

separate

possession

of

non-agricultural

properties on the ground that the paternal

grandfather of the plaintiff late Mahadevsa had

purchased the suit properties and after his

demise there was a partition and the said

properties were fallen to the share of the father

of the plaintiff. The father of the plaintiff died

on 26.06.2015, as such the plaintiff being the

coparcener is entitled for share in the suit

schedule properties. The plaintiff requested the

defendants to effect a partition, but the

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defendants refused to effect the partition,

hence cause of action arose for the plaintiff to

file a suit for partition and separate possession

and hence the suit.

3.2. Defendants No.1, 2 and 4 filed a common

written statement contending that the suit

properties are the self-acquired properties of

the father of the plaintiff and father of the

plaintiff had gifted the suit properties in favour

of defendants No.1 and 2 under the registered

gift

deed

dated

16.10.2014.

As

such,

defendants No.1 and 2 are the absolute owners

of the suit schedule properties. It is contended

that the suit for mere partition without seeking

cancellation of the registered gift deed is not

maintainable in law and the court fee paid is

insufficient and prayed for dismissal of the suit.

3.3. The trial Court on the basis of the pleadings of

the parties framed the following issues:

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(1) Whether the plaintiff proves that she and

the defendants are the members of Hindu

undivided joint family and further proves

that suit properties and they are in joint

possession of the suit properties?

(2)

Whether the defendants prove that suit is

not maintainable without seeking the

relief for cancellation of gift deed?

(3)

Whether the plaintiff is entitled for 1/4^th

share in the suit properties?

(4)

what order or decree?

3.4. In order to substantiate the case of the plaintiff,

the plaintiff got examined herself as PW1 and

got marked documents at Exhibits P1 to P12

and defendant No.1 was examined himself as

DW1 and examined one witness as DW2 and

got marked document at Exhibit D1.

3.5. The trial Court after recording the evidence and

considering the oral and documentary evidence,

answered issue No.1 in the affirmative, issue

No.3 in partly affirmative and issue No.2 in the

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negative and consequently decreed the suit of

the plaintiff. It is ordered and decreed that the

plaintiff is entitled for partition and separate

possession to 1/5^th share in the suit schedule

properties by metes and bonds and the relief of

mesne profit is kept open for separate enquiry

under Order 20 Rule 12 of the Code of Civil

Procedure.

Defendants

No.1,

2

and

4

aggrieved by the judgment and preliminary

decree filed this appeal.

4.

Heard the learned counsel for defendants No.1, 2

and 4 and also learned counsel for the plaintiff.

5.

Learned counsel for defendants No.1, 2 and 4

submits that the trial Court has committed an error

in decreeing the suit of the plaintiff. He submits that

suit properties are the self acquired properties of the

father of plaintiff and defendants No.1, 2 and 4 and

father of plaintiff had gifted the suit properties in

favour of defendants No.1 and 2 under the registered

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gift deed dated 16.10.2014, as such they became the

absolute owners of the suit properties; He also

submits that the trial Court has not considered that

mere suit for partition and separate possession

without seeking for the rel