JUDGMENT

The appellant aggrieved by the judgment and decree dated 18.12.2006, passed in O.S.No.538/1995 by the I Additional City Civil and Sessions Judge, Bangalore City, has filed this appeal.

2. Parties are referred to as per their ranking before the Trial Court. The appellant is the plaintiff and respondents are the defendants.

3. Brief facts leading rise to filing of this appeal are as under:

The plaintiff filed a suit for partition and separate possession in respect of the suit schedule property. It is a case of the plaintiff that originally the suit schedule property belonged to one Sri Maheshappa who had four children by name Nanjappa, Ramappa, Muniyappa and Krishnappa. On 07.10.1950, a settlement deed was effected in respect of the properties of Sri Maheshappa and under the said settlement deed, 'C' schedule property therein was allotted to the share of Sri Muniyappa i.e., the father of defendant Nos.1 to 3 and pursuant to the death of Sri Muniyappa, defendant Nos.1 to 3 inherited and succeeded to the share of their father. The suit property is one of the property of 'C' schedule property mentioned in the settlement deed dated 07.10.1995, allotted to the share of Sri Muniyappa. The plaintiff requested to effect a partition in respect of the suit schedule property and allot a share to the plaintiff. Inspite of the request made by the plaintiff, defendant No.1 did not agree to effect partition. Hence the cause of action arose for the plaintiff to file the suit.

3.1. Defendant No.1 filed written statement and other defendants have not filed their written statement. In the written statement, defendant No.1 admitted the relationship of the plaintiff with him and also admitted the execution of the said settlement deed dated 07.10.1950. But he has contended that the said settlement deed was executed as a nominal document and not meant to be acted upon. There is no partition between defendants No.1 to 3 and contended that during the lifetime of defendant No.1, the plaintiff is not entitled to seek for the relief of partition and separate possession. It is contended that defendant No.1 has filed a comprehensive suit for partition in O.S.No.1025/1995 including all the properties of the family and the same is pending.

Hence, he sought for dismissal of the suit.

3.2. The Trial Court, on the basis of pleadings, framed the following issues:

1. Whether the plaintiff proves that the suit schedule property is belonged to the 1^st defendant?

2. Whether the plaintiff is entitled for half share in the suit schedule property?

3. Whether the 1^st defendant proves that the partition in respect of the suit schedule property has not taken place between him and his brothers?

4. Whether the defendants further proves that the suit is not maintainable for partial partition and also on the ground that the defendant filed a comprehensive suit for partition in O.S.No.1025/1995?

5. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?

6. Whether the defendants prove that the suit is not maintainable on the ground that the suit is frivolous and vexatious?

7. What order or decree?

3.3. The plaintiff in support of his case examined himself as PW-1 and got marked documents at Ex.P1 and Ex.P2. On the other hand, defendant No.1 was examined himself as DW.1 and got marked document at Ex.D1.

3.4. The trial Court, after recording the evidence and considering the material on record held that the plaintiff failed to prove that the suit schedule property belongs to defendant No.1 and further held that the plaintiff failed to prove that he is entitled for half share in the suit property and also held that defendant had proved that the partition in respect of the suit schedule property has not taken place with him and his brother. Further held that the defendant proved that the suit is not maintainable for partial partition and also on the ground that the defendant filed comprehensive suit for partition in O.S.No.1025/1995. Further held that the