Challenging judgment and decree dated 02.08.2018

passed in R.A.No.15037/2017 by V Additional District &

Sessions

Judge,

Devanahalli,

Bengaluru

Rural

District,

Bengaluru, by allowing appeal reversing judgment and decree

dated 12.06.2017 passed in O.S.No.1012/2007 by Senior Civil

Judge

&

JMFC.,

Devanahalli,

Bengaluru

Rural

District,

Bengaluru, appellant has preferred this second appeal.

2. Appellant herein was plaintiff in suit and respondent in

first appeal. Whereas, respondents no.1 and 2 herein were

defendants no.1 and 2 in suit and appellants no.1 and 2 in first

appeal. For sake of convenience, parties shall hereinafter be

referred to as per their rank in trial court.

3. Plaintiff filed O.S.No.1012/2007 against defendants for

relief of partition and separate possession. It was stated in

plaint that defendant no.3 was her brother, while defendant

no.1 was her father and defendant no.2, her uncle. It is stated

that they constituted Hindu undivided joint family governed by

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Hindu Mithakshara School of Law. It was her case that land

bearing Sy.No.145/1 measuring 02 acres 18 guntas situated at

Budigere village, Channarayapatna Hobli, Devanahalli Taluk

(hereinafter referred to as 'suit property') belonged to

her grandfather - Muthappa. He was in possession and

enjoyment of suit property. Defendants no.1 and 2 were his

children. Defendant no.2 has no issues. After death of

Muthappa, they succeeded to his estate. Thereafter, defendant

no.3 acted as karta and looking after joint family properties,

but, he was mismanaging joint family funds. It is stated that

plaintiff was cultivating suit schedule property and demanded

partition and separate possession of her 1/3^rd share. But

defendant no.3 refused same, constraining her to file suit.

4. On service of suit summons, defendants no.1 and 3

entered appearance. On 28.07.2008, defendant no.2 was got

deleted from array of parties by plaintiff on ground that

defendant no.2 sold 01 acre 09 guntas of suit land in favour of

defendant no.3. However, as defendants no.1 and 3 did not

contest suit, an ex-parte judgment was passed on 20.02.2009.

Challenging same, defendants preferred Miscellaneous petition

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No.15/2009, which was allowed by setting aside ex-parte

judgment and decree and remanding suit for fresh trial.

5. Thereafter defendants filed written statement denying

plaint averments and contended that plaintiff was not in

possession of suit schedule property. They denied constituting

Hindu undivided joint family, but admitted relationship. It was

contended that suit property was divided between defendants

no.1 and 2, after death of their father and revenue records

were changed. Hence both of them were owners of respective

share to extent of 1.09 acres.

6. As defendant no.2 sold his share to defendant no.3

under sale deed during 1984, it was contended that plaintiff

had no share in suit property, therefore, she was not entitled

for any share and sought for dismissal of suit.

7. Based on pleadings, trial Court framed following

issues:

1.

<Whether the plaintiff proves that, herself

and defendants constitute undivided joint

Hindu

family

and

the

suit

schedule

property is their joint family ancestral

property?

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2. Whether the plaintiff further proves that,

herself

and

defendants

are

in

joint

possession and enjoyment of the suit

schedule property?

3. Whether the defendants No.1 and 3 prove

that, the suit schedule property was

divided amongst the defendants No.1 and

2 after the death of their father as

contended in Para No.10 of their written

statement?

4. Whether the valuation made and payment

of Court fee is correct and sufficient?

5. Whether the plaintiff is entitled to the

relief's sought for?

6. What order or decree?

8. In support of her case, plaintiff was examined herself

as PW.1 and two other witnesses as PWs 2 and 3. Exhibits P.1

to P.13 were marked. Defendant no.3 was examined himself as

DW1 and also examined two more witnesses as DWs. 2 and 3.

Exhibits D.1 to