The captioned first appeal is filed by defendants

questioning the judgment and decree dated 5.10.2005 passed

in O.S.33/2002 wherein the learned Judge has granted the

alternative prayer for partition and separate possession and

thereby has decreed the suit by holding that the plaintiffs are

entitled for ½ share in all suit schedule properties.

2.

The parties are referred to as per their rank before

the trial Court for the sake of convenience.

3.

The facts leading to the case are as under:

4

3(a) The genealogy of the family is as under:

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3(b) The plaintiffs represent Mullegowda’s branch. The

plaintiffs have filed the present suit seeking relief of

declaration to declare that they are the absolute owners of the

plaint 'A' schedule properties and they claim that they have

inherited suit schedule 'A' property from their late father

Mullegowda as per oral partition. The plaintiffs specifically

contend that defendants represent the branch of Kallegowda.

5

It is further specifically pleaded that originally schedule A and

schedule

B

properties

were

owned

by

their

ancestor

Channabasavegowda and after his death his surviving sons

namely Kallegowda and Mullegowda orally partitioned the suit

schedule properties and in terms of the oral partition Schedule

A properties were allotted to the share of H.K. Mullegowda and

schedule B properties were allotted to the share of

Kallegowda. Therefore, the plaintiffs contended that their

ancestor Mullegowda was in exclusive possession of Schedule

A properties which was allotted to him in a family partition.

The plaintiffs also further claimed that in terms of partition,

hissa proceedings were conducted and katha was also changed

pertaining to Schedule A properties. The grievance of the

plaintiffs is that the defendants are influential persons and

taking undue advantage of helpless situation of the plaintiffs

have illegally got their names mutated in the revenue records

in respect of item Nos.1 and 2 of Schedule 'A' properties on

the strength of an order passed by the Deputy Director of

6

Land Records. The plaintiffs further alleged that the

defendants are making hectic efforts to disturb peaceful

possession and enjoyment of the plaintiffs over plaint 'A'

schedule properties. On these set of pleadings, the plaintiffs

claimed the relief of declaration to declare that they are the

absolute owners of plaint 'A' schedule properties and in the

alternate, if the Court found that there was no partition, to

effect partition by metes and bounds in all the suit schedule

properties and grant their legitimate ½ share in the suit

schedule properties.

3(c) On receipt of summons, the defendants filed

written statement and stoutly denied the entire averments

made in the plaint. The defendants though supported the oral

partition set up by plaintiffs, but however seriously disputed

the mode of partition as alleged by plaintiffs. As per

defendants, item Nos.1 and 2 of schedule A and item No.2 of

schedule B property were allotted to their share whereas item

Nos.3 and 4 of schedule A and item No.1 in schedule B were

7

allotted to the share of plaintiffs and therefore, they seriously

disputed the possession of plaintiffs over survey No.88/2B and

survey No.88/2C.

3(d) Based on the pleadings, the Trial Court framed the

following issues:

"1. whether the plaintiffs prove the oral partition

between

Kallegowda

and

Mallegowda

sons

of

Channabasave