Notice to respondents 1, 2 and 4 is dispensed

with, as the contesting respondent is no.3 who is

represented by counsel.

:: 3 ::

2. The plaintiff in O.S.No.2/2021 on the file of

Addl. Senior Civil Judge, Puttur has filed this

appeal

being

aggrieved

by

the

order

dated

28.10.2021

passed

on

I.A.No.2.

The

brief

background is as follows:

3. The plaintiff is the sister of defendants 1

to 3. Her suit is for reopening of the partition

dated 18.11.1986. According to the plaintiff she

was not a party to the partition effected on

18.11.1986.

She

was

a

bank

employee

and

throughout her service, she lived outside her

native village. Defendants 1 to 3 effected the

partition taking undue advantage of the ill health

of their parents. She has pleaded that as the

recitals in the partition deed show, she was

allotted five items of the property. In one of the

properties given to her i.e., in Sy.No.56/4A (P),

there is a house and that the parents were given

right of residence in that house till their life time

:: 4 ::

though the said house was allotted to her. She

claims to be in possession of the said house.

Some time before filing the suit she received a

notice from the surveyor for measuring the land in

Sy.No.56/4A (P). The survey report shows that the

house and other buildings mentioned in the 8A9

schedule of the partition deed is partially situated

in item no.5 of 8D9 schedule of partition deed which

was allotted to 3^rd defendant. Taking advantage

of the survey report, the 3^rd defendant is likely to

dispossess her from the house and if he succeeds

in doing so, she will be exposed to lot of hardship.

Therefore the plaintiff made an application for

temporary injunction to restrain the 3^rd defendant

or anybody claiming under him from interfering

with her possession of the properties allotted to

her.

4. The 3^rd defendant has contended that the

suit is not maintainable; in that, the plaintiff on

:: 5 ::

one stretch claims reopening of partition and on

the other stretch asserts possession over the

house property and other lands in accordance with

the allotment made in the partition deed of the

year 1986. There is total inconsistency in her

stand. He denies that the family house is a part of

the 8A9 schedule of the partition deed. After the

partition was effected, survey no.56/4A (P) was

surveyed. The plot allotted to the share of the

plaintiff

was

given

new

number

56/4A2

and

another part of the land is assigned the number

56/4A1. Therefore he asserts that the building

situated in item no.5 of plaint 8A9 schedule or in

item no.5 of 8D9 schedule of the partition deed

belongs

to

him.

He

has

also

stated

that

subsequent to partition he constructed a house in

item no.5 of the 8D9 schedule of the partition deed.

5. If the impugned order is read, it appears

that the trial court has dismissed the application

:: 6 ::

mainly on the ground that the suit appears to be

not maintainable. It is also held that the partition

deed is acted upon and if according to the

plaintiff, she was not a signatory to the partition

deed she should have applied for cancellation of

partition deed.

6. Learned counsel for the appellant/plaintiff

submits that though the plaintiff has sought

reopening of the partition, it remains a fact that

the only house belonging to the joint family is in

the possession of the plaintiff. In the partition

deed itself it is clearly mentioned that the parents

of the plaintiff were allowed to live in the house

till their lifetime and that it was allotted to the

absolute share of the plaintiff. Part of the land in

Sy.no.56 as found in 8D9 schedule of the partition

deed was allotted to the 3^rd defendant. It is

clearly written in the partition deed that there

exists

no

building

in

sy.no.56.

Only

after

:: 7 ::

defendant no.3 got the lands surveyed, he started

laying

claim

on

the

house

which

is

in

the

possession of the plaintiff. When clear possession

of the plaintiff over the house is made out, the

trial court ought to have granted