Sri. Mahesh Wodeyar., learned counsel for the

appellant has appeared in person.

2.

This is an appeal from the Court of Senior Civil

Judge, Bhatkal.

3.

The facts are quite simple and are stated as

under:

It is stated that plaintiffs and defendants 1 to 5 are

legal representatives of the original Propositus - Sri. Krishna

Subraya Nayak. The Propositus died leaving behind his legal

heirs.

It is stated that the suit scheduled property bearing

Sy.No.51/12+13 measuring 02-01-00 (A.G.A) out of which

01-17-00 (A.G.A) situated at Bengre-1 Village of Bhatkal

Taluk was mulageni property of Krishna Subraya Nayak and

is a joint family property. The first defendant being elder

member of the family, filed an application in Form No. 7(A)

before the Land Tribunal. The Land Tribunal granted

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occupancy right under LRM No.7A Bengre-1-58-17-86 on

12.04.2006.

It is further stated that the son of defendant No.3 3

Sandeep Sadanand Nayak had also filed an application

before the Land Tribunal seeking occupancy right and the

same came to be rejected by Land Tribunal on the ground

that he is also one of the family members of defendant

No.1. It is contended by the plaintiffs that they are having

undivided right over the suit schedule property and they are

in joint possession of the same.

It is averred by the plaintiffs that the joint family

properties are already partitioned as per the registered

partition deed dated 08.01.2013 with the consent of all

parties to the said deed. It is said that the suit schedule

property was not included in the said partition since

defendant No.1 misguided the plaintiffs stating that there is

a non-alienation clause for a period of 15 years in respect of

the said property. It is said that they believed the words of

defendant No.1 and other defendants hence, the said

5

property

was

not

included

in

the

earlier

partition.

Contending that they have an equal share in the suit

schedule property, plaintiffs filed a suit for partition and

separate possession and injunction.

After service of the suit summons, defendants 1 to 5

& 7 appeared through their counsel. Defendant No.6 did not

appear and hence was placed exparte. Defendant No.1 filed

a written statement and contended that the suit schedule

property is his absolute property and separate property. He

contended that he filed Form No.7A and the Land Tribunal

granted occupancy right in his name exclusively. It is also

contended that he never acted as Manager of a joint family.

Defendant No.1 by way of counterclaim, claimed

partition claiming 1/6^th share in the written statement

schedule properties canceling the partition deed dated

08.01.2013. Among other grounds, he prayed to dismiss

the suit and to allow the counterclaim.

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The Defendant No.5 filed a written statement

admitting the claim of the plaintiffs. The defendants 2, 3

and 4 adopted the written statement filed by defendant

No.5.

4.

Based on the above pleadings, the Trial Court

framed the following issues:

ISSUES

1. Whether the plaintiffs prove that the suit

properties are the joint family properties of the

plaintiffs and defendants?

2. Whether defendant No.1 proves that the

partition deed dated 08.01.2013 is fraudulent

and illegal and liable to be canceled?

3. Whether defendant No.1 proves that the

written statement properties are also joint

family properties?

4. Whether the defendant No.1 proves that he is

having 1/6^th share in the written statement

properties?

5. Whether

the

plaintiffs

prove

that

the

counterclaim is not properly valued and the

court fee paid is insufficient?

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6. Whether

the

plaintiffs

prove

that

the

counterclaim exceeds the pecuniary jurisdiction

of the Court?

7. Whether

the

plaintiffs

prove

that

the

counterclaim is barred by limitation?

8. Whether the plaintiffs and defendant No.1 is

entitled to the relief sought?

9. What order or decree?

To substantiate the claim, the first plaintiff was

examined as PW1 and produced five documents which were

marked as Ex.P.1 to Ex.P.5. On the other hand, defen