JUDGMENT

1. This appeal is filed by plaintiff nos.2 & 6 challenging the judgment and decree dated 12.04.2001 passed by the II Addl. Civil Judge (Jr.Dn.), Kundapura (hereinafter referred to as 'the Trial Court') in O.S.No.589/1991 and the judgment and decree dated 19.01.2007 passed by the Civil Judge (Sr.Dn.), Kundapura (hereinafter referred to as 'the First Appellate Court') in R.A.No.46/2001, wherein the courts below have dismissed the suit filed by the plaintiffs seeking partition of the suit schedule property into two equal shares and allotment of one share to the plaintiffs with future profits and costs.

2. For the sake of convenience, the parties are referred to by the rank assigned to them in the court at first instance.

3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are, plaintiffs had filed the suit in O.S.No.589/1991 before the Trial Court claiming that the suit schedule property belonged to late Govinda and the defendant herein jointly on ancestral muli right. Plaintiffs claim to be the legal heirs of late Govinda and on the ground that late Govinda and the defendant were the joint owners of the suit schedule property, they claimed equal share in the suit schedule property. It is the case of the plaintiffs that inspite of their demand, defendant had failed to partition the suit schedule property, and therefore, they had filed the suit.

4. The defendant on service of suit summons, had entered appearance and filed a detailed written statement denying the plaint averments. It has been specifically contended on behalf of the defendant that the suit schedule property did not belong to late Govinda and the defendant jointly, and the defendant was never in joint possession and enjoyment of the suit schedule property with the plaintiffs. It is also specifically contended that the ancestors of Govinda and the ancestors of the defendant who are the members of Aliyasanthana family belonged to separate Kavaru and the family property which was held on leasehold rights under Mookambika Temple, Kollur, was partitioned between three Kavarus comprising of Marli, grandmother of the defendant and the grandmother of one Nandayya about 100 years ago. It is also further pleaded that the suit schedule property was granted to one late Baira on Darkhast who is the maternal uncle of the defendant for the benefit of his branch family, and therefore, the other branch family members do not have any right over the suit schedule property. Defendant is the son of Venkamma who also had one daughter by name Chikkamma and the said Chikkamma had died without any issues. Defendant's mother - Venkamma is the sister of Baira. After the death of Baira in the year 1946 and after the death of Chikkamma in the year 1970, the defendant has been enjoying the suit schedule property which is within the knowledge of the plaintiffs. It was also contended that the possession of the defendant was adverse to the interest of the plaintiffs, and therefore, he had perfected his right over the suit schedule property also by way of adverse possession, and accordingly, had prayed to dismiss the suit.

5. Based on the rival pleadings, the Trial Court had framed the following issues:

Issues

1) Whether the plaintiffs prove that the plaint 'A'

schedule property was jointly owned by Govinda and defendant on mooli right?

2) Whether the plaintiffs prove that Govinda had any right, title or interest over the suit land?

3) Whether the defendant proves that the suit land was granted to his maternal uncle heirs on Darkasth for and on behalf of his branch family?

4) Whether the partition of the family lands of the ancestors of the defendant and Govidna as pleaded is true?

5) Whether the defendant proves that he had perfected his right over the suit land by adverse possession?

6) Whether the plaintiffs are entitled to 1/2 share in the suit 'A' schedule lands with mesne profit as sought for?

7) What order or decree?

6. During the course of trial, plaintif