The court confirmed the status of joint family properties, ruling prior partition claims insufficiently proven, which allowed plaintiffs' partition suit to proceed despite earlier suit dismissal on non-merits.

ORAL JUDGMENT

The appeal is filed by the defendant Nos.1 to 4 challenging the judgment and decree passed in O.S.No.145/2014 (old O.S.No.15/2010) dated 31.01.2018 by the Senior Civil Judge and JMFC, Kanakapura, whereby the suit filed for partition is decreed by granting 1/6^th share each in the suit schedule properties.

2. The rank of the parties are stated as per their rank before the trial court for ease and convenience.

3. The plaintiffs have filed a suit for partition and separate possession of their 1/6^th share each in the suit schedule properties claiming that the suit schedule properties are ancestral properties and joint family properties and it is further pleaded that there was no severance in the joint family and joint family is continued. Hence, filed suit for partition.

4. The defendants have filed the written statement and denied all the plaint averments except relationship. It is the case of the defendants that there was earlier suit in O.S.No.100/1996 filed for partition and separate possession, which was dismissed. The defendant Nos.1 to 4 have taken contention that there was already partition took place in the year 1988 during the lifetime of deceased Munithimmegowda and as per the oral partition, the defendants therein had right over the suit property and in respect of other properties a Will was executed by deceased Munithimmegowda, the father-in-law of defendant No.1. Therefore, it is made out by defendant Nos.1 to 4 that there was partition during the life time of Munithimmegowda and the status of joint family was severed and hence, the properties are no more joint family properties and this is rightly considered in the suit O.S.No.100/1996 and once again filing of suit is hit by the principles of res judicata and therefore, the defendants have filed statement to the aforesaid and prays to dismiss the suit.

5. Based on the pleadings, the trial court has framed the following issues:

(i) Whether the plaintiffs prove that themselves and defendants are the members of joint hindu family and the suit properties are belongs to their joint family?

(ii) Whether the plaintiffs prove that they are having 1/5^th share each in the suit schedule properties?

(iii) Whether the plaintiffs are entitled for partition and separate possession of their 1/5^th share each in the suit schedule properties by metes and bounds?

(iv) Whether the defendants 1 to 4 prove that, there was previous partition in the year 1988 during the life time of deceased Munithimmegowda and the suit properties derived to the said defendants 1 to 4 and other properties derived to the said Munithimmegowda for which he had executed a 'Will' in favour of defendant No.2 for taking care of him?

(v) Whether the defendant No.5 proves that, the land measuring 1 acre out of suit schedule item No.2 property given to her towards her life maintenance and hence, said land is not available for partition?

(vi) Whether the suit is hit by principles of respondent judicata?

(vii) What order or decree?

6. On behalf of the plaintiff, plaintiff No.1 is examined as PW1 and got marked documents Ex.P1 to Ex.P24. On behalf of the defendants, defendant No.5 is examined as DW1 and defendant No.1 as DW2 and got marked documentary evidence as Ex.D1 to Ex.D65.

7. The trial court has decreed the suit by allotting 1/6^th share each to the plaintiffs on the reason that the defendants have failed to prove that th