The necessity for strict evidential support in claims under partition and the careful scrutiny required for exparte judgments.

ORAL JUDGMENT

1. This appeal is by the defendants in O.S.No.7795/2002, aggrieved by the exparte judgment and decree dated 05.02.2003 passed therein, on the file of XX Additional City Civil Judge at (CCH.No.32), Bengaluru (for short hereinafter referred to as "the Trial Court"), in terms of which, the Trial Court has decreed the suit in part holding the plaintiff to be entitled for 1/5^th share in the suit schedule property and has further declared that if he satisfies the entire liabilities on the suit schedule property, he is entitled for the shares of defendant Nos.1 to 4.

2. Brief facts of the case leading up to filing of the present appeal are that; one P.Nagappa was allotted a site bearing No.307/44 the suit schedule property by the Chairman of Yediyur Grama Panchayath on 31.07.1969. There was an old dilapidated house existing thereon. Said P.Nagappa passed away on 19.01.1994 leaving behind his wife Smt.Bailamma - defendant No.1, three sons namely Sri.Venkatesh - the plaintiff, Sri.Raja and Sri.Govindappa - defendant Nos.2 and 3, two daughters namely Smt.Arasamma - defendant No.4 and Smt.Galamma - appellant No.4 in this appeal. Upon his demise, the aforesaid legal heirs became entitled for their shares in the suit schedule property. The plaintiff filed the above suit on the premise that he had constructed a building consisting of three floors on the suit schedule property in the year 1988 investing a total sum of ₹7,20,000/-. That the entire cost of construction was borne by the plaintiff alone.

3. Since the defendants were not in a position to arrange the funds, they had executed an unregistered settlement deed dated 28.08.1998 authorising the plaintiff to put up the construction and to recover the money invested by him. After the construction, defendant No.1 was residing in a portion of the ground floor and she had let out the remaining portion of ground floor to third parties and was receiving rentals. Defendant No.4 was in occupation of the first floor and the plaintiff was in possession of the second floor. Thus, the suit property was in joint possession of the plaintiff and defendant Nos.1 to 4, each being entitled for one fifth share.

4. That defendant Nos.1 to 4 did not contribute anything in clearing the loan amount. That a sum of ₹1,50,000/- was borrowed from Bharath Co-operative Credit Society Limited in the name of defendant No.1. That there was a dispute raised before the Assistant Registrar of the Co-operative Societies, Chamrajpet, Bangalore in proceeding No.GR.BD.IS/2009/01- 02. An award for recovery of the amount was passed on 15.06.2002.

5. That one Shambashiva Hegde had initiated proceedings for the offence under Section 138 of the Negotiable Instruments Act, 1988 against the plaintiff in PCR No.1771/2000 on the file of the XII Additional Chief Metropolitan Magistrate, Bengaluru. Similarly, one Y.Jagannath Rao also had issued a legal notice calling upon the plaintiff to pay the loan amount.

6. Under the circumstances, though the plaintiff had requested the defendants to repay their share of liability, there was no response. The plaintiff was therefore constrained to issue a legal notice dated 05.09.2002 calling upon the defendants to pay their share of liability. Since there was no response in that regard, the plaintiff was constrained to file the suit seeking the following relief:

"partition of the suit schedule property and separate possession of their 1/5^th share by metes and bounds and further on failure by the defendants 1 to 4 to share the liabilities, the share of the defendants may be allotted to the plaintiff and for enquiry for mesne profits under Order 20 Rule 12 of CPC with costs."

7. It