THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 02.09.2016 PASSED IN OS NO.4/2012 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHIKKAMAGALURU. DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE T.M.NADAF)

This appeal by defendant No.4 under Section 96 of CPC challenging the Judgment and Decree dated 02.09.2016 in O.S.No.04/2012 passed by the I Addl. Senior Civil Judge, Chikkamagalur (for short, 'the Trial Court'), only to the extent of Item No.1 and 2 of the suit schedule properties.

The parties are referred to as per their rankings before the Trial Court.

Shorn of details, brief facts leading to filing of this appeal are as under: The plaintiffs filed the suit seeking following releifs:

a) For Partition and separate possession of 1/4th share of plaintiff No.1, half share in the 1/4th share, of plaintiff No.2 and 3 collectively and half share in 1/4th share of plaintiff No.4 in all schedule properties by metes and bounds;

b) For an order to enquiry into mesne profits under Order 20 Rule 12 of CPC;

c) For Court costs and such other reliefs as the Hon'ble Court deems fit to grant under the circumstances of the case.

It is the case of the plaintiffs that, plaintiff No.1, defendant No.2 and late Lakshmamma are the daughters and defendant No.3 is the son of defendant No.1. Plaintiff Nos.2 and 3 are the sons of late Gangamma. Defendant Nos.4, 5 and 6 are the purchasers of the properties.

The Genealogical Tree produced at Ex.P13 is extracted for easy reference of relationship of the parties, which reads as under:

v C ÀA d z Ó ÉA £ z<u> z</u>i À ºÉÆÀÄ<u>ÉÆ</u> º ÀÄqZ<u> q</u>º ɸw ÀتÀÑ<u> ÀØ</u> A<u> ª</u> Àgª ɸÀÄi ÀÄ Àg<u>ÀÄ</u> ÀÄ ä ÀÄ<u> ä</u> ä ª ÀÄ å ¸ º<u> ¥</u> ÀÄ ªÉÆ: äÀ£<u> À w</u> | Àĸ (ÀÄ º<u>ß</u> U ¥ª É À ÀÄ<u>7</u> 7 ÀªÀÄ Z (<u> 5</u> A 5¥ Àw ÀÑA i<u> ª</u> Àª ÀÄ) iª å ÀÄ<u> Àµ</u> Àw åÀ µ ( ) ¥<u> Àð</u>(Àð ¥ Àª Àª Àw Àw ) )1) dAiÀĪ (® ÀÄä U ª Àߪ ÀÄU ÁV À¼ z ÀÄ É)4 4 ªÀµÀð 2) ®PÀëöäª (® ÀÄä U ª Àߪ ÀÄU Á À¼ V ÀÄ z É)4 2 ªÀµÀð 3) UÀAUÀªÀÄä ªÀÄUÀ¼ÀÄ (¥ÀªÀw) 4 ª ) ÀÄ A Z d ÀA Ä z ¼À ÀÄæ ¸ ª ÉÆ ÀÄ ¸ U É À 3 4 2 0 ª ª Àµ Àµ Àð Àð 1) 2 P ) ÀÈ µ £ ÀÚª À« ÀÄÆ Ã£ w À ð ª ÀÄ ª U ÀÄ À U 19 À 2 ª 1 Àµ ª Àð Àµ Àð 2) 1) ¦ ¥ æA Àæ¸ iÀi À£ Á Àß ª ª ÀÄ ÀÄ U U À¼ À 1 ÀÄ 5 9 ª ª Àµ Àµ Àð Àð

The claim of the plaintiffs was that late Huchaiah has been granted suit schedule Item Nos.1 and 2 under the provisions of Karnataka Village Officers Abolition Act, 1961, Act of 1961, from the Government. The said Huchaiah has been granted lands on behalf of the family as entire family was cultivating the lands jointly, along with Huchaiah. Late Huchaiah was working as Kulivadi - an erstwhile village Office which has been abolished after coming into force of Act of 1961. Since the properties were granted to the benefit of the family, Huchaiah was not having any exclusive right over the suit schedule properties and the plaintiffs along with other defendants i.e., defendants 1 to 3 & 7 and 8 having equal rights in the properties.

It is their further case that defendant No.4 taking advantage of the illiteracy of late Huchaiah, got the sale deed executed in his favor on 11.05.2001 against the rights of the plaintiffs. Defendant No.4 made defendants 1 to 3 to subscribe their signatures/ thumb impressions without allowing defendants 1 to 3 to go through the contents of the sale deed and succeeded in grabbing the properties belonging to the family. The sale deed is a product of fraud by obtaining thumb impression by taking advantage of illiteracy of defendants 1 to 3. It is their further claim that defendant No.4 thereafter, created number of documents using the signatures and thumb impressions of innocent depressed class people suppressing the contents of the document. Subsequently, def