The defendants have preferred this second appeal being

aggrieved by the impugned judgment and decree dated

06.11.2012 passed in R.A.No.6/2008 on the file of the learned

Senior Civil Judge and JMFC, Belthangady, Dakshina Kannada

(hereinafter referred to as 'the First Appellate Court' for

brevity), wherein, the appeal preferred by the plaintiff-

respondent No.1 herein was allowed with costs and judgment

and decree dated 01.12.2007 passed by the learned Civil

Judge (Jr.Dn) & JMFC, Belthangady, Dakshina Kannada

(hereinafter referred to as 'the trial Court' for brevity) in

O.S.No.34/2001 was set aside. The suit of the plaintiff was

decreed with costs and it was held that the plaintiff is entitled

for 1/6^th share in the schedule property and a separate

enquiry is ordered regarding future mesne profit.

2.

For the sake of convenience, parties are referred

to as per their status and rank before the Trial Court.

3.

Brief facts of the case are that the plaintiff filed

the suit before the trial Court in O.S.No.34/2001 against

defendant Nos.1 to 6 seeking partition of plaint schedule

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properties i.e., ‘A’ schedule properties into seven equal shares

by metes and bounds and to allot one such share to the

plaintiff and for mesne profit and costs. The schedule 'A'

properties appended to the plaint describes ten items of

agricultural

properties

i.e.,

various

sub-divisions

in

Sy.Nos.360 and 361.

4.

It is contended by the plaintiff that defendant

No.1 is widow of late Rukmayya Gowda. Plaintiff and

defendant Nos.2 to 6 are their daughters. Rukmayya Gowda

was registered as an occupant in respect of schedule

properties as per the order passed by the Land Tribunal in

LRY.No.312/74-75 and 315/74-75. The occupancy certificate

was issued in Form No.10 in the name of Rukmayya Gowda.

After his death, the plaintiff and defendant Nos.1 to 6 have

inherited the plaint schedule properties and the plaintiff is

entitled for 1/7^th share in the same.

5.

It is contended that defendant Nos.1 to 4 are in

possession of suit schedule properties and when plaintiff

demanded her 1/7^th share from defendant Nos.1 to 4 by

issuing notice dated 09.11.2000, they have issued a reply

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taking untenable contentions that late Rukmayya Gowda had

settled the schedule properties in their favour. It is contended

by the plaintiff that late Rukmayya Gowda had no right to

execute the settlement deed as the said properties were

vested with the Government as on the date of execution of

the settlement deed. The said document is concocted and it

does not convey any right in favour of defendant Nos.1 to 4.

The said document is not binding on the plaintiff. Therefore,

plaintiff sought for partition and separate possession of her

1/7^th share in the schedule properties.

6.

Defendant Nos.2 to 4 have filed the written

statement denying the contentions of the plaintiff. However,

defendants admitted that occupancy right in respect of

schedule properties was granted in favour of late Rukmayya

Gowda by the Land Tribunal, Belthangady and Form No.10

was issued in his favour. The relationship between the parties

is also admitted. However, the claim of the plaintiff that she

is entitled for 1/7^th share over the schedule properties is

denied. The defendants in the written statement, admitted

that the plaintiff got issued legal notice dated 09.11.2000

demanding for partition and separate possession of her share.

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However, it is stated that a reply notice is addressed to the

plaintiff.

7.

It is contended that when late Rukmayya Gowda

was in sound disposing state of mind, he executed the

settlement deed/Will dated 15.09.1978 and settled the

schedule properties in favour of defendant Nos.2 to 4. While

executing the said deed, late Rukmayya Gowda had reserved

himself the right to enjoy the schedule properties during his

life time and to get the occupancy right over the same in his

name. Accordingly, occupancy right was conferred on him.

After the death of Rukmayya Gowda, as per terms of

sett