The dispute between the siblings, which has

commenced with the institution of the suit for partition

in O.S. No.2/2008 on the file of the Senior Civil Judge,

Sirsi (for short, ‘the civil Court’), has persisted despite a

compromise filed in the final decree proceedings in

F.D.P. No.6/2012. However, presently the dispute is

confined to the civil Court’s finding on Issue No.5 which

relates to the appellant’s claim for partition of the

residential property in R.S. No.110/13 measuring 3

guntas with a constructed house in Sirsi Village, Sirsi

Hobli and Taluk (the subject property).

The circumstances of the case are that the

appellant, along with his two sisters, has filed the suit

in O.S. No.2/2008 for partition of different immoveable

properties, which are described in Schedule ‘A’ ‘B’ ‘C’

and ‘D’, and certain deposits are described in Schedule

‘E’. The subject property is described in schedule ‘B’

appended to the plaint. The civil Court, by its judgment

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and decree dated 6^th October 2010, has decreed the

suit declaring that the appellant and his sisters are

entitled for a share in all the immoveable properties,

including the lands in Sy.No.126/1B2, 252A/3 of Sirsi

Village and Sirsi Taluk and Sy.No.45B of Landakanalli

Village, Sirsi Taluk, which are described in the written

statement filed by the second defendant.

The appellant - the second plaintiff and the

second respondent (the second defendant) have filed

their respective appeal and cross-objection in RFA

No.3109/2010 and RFA Crob No.102/2011 calling in

question the civil Court’s judgment and decree dated

6^th October 2010. The appellant has filed his appeal

because he was aggrieved by the declaration of shares

in certain immoveable properties¹ and the second

respondent has filed his cross-objection because he

was aggrieved by the declaration of shares in the

1 The immovable properties are mentioned in the second

respondent's amended written statement and according to

the appellant owned by his wife.

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subject property. This Court, by order dated 22^nd May

2012, has disposed of the appeal and cross-objection

remanding the suit for fresh consideration after the

impleadment of the appellant’s wife calling upon the

civil Court to record fresh findings on whether the

subject property [which the second respondent asserts

is

his

absolute

properties]

and

the

immovable

properties [which are mentioned in the second

respondent's amended written statement] must be

partitioned by metes and bounds.

After this remand, the appellant’s wife is

impleaded as the fifth defendant. The appellant and the

second respondent have filed their affidavits in lieu of

further chief-examination and they are also cross-

examined. The civil Court has opined that this Court in

the earlier proceedings has confirmed the declaration of

shares in the properties other than these two sets of

properties and therefore, the civil Court has reiterated

the same.

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As regards the second respondent’s claims

in the properties of the appellant’s wife (the seventh

respondent), the civil Court has framed additional

Issue² and answered the same in favour of the seventh

respondent and has refused to declare any share. The

civil Court’s finding in this regard is called in question.

As

regards

the

appellant’s

claim

for

partitioning of the subject property, Issue No.5 is

reconsidered in the light of the fresh evidence. The

civil Court has opined that the appellant, who is

enjoined in law to discharge the burden of showing the

existence of joint family nucleus and utilization thereof

for purchase of the subject property by this second

respondent in the year 1981, has failed to place any

evidence in this regard. The civil Court has also

2 This Issue reads:

Whether Defendant No.1 to 4 prove that land bearing

Sy.No.126/1B2

measuring

2

guntas

1

annas,

Sy.No.252A/7 measuring 1 gunta 10 annas of Sirsi village

and Sy.No.45/B measuring 3 guntas 12.24 annas of

Landaknalli village, also belong to their joint family,

cons