DATED.27.03.2023

APPEAL

ABATED

AGAINST A4)

AND:

YALLAVVA W/O. SIDDAPPA HAKKAL,

AGE: 56 YEARS,

OCC: HOUSEHOLD WORK AND AGRICULTURE,

R/O: GANGANBUDIHAL-5872101,

TQ: BADAMI, DIST: BAGALKOT.

SMT. BHAGIRATHI W/O. BASAVRAJ DADDI,

AGE: 26 YEARS,

OCC: HOUSEHOLD WORK AND AGRICULTURE,

R/O: GANGANBUDIHAL-5872101,

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TQ: BADAMI, DIST: BAGALKOT.

…RESPONDENTS

(BY SRI.H.M.DHARIGOND, ADVOCATE FOR RESPONDENTS)

THIS RFA IS FILED UNDER SEC.96 R/W. ORDER 41 RULE 1

OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:

22.03.2013 PASSED IN O.S.NO.29/2011 ON THE FILE OF THE

SENIOR CIVIL JUDGE & JMFC., BADAMI, DECREEING THE SUIT

FILED FOR DECLARATION, PARTITION & POSSESSION.

THIS APPEAL COMING ON FOR HEARING, THIS DAY, ASHOK

S. KINAGI, J., DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is filed by the appellants challenging the

judgment and preliminary decree dated 22.03.2013 passed

by the learned Senior Civil Judge and JMFC, Badami, in O.S.

No.29/2011.

2.

For the sake of convenience, the parties are

referred to as per their ranking before the trial Court.

3.

The appellants are

defendant Nos.1 to 4.

Respondent No.1 is the plaintiff and respondent No.2 is

defendant No.5. The plaintiff filed a suit for partition and

separate possession of her 1/3rd share in the suit schedule

properties.

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4.

It is the case of the plaintiff that, the plaintiff and

the defendants are the members of the Hindu undivided joint

family. In order to establish the relationship of the plaintiff

and the defendants, the plaintiff has produced the genealogy

tree. The suit properties are the ancestral properties of the

plaintiff and the defendants. The deceased Mallappa and his

wife Bagawwa, out of their earnings from the said ancestral

properties, they, purchased R.S. No.11/2 measuring 6 acres

26 guntas and house property bearing VPC Nos.16, 18 and

180

situated

at

Ganganbudihal

within

the

limits

of

Neerbudihal Gram Panchayat. The said properties are also

the joint family properties of the plaintiff and the defendants.

The plaintiff requested the defendants to effect partition but

the defendants refused to effect partition. Hence, cause of

action arose for the plaintiff to file a suit for partition and

separate possession.

5.

The

trial

Court

issued

summons

to

the

defendants. Defendant Nos.1, 3, 4 and 5 appeared through

counsel. But defendants 1, 3 and 4 did not chose to file the

written statement. Defendant No.2, though served, remained

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absent and was placed exparte. Defendant No.5 filed written

statement admitting all the averments in the plaint paras 1

to 6 and also admitted that the suit schedule properties are

the ancestral joint family properties of the plaintiff and the

defendants and that the plaintiff has got 1/3rd share,

defendant Nos.1 to 4 together have 1/3rd share and

defendant No.5 is having 1/3rd share and prayed to decree

the suit.

6.

The trial Court on the basis of the pleading of the

parties framed the following issues:

1. Whether the plaintiff proves that the suit

schedule properties are the ancestral & joint

family properties of herself and defendants as

contended in the plaint ?

2. Whether the plaintiff is entitled to the relief of

partition & separate possession of 1/3^rd share in

the suit schedule 'B' properties ?

3. Whether the defendant No.5 proves that she is

entitled to partition & separate possession of

1/3^rd share in the suit schedule 'B' properties by

way of counter claim as contended in the W.S.?

4. To what order or decree?

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7.

The plaintiff in order to substantiate her case, got

examined herself as PW.1 and also examined one witness as

PW.2 and got marked Exs.P-1 to P-8. Defendant Nos.1 to 4

did not adduced any evidence on their behalf. However,

defendant No.5 filed an affidavit in the form of examination-

in-chief and no documents were got marked on her behalf

and closed her side.

8.

The trial Court, after recording the evidence and

considering the oral and documentary evidence on record,

answered issue Nos.1 to