AND

DECREE

DATED

13.09.2022

PASSED

IN

R.A.NO.116/2022 ON THE FILE OF THE PRINCIPAL JUDGE FAMILY

COURT, KOPPAL DISMISSING THE APPEAL AND CONFIRMING THE

JUDGMENT AND DECREE DATED 31.07.2019, PASSED IN O.S.

NO.46/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND

JUDICIAL

MAGISTRATE

FIRST

CLASS,

YELBURGA,

PARTLY

DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE

POSSESSION.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

Though the matter is listed for admission, with the

consent of learned counsel for the parties, the matter is

taken up for final hearing.

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The present appeal by defendant No.3 assailing

the judgment and decree dated 13.09.2022 in RA

No.116/2022 on the file of the Principal Civil Judge, Family

Court, Koppal, confirming the judgment and decree dated

31.07.2019 in OS No.46/2015 on the file of the Senior

Civil Judge and JMFC, Yalburga.

The parties herein are referred to as per the

ranking before the trial Court.

Brief facts leading up to filing of appeal are:

Plaintiff being the mother of defendant Nos.1, 2

and 3 filed suit for partition and separate possession of

1/4^th share in the suit schedule properties contending that

the suit schedule properties are the joint family properties

of the plaintiff and defendants and plaintiff is entitled for

1/4^th share in the suit schedule property.

In pursuance to the summons issued by the trial

Court, defendant Nos.1, 3, 6, 7 and 8 were placed ex-

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parte, defendant Nos.2, 4 and 5 were served and were

represented by counsel. Defendant No.4 has filed written

statement contending that there was oral partition taken

place between the plaintiff and defendant Nos.1 and 2 and

after the death of propositus and as per the partition

plaintiff was allotted the share along with defendant No1.

and further defendant No.1 agreed to look after the

plaintiff. It is stated that the plaintiff is not entitled for any

share in the suit schedule property.

Defendant No.5 who is the purchaser of the suit

schedule properties item Nos.1 and 3 filed written

statement inter alia contending that on demise of the

original propositus, plaintiff and defendant Nos.1 to 3 have

become the joint owners of the suit schedule properties.

According to him, defendant No.1 has executed a

registered sale deed dated 22.11.2007 in his favour in

respect of the suit item No.1 to the extent of 2 acres 5

guntas out of total extent of 5 acres 12 guntas deed and in

respect of item No.3 to the extent of 1 acre 37 guntas out

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of total extent of 5 acres 17 guntas and hence, he is the

bonafide purchaser for a valuable consideration in respect

of item Nos.1 and 3 of the suit schedule properties.

The Trial Court based on the pleadings of the

parties, framed the following issues.

1. Whether the plaintiff proves that suit schedule

properties

are

ancestral

and

joint

family

properties of her family?

2. Whether the plaintiff proves that she is entitle for

1/4th share in the suit schedule properties?

3. Whether the plaintiff proves that transfer of

properties made in favour of Defendant No. 4 to

8 by the defendant No. 1 to 3 is illegal in the eye

of law and not binding on her share?

4. Whether the Defendant No. 5 proves that she is

the bonafide purchaser in respect of Item No. 1

and 3 of suit schedule properties for having

purchased the same from defendant No. 1 and 3

respectively by way of registered sale deeds

dated: 27.11.2007?

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5. Whether Defendant No. 5 proves that suit of the

plaintiff without seeking relief of declaration and

recovery of possession is not maintainable?

6. Whether the Court fee paid by the plaintiff is.

proper ?

ADDL. ISSUES

1. Whether the Defendant No.2, 4 & 5 proves that

during the life time of Kalakappa i.e., husband

of plaintiff there was a oral partition effected in

respect of the suit schedule properties between

the joint family members?

The Trial Court by its judgment and decree held

that the suit schedule propertie