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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 21^ST DAY OF DECEMBER, 2018

BEFORE

THE HON’BLE MR. JUSTICE P.G.M.PATIL

MFA NO.201652/2016 (CPC)

BETWEEN:

Omprakash S/o Late Pandurangrao More (Arya)

Aged about 66 years, Occ: Agriculture & Advocacy,

R/o Village Mehkar, Taluk: Bhalki,

Dist: Bidar.

... Appellant

(By Sri, Ameet Kumar Deshpande, Advocate)

AND:

1.

Sathya Kumar S/o Late Pandurangrao Arya,

Aged Major, Occ: Agriculture,

R/o Village Mehkar, Taluk: Bhalki,

Dist. Bidar-585401.

2.

Vivek S/o Late Vijayprakash Arya,

Aged about 32 years,

Occ: Agriculture & Private Service,

R/o Village Mehakar,

Now residing at H.No.6, Gummaddi,

Rayareddy Colony, Resllabazar,

(In Bolaram Bazar)

Secunderabad-500 010.

3.

Purushottam S/o Late Pandurangrao Arya,

Aged about 56 years, Occ: Agriculture & Service,

R/o Mehkar, Taluk: Bhalki,

Dist: Bidar-585 401.

... Respondents

(By Sri. Namdev R.S, Advocate for R1 & R2;

Notice to R3 served)

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This MFA filed under Order 43 Rule 1(S) of Code of

Civil Procedure, 1908, praying to allow this appeal and set

aside the order dated 27.08.2016 passed on I.A.No.2 filed by

the

appellant

under

Order

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Rule

1

of

CPC

in

O.S.No.44/2014 on the file of the Senior Civil Judge, Bhalki,

and to pass any other appropriate orders, in the interest of

justice.

This appeal coming on for further hearing this day, the

Court delivered the following:

JUDGMENT

This appeal is directed against the order dated

27.08.2016 passed in O.S.No.44/2014 by the Senior

Civil Judge, Bhalki.

2.

For the sake of convenience, the parties are

referred with their rank before the Trial Court.

3.

The brief facts leading to this appeal are as

follows:

The

plaintiff-appellant

herein

filed

O.S.No.44/2014 on the file of Senior Civil Judge, Bhalki

against the defendants-respondents for partition and

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separate possession of his share in the suit schedule

properties which are agriculture lands, house properties

and four calves along with the relief for the recovery of

compensation of Rs.5,00,000/- from defendant No.3.

4.

It is the case of the plaintiff that the parties

to the suit are members of the Hindu undivided joint

family being heirs and successors of deceased Rudrappa

and Prayagbai. Rudrappa died in the year 1993 and

Prayagbai died in the year 2011. The suit properties are

ancestral joint family properties of the parties. The

father of the plaintiff being involved in the Indian

freedom movement, was not able to cultivate the

agricultural land; so the plaintiff nominally filed Form

No.7 under the Karnataka Land Reforms Act, in the

name of the father, being elder and Kartha of the family

for grant of occupancy rights and therefore, the

occupancy rights were granted in the name of the father

of the plaintiff. Defendant No.1 and father of

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defendant No.2 were only persons actually cultivating

the suit lands. The plaintiff on account of his

engagement with profession of his advocacy, had

authorised the defendant No.3 to look after the aged

mother and supervise the suit schedule “A”, “B” and “C”

properties. Defendant No.2 having joined Army in the

year 1964 was contributing his income for acquiring the

open plots. Till the death of mother of the plaintiff, the

plaintiff was getting meager food grains from the suit

land for his consumption and after her death, defendant

No.3 did not provide any food grains to the plaintiff.

Therefore, the plaintiff was constrained to file the said

suit against the defendants for partition and also

seeking compensation from defendant No.3.

5.

In pursuance of the summons, defendant

No.1 to 3 appeared before the Trial Court and defendant

No.1 and 2 have filed their written statement and

defendant No.3 has filed separate written statement.

Defendant Nos.1 and 2 have supported the case of the

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plaintiff. However, defendant No.3 has contested the

suit. Defendant No.3 has admitted the relationship

between the parties and that the suit schedule

properties are undivided joint family