RAMANNA RAI Vs. JAGANNATHA

JUDGEMENT

(1.) This appeal by defendants 1 and 2 is directed against the judgment and decree dated 28-1-1975 passed by the Principal Civil Judge, Mangalore, in Regular Appeal No. 32 of 1974, on his file, allowing the appeal on reversing the judgment and decree dated 19-12- 1-973 passed by the Principal Munsiff, . Putlur, South Kanara, in Original , Suit No. 163 of 1973, on his file, dismissing the suit of the plaintiffs for permanent injunction.

(2.) It is the case of the plaintiffs that in a family partition among the defendants and one Beeranina Rai, the father of the plaintiffs, under a. registered partition deed dated 13-5-1966, Beer anna Rai was allotted and put in exclusive possession of the, plaint 'A' schedule properties. Beeranna Radied in the year 1969 and, after his death, his wife Seethu Hengsu, the mother of the plaintiffs, was in exclusive possession of the plaint 'A' schedule properties till her death, in 1970. Thereafter, the mother of Seethu Hengsu i.e., the grand mother of the plaintiffs, as guardian of the plaintiffs, has been in possession of the plaint 'A' schedule properties on behalf of the plaintiffs. The defendants are in possession of the properties allotted to their respective shares as per the aforesaid partition deed. The defendants requested the grand mother of the plaintiffs to lease out the plaint 'A schedule properties to them. But that request was not granted and, therefore, the defendants, according to the plaintiffs, have been, trying to take forcible possession of the plaint 'A' schedule properties. On 12-6-1973 at about 7.00 A.M., when the grand mother of the, plaintiffs sent her men to plough the paddy fields, the defendants, according to the plaintiffs, came with armed men and obstructed the ploughing. Hence, the plaintiffs, instituted, through their grand mother as guardian, the suit for injunction before the trial Court at Original suit No. 163. of 1973 on the file of'the Principal Munsiff, Puttur.

(3.) The suit was resisted by the defendants. The defendants and late Beeranna Rai were members of an Aliyasantana' family which entered! into a registered partition deed dlated 13-4-1955 whereunder the properties covered by the 'D' schedule thereof were allotted to the shares of the defendants and late Beeranna Rai as well as deceased Muthappa Shetty. These four persons constituted a Nissanthathi Kavaru' ana had limited estate in the properties so allotted and the properties are to revert, according to them, to the nearest 'Santhathi Kavaru' after the death of all the sharers. Thus, these four persons had a right to enjoy those properties during their life time. After the, death of Muthappa Shetty, the entire D' Schedule properties stated above were enjoyed by the surviving three sharers. Beeranna Rai, being one of them, had only a right of enjoyment only. The plaintiffs are his children. They have no right in, the, plaint 'A' schedule properties which are a part of the said D' schedule properties as noted in the partition deed of 1955. A registered partition dleed was entered into on 13-5-1966. and the said 'properties were purported to be allotted to the share of late Beeranna Rai. Beeranna Rai died in about 1969. Beeramia Rai was not in exclusive possession and enjoyment of the plaint 'A' schedule properties. They denied that Beeranna Rai and, after his death, his wife Seethu Hengsu were in possession of those properties and that the plaintiffs continued in possession of the plaint 'A' schedule properties thereafter with their grandmother as their guardian. They further contended that the life estate of BeerannaRai could not be enlarged by consent of parties. According to them, the partition was void in the eye of law. Hence they contended that the suit for injunction was not maintainable.