ERANNA AND ORS. Vs. NAGENDRAPPA AND ORS.

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 06.09.2008 passed by the learned Civil Judge (Sr. Dn.) & JMFC, Madhugiri, allowing R.A. No. 29/1994 and dismissing the suit O.S. No. 286/1990.

(2.) Appellants are the legal representatives of the original plaintiff - Eranna @ Kivuda Eranna, son of late Boranna. Plaintiff instituted the suit seeking partition and separate possession of his half share in the land bearing Sy. No. 117/2 measuring 14 acres 5 guntas. It was the case of the plaintiff that one Eranna was the propositus. He had seven children. Out of them, except the first son Boranna and the fourth son Chikanna, the others died issueless. Plaintiff claimed under Boranna, first son. Whereas, defendant No. 1 Siddamma is the daughter of the fourth son Chikkanna and Negendra, the second defendant was the grandson of Chikkanna (son of Siddamma). The 3rd defendant is the purchaser of a portion of land bearing Sy. No. 117/2 (suit schedule property) from Siddamma.

(3.) Plaintiff contended that lands bearing Sy. No. 117/2 and 103/4 of Gollarakatte Village were the joint family properties of Boranna and Chikkanna and they enjoyed the same during their lifetime. Boranna, father of the plaintiff died. Thereafter, Chikkanna, younger brother of Boranna also passed away. It is further contended that in the year 1969, Chikkanna, son of Eranna and the plaintiff and his brother deceased Chikkanna together gifted 5 acres of land in Sy. No. 117/2 in favour of 1st defendant Siddamma, daughter of Chikkanna under a registered Gift Deed. During the same year, members of the family together sold property comprised in Sy. No. 103/4 in favour of one Govindappa. In 1962, Sy. No. 117/2 was hypothecated to the Block Development Officer for obtaining loan. It was further urged by the plaintiff that they were living separately; there was no division in the family by metes and bounds; they demanded defendants 1 & 2 to allot half share in the suit schedule property whereupon they agreed to partition the property and an agreement in this regard was reduced into writing at 28.06.1977. However, plaintiff learnt before the date of filing of suit that fraudulent attempts were being made by defendants 1 & 2 to deprive the plaintiff of his share in the suit schedule property. Hence, he instituted the suit.