K.N.KESHAVANARAYANA,J. - (1.) THIS appeal by the third defendant in O.S. No. 85/2002 on the file of the Civil Judge (Jr.Dn.), Holalkere is directed against the concurrent judgments of the courts below decreeing the suit filed by the respondent -1/plaintiff for partition and separate possession of the suit schedule properties.
(2.) THE subject matter of the suit are four items of agricultural lands and two items of house properties situated in Chikkayemmiganur Village of Holalkere Taluk. The first defendant Kenchappa, second defendant Siddappa, third defendant Neelappa and one Ningappa husband of the plaintiff are brothers being the sons of one Mallappa who was the propositus of the family. The said Mallappa died leaving behind his four sons. Subsequently, the husband of the plaintiff also died leaving behind only his wife viz., Gowramma. The plaintiff filed the suit inter alia contending that all the suit schedule properties are the ancestral joint family properties of Mallappa and his sons and upon the death of Mallappa, his sons continued in the joint family and on death of her husband Ningappa, the plaintiff became entitled to the share to which her husband was entitled to. Therefore, she is entitled to 1/4th share in all the suit schedule properties and her request made to the defendants to effect partition and deliver separate possession of her share has yielded no result In these circumstances, the plaintiff sought for relief of partition and separate possession of her 1/4th share in the suit schedule properties. Defendants 1 and 2 in their written statement admitted the case of the plaintiff except stating that they have not refused to effect partition of the suit schedule properties. They admitted that the plaintiff is entitled for 1/4th share and similarly each of the defendants are entitled for 1/4th share in the suit schedule properties as such they have no objection for effecting partition. However, the third defendant in his separate written statement though admitted the relationship of the parties interse and also the nature of the suit schedule properties, he contended that three more items of properties which are described in the schedule to his written statement are also ancestral joint family properties and the plaintiff deliberately has not included them in the suit schedule at the behest of defendants 1 and 2, therefore, he is entitled for a share not only in the suit schedule properties, but also in the properties mentioned in the schedule to his written statement.
(3.) THE parties led evidence in support of their contentions. The Trial Court, on assessment of the oral and documentary evidence held that tire third defendant has not proved by satisfactory evidence that the properties described in the schedule to Ms written statement are also joint family properties, therefore, the Trial Court decreed the suit, and held that the plaintiff is entitled for 1/4th share in the suit schedule properties.;