THIMMAPPA SHAMBU Vs. RAMACHANDRA KRISHNA

JUDGEMENT

(1.) This is a plaintiffs' appeal against the judgment and decree dated 26-3-1973 passed by the Civil Judge, North Kanara at Karwar, in R. A. No. 7/66 dismissing the appeal and confirming the judgment and decree dated 27-10-1965 passed by the Munsiff, Haliyal, dismissing the suit of the plaintiffs for partition of the suit properties with costs.

(2.) The plaintiffs brought a suit for partition of two serials being the family properties. The plaintiffs instituted a suit O.S- No. 19/53 against present defendants for petition in which these two suit properties were also included as family properties. At that time the defendants in the written statement contended that these two properties were trust properties and it was necessary to obtain permission from the Charity Commissioner for partition of those properties. On that representation made by the defendants, the plaintiffs in that suit submitted Ex- 36 whereby they stated that they would withdraw these suit properties from that suit as it wouid be necessary to obtain the permission of the Charity Commissioner as represented by the defendants and that suit came to be decreed awarding 2/3rd share to the plaintiffs in the remaining suit properties. The defendants did not take up any contention that the, suit for partial partition was not maintainable. Subsequently, however, the plaintiffs applied to the Charity Commissioner for permission to partition their properties. The petition was dismissed. Thereafter, they took up the matter in appeal before the Revenues Appellate Tribunal which also held that permission, was not necessary for a suit for partition. Therefore, the plaintiffs have instituted the present suit for partition of the said two properties. The suit was resisted by the defendants on several grounds. They contended that they had perfected their title by adverse possession. They further contended that the suit was barred under Ordf r 2 Rule 2 and also under Order 23 Rule 1 of the Code of Civil Procedure and that the suit brought for partition was not maintainable in view of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act.

(3.) The learned Munsiff after appreciating the evidence adduced before him, dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the plaintiff went up in appeal before the learned Civil Judge, who, no doubt, disagreed with the findings of the trial court that partition was not maintainable in view of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdigs Act and further that the defendants had perfected their title by adverse possession, he however, confirmed the findings of the learned Munsiff on the points that the suit was barred by Order 2 Rule 2 as also under Order 23 Rule 1 of the Code of Civil Procedure. In that view he dismissed the appeal. Aggrieved, by the said Judgment and decree the plaintiffs have come up in appeal before this Court.