AR.LAKSHMANAN, J. - (1.) THIS appeal is directed against the judgment and order dated 21-4-1994 passed by the High Court of Karnataka at Bangalore in R.F.A. No. 247 of 1982 wherein the Division Bench of the High Court affirmed the judgment and decree of the Principal Civil Judge. Mysore. While dismissing the appeal filed by the appellants the Division Bench affirmed the judgment and decree dated 12-2-1982 passed by the Principal Civil Judge, Mysore in O.S. No. 69/1972 wherein the trial Court decreed the suit for partition filed by the plaintiff in respect of Item Nos. 2, 3 and 4 of plaint schedule properties and for possession in respect of Item Nos. 2, 3 and 4 and dismissed the suit in respect of Item No. 1 of plaint schedule properties.
(2.) THE brief facts for the purpose of filing this appeal in short are as follows : Late Sattar Abba Sait filed a suit for partition and separate possession of the plaint schedule properties into two equal shares and to put the plaintiff in separate possession of his half share after dividing the schedule properties comprising of each property owned by the then joint family of Abba Sait. Defendants 1-4 filed written statements denying the plaint allegation. They stated that there was already a partition in 1914 between the two brothers and denied the statement that Sattar Abba Sait was jointly enjoying the properties in question. They further stated that the said partition deed was acted upon as soon as the deed was entered into between the two brother and the plaintiff, that is, the father of the appellants herein accepted his share in the said partition deed and has acted upon the recitals. They further stated that Mohd. Abba Sait and Sattar Abba Sait have dealt with the properties as independent owners and never as joint owners. The fifth defendant filed written statement stating that he is neither a mortgagee of the 1st item of the plaint schedule property or any other items of the suit properties and prayed for dismissal of the suit against him. The sixth defendant filed written statement stating that she is the mortgagee of Item No. 1 of plaint schedule property. The plaintiffs replied to the written statement of defendants 1-4 reiterating the stand taken in the plaint and further stated that the properties mentioned in Item Nos. 1-5 are joint family properties and they are entitled for half share as the properties derived from Abba Sait and the plaintiff and the late Mohd. Abba Sait never acted upon the partition deed of 1914 and the same was formal by producing large number of documents which are produced before the High Court and also along with this appeal. The trial Court framed the necessary issues out of the pleadings. After framing the issues, the plaintiff was examined as P.W. 1 and the first appellant herein as P.W. 2. The defendants examined Abdul Rahman Sait, first defendant, as D.W. 1. The trial Court held that the plaint schedule Item No. 1 was purchased in the name of the plaintiff and suit Item No. 4 was purchased in the name of Mohd. Abba Sait.
(3.) THE trial Court passed the judgment and decree as indicated in paragraph supra and decreed the suit. Aggrieved by the judgment and decree of the trial Court in regard to Item No. 1, the appellants herein and their late mother filed R.F.A. No. 247/ 1982 before the High Court of Karnataka and raised several contentions contending that the Civil Judge has erred in not properly considering Exs. P-2 to P-12 produced by the plaintiff which go to show the manner in which the parties dealt with the properties even after the partition deed of 1914 and that the Civil Judge has erred in not considering that the parties have dealt with the properties as if the said Item No. 1 of plaint schedule property continued to be a joint property of late Mohd. Abba Sait and Sattar Abba Sait. It was further contended that the learned Civil Judge has failed to consider that as the business was continued, earlier debts had to be discharged and hence all the properties were sold subsequently or alienated as evidenced as per Exs. P-5 to P-8 irrepsective of the partition deed and hence the partition is sham and nominal and that it was not acted upon.;