KENCHAPPA, S/O LATE NINGAPPA Vs. SMT. RANGAMMA, W/O LATE DONAPPA

JUDGEMENT

(1.) THE appellants 1 to 4 were defendants 1 to 4 while respondent was the plaintiff in O.S.No. 125/2007 on the file of Civil Judge (Jr.Dn.) and JMFC, Challakere. The respondent / plaintiff filed the said suit for partition and separate possession of her one half share in all the suit schedule properties. The subject matter of the suit are four agricultural lauds.

(2.) ACCORDING to the case of the respondent / plaintiff, her husband late Donappa and Sri. Ningappa, father of defendant Nos. 1 to 4 are brothers being sons of one Sannakenchappa; that item No. 1 of the suit schedule properties measuring about 6 acres 35 guntas was the property owned by Sannakenchappa and after the death of Sannakenchappa, the same was succeeded by his two sons Ningappa and Donappa; that subsequently, from out of the income derived from item No.1, item Nos. 2 to 4 were acquired as such all the suit schedule properties are joint family properties. It was further alleged by the respondent / plaintiff that her husband died about 30 years prior to the date of the suit while Ningappa, father of the defendants died subsequently. According to her, she and her children have been in joint possession of the suit schedule properties along with the defendants and she is entitled for one half share to which her husband was entitled to.

(3.) THE trial Court on assessment of the oral and documentary evidence answered issue regarding prior partition set up by the defendant in the negative and held that the defendants have tailed to prove the prior partition. The trial Court further held that item No. 1 which was admittedly joint family property was available to the family and therefore acquisition of item No.2 in the year 1963 was from out of joint family income derived from item No.1 as such item No.2 also acquired the characteristic of joint family property. However in the light of the evidence on record, the trial Court held that item Nos.3 and 4 are not joint family properties. The trial Court also held that the plaintiff being the wife of Donappa is in joint possession of item Nos. 1 and 2 and she is entitled for the share to which her husband was entitled. The contention of the defendants that the suit is not maintainable for not impleading the son and daughter of the plaintiff was also negatived since the plaintiff had specifically pleaded that the suit has been filed both for herself and on behalf of her children as the manager of her family. In that view of the matter, the suit was decreed in part directing partition of item Nos. 1 and 2 of the suit schedule and that the plaintiff is entitled for one half share in item Nos. 1 and 2, However, the claim of the plaintiff in so far as it relates to item Nos.3 and 4 was dismissed. Aggrieved by the said judgment and decree, the appellants / defendants preferred appeal before the Lower Appellate Court in P.A.No. 106/08. The Lower Appellate Court on reassessment of the oral and documentary evidence concurred with the finding of the trial Court and consequently dismissed the appeal. It is against these concurrent judgment of the courts below the appellants/defendants have presented this appeal,