PANDIKUTHIRA MRS CHENGAPPA Vs. MURUVANDA MACHAYYA

JUDGEMENT

(1.) This Second Appeal arises out of a suit brought by the plaintiff-appellant for a declaration that she is entitled to 1/3rd share in the suit schedule properties and for partition of the same into three equal shares and to put her in separate possession of her 1/3rd share and for mesne profits.

(2.) The plaintiff and defendants 1 and 2 are sisters, being daughters of one Medappa and Honawa. The suit schedule properties, according to the plaintiff, belonged to her mother Honnavva. During the lifetime of her father the properties were being managed by him and after his death, they were being managed bv her brother Kariyappa. P. W. 3 till 1948 and thereafter, for about 5 years the wet lands were lying fallow. The plaintiff was away from Coorg as her husband had been employed. The third defendant is the husband of the first defendant. It appears, during the absence of the plaintiff, defendants 1 and 3 occupied a portion of the wet lands and a portion of 'Bane' lands and began to take the income therefrom. Proceedings under Section 145, Criminal P. C. were initiated at the instance of the third defendant on the ground that there was likelihood of breach of peace in respect of certain wet lands and certain lands belonging to the plaintiff and defendants 1 and 3 in the court of the First Class Magistrate, Virajpet The learned Magistrate passed an order in those proceedings that the third defendant was in possession of 3 acres and 80 cents of wet lands and 11-39 acres of Bane lands as on 26-5-1955, the date on which the preliminary order was passed, mentioning therein the survey number that were in dispute and directing that he should continue to hold possession until evicted therefrom by due course of law and also forbidding the plaintiff and her tenant, who were members of the second party in those proceedings and every one claiming under them from interfering with the possession of the third defendant.

(3.) The plaintiff filed a suit in O. S. No. 9/57 on the file of the Munsiff, Virajpet for partition and possession of the 1/3rd share in the suit schedule properties. In the said suit, defendants 1 and 3 both filed their written statement, contending inter alia, that the first defendant was in possession of the suit lands for over 12 years and as such she had become the owner thereof. The suit, however, was dismissed on 23-6-1959. It could be gathered from the certified copy of the decree, which is marked as Ex. B-3 that the suit was dismissed for default on the part of the plaintiff. Thereafter, she filed the present suit on 11-4-1963 for the reliefs stated above.