U.MANJUNATH RAO Vs. U.CHANDRASHEKAR

JUDGEMENT

(1.) This is the 1st defendant's appeal. The present respondent No.1 as a plaintiff, had instituted a suit against the present appellant and present respondent No.2 arraigning them as defendant Nos.1 and 2 in O.S.No.16950/2004, in the Court of learned XXVIII Addl.City Civil Judge, at Mayohall Unit, Bengaluru, (hereinafter for brevity referred to as 'trial Court'), and had sought the relief of specific performance in the form of execution of a registered Rectification Deed and in the alternate, for partition and separate possession of 1/3rd share in Schedule Item Nos.1 to 3 properties and also for permanent injunction.

(2.) The summary of the case of the plaintiff in the trial Court is that, himself and defendant Nos.1 and 2, are the sons of one Sri U.Ramakrishna. Defendant No.1 i.e., the appellant, is the eldest among the three to the suit. All the three were residing jointly and acquired three sites out of their joint earnings, however, those sites were got registered in the name of defendant No.1/ appellant, since he being the elder member of the family and was also the Karta of the joint family. All the three sites i.e., Site No.25, Site No.13 and Site No.16, located in Mariyappanapalya, Kempapura Agrahara, Magadi Road, Bengaluru, were purchased from out of the joint family funds, however, in the name of defendant No.1.

(3.) In response to the summons, defendant No.1 on his appearance through his counsel, filed a written statement, wherein he admitted his relationship with the plaintiff and the 2nd defendant. However, he specifically denied that all the parties were jointly residing and out of their joint earnings, they had purchased suit item properties at Schedule-'A to C' and that all those three properties were registered in the name of defendant No.1 only because he was elder among them. The defendant No.1 stated that there was no joint family status between the plaintiff and the defendants and that suit Schedule Item 'A to C' properties were his self-acquired properties, which he had purchased from out of his income which he derived by running a canteen. He also contended that plaintiff was earning his livelihood only as a Server and as a temporary employee in a canteen situated at Kirloskar Company and was residing with the defendant No.1 till 1978. Thereafter, the plaintiff and defendant Nos.1 and 2 started living separately. That being the case, there existed no joint family status between them. The defendant No.1 also contended that the alleged Deed of Partition said to have been executed between them is a concocted document obtained by cheating defendant No.1. He also denied the allotment or partitioning of any of the property under the alleged Partition Deed said to have been entered into between them. He also denied that in the alleged process of preparing the Partition Deed, a typographical error has crept in by giving wrong description of the 'B' Schedule property alleged to have been allotted in favour of the plaintiff. He denied that plaintiff requested them to execute a Rectification Deed in connection with the alleged Partition Deed.