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5. The case of the plaintiffs is, the suit schedule properties were belonged to one Dasu Bhat. The said Dasu Bhat sold the suit schedule properties to his wife Mahalaxmiamma through the registered sale deed dated 18.01.1894. Subsequently, the said Mahalaxmiamma died leaving behind her daughter Parvathamma wife of Ramanna Bhat as sole survivor. The said Parvathamma settled the suit schedule properties in favour of her husband Ramanna Bhat by executing registered Settlement Deed dated 20.08.1931. In view of said settlement deed Ramanna Bhat acquired absolute right over the suit schedule properties. The said Ramanna Bhat died during the year 1949 leaving behind his wife Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat and daughters Kaveriamma and Lalitha. Since Ramanna Bhat died prior to Hindu Succession Act coming into force, the suit schedule properties devolved on his widow Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat. Hence, each one of them have got 1/3rd right in the suit schedule properties. Plaintiffs are widow and children of Vyasaraya Bhat and they are entitled for 1/3rd share in the suit schedule properties. Vyasaraya Bhat died in the year 1985 leaving behind the plaintiffs as legal representatives. Parvathamma widow of Ramanna Bhat had 1/3rd right in the suit schedule properties, which was settled in favour of her daughter Lalitha who is 1st defendant by virtue of Settlement Deed dated 15.09.1960. Hence, 1st defendant has acquired 1/3rd share in the suit schedule properties. The 2nd defendant has inherited 1/3rd right of her father Gopalakrishna Bhat. The said Gopalakrishna Bhat died leaving behind the 2nd defendant as sole survivor. Kaveriamma, daughter of Ramanna Bhat has no right over the suit schedule properties, as Ramanna Bhat died prior to Hindu Succession Act coming into force. The said Kaveriamma had daughter by name Leelavathi and she predeceased Kaveriamma. Defendant No.3 is the husband and dfts. No.4 to 5 are the children of Leelavathi. They are only made as formal parties to the suit to decide the matter in issue between the parties to the suit. The plaintiffs and defendants are in joint and constructive possession of suit schedule properties.

6. In view of strained relationship between the parties, the plaintiffs were not able to continue the joint possession of the suit schedule properties. Hence, the plaintiffs demanded for partition and separate possession of their legitimate share from the defendants. Since, the defendants have not complied the request of the plaintiffs, they have filed the suit for partition and separate possession of their share in the suit schedule properties.

7. The defendant No.1 has filed the written statement contending that there is no cause of action for the suit and it is liable to be dismissed. Plaintiffs have got no manner of right, title or possession over the suit properties and they are not entitled for partition and suit for partition is misconceived. Plaintiffs have been set up by defendant No.2-Smt. Pushpa, who has earlier filed suit in O.S.No.284/1987 and ultimately, the said suit was dismissed. After 15 years of dismissal of the said suit, present suit is filed which is not maintainable. All the parties in the present suit and their predecessors are the parties to the previous suit. Hence, the present suit is barred by principles of res-judicata. The earlier suit in O.S.No.284/1987 was dismissed for default. Hence, no fresh cause of action arises to file the present suit. The plaintiffs being parties in the earlier suit could have continued the proceedings to decide the matter in issue between the parties to the earlier suit by transposing them as plaintiffs. The present suit is barred by law of Limitation. The partition claimed by plaintiffs is untenable and they are not entitled for 1/3rd share in the suit properties. It is denied that suit properties belong to Dasu Bhat and he sold the same in favour of his wife Mahalaxmiamma under registered sale deed dated 18.01.1894 and it is also denied that Mahalaxmiamma died leaving behind her only daughter by name Parvathamma to succeed to the suit properties. It is also denied that Parvathamma has executed settlement deed in favour of her husband Ramanna Bhat as per registered settlement deed dated 20.08.1931. It is further denied that by virtue of said settlement deed, Ramanna Bhat acquired absolute right over the suit properties. It is admitted that Ramanna Bhat was survived by his widow Parvathamma and his sons Vyasaraya Bhat and Gopalakrishna Bhat and daughters Kaveriamma and Lalitha. It is also admitted that after the death of Ramanna Bhat, properties belonging to him devolved upon his wife and children. It is denied that his wife has 1/3rd right in suit properties. It is denied that plaintiffs, being widow and children of Vyasaraya Bhat, are entitled for 1/3rd share in the suit properties. Plaintiffs are not entitled for any share in the suit properties nor they are in possession of the same. It is admitted that Parvathamma has executed settlement deed dated 15.09.1960 and settled the suit properties in favour of this defendant. The properties which are settled by Parvathamma in favour of this defendant are in actual possession and enjoyment of this defendant. It is admitted that she is cultivating the same. Sy.No.221/6 measuring 66 cents; Sy.No.216/7 measuring 36 cents; Sy.No.221/5 measuring 13 cents and Sy.No.221/9 measuring 1 acre are in possession and enjoyment of plaintiffs since 1950, from the time of their father Vyasaraya Bhat and they are in possession of the said properties. In fact, those properties were leased to one Maru Moolya and Vysaraya Bhat was collecting rents till 1960 and Maru Moolya has surrendered the said properties in favour of Vyasaraya Batta and plaintiffs are in possession and enjoyment of the said properties. Plaintiffs have no right to claim any partition in the suit properties, since they are settled in favour of his mother Parvathamma by execution of a Settlement Deed dated 15.09.1960. It is the attempt of defendant No.2 under whose instigation, plaintiffs have filed the second suit. There is no such property available for partition and already partition was effected in the joint family and by virtue of settlement deed, this defendant got absolute right over the suit properties. With this, she prayed for dismissal of the suit.

13. It is the case of plaintiffs that since Ramanna Bhat died prior to Hindu Succession Act coming into force, suit properties devolved upon his wife Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat. Plaintiffs being wife and children of Vyasaraya Bhat, are entitled for 1/3rd share in the suit properties.

14. It is the further case of the plaintiffs that Parvathamma widow of Ramanna Bhat, had executed settlement deed dated 15.09.1960 and settled her 1/3rd share in the suit property in favour of her daughter Lalitha who is defendant No.1 and defendant No.1has acquired 1/3rd share in the suit property. Defendant No.2 being the daughter of Gopalakrishna Bhat, is entitled for 1/3rd share.

18. The trial Court, on going through the recitals of Ex.P-7, has opined that mother of defendant No.1 viz. Parvathamma has settled her 1/3rd share in the suit properties in favour of her daughter Lalitha.

19. PW-1 has further deposed that defendant No.2 being the daughter of Gopalakrishna Bhat is entitled for 1/3rd share of her father in the suit properties. The defendant No.1 who is contesting defendant, has filed his affidavit evidence reiterating the averments made in her written statement and admitting the relationship between the parties to the suit. She has admitted that Ramanna Bhat died during the year 1949 leaving behind his wife Parvathamma and sons Vyasaraya Bhat and Gopalakrishna Bhat and daughters Kaveriamma and Lalitha. DW-1 has admitted that suit properties belonging to Ramanna Bhat devolved upon his wife and children. But DW-1 claimed that by virtue of settlement deed executed by her mother Parvathamma as per Ex. P-7, she has acquired absolute right over the suit properties.