Indian Kanoon - Search engine for Indian Law

This appeal is filed by the appellant challenging the judgment and preliminary decree dated 08.12.2017 passed in O.S.No.198/2014 by the Principal Senior Civil Judge & CJM, Haveri.

2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellant is defendant No.6, respondents No.1 to 4 are the plaintiffs and respondents No.5 to 9 are the defendants No.1 to 5 before the trial Court.

Plaintiffs and defendants No.1 to 3 are in joint possession and enjoyment of the suit schedule properties as coparceners. The parties are Hindus and governed by Hindu Mitakshara School of Law. The defendants No.1 and 2 are father and mother of defendant No.3 and plaintiffs.

Defendant No.4 is the daughter of first defendant's sister, defendant No.5 is the brother of defendant No.4. Defendant No.5 illegally entered into the portion of suit schedule properties as a owner. As such, they are made as parties to the suit. It is contended that originally the suit schedule properties belonged to the propositus by name Mallappa, S/o. Dyamanna Kurgund, along with the other properties and the family was possessing only R.S.No.11/1 measuring 10 acres 24 guntas. In the family partition, the entire suit schedule property to an extent of 5 acres 12 guntas fell to the share of Mallappa. The said land was renumbered as R.S.No.11/1A. Accordingly M.E.No.969 was duly certified on 06.03.1954. Thereafter defendant No.1 and his brothers and mother were partitioned in the family properties between them, wherein suit property fell to the share of defendant No.1. It is contended that mother of the plaintiffs belonged to Lambani community and father belongs to Kuruba community. Before the elders of both families, they were married as per the customs prevailing in Hindu Kuruba community. Out of the wedlock, defendant No.2 gave birth to the plaintiffs and defendant No.3. Defendant No.1 is a drunkard and addicted to bad habits like playing cards and having illicit relationship with defendant No.4. Defendant No.4 showing herself as the wife of defendant No.1, on the basis of illegal mutation, alienated the said property in favour of defendant No.5 under registered gift deed and the same is illegal and not binding on the shares of the plaintiffs. It is contended that defendants No.1 and 3 colluding with each other, behind the back of the plaintiffs, got filed a false suit in O.S.No.132/1998 before the Civil Judge & JMFC, Haveri for grant of decree for partition and separate possession. They have not made the plaintiffs as parties to the said proceedings. The defendants No.1 and 3 only to defraud the legitimate shares of the plaintiffs, got disposed of the suit in terms of compromise. The judgment and decree passed in the suit is not binding on the legitimate shares of the plaintiffs. The plaintiffs approached defendants No.1 to 3 and requested them to make partition in the suit properties, but they flatly refused to make partition. Hence cause of action arose for the plaintiffs to file this suit.

4. Defendants No.1 to 3 appeared and filed written statement denying the averments made in the plaint and admitted that schedule A properties are the agricultural lands and schedule B is the genealogy of plaintiffs and defendants No.1 to 3. It is admitted that the suit schedule properties are the ancestral undivided joint Hindu family properties of plaintiffs and defendants No.1 to 3 and they are in joint possession of the suit schedule properties as coparceners. There is no partition by metes and bounds. The plaintiffs by virtue of their marriage are residing in their husbands' house. It is denied that defendants No.1 and 3 colluding with each other, behind the back of the plaintiffs, got filed a false suit in O.S.No.132/1998 before the Civil Judge & JMFC, Haveri. Hence prayed to dismiss the suit.

14. Perused the records and considered the submissions made by the learned counsel for the parties.

15. The points that would arise for our consideration are:

1. Whether the plaintiffs prove that defendant No.2 is the legally wedded wife of defendant No.1 and plaintiffs are born out of their wedlock?

2. Whether the plaintiffs prove that defendants No.1 and 3 colluding with each other, filed a suit in O.S.No.132/1998 on the file of Civil Judge & JMFC, Haveri and got compromised the matter?