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1989 DIGILAW 51 (KAR)

NANJAMMA v. KEMPADEVAMMA

1989-02-10

M.P.CHANDRAKANTARAJ, M.RAMAKRISHNA RAO

body1989
CHANDRAKANTHARAJ, J. ( 1 ) THIS is defendants' appeal against the judgment and decree dated 29-7-1988 passed in original suit No. 11 of 1986 on the file of the civil judge at tiptur. ( 2 ) WE will, in the course of this judgment, refer to the parties by the ranks assigned to them in the trial court. ( 3 ) THE plaintiff brought the suit against the defendants for partition and possession of the suit schedule immovable and movcable propertics inter alia on the ground that she is entitled to an equal share in the said properties. Defendants resisted inter alia contending that she is not entitled to l/4th share; that there arc no moveable properties existing described in the suit-schedule; that notice given by the plaintiff was suitably replied through counsel; that the plaintiffts residing in her husband's house for the last, fifteen years and therefore the defendants have perfected their title to the suit schedule property by adverse possession and also in the event the suit is decreed and plaintiff is given her l/4th share, certain jewelleries stolen by the plaintiff and heir husband when they visited their house in the year 1949 should also be partitioned and defendants' share given to them. ( 4 ) ON such pleadings, as many as eight issues were framed. In the light of the contcnsions urged before us at the time of argument, we need refer only to issues 1, 2, 6 and 7. These issues were held in favour of the plaintiff and against the defendants:"1. Does the plaintiff prove that plaint 'a' schedule properties arc owner by her father? 2. Do the defendants prove that they arc owners of plaint 'a' schedule properties by adverse possession against plaintiffs 1/4lh share therein? 6. Do defendants prove that the plaintiff took away the moveablcs and cash staled in their written statement and that they have 3/4th share therein and that the suit is bad for not including the said moveablcs and cash? 7. Do the defendants prove that Rs. 30,000/- should be set apart for expenses of third defendant's marriage out of suit properties? Do defendants prove that the plaintiff took away the moveablcs and cash staled in their written statement and that they have 3/4th share therein and that the suit is bad for not including the said moveablcs and cash? 7. Do the defendants prove that Rs. 30,000/- should be set apart for expenses of third defendant's marriage out of suit properties? ( 5 ) WHEN this matter was heard for some time on 1-2-1989, one of the contentions urged was founded on the plea of adverse possession in the written statement and also ouster of possession, which disentitled the plaintiff from getting a share in suit schedule a item, the dwelling house. We have, while considering the question of court-fee payable in r. f. a. no. 702 of 1986 under Section 35 of the Karnataka court fees and suits valuation Act, held following a Supreme Court decision in Neelavathi v Nataraj, (reported in 1980 (1) Karnataka law journal, short notes itcm No. 126) as to what constitutes ouster, what would be the effect of pleadings in a partition suit. We have taken the view that possession of a co-sharer in respect of the joint family property or property held as tenant in common, will be possession by all and what constitutes proper pleading for ouster as enunciated by the Supreme Court in neelavathi's case. Therefore, the trial court has correctly concluded, the plaintiff had not lost her right by any ouster of possession nor did the defendants establish that they had. pcrfectcd their title by adverse possession. Therefore, the contention advanced should be rejected. ( 6 ) IT was next contended that there is not enough discussion of the evidence placed before the trial court in respect of the jewellery stolen. The submission is not well founded, having regard to what is said in para 19 of the judgment of the trial court. There is a full discussion of the evidence adduced by the defendants in that behalf and cogent reasons for discarding that evidence. Therefore, there is no substance in that contention cither. ( 7 ) SIMILARLY the last contention was that one of the defendants being an unmarried daughter, no provision was made for her marriage expenses. There is a full discussion of the evidence adduced by the defendants in that behalf and cogent reasons for discarding that evidence. Therefore, there is no substance in that contention cither. ( 7 ) SIMILARLY the last contention was that one of the defendants being an unmarried daughter, no provision was made for her marriage expenses. When all the four daughters are daughters of the house irrespective of whether they are married or not, they are getting their full 1/4th share and therefore, question of setting apart any particular amount towards marriage expenses in addition to her share would not arise. ( 8 ) THERE is no merit in this appeal. It is rejected at the stage of admission after notice. Appeal dismissed. --- *** --- .