No need to disturb the partitioned properties while granting partition decree in respect of unpartitioned properties

Hon’ble Mr. Justice Uday Umesh Lalit

suit for partition and separate possession of ancestral properties set out in
Schedules to the plaint.- The defendants stated that soon after the death of their father in the year 1944, there was a partition amongst the brothers and each
of the brothers was enjoying agricultural lands separately and the house properties were also divided amongst the brothers and the respective branches were living separately –

Trail court dismissed the suit – Appellate court confirmed the same –

The High Court observed that Item Nos. 3 and 8 were admittedly ancestral properties and once the theory of previous partition was not accepted, the plaintiff was entitled to succeed. With this view, the High Court accepted the second appeals and decreed the suit insofar as it related to Schedule ‘A’ and Schedule ‘B’ properties –

Apex court held that As admitted by Defendant No. 1, though the properties item Nos. 4 and 6 from Schedule ‘A’ were in his name, part of those properties were also in cultivating possession of the plaintiff. In the totality of the circumstances, in our considered view, the High Court was justified in interfering in its second appellate jurisdiction. We, therefore, affirm the view taken by the High Court in respect of properties mentioned in Schedule ‘A’.

In our view, the properties in Schedule ‘B’ must be left alone and if the parties are holding separate shares, there is no need to disturb the same.In the circumstances, the suit for partition as filed by Venkataramanappa (since deceased) is decreed in respect of the properties mentioned in Schedule ‘A’ alone.

The parties, namely, the plaintiff and defendant Nos. 1 and 2 are entitled to one third share in said properties in Schedule ‘A’. Schedules ‘B’ and ‘C’ properties shall, however, remain undisturbed. The High Court decree is modified
to that extent.