THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN SECOND APPEAL NO.605 OF 2011 ORDER: The Second Appeal is preferred against the order of the Senior Civil Judge, Hindupur in A.S. No.7 of 2008 dated 12.06.2009, reversing the judgment and decree of the Junior Civil Judge, Madakasira in O.S. No.164 of 1998 dated 04.04.2008. The 1st respondent in this appeal is the plaintiff in O.S. No.164 of 1998. The suit in O.S. No.164 of 1998 was filed for partition and separate possession of the plaintiff’s 1/4th share of A and B schedule property. On the death of the widow of late Rudrappa (the mother of the plaintiff) an amendment was carried out whereby the plaintiff claimed 1/3rd share of the suit schedule properties. The Trial Court dismissed the suit holding that the plaintiff did not give any notice demanding partition before filing of the suit; D.W-2 did not state that the defendant Lingamma and Rudrappa lived jointly during the life time of Rudrappa and, as such, issue No.1 was not proved by the plaintiff; Marekka had succeeded to the properties of late Sri Rudrappa, and had executed a gift deed in favour of the 2nd defendant for her share of property; it could, therefore, be inferred that the plaintiff was aware of the fact; and the plaintiff had not paid the Court fee prescribed under Section 34(1) of the Act with regards the relief sought for of allotment of 1/4th share and delivery of possession. The Trial Court held that the plaintiff was not entitled to the relief. Aggrieved thereby, the plaintiff preferred an appeal in A.S. No. 7 of 2008. The Appellate Court noted that plaint A schedule property comprised of items 1 to 3 i.e., an extent of Ac.1.67 cts of wet land situated in Sy. No.102/7 of Gyaragondanahalli village; item No.2 was Ac.1.01 cts in Sy. No.103-1 of the same village; item No.3 was an extent of Ac.9.19 cts of dry land in Sy. No.164-3 of the said village; the evidence of D.W-1, the second defendant in the Suit, revealed that her father had given 12 to 13 acres of land to P.W-1 towards his share; P.W-1 had a son by name Basavaraju, and both of them had sold the property given to them by their father; on 27.02.1989, the father of D.W-1 had gifted the properties to Basvaraju; Ex.B-9 to B-11 disclosed different properties, but were not connected to the property covered by Ex.B-1; the revenue records covered by Exs.B-2 to B-6 and B-8 disclosed the plaint A schedule properties standing in the name of late Rudrappa; if plaint A schedule properties were divided, the revenue records would have included the names of the respective sharers; there was no partition between the plaintiffs, the defendant and their mother after the demise of their father; the said properties were joint even after the demise of their mother; and plaint A schedule properties were liable to be partitioned, since they were in joint possession and enjoyment of the plaintiff as well as the defendants. The Appellate Court further held that, since the plaintiff was in joint possession and enjoyment of plaint A schedule property, court fee under Section 34(1) of the Act need not be paid, and the court fee paid on the plaint was correct. After referring to the affidavit filed in lieu of chief-examination of P.W-1, the Appellate Court noted that P.W-1 had demanded the defendants for amicable partition of the properties and, as such, the suit could not be dismissed on the ground that P.W-1 had not issued any notice seeking partition. The Appellate Court observed that, though the plaintiff had originally claimed 1/4th share of the suit property, since the first defendant died after filing of the suit, her share devolved upon the other sharerSs and, therefore, the plaintiff was entitled to 1/3rd share of the plaint A schedule property. The only contention urged before this Court in this appeal, which according to the Learned Counsel for the appellant is a substantial question of law, is whether the Appellate Court was right in holding that the plaint A schedule properties were liable to be partitioned since they were in joint possession and enjoyment of the plaintiffs and the defendants only on the basis of the oral evidence of the first respondent (plaintiff). That the properties in question were the self-acquired property of late Sri Rudrappa, the father of both the plaintiff and the appellants herein, is not in dispute. Consequently the widow of late Rudrappa and their children are all Class-I heirs entitled to 1/4th share each. Since D- 1 died during the pendency of the suit, the plaintiff and the other surviving children of late Rudrappa were entitled to 1/3rd share each of his self-acquired property. The Appellate Court has rightly observed that plaint A schedule properties stood in the name of late Rudrappa in the revenue records and, since the said property was not partitioned even after the demise of his mother, the plaint A schedule properties were liable to be partitioned as they were in joint possession and enjoyment of the plaintiff and the defendants. No substantial question of law arises for consideration in this appeal. The Second appeal is, accordingly, dismissed at the stage of admission. Date: 04.11.2011 ____________________________ RAMESH RANGANATHAN, J MRKR