Karnataka High Court
Qsri Marutirao vs Sri Shankar Rao on 16 April, 2012
IN TIlE I-IIGH COLRT OF KARNATAKA
CIRCUIT BEN C: II AT GULBARGA
D.ATED THIS THE 6 DAY C) F APRIL, 2() 12
BEFORE
THE HONBLE MRJUSTICE ILBILLAPPA
U? U' Vr- ) 1 C) 1 /)()fl(-
BETWEEN:
Sri, Maruti rao,
S/Kashirava Kadia,
Aged about 54 years.
0cc: \gri. and Service.
At HKESociety.
R/atJainagar.
Gulharga5$51O I. ..Appel1ant.
(By Sri.As hok.S.KinaLi. Sri,M,B.Nanund &
Sri,.Sona Vakkund, Advs,)
AND:
I. SriSherikar Rae,
S/o,Kashirava Kadla,
Aged about 63 ears,
0cc: Retd, Teacher and Agri.,
fA-- V-'
,\ r. td1,ctHI,
ic eric! [)i.sI: UuIbi3a- ebb 1 0 1
2. SriM.a11ikarjun.
S/oSha.nkar Rao Kadia,
Ailed about. ad veers,
0cc Lecturer,
an Kadani
Tq and Dist: Guibara-585101.
Han u man tha rava
S/oShivappa Kadla,
Age.d about 77 years.
0cc: Agri.. R/at,Kadani,
Tq and Dist Gu1barga585lOL ... Respondents
iBv Sri. M rutvunjav Tata Bangi. Adv. For C' RI.
1
Srnt .Urnaclevi.S. Babshettv. Adv. For P3.
Sri.\S,Jalde, Adv, for RI and
This R.F.A. is filed U/S 96 of CPC against the
judgement and decree dated 11.08.2006 passed in
0.S.No.340i2004 on the the of the Pri. Civil Judge (Sr.Dn.)
Guibara, dismissini the suit for deciaranon, tartition and
separat..e posses.s.ion.
This RF.A. coming on for Dictat..ing Judgment thi.s day,
JUDGMENT
by the piai.ntiff is directed against the J udment and Dec..ree, dated 1 I .08.2006, pa..ssed by t..he 3 WI
2. By the Impugned Judgment and Decree, the trial Court has dismissed the suit of the plaintiff.
3. Aggrieved by that, the appellant-plaintiff has ified this appeal.
4. The respondents 1 to 3 are defendants 1 to 3 In the Thai Court. The parties will be referred to with reference to their rank In the Trial Court.
5. Briefly stated the facts are:
The appellant-plaintiff ified suit In O.S.No.340/2004 for declaration and partition and separate possession of the suit property. The case of the appellant-plaintiff was that one Kashlraya was the father of the plaintiff and the first defendant, Smt.Ratnamma was their mother. The land bearing Sy.No.72/ 1 measurIng 12 acres 11 guntas situated at Mudbul village belonged to Smt.Ratnamma, the mother of the plaintiff and the first defendant. The land bearing 4 d Sy.No. 110/2 measurIng 8 acres 11 guntas and land bearing Sy.No. 116/5 measuring 5 acres 4 guntas situated at Kadani village are the ancestral properties of the plaintlfl% father. Kashlraya died about 37 years back. Ratnamma died In the year 1957. The plaintiff and first defendant Inherited land bearing Sy.No.72/ 1 measuring 12 acres 11 guntas situated at Mudbul village and the lands bearing Sy.Nos. 110/2 and 116/5 situated at Kadani village. In the year 1972, the plaintiff and the first defendant divided the properties. In the said partition, the land bearing Sy.No.72/1 measuring 12 acres 11 guntas situated at Mudbul village fell to the share of the plaintiff. Two lands situated at Kadani village I.e., Sy.No.110/2 measuring 8 acres 11 guntas and Sy.No.116/5 measurIng 5 acres 4 guntas fell to the share of the first defendant.
6. The land bearing Sy.No.107/1 measuring 20 acres situated at Kadani village belonged to one Ksllawwa W/o. Gurupadappa Kadla, the great grandmother of the plaintiff L--
mu lb firsl defencbini '\ftci th defh of K11xxva '
huhand S No 107 / I tnt a',urin 20 r i s u as given to
K 11 nm r 1 1 irnilm ttl r nr I I r h r m nut r an
Kallawwa dud intstatc about 4 eai' back Mtei her
d€ath un third defendant nas in possession of th land till
1990 Other kgal heirs of Kal1ana ln(luding th plaintiff
and th first ckfendant (1( a&ijtating for th ii shan
Ultimttcly 1h third dlcridant on the adise of eldeis agreed
to give shar of his cousins namely Kashirava th father of
the plaintiff Paramc shwar and Pandappa 'a C 01 ding1 th(
third dfendant inad in application for mutation in nrms )f
ral partition o dintdy he mutat n w is ff t( d ir h
in )9( ai d v ci i d In )( k I h ol i It I ut
Ic t i if ida st I i u
If
6
a
7. The land bearing Sy.No. 107/1 of Kadani village was not partitioned. The mutation in favour of the second defendant was illegal. The plaintiff came to know about it in the year 1996 and asked the first defendant with regard to illegal mutation. The fIrst defendant told the plaintiff that the property would not go anywhere and It would be within the family. The plaintiff believing the first defendant kept quite. Thereafter. in the year 1999 the plaintiff demanded partition. The first defendant went on postponing. Though the land Is standing In the name of the second defendant, the plaintiff and the first defendant are entitled for equal share and the land is In joint possession and enjoyment of the plaintiff and the first defendant. When the plaintiff demanded partition, the defendants 1 and 2 refused to give any share, saying the second defendant has purchased the land from the third defendant. The third defendant told the plaintiff that he has not sold the property and it was given to the share of Kashiraya and on the suggestion of the first defendant the name of the second defendant has been entered in the ROR. 1 Therefore. the plaintiff has prayed lbr declaration, partition and separate possession of the suit property.
8. The defendants 1 and 2 have filed their written statement contending that Sy.No.72/ 1 measurIng 12 acres 11 guntas situated at Mudbul village was the ancestral property of Ratnamma, the mother of the plaintiff and the first defendant. She died in the year 1957. The land bearing Sy.No. 110/2 measuring 8 acres 11 guntas and Sy.No. 116/5 measuring 5 acres 4 guntas and Sy.No.107/1 measuring 8 acres 25 guntas situated at Kadani village are the ancestral properties of the father of the plaintiff and the first defendant. The plaintiff and the first defendant have Inherited all the four lands and got divided in the year 1972. In the said partition. the land situated at Mudbul village fell to the share of the plaint lit Three lands situated at Kadani village fell to the share of first defendant. Originally Sy.No. 107/1 of Kadani village measuring 20 acres belonged to Kaliawwa.
S I W/o.Gurupadappa Kadla, the great grandmother of the plaintiff and the first defendant. Kallawwa had no Issues.
9. During her lifetime. Kallawwa nominally executed a gift deed in favour of the third defendant on 05.12.1966 with an understanding that the land should be divided equally amongst the family branches. Accordingly. In the year 1969, the land bearing Sy.No.107/1 of Kadani village was divided into three parts. An area measuring 8 acres 25 guntas was allotted to the share of the plaintiff and first defendant. Similarly, an area measuring 5 acres 28 guntas was allotted to the share of Shivalingappa. Likewise an area measuring 5 acres 27 guntas was allotted to the share of Hanmanthraya. The parties were put In possession of their respective shares. They continued to be In possession but, no actIon was taken to effect mutation. Nominally the entry continued In the name of Hanmanthraya till 1990. In the year 1990, Hanmanthraya reported to the village accountant to effect mutation. The lands came to be mutated. The 9 I parties were enjoying their share since 1969. The plaintiff has no share In Sy.No. 107/1 of Kadani village and therefore, question of giving share does not arise. It is denied that the plaintiff demanded share and the first defendant went on postponing to effect the partition. It Is stated, the suit land is in possession and enjoyment of the defendants since 1972 as per the partition. At the time of partition, the plaintiff has given in writing that he has no right in the land situated at Kadani vilisige. Now takIng advantage of non-mentioning of the particulars of the land, the plaintiff is making false claim. The plaintiff has no right in the land situated at Kadani village. All the lands situated at Kadahi village have been allotted to the share of the first defendant. The partition deed indicates that all the lands situated at Kadani village are allotted to the share of the first defendant and the plaintIff has no right in the lands situated at Kadani vIllage.
10. The defendants are in possession and enjoyment of the suit land since 1972. At no point of time, the plaintIff I I0
-I has raised any objection. The defendants being in possession and enjoyment of the land for more than 12 years have perfected their title by adverse possession. The plaintiff has failed to exercise his right for more than 15 years and therefore, his right stands extinguished. It is also stated, there was loan on the suit property and it was cleared by the defendants. Thereafter, the third defendant has transferred the suit land In the name of the second defendant Therefore, the defendants I and 2 have prayed for dismissal of the suit.
II. The third defendant filed his written statement contending that the land bearing Sy.No. 107/1 measurIng 20 acres situated at Kadani village originally belonged to one Kallawwa W/o. Gunipadappa Kadla and Gurushantawwa W/o.Gurupadappa Kadla. They have executed a registered gift deed in favour of the third defendant In the year 1966. In the year 1967, one Gurubheemraya had ified suit in O.S.No.20/ 1967 against Gurushantawwa, Kallawwa and third defendant in respect of Sy.No. 107/I and other lands II I and house property. The third defendant had filed suit in O.S.No. 168/1968 against Gurubhlmaraya for declaration, injunction and possession in respect of Sy.Nos. 107/1. 155, 145 and house property bearing No.3-8. situated at Kadani village. Gurubhimaraya died in the year 1973. Thereafter. the dispute was resolved amicably between the family members of Gurubhlmaraya and the third defendant. The third defendant fought litigation up to High Court and spent huge amount and got possession of the land in Sy.No. 107/1 measuring 20 acres in terms of the settlement. Thereafter. the third defendant offered to give share to his cousin brothers and requested the plaintiff and first defendant to share the litigation expenses. The plaintiff and the first defendant were not ready to share the litigation expenses. Therefore, they asked the third defendant to enjoy their share Ibr a period of 15 years. Accordingly. the third defendant was in possession and enjoyment of suit land till 1988. In the year l988 the third defendant gave shares to his cousins and mutation was effected in the year 1990. The suit land was 12 given to the share of Kasblraya the fatbei ci the plaintiff and first defc ndant and bi1c mutating the name of the qeccnid clefrndafl' has been cnft rtd nominally The 'uIt hnd is the joint property of the plaintiff and the fint defendant. Therefore, the third defendant has prayed for dismissal ot the suit against him.
12 The trial Court has framed th' following issueW I l4liether the plaintiff proves that the suit property Is their ancestral properftj and they are In Joint possession?
2. Whether the defendants I and 2 prove that the suit property had tallest to their share In the fondly pwtttloti effected In tIn year 1371 as si they are the oii iw s in lawful pc ssecslori?
tILhc'ther the ctcJts.l and nuvnatl.tchiPt)iE
flat thty au in uttersc pots ssIW 4 IlK sidt
prr4XrflI 'hc yc' ci tron ii a 13 t'ears cs
sul. flu y h.wt erIà ed tier wu by ratio!
am c ',e poscc ssk W'
it
13
1 Ii hethc'r the plaind,ff pinvec that he is inlitini
br the share in thc suit properly"
WictIc -
ji iratqj;ro c tic 1€ Uthi
br thc ic he 'oughi'
6 What decreen, )rder
13 lhc tnal Court has answered nsuc No 1 3 to 5 m
tix n gabi ( and issue No 2 in the allinnatii and
c onsequentli has dismissed the suit
11 4ggru i-ed by that tin appt ilant plaintill ii is filed
tin appeal
1 1 a 'cd ci. c Er 11 ppdlln pluntifi
I ti-c pj.ie di c
1 rt
i
14
I
properties of the plaintiff and the first defendant. The
plaintiff and the first defendant divided Sy.No.72/ 1 of Mudbul village and Sy.Nos. 110/2 and 116/5 of Kadani village in the year 1972. Sy.No. 107/1 of Kadani village was not available for partition. In the year 1973, the litigation was over and thereafter, share was given to the plaintiff and the first defendant by the third defendant. As the plaintiff and the first defendant were not able to share the litigation expenses, they allowed the third defendant to enjoy the property for a period of 15 years. Thereafter. in the year 1988. the share was given by third defendant and mutation was effected in the year 1990 nomInally In the name of the second defendant. He also submitted that originally the land belonged to Kallawwa. W/o.Gurupadappa Kadla, the great grandmother of the plaintiff and the first defendant and gift deed was executed in the year 1966 and till 1988 the property was in possession of the third defendant. Further he submitted that the claim of the defendants 1 and 2 that they have perfected their title by adverse possession Is baseless. He also 15 I submitted that the recitals in Ex.D I clearly show that Sy.No. 107/1 was not divided In the year 1972. Only Sy.No.72/1 situated at Mudbul village and Sy.Nos. 110/2 and 116/5 situated at Kadani village were divided and Sy.No.72/l fell to the share of the plaintiff and Sy.Nos. 110/2 and 116/5 fell to the share of the first defendant. Sy.No. 107/1 of Kadani village was not available tbr partition in the year 1972. Therefore, the plaintiff is entitled for hail share In the suit property.
16. As against this, the learned counsel for the respondents I and 2 submitted that the impugned judgment and decree does not call for Interference. He also submitted that the trial Court on proper consideration of the evidence on record has rlghtly.dlsmlssed the suit holding that the plaintiff is not entitled for any share and therefore, the impugned judgment and decree does not call for interference. He also submitted that the question of inequitable partition has been raised for the first time which is not permissible. He also L' 16 I submitted that the parties are very clear in their mind at the time of Ex.D1 that the properties situated at Mudbul village should go to the appellant and the properties situated at Kadani village should go to first defendant. Therefore, all the properties situated at Kadani village have gone to the share of the first defendant and the plaintiff has no share in the suit property.
17. Further he submitted that the suit property was gifted In favour of the third defendant through registered gift deed dated 05.12.1966. In the year 1969 there was partition and share was given to the branch of plaintiff and the first defendant. The property was available for partition at the time of Ex.D 1. Through Ex.D 1, all the properties situated at Kadani village Including Sy.No. 107/1 have been given to the share of the first defendant and the property situated at Mudbul village I.e., Sy.No.72/1 has been given to the share of the plaintiff and therefore, plaintiff cannot claim any share in the suit property.
17I
18. Further he submitted that the partition has taken place In the year 1972 and mutation has been effected In the year 1990 and the suit has been filed In the year 2004. He also submitted that defendants can take inconsistent plea and it Is for the plaintiff to prove his case. He also submitted that the property was gifted In favour of the third defendant and he has consented for transfer of the property In favour of the second defendant and therefore, the plaintiff cannot claim any share in the suit property.
19. He also submitted that first defendant has discharged the loan and the property has come to his share arid therefore. the plaintiff cannot claim any share in the suit schedule property. He therefore. submitted that the impugned judgment and decree does not call for interference.
20. I have carefully considered the submissions made by the learned counsel for the parties.
21. The points that arise for my consideration are: 18
I'
1. Whether the plaintiff is entitled for a shore In the suit property?
2. Whether the impugned judgment arid decree callsfor iruerJèrence?
Point No.1:
22. It is relevant to note, the suit is for declaration, partition and separate possession of the suit property. The plaintiff claims that Sy.No. 107/1 measuring 20 acres situated at Kadani village belonged to one Kaflawwa w/o Gurupadappa Kadla. the great grand mother of the plaintiff and the first defendant. The said property was given to Kallawwa in the family settlement for her maintenance. After the death of Kallawwa, the third defendant continued in possession of the property till 1990. The other legal heirs of Kallawwa including the plaintiff and the first defendant were agitating for their share. On the advise of elders the third defendant agreed to give share to his cousins namely Kashiraya, the father of the plaintiff and the first defendant, one Parameshwar and Pandappa and Mutation was effected in the .ear 1990 in terms ot oral paitlilon. While cffeninri initiation thc name of tht second defendant has been sugge"ted by thc lii '4 'lefend t u I cu dlngh. nit itlon has lx cli t (Icc icd Ira the name of the %econcI delendant. The plauititr "umi' to know about th•' mutation hi the war 1998. 'fliereafter. the plaintiff demanded his shame. The defendants I and 2 denied his sharc 'I hc retort, tht plaintiff has pi axed fom pai tition arid separ ite poscssIon of the suit propc ru
2. The defendants 1 and 2 havf contended that thc stilt property and Sv.No. 110/2 measurIng 8 acres 11 guntas Sv.No. 11(3/5 measuring 5 wres 3 quittas and Sy.No. 107/) incasuring 8 25 gitiltas 'iituited it Kaclani illate au the iii' C S.iO. S!i)p€rtlf'.. I lxv t'Pit clii iii"d iti the seam .'i2.
hc ii ttun I a Iudb I uil*j.. e o 2 1
fl 1 1 .1 'U) ll( t 1
it ''' pianrit1 hid lenc' 'icr sttd ii Kadji j ill u
v N" Ilui .i Si .'vy I Hil.b. % \.' 111, 1 'u i'- jjl.1i(c .j t
% •cIl' I ')% £ ik siUdiL Ti . --.i_i.: ci S'. d), j' I..'it
1.0
measurin 20 acres oriina liv belonged to Kailawwa w/o Gurupadappa Kadla, the great grand mother of the plaintiff and he lirs delendant. Kaliawwa and her husbana hau no issues. I )uring her Hfet irne, Ka11awva executed a nominal gift deed in favour of the third &fendant on 5.12. P166 with an understanding that the property should be cbvided equally amoiust i he family branches. In 1969. the property was divided in.t.o three portions. An area measuring 8 acres 25 guntas was given to the sha.re of the plaintiff and first defendant., 5 acres and 27 tiuntas was given to the share of Hanurnanthraya, the third defendant and 5 acres 28 guntas was given to the share of Shivalingappa.. The sO. arers we re put in possession. 11ev continued to be in possession from .1 369 However. the, entrie.s in the. ROR eont.inued in t.he name of the third defendant till 1990. in 1990 the third deff-'ndane reported the vi1ia,te ae ''" to cifect mutation In terms of oral Pin.IOfl. Accordindiv, mum tI.on was efièc.ted in the name of the. respective sharers,
24. It is stated, the plaintiff has no share in SvNo. 107/i. The suit property was divided in the year 1972 itself. All the properties situated at Kad a Hi. village .inciu ding the suit property were allotted to the share ot the first lfendant fht plaint itt takin i indue ad antailt ot tin 1a 1 thai., the details are not mentioned in the partition deed is trying to make a false claim. The defendants are .in possession and enjoyment of the suit property since 1972. The plaintiff has not objected at any point of time. Thereibre. the defendants 1 and 2 being in possession and enjoyment of the suit property for more than 1 2 years haTe penibeted their title by adverse possession. The plaintiff has failed to exercise his rig.ht for more than 1.5 'vear•s and therefore, his right stands ext.in.ri.i.s'h.ed, 2ci. Tht third defendant has stated that the land bearing Sy..No. 107/i m casuring 20 acres belonged to Kal.] awwa. and 0 ii rushanthawwa wl.vcs of 0 urupa.d mica a lii cv executed diii dccci In idvour , he hird 22 1 defendant in the year 1966. In the year 1967. one Gurubhlmaraya had filed suit in O.S. No.20/67 in respect of Sy.No. 107/I and other lands and house property. The third defendant had filed suit in O.S.No. 168/68 for declaration, Injunction and possession In respect of Sy.No. 107/1 and other properties. The suits ended without any result in the year 1969 and 1973. Gurubhlmaraya died in the year 1973. Thereafter. the third defendant and the family member of Gurubhimraya settled the matter amicably.
26. The third defendant offered to give share to his cousin brothers and asked the first defendant and the plaintiff to share the litigation expenses. The plaintiff and the first defendant told the third defendant to enjoy their share in Sy.No. 107/1 for a period of 15 years. The third defendant was In possession till 1988. In 1988 share were given and mutation was effected in the year 1990. While effecting mutation. the name of the second defendant has been L 23 4 entered. The plaintiff and the first defendant were enjoying the suit property jointly.
27. PWI has deposed supporting the plaint averments. Similarly, DW 1 has deposed supporting the written statement averments.
28. P.W.2 - Hanumanthrao Paul has deposed that partition talks took place In his house. In the said partition. the land at Mudbul village and two rooms were given to the share of the plaintiff and two lands measuring 13 acres and open space of two rooms situated at Kadani village were given to the share of the first defendant. Except that no other land was divided.
29. D.W.2 has deposed that Sy.No. 107/1 was divided In the year 1968-69 between the third defendant,, father of plaintiff and first defendant, his father and one Parameshwar. An area measurIng 8 acres 27 guntas was allotted to the share of the plaintiffs father. Sy.No. 107/1 was available for L 24 4 partition In the year 1972. It was allotted to the share of the first defendant and the first defendant Is In possession.
In his cross-examination, D.W.2 has stated that In the year 1971 he left the village and went Solapur In search of coolle work. He has admitted the suggestion that he was not present at the time of partition and therefore, he does not know about partition talks.
30. D.W.3 has deposed, there was partition between the plaintiff and the first defendant and the suit land was allotted to the share of the first defendant. He cultivated the suit land for about five years. Thereafter, the first defendant Is In possession.
In his cross-examination, D.W.3 has stated that partition has taken place at Kadanl village prIor to 1971.
31. D.W.4 has stated, In the year 1968-69 Sy.No. 107/1 measurIng 20 acres situated at Kadanl vIllage was divIded between the third defendant, father of plaintiff 25 4 and first defendant. Pandappa and one Parameshwar. An area measuring 8 acres 27 guntas was allotted to the share of the plaintiffs father. In 1972. the suit property was allotted to the share of the first defendant and he is in possession.
D.W.4 was not tendered for cross-examination and therefore. his evidence has been eschewed.
32. It Is not fri dispute that Sy.No. 107/I of Kadani village measuring 20 acres belonged to Kallawwa. W/o.Gurupadappa Kadla. Kaliawwa and Gurushantawwa wives of Ourupadappa Kadla have executed a registered gift deed in favour of the third defendant in the year 1966 in respect of Sy.No. 107/1 and other properties. In the year 1967, one Gurubhimaraya had ified a suit in O.S.No.20/ 1967 in respect of Sy.No. 107/1 and other properties. The third defendant had filed a suit In O.S.No. 168/1968 for declaration. injunction and possession in respect of Sy.No. I 07/1 and other properties. The suits have ended without any result in the year 1969 and 1973.
2h flit n thhlrnai a> a ha'. died in the yeai 1 C)73 rherealter. the third defruclant and the titrnil inembet s ot Gnrubhimarava ha' 1' 5( ttle(1 tlit iflcitt( r mud ably iS. 1'he third defendant has deposed that 1)o%se%slofl nI nv land in Sv 'ie.1O7/1 'ca'. handed over 10 him in the year 1974 and thereafter, he offered share to his cousins and asked for litigation cxpenses Tht plaintiff and the ffT',t defendant told the third clefendaiir to enjoy the property br a pet iod of 13 years Accordingly the third defendant continued In possession till 1988 and In 1988. shart was iZiven to tim plamtifl and the tirsi deteiidant and muta(ion va', eifectc d in the veai 1 9 10.
I lh Ichnia ts 1 u-i 2 nil the I c1
Wj% ex '( uut'd a1 Iivnur •ub tht third irk tidain in the sear
i96 S )a vi 1 as 'lix (ci ant flu et i-i ns
I Cc ..j S tat S It
.• lilt i:'j 1
t 1 tIE 'tint ;--. ''i. ! tj_
'el' a
1
I l :(.. ji r.' r . ' I Pit " kt t.t,
'1 •s.
1
the saRi paflltloii tiit properi ic' situated at Kadam village ineluclint S No 107/1 was allotted to lh( shan of the first tkiendant €uul Sv.No 72/ 1 incati, jilt 1 2 d( 1" ' 11 Uiitds situated at Mudbul fflagt was allotit d to thc share of plaintiff as per Ex.D. 1 and mutation effeert d in the year 191H).
35. 1kw defendants I and 2 hae namined I)Ws.2. 4 and 4 l) 2 has deposed that Sy.No. 107/ 1 was dl Med m the eai 1968 69 between the third defendant. father of tht plaintifi and first defendanç his father and one Parameshwar In the said partition an ana measunng 8 wres 27 guntas wac allot led to the %hare of the plaintift\ lather. Tn Ili% cross cxamination D W 2 has stated th it he left tilt tillagc iith ar 1 71 vi w nt is Solapni w s at h of 'nnlw ork II 1'ts ndiiiiit'vl 'hr %112,g( tiu'i that he was hut 1)ItM'tit it th t to an hi nt i ts st io bo l'' litbi' t ,ik% i. h p 4, itt list nit '. trill n I .
.1 t ._ I
n. 'it, f 1:i 5fr %titl
I
28
4
allotted to the share of the first defendant and the first defendant is in possession. In his cross-examination. D.W.3 has stated that the partition has taken place prior to 1971.
37. D.W.4 was not subjected to cross-examination and therefore, his evidence has been eschewed.
38. D.W.2 has admitted that he was not present at the time of partition and he does know about partition talks and D.W.3 has stated that the partition has taken place prior to 1971. Therefore. the evidence of DWs.2 and 3 is not convincing and cannot be accepted.
39. The plaintiff contends that the suit property was not available for partition in the. year 1972. Sy.No.72/1 measuring 12 acres 11 guntas situated at Mudbul village was allotted to his share and Sy.No. 110/2 measuring 8 acres 11 guntas and Sy.No. 116/5 measuring 5 acres 4 guntas situated at Kadani village were allotted to the share of the first defendant as per Ex.D 1. The suit property was not available )9 for p1rtiIio1L 1\\.2 has 'iated timit th partition talk' took e iii his liuu se dUd land at liidbui Vil1te ai id two n oins was i11niud u tla s1jrt tlH pt flfli III ;iiid tXV() hinds ineasI1rin 1 3 a eyes a i H-I open spaee of iwo rooms it nat e I at Kadani viI1ae \ver( allotted to the share of the first de'Indan1 Exeept that no other land was divided 40 E\D I is the partition deed dated I Sh5. 1972. A arelul reading of ExD I shows that Sv.No. 72/ 1 measuring II acres 36 gunta', 511 tiated at Mudbul village and two rooms have bee ii allotted to the share of the plaintiff and two s rvev nurnb rs situated at Kad mi illage and va ant space of io I ) )fl s hav been aIIoted ii th bar I the first left ndant If ftly I r divi 1 0 it v I ia e bt ( r r r x 1)1, C 1 1[(r tated ha\ e 1 lae ai i I of K eani vilh 1o pan itiOp \o 1(1 /1 Jfl( P H -0 e (I i t 01 V' I Pa I i a K. 11 ev -.
30d Gurushantawwa. In the year 1967, Qurubhlmaraya had ified suit in O.S.No.20/ 1967 in respect of Sy.No. 107/1 and other properties. The third defendant had ified suit in O.S.No. 168/1968 for declaration, injunction and 'possession In respect of Sy.No. 107/1 and other properties. These two suits have ended in the year 1969 and 1973. The evidence of DW5 i.e., the third defendant shows that possession of the land in Sy.No.107/1 was handed over to him In the year 1974 pursuant to amicable settlement between himself and the family members of Gurubhlrnraya. If that is so, the claim of the defendants 1 and 2 that they were in possession of Sy.No.l07/1 right from 1969 cannot be accepted. Exs.P1, P2 and Exs.D24 to D27 show that the third defendant was in possession and enjoyment of Sy.No. 107/1 from 1973-74 till 1988-89. It Is only from 1989-90 onwards the name of second defendant and others have been mentioned. It is clear from these documents that the third defendant was in possession of Sy.No. 107/1 till 1988. In 1988 share has been given to the plaintiff and first defendant and mutation has 31 S lweit elleeterl In the vrar 1990. Ii is clear. Sy.No.107/l Wd% not a ailabk tar panltion in th year 1972. i'hereliirc. the .'ltiirn nf ilie deti'ndant% 1 intl 2 that pltrtitlnfl took Pmflt't in the vera 1969 and therealtet. Sv No 107/ 1 allot ted to the share oI tti( first defendant in the 'ear 1 )72 as p r F x DI cannot be ac eptc d 41 Ihe dctcndants I and 2 onteucl that the, are in possession of by No. 107/1 from 1972 onwards and ha C perfected thur utic b3 adierse possession. Ibis is basdess The evidenet on record shows that Ss Mo. 107/1 was not available for pai tition r the year 1972 and it i a undc r litigation till 1973 11 r atk r the l)0SS('s%IOii (Oifl( t tlt'-- third (left--uhlam in 711-- sear l!"4 flit third lelendaqr lici" oth--teil sh.;ire in the v!aintitI iiid iii' tir%t defr--iidani and i 'in u.n. .i1bn c"i • t- I inr'l wfr'idani to '&i n.m p P'" ',%1OiI tlp- eie not abh in sliai e ib' litigation qei ,t'. it, ; ',S' h rj' 1'4 Ire?. IVri ''. tip p1. ,itpjfl iL'I tie. i;'t F '';'i •:' I ;e it C!fl 1 .a chit t 32 "vAin 1(17/1 wa" dl ided between tlv plaintiff and the first defendant l'here is also no merit in tIM C ontention 11111 t& c1eferidnits I and 2 ha't prrfrrterl tlirir title b .,dver%e po'session. The plaintiff ha% demanded his share from time to time arid dctcndanl% 1 and 2 have denied his share. Therefore, the defendants I and 2 annot contend that plaintiffs right has extinguished.
42 Ti-ic tax paid receipts produced by tht defc ndants I and 2 relates to 1990 onwards anti they an not rcln ant to decide the issue. Merely beeanmse sonic amount is I)aid inwards the discharge of loan it clinliot he said that iht plaintiff i-- deprived of hi shari'. The eviclenct on record cleaTi% ilidi the plaintiti i entitled tc;r halt %hare hi 11w t rpeitv Point nswtre'l Point Nq 2 I Itic fatlc t lic ( r 1 I,''1 ti' ' I 'ii ,lilJ)ti,,.
tt I ifli' £
14 \('( ordinlv, ihe appeal is allow d and the
im ) i&inctl j 1(1 &fl 1( I IL 1fl (1 (I((re( osed by t he t hal (m in in
()S \ : 1-) '2004 I 1nrbv t jide Tht nit I th4' plaintilt
is decreed with costs granting halt shai e in the 'uit propei t
i c Sy ,No, 1 0? 1 m su hi i 8 a n s 2 tir tas sit uat I at
Kadani vi11ac,
I
1 •i j