A KRISHNAPPA Vs. THIMMARAYAPPA

JUDGEMENT

(1.) THE Appeal filed against the judgment and decree of the XIV Addl. City Civil Judge, Bangalore, in O. S. No. 887/87. The appellant is the defendant in the suit. The plaintiff filed suit for recovery of possession of the suit property consisting of 'a and B' schedule properties. According to the plaintiff, the suit property belonged to one Thimmabovi and was sold to one Muniswamappa under registered sale deed in the year 1969. In turn Muniswamappa sold the suit property to the plaintiff under registered sale deed dated 21-7-1969. The defendant and his elder brother, Muniswamy were assisting the plaintiff in their business, therefore, they were permitted to put up a shed and live in 'a' schedule property for some time. Later on when the constructions were taken up, the defendant was asked to vacate. There was a dispute it is said that the heirs of Thimma Bovi set up the defendant and made him to file suits to claim right in the property and that the defendant has illegally encroached and residing in 'b' schedule property since in the year 1986. Therefore, in respect of the said property, the relief of possession is sough.

(2.) THE first plaintiff is the owner of the suit property. The 2nd plaintiff is the purchaser of the property from the first plaintiff and yet to obtain the registered sale deed from him. However, both of them are jointly litigating the case. The defendant on the other hand, contended before the trial Court that Thimma Bofi bequeathed the suit property in favour of his mother under a will and also sets up a plea of adverse possession. The suit has a history of chequered litigation. The plaintiff's suit came to be dismissed. Being aggrieved, an appeal was filed in R. F. A. No. 504/95. This Court found that despite the finding by the trial Court, on the question of title in favour of the plaintiff, dismissal of suit was held to be bad in law. The defendant had filed cross-objections contending that he was unable to adduce his defence evidence on account of illness. Taking the submissions of the defendant into consideration, the matter was remanded to enable the defendant to adduce evidence. The plaintiff was also permitted to adduce rebuttal evidence. Pursuant to the remand, the impugned judgment came to be passed decreeing the suit. Being aggrieved, the appeal is filed.

(3.) ON the question of will, the trial Court finds that the will is not proved and the attesting witnesses are not examined. It was the contention of the defendant before the trial Court in the written statement that Thimma Bovi had conveyed the property under an unregistered gift in favour of his mother in the year 1993 and from his mother he has inherited the property by a will dated 28-12-1968. The said transactions are held to be not proved by the trial Court. However, in the suit, the defendant himself examined partly in-examination-in-chief and thereafter he did not turn up for further evidence. Under the circumstances, the trial Court closed the evidence of the defendant and after hearing the argument, pronounced the impugned judgment.