KRISHTAPPA Vs. ANANTA KALAPPA JARATAKHANE

JUDGEMENT

(1.) THIS appeal is filed by the appellant against the judgment in R. A. No. 47/1979, on the file, Court of the First Addl. Dist. Judge, Dharwad, dated 25-3-1996 dismissing the appeal and confirming the judgment of the Court of Principal Civil Judge, Hubli, in O. S. No. 7/1971 dated 30-10-1979 dismissing the suit of the plaintiff.

(2.) THE appellant/plaintiff filed the suit in the trial Court for recovery of possession of plaint schedule house bearing CTS No. 4344 situated at Toravigalli, Hubli, bounded on east by road, west by the house of Chalageri, north by the house of Basavaraj and south by backyard (Hittalu) of Mugali Bellad and Sirasangi and for recovery of past mesne profits of Rs. 1,800/- and for further mesne-profits from the date of filing the suit till the date of delivery of possession of the said house from the defendants at the rate of Rs. 75/- per month alleging that the suit house was the ancestral property of his adoptive father Mahadevappa Gadag, who died in the year 1930 leaving behind him, his widow Bhagawwa and 2 daughters Subhadravva and Devakavva. Bhagawwa took him in adoption on 11-5-1953 at Muddebihal for perpetuating the line of her husband Mahadevappa. The said adoption is also evidenced by a registered adoption deed. Thus, the appellant became full and absolute owner of the suit property. The appellant being an employee, has been serving in different places. The adoptive mother of the appellant was in possession and enjoyment of the suit property with his permission. On the ill advise of the persons ill-disposed towards him, Bhagavva filed a suit L. C. 55/1977, on the file of the Court of Joint Civil Judge (Junior Division) Hubli, for declaration that the adoption of the appellant was not valid. That suit was dismissed on 7-4-1969 after trial and the said judgment of the trial Court has been confirmed in the First Appeal C. A. 198/1960, on the file of the Court of District Judge, Dharwar, and also in the Second Appeal R. S. A. No. 973/1969 by the judgment of this Court dated 18-2-1972. Smt. Bhagawwa died on 16-2-1962 and during her life-time she was residing in the suit house as she had a right to reside in that house which belonged to her husband. Since her husband Mahadevappa died in the year 1930, she did not acquire any limited right in respect of the said house as widow's under the provisions of Hindu Women's Rights to Property Act, 1937 and she had only the right to reside in that house as the widow of Mahadevappa. It is the further case of the appellant that after the death of Bhagawwa on 16-2-1962, he became entitled to recover possession of the suit house which was in occupation of 1st defendant-Kalappa Manneshappa Jai Atakhane, who was the son-in-law of Bhagawwa and his 2 sons, who are the respondents herein. Defendant No. 1 died during the pendency of the appeal in the first appellate Court. Since the defendants refused to deliver possession of the suit house, the appellant filed the suit in the trial Court in the year 1971 for recovery of possession of the suit house and for past mesne profits of Rs. 1,800/- for a period of 3 years prior to the date of suit and for future mesne profits at the rate of Rs. 75/- per month from the date of filing the suit till delivery of possession.

(3.) DEFENDANTS contested the suit by filing their written statement contending that Bhagawwa acquired rights by adverse possession in respect of the suit house during her lifetime and after her death, the suit house has been in possession and enjoyment of all of them in their own right. Defendant No. 1 also became the owner of the suit house by "adverse possession". Further Smt. Bhagawwa executed a registered will bequeathing the said property in favour of 1st defendant and thereby 1st defendant became the owner of the suit house after the death of Bhagawwa on 16-2-1962. They further contended that Smt. Bhagawwa asserted adverse rights in respect of the suit house from the date of filing the suit L. C. 55/1957, wherein she sought for a declaration that the appellant is not the adopted son and that she has not taken him on adoption. As the present suit was filed in the year 1971 long after the expiry of the period of 12 years from the date of filing the suit L. C. 55/1957, the defendants contended that they acquired rights by adverse possession in respect of the suit house and the suit is barred by limitation.