HANUMANTHAPPA Vs. RANGAMMA

JUDGEMENT

(1.) The appellants in these two appeals are aggrieved by the order of the Civil Judge (Sr. Dvn.) Challakere on 17th August. 2005 in RAs 250/2002 and 251/2002, OS 71/1994 was filed by the plaintiff - Hanumanthappa for a declaration and permanent injunction in respect of item Nos. l to 9 of the plaint schedule and for recovery of possession of suit schedule item No. 10 of the plaint schedule. OS 1758/1994 is filed by Rangappa for a declaration and for recovery of possession the suit schedule properties from defendants I and 2 and for mesne profits.

(2.) AS per the plaint averments in OS 71/1994 filed by Hanumanthappa s/o Hanumanna born through one Puradamma, he and his younger brother one Kenchappa are members of the undivided family. His great grandfather, Doddahanumanthappa had three sons viz., Doddeerappa, Hotteppa and Erachikkappa. Plaintiff is the descendant of Hotteppa. All the properties of the joint family were divided about 70 to 80 years back amongst the three sons of Doddahanumanthappa. From the date of partition, the plaintiffs grandfather and later his father and thereafter, plaintiff is in possession and occupation of the property fallen to the share of his grandfather, i.e., Hotteppa. His grandfather died about 30 years back. After the death of his grandfather, his only son, i.e., Hanu manna who is the father of the plaintiff, was in possession and enjoyment of the properties and the katha was mutated. After the death of the father of the plaintiff, i.e., Hanumanna, his two sons -plaintiff and his younger brother, are said to be in continuous possession and enjoyment as absolute owners. Since the father of the plaintiff died soon after the death of his grandfather, i.e., Hotteppa and since the plaintiff and his brother were minors, Kenchajji w/o Hotteppa and grandmother of the plaintiff was looking after the affairs and katha was mutated in her name. Further, in respect of items 6 to 10 of the schedule properties, there was no phoding. According to the plaintiff, the brothers of his great grandfather viz., Sanneerappa, Sanakariyappa, Horakerappa and their legal heirs are in possession and enjoyment of their share of properties by mutating katha. Defendants 2 to 4 are the sons of Erachikkappa and Horckerappa. It is stated, during her last days, the grandmother of the plaintiff was taken to the house of the 1st defendant and, defendants 2 to 4 who are the descendants of Erachikkappa and Horekerappa got executed a document in respect of the suit schedule properties. However, the plaintiff is in possession and enjoyment of the suit properties without any interruption. Alleging that defendants are making hectic efforts to interfere with the peaceful possession and enjoyment of the properties and also to harvest the standing crops, plaintiff filed a suit for declaration and 'injunction and also contending that such a document got created by defendants 2 to 4 from. Kenchajji, grandmother of the plaintiff who was aged 95 years at that time, is a result of fraud and undue influence and it was not binding on the plaintiff. It was also contended, defendants 1 to 4 had no manner of right, title and possession over item No. 10 of the suit properties. Accordingly, he sought for a declaration and. for recovery of possession in respect of item No. 10 of the plaint schedule and, for a permanent injunction in respect, of items 1 to 9.

(3.) ACCORDING to the defendants, since this Puradamma was living according to her washes and had no nexus with Hanumanna although she was married to him, Hanumantliappa the plaintiff is not born to Hanumanna. It is also stated, since both Hanumanna and his wife Hanumakka died, Kenchajji w/o Hotteppa and grandmother of the plaintiff was looked after and cared for by defendants 1 to 3. Being in the custody of defendants 1 to 3, Kenchajji during her last days, bequeathed the suit, schedule properties in their favour by a Will on 15.12.1983. It is further stated, Kenchajji though was not having anyright to alienate the suit items 1 to 5, since she is alone, has executed the Will by which items 6 -9 were executed in favour of the 1st defendant and item No. 10, which is a house property, was executed in favour of defendants 2 and 3 hems 1 to 5 were sold during the lifetime of the grandfather of the plaintiff to Sannadyamajja husband of Sannahanumakka and possession was handed over to Sannahanumakka and after her death, it has fallen to the share of the 1st defendant and he is in possession and enjoyment without any obstruction for more than the statutory period. Accordingly, it is stated that the 1st defendant has perfected his title by way of adverse possession in respect of items 1 to 5; defendants 2 and 3 are in possession of item No. 10 as absolute owner item Nos. 6 to 9 are bequeathed in favour of the 1st defendant as such, stating that plaintiff has no manner of right, title and possession, over the properties, the suit was contested.