SHAKUNTHALAMMA Vs. KOUSHALYA

JUDGEMENT

(1.) SECOND appeal by the first defendant in OS No.562 of 2003, on the file of the Additional Civil Judge (Jr Dn), Bellary, who, along with co-defendant - second defendant and mother of three plaintiffs in the suit - though was successful in defending the suit for declaration of title and consequential recovery of possession of the suit schedule property - an agricultural land measuring 2.79 acres comprised in Sy. No.179B of D Kaggal village, Bellary taluk, as the learned judge of the trial court dismissed the suit on the premise that the plaintiffs have failed to prove their title to the property as absolute owners, which, very strangely formed as point No.1 in the suit and not framed as an issue by the trial judge, the success was short-lived, as in the appeal by the plaintiffs under Section 96 CPC, the learned Civil Judge (Sr Dn), Bellary, in RA No.30 of 2005, reversed this judgment, set aside the judgment and decree under appeal and decreed the suit by allowing the appeal noting that the finding as recorded by the court below that the suit is barred by limitation is not sustainable and with the second defendant - vendor of the present appellant-second defendant under whom the first defendant set up title to the property, having remained absent and set ex parte, and the present appellant also having remained absent and also having been placed ex parte, with there being no defence on behalf of the defendants, but on the other hand, the plaintiffs having led evidence not only oral through the third plaintiff, but also having got marked documentary evidence at ExP1 to 7, found that the settled legal position in such situation was not to dismiss the suit but to decree the suit; that the plaintiff in fact had made much more than was needed to get the decree in a situation when the defendants had not set up any defence at all and therefore having allowed the appeal, the present second appeal by the aggrieved first defendant in the suit under Section 100 CPC.

(2.) THE appeal was registered before this court in the year 2006, to be precise as filed on 26-9-2006 and this court, perhaps, not finding a reason or justification to admit the appeal, only issued emergent notice regarding admission to the respondents and had called for records of the trial court, however granted an interim order to maintain status quo in terms of order dated 28-9-2006.

(3.) SRI . B Chidananda, learned counsel for the appellant initially pleaded for an adjournment of the case on personal grounds and difficulties etc., the appeal being Five years old even for admission and when that was refused, has made submissions on the merits of the case and has raised several points.