MADEGOWDA Vs. R LNARAYANA RAO

JUDGEMENT

(1.) This is an appeal against the judgment and decree in R. A. No. 7 of 47-48 on the file of the Additional Subordinate Judge of Mysore passing a decree in favour of the plaintiff in reversal of the judgment and decree in O. S. nO. 230/ 45-46 on the file of the Second Munsiff, Mysore, who had dismissed the suit.

(2.) One Siddegowda filed a suit in O. S. No. 67 of 34-35 on the file of the Subordinate Judge, Mysore, for a declaration that the properties mentioned, in Schedules A and B of the plaint filed by him belonged to his adoptive father and that while Schedule A, properties were In possession o his adoptive mother, the B Schedule properties were in possess ion of one Madegowda who was 2nd defendant in that case and who is 1st defendant in this citse. Madegowda contended that the A Schedule properties were in possession Of Sidde-gowda's natural father Kempegowda, while the B Schedule properties were in his possession. The adoption was tound to be true, but the contention of Madegowda, the 2nd defendant in that case, prevailed, that is, it was found that the plaintiff Siddegowda was not the owner of either of the two properties but that the plaint A Schedule properties of that case belonged to his natural father, while the plaint B schedule properties belonged to Madegowda, the contesting defendant.

(3.) The learned Subordinate Judge dismissed the suit of Siddegowda, but at the same time he created a charge for recovery of the institution fee due by Siddegowda as he had filed the suit in 'forma pauper is on A Schedule properties stating that Siddegowda was saying that he was in possession of those properties. Half of the suit properly in this case was in the A Schedule and the other half of it was in B Schedule. In execution proceedings instituted by Government, the suit property was purchased by the plaintiff in this suit. As he, however, was not able to obtain possession of it, he filed the suit in O. S. No. 230/45-45 on the file of the Second Munsiff, Mysore, against the appellant Madegowda and another who is not a party to this appeal. As half of the plaint schedule property in the present suit was in the A. Schedule of the plaint in the previous suit, and it ia only that portion that the plaintiS purchased, he could not file a suit for possession and had to file the suit for partition and possession of half the property that belonged to his nredecessor in title, i.e., Siddcgowda, plaintiff in the previous suit. The appellant 1st defendant contended that Siddegowda plaintiff in the previous suit had no interest in the property and as such the purchaser in the execution sale does not get any interest. He also contended that he had purchased the property in a rerenue sale. The learned Munsiff upheld the contention of the 1st Defendant and dismissed the suit and as already observed the learned Subordinate Judge in reversal of the judgment ana decree of the learned Munsiff who had dismissed the suit, decreed the suit as prayed for, and it is against the decision of the learned. Subordinate Judge that the appellant who is 1st defendant in the case has come up in appeal to this Court.