SHIVANANJAPPA Vs. BASAVARAJU

JUDGEMENT

(1.) This is a defendant's second appeal having suffered adverse Judgments and decrees by the trial Court as well as the lower appellate Court. The brief facts leading to this appeal may be stated and they are as follows: Plaintiffs Basavaraju, Gancshappa and Parvathi filed Original Suit No. 173 of 1981 in the Court of the Principal Munsiff at Arasikere pleading that defendant Shivananjappa was none other than the brother of the father of plaintiffs 1 and 2 and husband of plaintiff No. 3 Byregowda. Defendant had dispossessed them from the suit schedule properties after Byregowda had left Arasikere without being traced some two years earlier. It was their case that the defendant (appellant in this Court) had been enjoying suit property for 7 to 8 years prior to the filing of the suit denying them the fruits though there was a partition between Byregowda and the defendant Shivananjappa. The fact that Byregowda had not been traced for more than nine years, lead to the presumption that he was dead and therefore, plaintiffs 1 to 3 had acquired, right, title and interest in the properties of Byregowda and therefore, they were entitled to the declaration of title and possession of the suit schedule property. On such pleadings, the defendant resisted the reliefs prayed for inter alia on the ground that the said Byregowda and the defendant are the divided members of the family that they had not divided on 20-5-1960 as claimed by the plaintiffs, but divided long before 1960 and are enjoying their respective shares separately. The fact that the plaintiffs are members of joint family of Byregowda was admitted. It was, however, stated to be false that the first plaintiff was aged about 20 years, but he was more than 22 years. Therefore, the suit filed by him was time-barred. Defendant further pleaded that at no time he quarrelled with Byregowda or practiced cruelty on him. He pleaded that the suit schedule property had not fallen to the share of Byregowda at the partition but to his share and possession was given to him. He further dented that he had dispossessed the plaintiffs from the suit schedule property some 7 or 8 years before the filing of the suit. He denied that he was in illegal possession of the same. The suit schedule property was enjoyed by the defendant as absolute owner even prior to 1960. Therefore, the allegation of the plaintiff was without foundation. In that circumstance the defendant was not liable to pay any damages for unlawful occupation. Neither Byregowda nor the plaintiffs were in possession and enjoyment of the suit schedule lands from 1960. The defendant being in possession and enjoyment of the suit schedule lands even before 1960. The claim of the plaintiff was hit by adverse possession and therefore, the present suit was not maintainable. Thus there was no cause of action for the suit. When plaintiffs were not in possession of the suit schedule property at no time the question of mesne profits did not arise. Therefore, the suit may be dismissed. On such pleading the trial Court framed as many as five issues as set out below: 1. Whether plaintiffs prove their title to the suit property as alleged?

(2.) Whether plaintiffs further prove that defendants are in illegal and wrongful - possession of the suit property as alleged?

(3.) Whether plaintiffs are entitled for possession of suit property?