SHIVALINGAIAH Vs. MARICHANNAMMA

JUDGEMENT

(1.) this is a plaintiffs second appeal against the concurrent findings of the courts below. He filed a suit for partition and separate possession of the suit schedule properties. The defendants were none other than the children of his father-in-law one karichinna hegde. It was plaintiffs case that his father sanna lingaiah and the father of the 4th defendant lingaiah and thappale lingaiah had partitioned the ancestral property and the suit schedule property had fallen to his father's share; that he lost his father when he was quite young and had to seek shelter with his father-in- law the said karichinna hegdc and he was brought up by him. The said karichinna hegde was also managing suit schedule properties and therefore he asked for his share. Having been refused delivery of possession of the properties, he made an amendment to the suit and claimed half share in the suit schedule properties.

(2.) the defendants resisted the suit inter aliaon the ground that the fourth defendant and the plaintiff had remained joint and had never partitioned, that plaintiffs father had borrowed a certain sum of money and created a mortgage by a registered deed of mortgage. As sanna lingaiah, father of the plaintiff was unable to discharge the mortgage debt, he handed over the mortgaged property to the custody of karichinna hegde with an understanding to execute a regular sale deed and that is how the said karichinna hegde came to be in possession of 3 acres 8 guntas of the suit land from the year 1940 and has been enjoying the same paying kandayam etc. The 4th defendant, the undivided cousin of the plaintiff had subsequently executed a sale deed in favour of karichinna hegde in fulfilment of the commitment made by his uncle, the father of the plaintiff as kartha of the family and as such, he had executed the sale deed in his capacity as kartha of the family. In that circumstance, the defendants pleaded that plaintiff was never entitled to any share or possession of the suit schedule properties.

(3.) on such pleadings, as many as six issues were framed including one on the question whether the suit was barred by time which was held in favour of the plaintiff that it has not so barred.