CHIKKANANJE GOWDA Vs. SIDDALINGARADHYA

JUDGEMENT

(1.) This is a defendant's second appeal aggrieved by the order passed by the Additional Civil Judge (Senior Division), Kolar in R.A. No. 143 of 1998 on 17-9-2005 confirming the order of the Additional Civil Judge (Junior Division), Kolar in O.S. No. 438 of 1989 on 15-4-1998. Plaintiff filed a suit stating that l/3rd portion of the property in Sy. No. 24 was sold in favour of the defendant by his father and the remaining extent was retained by them and that there is encroachment of 20 guntas by the defendant. Of course, in the plaint, there is a mention made with respect to the boundaries and the extent of land available to the defendant i.e., the specific case of the plaintiff is, Sy. No. 24/1 was sold in favour of this defendant by his father and the extent is mentioned as 3.06 acres. According to the plaintiff, 20 guntas of land is in defendant's possession and he has sought for a declaration and possession as against the defendant to that extent on the ground there is encroachment. Suit was contested before the Trial Court. According to the defendant, the entire land in Sy. No. 24 of Segehalli Village was owned by Patel Rudraiah and he was owner of l/3rd land on the western side including the Well and he has sold his share including the Well to one Muneppa under a registered sale deed dated 27-11-1933 who in turn, sold it to Byregowda. It is stated, Byregowda and his sons including this defendant are in possession and enjoyment of this land. Thereafter, it appears the property was improved. During the lifetime of Byregowda, there was a partition amongst his sons viz., Sonnegowda, Nanjegowda, Munishamappa and this defendant into four equal shares with a common right and enjoyment of the Well. In that partition, according to the defendant, he has been given l/4th share of the property where the Well is situate. Based on the pleadings, Trial Court raised as many as eight issues. After inquiry and while answering the relevant issues in the affirmative in favour of the plaintiff, the Trial Court decreed the suit holding that defendant's father had no right over Sy. Nos. 24/2 and 24/3 and rather it is the plaintiff who is entitled for it. Even based on the RTC, it has held 2/3rd share is available in Sy. No. 24 to the father of the plaintiff. Against the said order, in the appeal preferred by the defendant before the Civil Judge (Senior Division), Kolar, the judgment of the Trial Court, has been affirmed by dismissing the appeal. Hence, this second appeal.

(2.) Heard the Counsel representing the parties.

(3.) At the time of admission on 22-11-2007, the following substantial question of law was framed for consideration - whether the Courts below were justified in granting the judgment and decree for declaration of title and possession to the plaintiff respondent when it is not disclosed what is the extent of 24/2 and 24/3 held by the plaintiff.