M A KIRAN Vs. M M DOLLY APPANNA

JUDGEMENT

(1.) The appellant herein is calling in question the judgment and decree dated 13.02.2012 passed by the learned Civil Judge, Madikeri, in R.A.No.9/2010 thereby allowing the appeal and setting aside the judgment and decree passed by the Trial Court in O.S.No.29/2007 decreeing the suit of the plaintiff appellant herein.

(2.) The appellant instituted the suit O.S.No.29/2007 before the Principal Civil Judge (Jr.Dn.) at Madikeri against the respondent herein seeking a decree of permanent injunction in respect of 3 acres 50 cents of land, out of 14 acres 31 cents comprised in Sy.No.222/1 of Kunjilla Village, Madikeri Taluk, Kodagu District. He contended that his father M.M.Achaiah, the present respondent Dolly Appanna and also one M.M.Somanna were brothers. There was oral partition in the family. Since the year 1968, the plaintiff's father was cultivating an extent of 3 acres 50 cents and the respondent had got 5 acres 30 cents. The other brother Somanna got 5 acres 51 cents out of Sy.No.222/1. After the partition, Somanna passed away during the year 1989 unmarried leaving his two brothers and also his father. Thereafter, the grandfather of the plaintiff Mandanna passed away. It is also contended that the father of the appellant further partitioned the property amongst his children by way of registered partition deed dated 28.09.2006 wherein the appellant got the suit property apart from other properties and therefore he has been in actual possession of the suit property.

(3.) The defendant respondent resisted the suit contending inter alia that there was an oral partition during the year 1989 between the three brothers, but denied that the plaintiff's father was cultivating 3 acres 50 cents of land in Sy.No.222/1. He asserted that he was in exclusive possession and enjoyment of the suit schedule property apart from other portion of the property in Sy.No.222/1 and had cultivated coffee plantation since 1995. He further contended that the partition deed dated 28.09.2006 was created for the purpose of cheating the defendant and the consequent entries made in the revenue records based on the said partition were of no consequence on the right of the defendant. The defendant asserted his possession over the entire extent of land and his coffee cultivation in the land. He also contended that the area under coffee cultivation had been fenced by him.