YELLAPPA Vs. MALLIKARJUN REDDY

JUDGEMENT

(1.) This Regular Second Appeal is preferred by the defendant No.5, challenging the judgment and decree dtd. 27/7/2017 in R.A.No.303/2010 on the file of the V Addl. District and Sessions Judge, Dharwad sitting at Hubballi, setting aside the judgment and decree dtd. 29/9/2010 in O.S.No.128/2003 on the file of the Prl. Senior Civil Judge, Hubballi, dismissing the suit of the plaintiffs.

(2.) For the sake of convenience, the parties to this appeal are referred to with their rank before the trial Court.

(3.) Factual aspect of the case are that, Sri.Laxman Malappa Desai married Smt.Venkavva. Sri. Laxman Mallappa Desai purchased the suit schedule property from one Smt.Bangaravva for valuable consideration through registered sale deed dtd. 3/6/1968 and he was in possession of the suit schedule property till his death. Laxman Desai died on 1/1/1983 and after his death, Smt.Venkavva was in actual possession and enjoyment of the suit schedule property. It is further stated in the plaint that Smt.Venkavva executed registered will dtd. 16/11/1994, bequeathing the suit schedule property in favour of the plaintiffs and after the death of Smt.Venkavva on 22/12/1994, plaintiffs were minors and as such, subject land was cultivated by the members of plaintiffs' family. It is further stated that pursuant to execution of the registered sale deed dtd. 16/11/1994 and after death of Smt.Venkavva on 22/12/1994, name of the plaintiffs were entered in the revenue records and during the said period, the 1st defendant filed objections to Varadi contending that she is the second wife of Laxman Mallappa Desai and defendant Nos.2 to 4 claims to be sons of said Laxman Mallappa Desai. It is further stated by the plaintiffs that husband of the 1st defendant was one Timmareddi Venkareddi Desai, who was a retired Grama Sevak of Agricultural Department and not Sri. Laxman Mallappa Desai and as such, the plaintiffs have stated that 1st defendant has falsely contended that she is the wife of Sri. Laxman Mallappa Desai and based on the will dtd. 1/6/1983 alleged to have made by Sri. Laxman Mallappa Desai, revenue entries have been changed and same was challenged before this Court in W.A.No.4673/1998. This Court directed the parties to adjudicate the lis before the competent Civil Court and in that view of the matter, plaintiffs have filed O.S.No.128/2003 before the trial Court seeking relief of declaration and permanent injunction.