BHARMAPPA Vs. GUDDAPPA

JUDGEMENT

(1.) Captioned second appeal is filed by unsuccessful defendant No.2, who is questioning concurrent judgment and decree of the courts below wherein respondent No.1- plaintiff is granted half share in item No.35/1 property. Respondent No.1-plaintiff filed a suit for partition and separate possession in O.S.No.56/2002. The relevant genealogy of the family is as under: Shiddappa (Dead) Yallavva Basappa Guddappa (Deft.No.1) (Plaintiff)

(2.) The respondent No.1-plaintiff specifically contended that schedule 1(A) properties, which is agricultural lands bearing survey No.57/3 measuring 1 acre 23 guntas and survey no.56/1 measuring 3 acre 20 guntas are joint family ancestral properties. After the death of plaintiff's father Shiddappa, defendant No.1 i.e. vendor of appellant/defendant No.2, was managing the family affairs as a Karta. It was further contended that suit lands at schedule 1(A) were jointly cultivated by plaintiff and defendant No.1. It was specifically contended that out of the income derived from the ancestral properties and also out of joint earnings, suit schedule 1(B) property bearing Survey no.35/1 was purchased in the name of defendant No.1. The respondent-plaintiff has specifically pleaded in the plaint that the registered sale deed executed by defendant No.1 in favour of present appellant-defendant No.2 is a nominal sale deed and same would not give any right and title either to defendant No.1 or in favour of defendant No.2. On these set of pleadings, respondent No.1-plaintiff filed a suit for partition and separate possession.

(3.) On receipt of summons, the present appellant, who was arrayed as defendant No.2, contested the proceedings. The present appellant has stoutly denied the entire averments made in the plaint. The allegation that the sale deed in the name of defendant No.1, in the capacity of manager, was seriously disputed by the present appellant herein. The present appellant, who is purchaser has specifically contended that defendant No.1 has purchased item No.1(B) property out of his independent earnings for valuable sale consideration and therefore, it is self acquired property of defendant No.1. In the event, if Court comes to a conclusion that plaintiff is entitled for share in suit item No.1(B) property, the appellant is entitled for equitable portion of allotment of suit item No.1(B) land. The Trial Court, having assessed the oral and documentary evidence, answered issue No.1 and 2 in affirmative and recorded a categorical finding that respondent No.1-plaintiff has succeeded in establishing that the suit schedule properties are joint family ancestral properties comprising plaintiff and defendant No.1 and further held that the sale deed executed in favour of appellant-defendant No.2 by deceased defendant No.1 in respect of agricultural land bearing Survey No.35/1 is not binding on plaintiff's half share in the suit schedule property.