BASAVARAJ Vs. VIRUPAKSHAPPA

JUDGEMENT

(1.) This Regular Second Appeal is filed by the plaintiff, challenging the Judgment and Decree dtd. 24/3/2012 passed in R.A.No.54/2011 on the file of the II Fast Track Court, Koppal, (hereinafter referred to as 'the First Appellate Court', for brevity), setting aside the Judgment and decree dtd. 12/4/2011 passed in O.S.No.50/2007 on the file of the Senior Civil Judge, Koppal (hereinafter referred to as 'the trial Court', for brevity), decreeing the suit of the plaintiff.

(2.) For the sake of convenience, the parties to this appeal shall be referred to in terms of their status and ranking before the trial Court.

(3.) The relevant facts for adjudication of this appeal are that, it is the case of the plaintiff that, the father of the plaintiff and defendant No.1 was Sharanappa. Sharanappa had six children, namely, Virupaxappa (Defendant No.1), Channabasappa, Markandappa, Basavaraj (Plaintiff - Appellant), Nagaraj and Jambanna. It is the case of the plaintiff that, the father of the plaintiff and defendant No.1 - Sharanappa died in the year 1977 leaving behind 6 house properties and other agricultural properties at Ginigera Seema and Shivapura Seema. It is further averred in the plaint that, the suit schedule properties are the ancestral properties of the plaintiff and defendant No.1. It is further averred that, in the year 1983, defendant No.1 and Markandeppa - third son of Sharanappa, severed from the joint family as per the partition and property bearing No.820 and 821 was allotted to defendant No.1 and property No.66 was allotted to Markandeppa. It is further stated in the plaint that, the remaining 4 children of Sharanappa continued to be in joint till 1986 and during 1986, four brothers effected partition among themselves and as such, property No.56 was allotted to Channabasappa (2nd Son), property No.68 was allotted to Nagaraj and Jambanna together and the suit schedule property bearing No.822 was allotted to the plaintiff and as such, all the children of the Sharanappa got house properties from their father. It is further averred in the plaint that the suit schedule property had been purchased by the father of the plaintiff through registered sale deed dtd. 5/3/1975 in the name of defendant No.1 out of the joint family nucleus and therefore, the suit schedule property is the joint family property of Sharanappa, plaintiff and defendant No.1. Therefore, it is the contention of the plaintiff that the suit schedule property is the joint family properties of the plaintiff. It is further averred in the plaint that the defendant No.1 sold the property bearing No. 820 and 821 in favour of son of defendant No.2 on 19/3/1987. It is further averred in the plaint that, the defendant No.1, taking advantage of the revenue records which stands in his name in respect of the suit schedule property, in favour of defendant No.2 on 22/10/2003, undertaking with the suit schedule property undertaking with the suit schedule property. It is further stated that, in respect of the agricultural immovable properties, the same is devolved among the children of Sharanappa as per the registered partition deed dtd. 8/2/1993. Being aggrieved by the alienation of the suit schedule property, by the defendant No.1 in favour of defendant No.2, plaintiff has filed O.S.No.50/2007 on the file of the trial Court seeking relief of declaration and injunction.