GANGAPPA RAMAPPA DAMANNAVAR Vs. KALLAPPA SONKAPPA KATTI

JUDGEMENT

(1.) The appellants in R.S.A. 754/70 are the plaintiffs 1 and 2 in the trial Court in Special Suit No. 37 of 1967 and the respondents are defendants 1 end 2. The parties will be referred to in relation to R.S.A. 754/70. The appellants ere common in all the three appeals. In R.S.A. 753/70 the 1st defendant Bharmappa is the sole respondent and in R.S.A. 728/70 the second defendant Kallappa is the sole respondent.

(2.) The suit properties consist of a house bearing V. P. C. No. 220 situate at Dhupdal village in Gokak Taluk and two lands -- one R. S. No. 88/1 plus 2, plus 3, plus 4-A measuring 6 acres and another bearing R. S. No. 191/1 measuring 4 acres 18 guntas both situate at Dhupdal. These properties originally belonged to one Kallappa Mallappa Damannavar, who was the brother of the appellants' father Ramappa. Kallappa died on 23-12-1938 leaving no issues either male or female. After his death, his widow Akkavva inherited these properties. She died on 6-9-1966. Thereafter, disputes arose between the appellants and the respondents in respect of these properties. Respondent 1 is the husband of Akkawa's sister. Respondent 2 is Akkawa's brother. The appellants claim the properties as heirs of their paternal uncle Kallappa whereas the respondents claim them under a will alleged to have been executed by Akkawa on 1-10-1964 in their favour. The dispute between them led to the initiation of proceedings under Section 145 of the Code of Criminal Procedure, and on 4-11-1966. the Sub Divisional Magistrate, Baithongal. attached the suit lands and entrusted them to the management of the Tahsildar.

(3.) Thereafter, the second respondent filed a suit in O. S. 61/67 in the Court of the Munsiff at Gokak for a declaration that he has become the owner of the suit land R. S. 88/1 plus 2 plus 3 plus 4-A under the said will and for permanent injunction restraining the appellants from interfering with his possession and enjoyment of the land. On the next day. on 19-4-1967. respondent 1 also filed a suit O. S. 63/67 in the same Court against the appellants for a similar relief in respect of the other two suit properties and also claiming them under the same will. Thereafter on 26-6-1967, the present appellants filed Special Suit No. 37/67 in the Court of the Civil Judge, Belgaum. against both the respondents for a declaration that after the death of Akkavva, they had become the owners of the suit properties and for possession of the suit house and future mesne profits. They did not ask for possession of the suit lands as they were by that time in the management of the receiver appointed by the Sub-Divisional Magistrate. During the pendency of these suits, an application was filed in the District Court in Misc. Application No. 4/68 for transfer of the two suits from the Court of the Munsiff. Gokak, to the Court of the Civil Judge, at Belgaum and accordingly, they were transferred and on transfer. O. S 61/67 was renumbered as O. S. 91/68, and O. S. 63/67 was re-numbered as O. S. 93/68 in that Court. All the three suits were heard together and common evidence was recorded in Special Suit No. 37/67 and they were disposed of by a common judgment. Since the pleadings in all the three suits were identical, the Civil Judge referred to only the pleadings in Special Suit No. 37/67 in the course of his judgment. The trial Court dismissed O. S. 37/67 and decreed the suits O. S. 91/68 and O. S. 93/68. On appeals being filed, the District Judge, Belgaum, heard the three Regular Appeals Nos. 18, 19 and 20 of 1969 together and disposed of them by a common judgment confirming the decrees of the trial Court. R. A. Nos. 18, 19 and 20 correspond to the Original Suits Nos. 37/67, 93/68 and 91/68. The present second appeals have been filed against the decrees in the said Regular Appeals. R.S.As. 728/70, 753/70 and 754/70 correspond to R. As. 19/69, 20/69 end 18/69 respectively.