KALPANA AJIT SALAVE Vs. PUNDALIK MALLA MANG @ ANKUSHE

JUDGEMENT

(1.) THIS second appeal is by the first defendant in O.S.No. 5/1999 challenging the judgment and decree of the Courts below, whereby the trial Court decreed the suit partly declaring that plaintiffs are the owners to an extent of 2/3rd share in the suit property which was confirmed by the lower appellate Court.

(2.) THE plaintiffs have brought this suit for the relief of declaration that they are the absolute owners of the suit property measuring 24 guntas in RS No.141/6 at Kodani village and for consequential relief of permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit property contending that Ningappa the grand father of first plaintiff, Shivappa the father of plaintiffs No. 2 and 3 and Hariba the father of Smt. Bayakka had 1/3rd share each in the suit property. The 1/3rd share of Hariba upon his death was inherited by his only daughter Bayakka. Accordingly, the names of plaintiffs and Bayakka were appearing in the ROR. During the life time of Bayakka she had executed a registered will dt. 29 -1 -73 bequeathing her 1/3rd share in the suit property and other properties in favour of her uncles Ningappa the grand father of plaintiff No.1 and Shivappa the father of plaintiffs 2 and 3 and upon her death on 14 -8 -90, the plaintiffs succeeded to the 1/3rd share of Bayakka and became owners of the same and their names were mutated in the ROR vide ME No.6267 by bracketing the name of Bayakka. That being so, the defendants having no manner of right, title and interest over the suit property attempted to encroach upon the same and they have demolished the boundary marks between the suit property and the adjoining lands. Therefore they have brought this suit for declaration to declare that plaintiffs are the absolute owners of the suit property and for the consequential relief of permanent injunction.

(3.) MATERIAL on record discloses that the suit property and other properties were partitioned among Ningappa and children of Shivappa and Bayakka - the daughter of Hariba and in the said partition the suit properties were divided into 3 parts vide ME No. 4512 dt. 1 -6 -80. The courts below have further noticed that if the suit property is the exclusive property of the said Hariba, mutation entries ought not to have taken place in the names of plaintiffs and there was no need for all the three brothers viz., Hariba the father of Smt. Bayakka, Ningappa and Shivappa to execute a mortgage deed in favour of one Khot jointly.