KRISHNEGOWDA Vs. KAMALAMMA

JUDGEMENT

(1.) This appeal is filed by the appellants - plaintiffs praying to set aside the judgment and decree dtd. 25/5/2011 passed in R.A. No. 40/2006 by Additional Senior Civil Judge, Ramadurga and decree the suit in O.S. No. 33/1994.

(2.) Appellants - plaintiffs filed suit in O.S. No. 33/1994 on the file of Civil Judge (Junior Division) and JMFC, Channapatna, seeking declaration that they are the owners of the suit schedule property and order of defendant No.3 is null and void and not binding on the appellants - plaintiffs and sought permanent injunction against defendant No. 1. Suit schedule property is land bearing survey No. 559/2 measuring 1 acre 05 guntas of Sulleri village, Virupakshipura hobli, Channapatna taluk. It is the case of the plaintiffs before the trial Court that property bearing survey No. 559/2 of Sulleri village measuring 2 acres 10 guntas was belonging to one Sri. Puttegowda son of Mallugowda. He had no issues and he bequeathed all his properties in favour of his brothers and sisters through registered Will dtd. 26/2/1947 (Ex.P.4) which is registered on 7/3/1947. Said Sri. Puttegowda died issue less leaving behind him, wife Smt. Basamma. In the will he had bequeathed the properties in favour of Basamma only to enjoy them during her life time without giving any rights to encumber the properties in any manner whatsoever and after her death, brothers of late Puttegowda by name Sri. Puttaswamygowda and Malluvappa should divide the properties among them in respect of first two items of four properties. The other two items being Hithal and house property should go to defendant No. 1 - Sri. Malluvappa and other item house property should go to Sri. Puttaswamy - father of plaintiffs and other property was given to his sister. Second item of properties is the schedule property bearing survey No. 559/2 measuring 2 acres 10 guntas for which father of plaintiffs Sri. Puttaswamygowda and defendant No.1 - Malluvappa are having equal right to half of the property. After death of Puttegowda his wife Smt. Basamma enjoyed all the properties during her life time.

(3.) On 5/11/1968, defendant No.1, with the consent of Smt. Basamma, sold his half share in property bearing survey No. 559/2 to one Sri. Mollegowda by leaving other half portion to the father of plaintiffs - Sri. Puttaswamygowda and retained 2-1/2 guntas on the western side of his property by selling 1 acre 2-1/2 guntas to Sri. Mollegowda. After death of Smt. Basamma on 21/8/1991 plaintiffs made an application to enter their names in respect of suit schedule properties and as per order of respondent No. 11 - Deputy Tahsildar/defendant No. 4, name of plaintiff No.1 came to be mutated in respect of the suit schedule property. Defendant No. 1 challenged the order of defendant No. 4 before defendant No. 3 - Assistant Commissioner who set aside the order of the Deputy Tahasildar and ordered to mutate the name of defendant No. 1. Thereafter, plaintiffs approached the trial Court, sought declaration and setting aside the order passed by defendant No. 3. Legal representatives of defendant No. 1 filed written statement, admitted execution of the Will dtd. 26/2/1947 (Ex.P.4) and also admitted that Smt. Basamma died in the year 1991. They have also admitted that Sri. Malluvappa had sold 1 acre 5 guntas in favour of Sri. Mollegowda and contended that rest of the properties bearing survey No. 559/2 are in possession of Sri. Malluvappa and after his death, by his legal representatives. They claimed that the entire property bearing No. 559/2 belonged to defendant No. 1 - Malluvappa. They contended that the Assistant Commissioner (defendant No. 3) after proper interpretation of the Will has passed the order and prayed to dismiss the suit.