R. S. SHEKHARAPPA Vs. R. B. MARULASIDDAPPA

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel appearing for the parties.

(2.) This appeal is filed challenging the judgment and decree dtd. 5/8/2017 passed in R A No.18/2017 on the file of the 1st Additional District and Sessions Judge, Chitradurga.

(3.) The factual matrix of the case of the plaintiff before the Trial Court that he is the absolute owner and in possession of the property to the extent of 18 guntas which he has retained after selling the portion of the property of 1 acre 2 guntas out of 1 acre 20 guntas which was allotted to him. It is also his contention that he has been in peaceful possession and enjoyment of the said property. The defendants in pursuance of the suit summons, appeared and contended that the matter was already decided in O.S.No.206/2008 and the said 18 guntas of land has already been declared as karab land hence, the claim of the plaintiff is barred under principles of res-judicata and the plaintiff cannot claim the decree in respect of karab land. It is also the contention of the defendants that the entire land of the plaintiff was sold in favour of his brother Parameshwarappa and he has not retained any property. The plaintiff has been examined as PW1 before the Trial Court and also examined his brother as PW2 who had purchased 1 acre 2 guntas of land out of 1 acre 20 guntas and got marked the documents at Ex.P1 to P23. The defendants though set up the defence of res-judicata and claimed that the same is a karab land, not led any evidence and only relied upon the documents at Ex.D1, 2 and 2(a). The Trial Court after considering both the oral and documentary evidence answered Issues No.1 and 2 as affirmative in coming to the conclusion that 18 guntas of land was retained by the plaintiff and the plaintiff is the absolute owner and he is in possession of the said 18 guntas of land and answered Issue No.3 as negative in coming to the conclusion that the suit in O.S.No.206/2008 not substantially and directly involved in respect of the suit schedule property which has been claimed by the plaintiff and the same is different property and same is out of 120 guntas of land allotted in favour of the plaintiff in the partition among the mother and brothers. Hence, an appeal is filed by the defendants before the First Appellate Court and in the First Appellate Court also the appellants herein have urged the ground that the Court below committed an error in coming to the conclusion that the suit schedule property is a part and parcel of the land allotted to the plaintiff in the previous partition and the plaintiff became absolute owner of the said property and also other ground is urged that the Trial Court is not justified in holding that the plaintiff is in possession and enjoyment of property and also the Trial Court has committed an error that the suit is not hit by principles of res-judicata and the very approach of the First Appellate Court is erroneous and the Trial Court committed an error in decreeing the suit for declaration declaring that the plaintiff is the absolute owner of the suit schedule property and he has been in possession of the same. And the First Appellate Court after re-appreciation of the evidence on record comes to the conclusion that the Trial Court has not committed any error in decreeing the suit and also comes to the conclusion that the principles of res-judicata is not applicable to the facts of the case on hand. Hence, the present appeal is filed before this Court by the defendants.