MAHADEVAMMA Vs. KUNJAPPA KARNAD

JUDGEMENT

(1.) The captioned second appeal is filed by unsuccessful plaintiffs wherein both the Courts have concurrently held that plaintiffs are not entitled for the relief of partition and separate possession as the subject matter of partition suit is not at all in existence.

(2.) The brief facts of the case are as under: The plaintiffs have filed the suit by contending that the suit schedule "A' property was originally owned by propositus Yelekereshetty and the said propositus has bequeathed the suit schedule 'A' property in favour of his three sons and one amongst them is the husband of first plaintiff-Basavaraju. The plaintiffs alleged that first defendant is the owner of adjacent site of schedule 'A' property and further alleged that schedule 'B' property is a 6 ft. x 230 ft. lane, which the plaintiff and general public are entitled to use. Hence, filed the suit for the relief of partition and separate possession based on the Will.

(3.) The defendants on receipt of summons tendered appearance and stoutly denied the entire averments made in the plaint. The first defendant seriously disputed the very existence of the suit passage. The first defendant has contended that the property owned by propositus Yelekereshetty has been dealt by him during his life time. The defendant contended that Yelekereshetty sold a portion of the property in favour of P. Abdul Rehaman Kaka and having repurchased a portion from Abdul Rehaman, Yelekereshetty again resold it in favour of one Siddalingamma @ Shashikala under registered sale deed dtd. 24/8/1995. On these set of defence, sought for dismissal of the suit.