GANGAPPA AND ORS. Vs. BASAPPA AND SHIVAPPA

JUDGEMENT

(1.) THE present appeal is filed under Section 100 of CPC challenging the concurrent findings of the trial Court in an original suit bearing O.S. 10/2007, which was pending on the file of Civil Judge, (Jr. Dn.) and JMFC Laxmeshwar and confirmation of the same by the Addl. Civil Judge (Sr. Dn.), Gadag sitting at Laxmeshwar in R.A. 51/2008. Plaintiffs are before this Court as they are aggrieved by the dismissal of the suit filed for declaration of title and permanent injunction in respect of 16.18 acres of land in Sy. No. 27/2 of Shyabala Village. The said extent has been described with boundaries on all sides in the schedule appended to the plaint. The said suit has been dismissed vide considered judgment dated 16.6.2008. Against the said judgment, plaintiffs chose to file an appeal under Section 96 of CPC in R.A. 51/2008. The said appeal is also been dismissed by confirming the judgment and decree of the trial Court, vide considered judgment dated 5.10.2009. It is these concurrent findings which are called in question on various grounds as set out in the appeal memo.

(2.) RESPONDENTS herein are defendants before the trial Court. Parties will be referred to as per their ranking before the trial Court.

(3.) THE defendants have filed detailed written statement denying the averments in so far it relates to partition in the year 1944 and 16.18 acres falling to the share of plaintiffs and 13.04 acres falling to the share of Sangappa. It is their case that one person by name Mallappa was the propositus and Basamma was his wife. They had 3 sons namely Ningappa, Sangappa and Hanamantappa. According to them partition took place between them. In that partition 12.31 acres had fallen to the share of plaintiffs and 12.31 acres had fallen to the share of their father and remaining 4 acres was given to Basamma as maintenance. After the death of Basamma, Sangappa and Hanamanthappa equally divided 4 acres of land and as such the defendants' father was in possession of 14.31 acres and father of plaintiffs was in possession of 14.31 acres. With these pleadings, they had prayed for dismissal of the suit.