NARAYANA KOTIAN Vs. KRISHNI

JUDGEMENT

(1.) Defendant Nos. 23 and 26 in O.S. No. 556/1989 on the file of Civil Judge (Jr. Dn.), Mangalore, have come up in this second appeal impugning the concurrent finding rendered by both the courts below in decreeing the suit of plaintiffs 1 to 6, who are respondents 1 to 6 herein. For the sake of brevity, the parties herein are referred to by their rank in the court below.

(2.) Brief facts leading to this second appeal are that, plaintiffs and defendants 1 to 22 are members of Aliyasanthana joint family. The suit schedule property is one of the items of said Aliyasanthana joint family properties. It is seen that prior to filing of suit in O.S. No. 556/1989, there was one more round of litigation between plaintiffs and defendants 1 to 22 in O.S. No. 94/1968, which was on the file of Civil Judge, Mangalore, for the relief of partition and separate possession. It is not in dispute that said suit came to be decreed on 21.7.1969 by identifying a portion of suit schedule property in O.S. No. 94/1968 as share of plaintiffs 1 to 6 in the present litigation, who were plaintiffs in said suit also. It is seen that in the very same suit i.e., in O.S. No. 94/1968, an application is filed for drawing up of final decree. Pursuant to that final decree is also drawn on 31.10.1980, under which an extent of 2 acres 15 cents is allotted to the share of plaintiffs therein. It is stated that pursuant to said final decree drawn in O.S. No. 94/1968, the share of parities therein is identified by a sketch, which was prepared by Court Commissioner, which is produced and marked as Ex. P1 in the present suit.

(3.) The case of plaintiffs, in the present suit is that, though they are awarded 2 acres 15 cents of land in in Sy. No. 64/6 of Kannur village, Mangalore Taluk, vide judgment and decree passed in O.S. No. 94/1968, in the sketch which was prepared by the Commissioner vide Ex. P1, the extent shown against their share is only to an extent of 1 acre 13 1/2 cents, which mistake was tried to be rectified by plaintiffs herein by filing an application in I.A. 17 in O.S. No. 94/1968. What actually happened to said application is not on record in these proceedings. The version of counsel for appellants herein is that said application is dismissed and that was taken up in a revision before this court. However, date of dismissal of said application is not forthcoming and the number of revision, which is said to have filed by plaintiffs is also not on record. What happened to said revision is also not forthcoming, as appellants are not in a position to make any submission in that behalf. However, the counsel for respondents 1 to 6 i.e. plaintiffs in the original suit submitted that liberty was given to them while seeking withdrawal of said application to pursue the same in the present suit. Be that as it may.