VASANTHA P. SUVARNA Vs. VASANTHI SUVARANA

JUDGEMENT

(1.) This is plaintiff's second appeal calling in question concurrent findings of fact of the Trial Court and that of the lower Appellate Court to dismiss the suit. Plaintiff instituted O.S. No. 61 of 2005 on the file of the Principal Civil Judge (Senior Division), Udupi on 1-6-2005 for declaration, partition and separate possession of the suit Schedules 'A' and 'B' properties, being agricultural lands with tiled house, fruit bearing trees and a well, arraigning respondents as defendants. According to the plaintiff, his mother by name Ummakka and his father by name Pijina Poojary had two sons, the plaintiff and the husband of first defendant, since deceased. The suit Schedule 'A' property is said to have been purchased in the name of the mother who was in actual possession and enjoyment, while the plaintiff being her younger son looked after her and being in possession and enjoyment made improvements over the said property. The mother is said to have died on 11-7-1990, intestate, leaving behind the two siblings, while the deceased brother had left to Mumbai during his younger days. Plaintiff being younger of the siblings stayed back and tended to the immovable property. It is alleged that the defendants being none other than the widow and children of the deceased brother Leeladhar P. Suvarna came to plaintiffs residence during second week of November 2004 and asked him to vacate the premises and on enquiry it revealed that plaintiff's brother had his name recorded in the RTC pananis in respect of 'A' Schedule properties on the basis of a registered settlement deed dated 13-1-1969 executed by the mother. On the said information, plaintiff got issued a lawyer's notice to his brother on 1-12-2004 which was responded to by a reply denying the assertions. Thereafterwards, it is claimed that the plaintiffs brother sold a portion of 'A' Schedule property to 5th defendant on 26-6-2002 alleging that the gift/settlement deed executed by the mother in favour of plaintiff's mother was illegal, fabricated and not binding on the plaintiff, as he was entitled to one half share, instituted the suit.

(2.) The suit was not resisted by filing written statement of the defendants, who despite service of summons, remained absent and placed ex parte.

(3.) Plaintiff was examined as P.W. 1 and marked Exs. P. 1 to P. 22. The Trial Court framed points for consideration and having regard to the material on record, more appropriately the fact that there was neither pleadings nor proof of purchase of 'A' Schedule property in the name of Ummakka out of joint family income, nor a challenge to the settlement deed dated 13-1-1969 executed by his mother in favour of his brother nor material to establish the allegations of fabrication and forgery of documents, declined to accept the contentions of the plaintiff. In addition the contention that the continuation of the name of the plaintiff's mother in the revenue records till the year 2001 hence the settlement deed dated 13-1-1969, was not binding on the plaintiff, was not accepted to return findings in the negative over the points for consideration. The suit was accordingly dismissed by judgment and decree dated 19-4-2008.