TUKAPPA BASAPPA KUPPALUR Vs. RAMAPPA SUBBAPPA KUPPALUR

JUDGEMENT

(1.) Appellant is defendant 2, Respondent 1 is the plaintiff, and Respondent 2 is the 3rd defendant who died during the pendency of the second appeal. His Legal representatives have not been impleaded. Defendant 1 died during the pendency of the appeal in the lower appellate court and the application for impleadmg his leaal representatives was dismissed by the lower appellate court. The suit was filed for declaration of the plaintiff's title to the suit property. R. S. No. 22, situate in Yetinahalli village, Ranibennur Taluk, measuring 16 acres 15 guntas, and for an injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff and in the alternative, for possession of any portion of the same which may be found to be in possession of any defendant or defendants.

(2.) The property belongs to one Dharamchand Rupaji Marwadi. The father of the plaintiff was the protected tenant of this land and he died in about the year 1954. Subbappa's father was one Basappa. Defendants 1 and 2 are the brothers of Subbappa. Defendant 3 was impleaded since he colluded with defendants 1 and 2 in obstructing the plaintiff. According to the case of the plaintiff. Subbappa was cultivating the suit land for 15 or 20 years prior to his death and that after his death the plaintiff has been cultivating the entire suit property as protected tenant since the year 1955-56. It is the case of the plaintiff that he and his brother Bbeemappa are the lineal male descendants of Subbappa who were entitled to remain in possession of the property under Section 48 of the Bombay Tenancy and Agricultural Lands Act, 1948. The defendants are alleged to be the divided uncles of the plaintiff and they have no right or interest in the suit property, but they interfered with his possession and enjoyment of the suit properly. Only the second defendant filed the written statement and the other defendants adopted the same. According to the case of the defendants, Subbappa was the Manager of the joint family consisting of himself and the defendants, since he was the eldest brother; that it was their father Basappa who had taken the property on lease from the Marwadi over 30 years ago; that after the death of their father, Subbappa, since he was the Manager of the joint family, got his name entered in the Record of Rights and that Subbappa died when the family was joint. It is their case that till Subbappa's death, the property was being enjoyed as a joint family property. They contend that they have also inherited the rights in the suit property. They further contend that after the death of Subbappa, there was a division of the family properties including the suit property, that the suit (and was divided into three portions, that the easternmost portion measuring 5 acres fell to the share of the plaintiff, middle 5 acres fell to the share of the 1st defendant and the remaining 6 acres 15 guntas in the western portion fell to the share of the 2nd defendant. According to their allegation, the Panchas divided the property as stated above and since then they have been enjoying the property accordingly. They also alleged that there is a Tippani dated 15-6-1956 evidencing this partition and that the parties have been enjoying these shares since 1957-58. They denied that they obstructed the plaintiff in the cultivation of his portion of the suit land.

(3.) The trial court held that the defendants failed to prove the alleged partition and that they further failed to prove that they had acquired tenancy rights in respect of the shares claimed by them in the suit property. It further held that the defendants were not in possession of the portions of the suit land as contended by them and accordingly decreed the suit declaring that the plaintiff is the protected tenant of the suit property and directing the defendants not to interfere with his possession and enjoyment of the same. Defendants 1 and 2 went up in appeal to the Court of the Civil Judge, Haveri. During the pendency of the appeal in the lower appellate court, defendant 1 died and his legal representatives have not been brought on record as stated above.