GUNDAPPA ACHARI Vs. SHESHAPPA UPADHAYA

JUDGEMENT

(1.) This second appeal by judgment debtor-2 Gundappa Achari is directed against the order dated 19-2-1977 passed by the Civil Judge, Udupi, in Execution Appeal No. 9 of 1976 affirming the order dated 18.10.1976 passed by the Munsiff, Coon- dapur, in R.E.P.No. 158 of 1966 overruling the objections of judgment debtor-2 and ordering the execution to proceed.

(2.) The material facts leading to the case are as under:- S.No 83/13 of Pandeswar village measuring 24 cents originally belonged to one Kasi Holla. The said owner Kasi Holla granted on mulgeni the said 24 cents of land to one Subraya Aksali, the father-in- law of judgment debtor-2, under a deed dated 9-12-1912, with a condition that the mulgeni tenant Subraya Aksali should not transfer his rights to any one. The mulgeni tenant Subraya Aksali executed a registered deed of settlement on 28-3-1939 in favour of his wife Sarasamma and his only son Krishnaya Achari and retained for himself the right to enjoy the said property during his life time. The said settlement was to take effect after the death of the mulgeni tenant Subraya Aksali. Krishnaya Achari the only son of the mulgeni tenant Subraya Aksali released all his right, title and interest in the said property in favour of his mother Sarasamma under a registered release deed dated 28-8-1941. Thereafter Sarasamma and her husband Subraya Aksali sold their rights in the eastern 16 cents to their daughter Minakshi on 24.11.1941. The said Minakshi was put in possession of the eastern 16 cents. The western 8 cents were bifurcated from the eastern 16 cents by means of a fence. Minakshi continued to be in possession and enjoyment of the suit property i.e. eastern 16 cents for some time. Thereafter the said Minakshi sold the eastern 16 cents to her father Subraya Aksali (original mulgeni tenant) on 1-5-1945 for Rs. 300/- and he was put in possession of the same. He continued to be in possession thereof till his death on 30-8-1946. After the death of the said Subraya Aksali on 30-8-1946, his only son Krishnaya Achari succeeded to his interest as the sole heir of Subraya Aksali. They were governed by Hindu Mitakshara law. The said Krishnaya Achari sold the property in question on 27-2-1947 in favour of one Narayana Bhatta for Rs. 500/-. The said Narayana Bhatta in turn assigned his mulgeni right in favour of Narasimha Upadhaya on 19-1-1950 under a registered deed. The present decree holder is the son of Narasimha Upadhyaya. Narsimha Upadhaya filed a suit O.S.No. 396/58 on the file of the munsiff, Coondapur, against the present judgment debtor-2 Gundappa Achari, Sarasamma, Krishna Achari and others, for a declaration that the suit property belonged to him and that the sale deed dated 5-2-1947 was invalid and was not binding on the plaintiff and for possession of the suit properties form the defendants.

(3.) It is the case of judgment-debtor-2 that he purchased the mulgeni rights in the entire 24 cents from his mother-in-law Sarasama under a deed dated 5-2-1947. Thus he claimed permanent tenancy rights not only in the suit property but also in the western 8 cents of area.