S KRISHNAMURTHY Vs. N ASWATHAIAH

JUDGEMENT

(1.) THIS appeal is by the defendant being aggrieved by the judgment and decree dated 19-2-2000 passed by the learned Civiljudge (Sr. Dn.) Chickballapur, in R. A. No. 40/1996 wherein the learned civil Judge (Sr. Dn.) confirmed the order of the learned Munsiff Gowribidnaur, in O. S. No. 176/87.

(2.) PLAINTIFF filed a suit to declare him as absolute owner of the suit schedule properties and for permanent Injunction against the defendant. Narayanappa had two sons by name Krishnappa and Aswathappa (Plaintiff) and four daughters by name subbamma, Bhageerathamma, Lakshmamma and Puttamma respectively. Narayanappa father of the plaintiff and sheshamma mother died about 70 years back. The Daughters of Narayanappa namely Subbamma died in Kaldevapura village of Madhugiri Taluk about 34 years back, bhageerathamma died about 33 years back at Hajipet in Kadapah District of Andhra pradesh, Lakshmamma died about 17 years back at Tumkur and Puttamma died on 8-5-1986 at Idagur village in Gowribidanur taluk. Krishnappa one of the sons of narayanappa died about four years back at doddamaralur village. Subbamma one of the daughters of Narayanappa alone had four male issues and one female issue while other children of Narayanappa had no issues. One of the sons of Subbamma is Krishnamurthy defendant. Puttamma the fourth daughter of Narayanappa was married to one subbrayappa and on death of her husband, puttamma succeeded to the assets of her husband Subbarayappa. She had no issues. According to the plaintiff on the death of puttamma, he succeeded to the suit properties by way of succession as nearest heir to Puttamma. According to the plaintiff, he is the only surviving member in the family of late Narayanappa his father. Plaintiff alleges that defendant is a stranger to the suit schedule properties and any documents in his custody is illegal. It is alleged by the plaintiff that the defendant concocted certain documents and that defendant has no manner of right, title and interest in respect of the possession of the suit schedule properties.

(3.) DEFENDANT denied some of the facts in controversy and contended that plaintiff is not the near successor to the suit properties. During the lifetime of Puttamma, it is alleged that she had executed a registered will in his favour and put him in possession of the suit properties and also, it is alleged that Puttamma and her husband had adopted him as their adopted son, as such, plaintiff has nothing to do with the suit properties. According to the defendant, Will was valid and binding and he resisted the suit. Based on the pleadings, the trial Court raised as many as ten issues in addition to two additional issues. After trial and hearing the parties, the trial Court held that plaintiff is the absolute owner of the suit property and also is in possession of the same and that there is interference by the defendant. It held that plaintiff is entitled for declaration and injunction. Being aggrieved by the same defendant preferred appeal before the learned Civil Judge (Sr dn.) Chikkaballapur, in R. A. No. 40/96. The appellate Court having examined the order of the trial Court and after hearing the parties held that defendant is not the adopted son and he is only a foster son of Puttamma. It also held that Will is not duly proved by the defendant and dismissed the appeal. Being aggrieved by the same, defendant has come up in second appeal raising several substantial questions of law. At the time of admission on 8-6-2000, the following substantial questions of law were raised :