B RAJEGOWDA Vs. H B SHANKAREGOWDA

JUDGEMENT

(1.) This second appeal is by defendants 2 & 3 being aggrieved by the judgment and decree passed by the Addl. District Judge, Hassan in RA 25/1989 and 28/1989 allowing the appeal filed by the plaintiff and also declaring that the plaintiff is the owner of the suit schedule properties.

(2.) The plaintiff had filed a suit before the Civil Judge, Hassan in OS 195/1981 seeking for a decree of declaration, permanent injunction and in the alternative, for possession of the suit properties and for permanent injunction against the defendants from interfering with his possession of the suit schedule properties. According to the plaintiff, late Basavegowda the father of the plaintiff and defendants had five sons and there was a partition on 24.11.1974 among the father and sons and a palupatti was written evidencing the partition. The properties in Sy.No. 59/4 -garden land to the extent of 16 guntas' Sy.No. 58/5 B(2) Dry land to the extent of 28 guntas and Sy. No. 123/3-Wet land to the extent of 17 guntas constitute the suit schedule properties. According to the plaintiff, the suit schedule property fell to the share of Basavegowda father of the parties which has been exclusively enjoyed and cultivated by Basavegowda through the defendants 2 & 3 for some years and thereafter since defendants 2 and 3 did not evince any interest, Basavegowda got the property cultivated through the plaintiff. On the ground that defendants 2 and 3 attempted to interfere with the peaceful possession and enjoyment of the properties, Basavegowda himself had filed OS 171/1978 for a permanent injunction before the Munsiff, Hassan and in that since defendants contended that they were the tenants, the matter was referred to the Land Tribunal, Belur for consideration. Later, the Land Tribunal dismissed the claim of defendants 2 and 3 and also the rival claim of the plaintiff through his wife claiming occupancy rights. However, the suit filed by Basavegowda was dismissed for default. Subsequently, a Miscellaneous Petition was filed for restoration of the suit. Since during pendency of the petition Basavegowda died, the petition was dismissed as not pressed.

(3.) According to the plaintiff, Basavegowda left a Will in his favour which was registered on 12.1.1978 and by virtue of the same, on the demise of Basavegowda, plaintiff has become the absolute owner of the suit properties. Contending that the defendants having no right or title are interfering with his possession, he has filed the suit for a declaration as well as for a permanent injunction and to declare him as the original owner.