DEVEERAWWA Vs. GANGAWA

JUDGEMENT

(1.) THIS appeal by the defendants-17 to 21 is directed against the judgment and decree passed by the Court of District Judge, Haveri in R.A.No.14/2001 (Old No.3/1996) dated 31-1-2003 reversing the judgment and decree passed by the Civil Judge & Prl.J.M.F.C., Ranebennur in O.S.No.60/1989 dated 13-12-1995 dismissing the suit of the plaintiffs. The first appellate Court has decreed the suit of the plaintiffs by holding that plaintiffs-1 and 2 along with defendants-18 to 21 are entitled to equal share in the land bearing R.S.No.2/1/1 of Aladakatte covered under Ex.P-9; that the plaintiffs and defendants-18 to 21 are also entitled to a share, each, out of half share, in land bearing R.S.No.28/4C/1, covered under Ex.P-11; that the plaintiffs-1 and 2 along with defendants-18 to 21 are entitled to equal share out of 1/3rd share in land bearing R.S.No.28/3 covered under Ex.P-10; that the plaintiffs-1 and 2 and defendants-18 to 21 are entitled to share, each, out of 1/5th share, out of 50% of total area of land bearing R.S.No.28/4C/2 of Aladakatte. Further, plaintiffs-1 and 2 and defendants-18 to 21 are entitled to a share, each, out of half share, in land bearing R.S.No.10/2 of Aladakatte and further plaintiffs-1 and 2 and defendants-18 to 21 are entitled to equal share in house property bearing VPC Nos.6A, 7B, 31 and 40 of Aladakatte.

(2.) THE essential facts leading up to this appeal with reference to the rent of the parties before the trial Court are as follows: Plaintiffs-1 and 2 filed the suit for partition and separate possession of their 8/42 share in the suit schedule properties and for costs. It is averred in the plaint that Kallappa was the propositor. He died in the year 1950 leaving behind his wife Gurushantavva who died in the year 1968 and her five sons and two daughters became her legal heirs. Chennappa died leaving behind his wife ? Gangavva ? first plaintiff and daughter Indravva ? second plaintiff. Eshwarappa is defendant No.11 in the suit and his son Iranagouda is the defendant No.16. Basanagouda is defendant No.12. Rudragouda is defendant No.13. Iravva is defendant No.14 and Chandavva is defendant No.15. Malleshapa died in the year 1977 leaving behind his wife Mahalingavva?defendant No.1 and defendants-2 to 10 are her children. It is averred in the plaint that the second son of Kallappa ? Chennappa died in the year 1979 and first plaintiff is his wife and second plaintiff is his daughter. It is averred that marriage of the first plaintiff with Chennappa was held on 16-5-1949 in the presence of parents of Chennappa. THE father of first plaintiff by name Halappa comes from Magod Village in Ranebennur Taluk and is residing in his father-in-law?s house at Aladakatti in Hirekerur Taluk after marrying Oje Eravva. Uncle of the first plaintiff is residing in Battikoppa village, Hirekerur Taluk and it is he who arranged the marriage of first plaintiff with Chennappa. THE first plaintiff was born on 5-6-1935 and since plaintiff No.1?s father was residing in his father-in-law?s house, his surname was called as Kallimani but his real surname is Basanagouda. THE second plaintiff was born on 12-5-1955 in Aladakatti village and her name is entered in the birth register. It is further averred that defendant No.17 is not the legally wedded wife of Chennappa and defendants-18 to 21 are not the sons of deceased Chennappa. In order to deprive the share of the plaintiffs, defendants-2, 3 and 11 to 13 colluded with defendant No.17 and got entered her name in respect of the suit schedule properties and also entered into nominal sale deed of the year 1980. Plaintiffs objected to the same and the plaintiffs had filed R.T.S. appeal in this regard. Defendants have created the entries in order to deprive of the plaintiffs? 8/42 share in the suit schedule properties. Further, defendants have falsely alleged that first plaintiff has become a ?sanyasi? and a devotee of Devi Yellamma and therefore the suit.

(3.) THE trial Court framed appropriate issues on the above said pleadings. On behalf of the plaintiffs, Plaintiff No.1 was examined as P.W.1 and also examined P.W.2 and got marked the documents-Exs.P-1 to P-42. On behalf of the defendants, defendant No.2 was examined as D.W.1 and defendant No.17 was examined as D.W.2 and also examined D.Ws.3 to 7 and got marked the documents-Exhibits-D-1 to D-25. THE trial Court, after considering the contention of the parties and the material on record, held that first and second plaintiffs have failed to prove that they are the legal heirs of deceased Chennappa and answered other issues except issue No.7 against the plaintiffs and answered issue No.7 by holding that defendants have proved that there was partition during the life time of Malleshappa and Chennappa in the year 1980 and accordingly, dismissed the suit of the plaintiffs.