REVANNA Vs. BYREGOWDA

JUDGEMENT

(1.) THIS second appeal is filed by the 2nd defendant who is the alienee of the suit properties being aggrieved by the order passed by the Addl. Civil. Judge (Sr. Dvn), Tumkur in RA 68/1999 in confirming the judgement and decree passed by the Civil Judge (Jr. Dvn), Tumkur in OS 5/1987.

(2.) PLAINTIFFS are the sons of one Ajjappa. The suit property is situate at Hikkal Village. It is stated that plaintiffs are entitled to share in the suit schedule property which was sold by 1st defendent in favour of 2nd defendant and that the property sold is not for legal necessities and as he was addicted to vices, he has alienated the suit property and that they are entitled to 3/4th share and that the 1st defendant had only 1/4th share in the property. As such, a suit was filed seeking for partition and separate possession and also for mesne profits. The suit was contested by the defendants contending that there were family and the property was earlier mortgaged to one thimmakka for Rs. 800/- and possession was delivered to her and thereafter, to discharge the debts and for legal necessity of the family, 1st defendent entered an agreement to sell the property. However, the 2nd defendant, by filing a suit, obtained a decree for specific performance and it is contended that the it is not an alienation in the real sense of the word and the same was obtained by a Court decree and that there is no evidence to the effect that 1st defendant was addicted to vices. It was also contended that the sale is binding on the plaintiffs and accordingly, sought for dismissal of the suit.

(3.) BASED on the pleadings, the Trial Court has raised as many as six issues. After evidence was let in and after hearing the parties, it was held that plaintiffs are entitled to 3/4th share in the suit schedule property and for separate possession of their share and further, they were ordered to pay mesne profits from 1976-77 at the rate 3/4th share calculated at Rs. 5,000/- per year, till the date of payment. Being aggrieved by the same, appeal was preferred before the Civil Judge (Sr. Dvn), tumkur in RA 68/1999. The appeal came to be dismissed confirming the judgment and decree passed by the Trial Court. Hence, this appeal by the 2nd defendant-alienee.