JOHN PEREIRA Vs. K. SADANANDA SHETTY AND ORS.

JUDGEMENT

(1.) THIS is a plaintiffs second appeal calling in question the correctness and legality of judgment and decree passed by Principal Civil Judge (Sr. Dn.) & CJM, Mangalore, dated 01.07.2013 in R.A. No. 234/2001 whereunder judgment and decree passed by the trial Court in O.S. No. 318/1999 dated 09.04.2001 dismissing the suit of plaintiff, which was filed for declaring the judgment and decree passed in O.S. No. 325/1996 is not binding on plaintiff and first defendant had no right to dispossess plaintiff or his family members from suit schedule property and on the strength of said decree and for consequential relief of prohibitory injunction to restrain first defendant from dispossessing plaintiff and his family members from suit schedule property which came to be dismissed, was affirmed.

(2.) IT is the contention of Sri. Cyril Prasad Pais, learned counsel appearing for appellant/plaintiff that trial Court as well as Lower Appellate Court erred in dismissing the suit of plaintiff, inasmuch as, there was non -consideration of fact that suit filed by second defendant against first defendant in O.S. No. 325/1996 for specific performance was a collusive suit, which had culminated in a judgment and decree being passed and there has been non -consideration of the fact that second defendant had claimed title to suit schedule property by virtue of a Will dated 03.06.1989 executed by the mother of plaintiff as well as second defendant, which she could not have executed since chalageni tenancy rights did not exclusively vest with testatrix and as such she could not have executed the Will nor second defendant would have claimed exclusive right over suit property by virtue of said Will. He would contend that non -consideration of this vital aspect by the Court below and particularly Section 61 of the Karnataka Land Reforms Act which prohibits the transfer of property, has resulted in miscarriage in the administration of justice and as such, he contends that Substantial Questions of Law formulated in the appeal is required to be formulated, adjudicated and answered in favour of appellant.

(3.) HAVING heard the learned counsel appearing for appellant and on perusal of judgment and decree passed by trial Court, as affirmed by Lower Appellate Court, this Court is of the considered view that findings recorded by Court below are all questions of fact and does not involve any Substantial Questions of Law for appeal being admitted and same being framed, adjudicated and answered for reasons indicated hereinbelow. The parties are referred to as per rank in the trial Court.