PARVATHAMMA AND ORS. Vs. GANGAMMA AND ORS.

JUDGEMENT

(1.) AGGRIEVED by the concurrent findings recorded by both the courts below in decreeing the suit of the plaintiffs, for declaration and injunction defendant No. 1 and defendant Nos. 2(a) have filed this appeal.

(2.) THE case made out is that Plaintiff Nos. 1 to 5 and defendant No. 1 are sisters and defendant Nos. 2 and 3 are their brothers. Plaintiff Nos. 2 to 4 and defendant No. 1 are joint owners of the suit schedule 'B' property. They inherited the said suit schedule property under a registered Will dated 6.4.1983 duly executed by their parents. They came into possession after the death of their parents. However defendant No. 2 has forcibly taken possession of the 'B' schedule property from them on 20.11.1990. Plaintiff No. 4 is the owner of 'C' schedule property under the said Will. Defendant No. 2 has also denied the title of plaintiff No. 4 over the said property. In fact, the first defendant has filed a suit in O.S. No. 13/87 before the Additional Munsiff, Davanagere for injunction. She has admitted the genealogy and relied on the Will in the said suit. Since the defendants denied the title and possession of the suit schedule property, the instant suit was filed seeking for a declaration that plaintiff No. 1 is the owner of plaint 'A' schedule property, plaintiff Nos. 2 to 4 and defendants are the owners of plaint 'B' schedule property and plaintiff No. 5 is the owner in possession of plaint 'C schedule property and sought for possession of 'B' schedule property from defendant No. 2 and for costs.

(3.) DEFENDANT No. 3 filed a separate written statement and denied the plaint averments. He contended that plaintiff No. 1 is not the owner of plaint 'A' schedule property as she does not have title over the same; that there can be no claim under the alleged Will dated 6.4.1983; that the plaintiffs and the defendants are joint owners of suit schedule properties and the Will is a created one. Hence he sought for dismissal of the suit.