KALLAPPA Vs. BASAPPA AND ORS.

JUDGEMENT

(1.) This is an unsuccessful plaintiffs Regular Second Appeal against the judgment and decree dated 23.06.2010 made in R.A. No. 41/2005 on the file of the I Additional District and Sessions Judge, Dharwad, sitting at Hubli, confirming the judgment and decree dated 30.08.2005 made in O.S. No. 111/1999 on the file of the Prl. Civil Judge (Sr. Dn.) Hubli, dismissing the suit for declaration and possession.

(2.) The appellant - plaintiff filed the suit against the defendants contending that his father Manappa died leaving behind his two minor sons and two daughters, since Basawwa, the first wife was illiterate and he was being guided by the defendant No. 1. The defendant No. 1 who was pretending as well -wisher of Basawwa was operating the monetary dealings on behalf of Basawwa and he was enjoying the suit land as usufructuary mortgagee also. One Kashappa and Nagappa Ganiger had claimed their alleged tenancy right before the Land Tribunal, Hubli for entire block No. 380 lands. As Basawwa died on 29.03.1987, plaintiff himself along with the elder brother Ningappa, mother Parvatevva and two elder sisters Seetawwa and Ningawwa being the heirs got mutated the revenue records in their favour vide M.E. No. 3796 dated 29.06.1987. Accordingly, himself and his brother Nmgappa started enjoying the property.

(3.) It is further case of the plaintiff that 1st defendant took the signatures and LTM of all of them when the dispute was pending before the Land Tribunal, Hubli on the stamp papers, misrepresenting them that they are necessary for protecting their interest against the rival claimant Nagappa Ganier and further representing that Tribunal is not expecting his alleged usufructuary mortgage right. The plaintiff and his family members came to know about the said misrepresentation in September 1987 only when the defendant Nos. 2 to 4 obstructed them on the basis of the sale deed executed in their favour about the suit land. The defendant No. 1, who had executed the said sale deed dated 30.07.1987 as power of attorney holder refused to show the power of attorney executed by anyone of them. No consideration was also received by anyone of them about the suit property. The contents of the sale deed about the family needs and alleged family needs are false and imaginary. The defendant Nos. 2 to 4 never acquired any right over the suit property and the sale deed executed in their favour is void ab initio not binding on him. The defendant No. 1 who claims to have had the authorisation of his brother Ningappa, mother Parvatewwa sisters Seetawwa and Ningawwa had played fraud. On 16.04.1970 his elder brother Nmgappa received Rs. 400/ - and executed the relinquishment deed of his share in the suit block No. 380 and then he was minor and represented by his mother Parvatewwa. The defendant No. 1 who was participated in the said relinquishment deed as attestor knowingly very well that except the plaintiff, others have no right on suit block No. 380 has played fraud and he came to know about the relinquishment deed only in the year 2000. The said land was being converted into flats by the defendant Nos. 2 to 4 for sale under Ashraya Yojana scheme as published in Sanje Vani Kannada daily dated 01.04.1999 and O.S. No. 31/1989 which came to be dismissed on 21.07.1997 also came to his knowledge recently. Therefore, he filed the present suit.