SADASHIV Vs. RAJESHWARI AND ORS.

JUDGEMENT

(1.) THIS is a 1st defendant's Regular Second Appeal against the judgment and decree dated 11.11.2013 made in RA No. 33/2012 on the file of the Senior Civil Judge, Hukkeri, dismissing the appeal on the ground of delay as well as on merits, confirming the judgment and decree of the trial court dated 16.09.2011 made in O.S. No. 199/2009, on the file of the Civil Judge, Sankeshwar, decreeing the suit of the plaintiff declaring that the plaintiff is entitled to 1/3rd share in the suit schedule properties and separate possession by metes and bounds.

(2.) RESPONDENT No. 1, who is the plaintiff in the trial court, filed the suit for partition and separate possession against the defendants contending that the suit schedule properties are ancestral joint family properties and the deceased Bhimagouda was having four children, namely, the defendant No. 2 - -Mahadev, defendant No. 1 - -Sadashiv, defendant No. 3 - - Ramagouda and the plaintiff - -Smt. Rajeshwan. Bhimagouda's wife Parubai @ Parvati is no more. Defendant No. 1/Sadashiv was given in adoption under a registered adoption deed dated 02.09.1968 to Balagouda Jyoteppa Patil and Gangubai Balagouda Patil of Solapur and therefore, he has lost all his rights in the suit properties. The suit properties were the properties of Parubai @ Paravati's father Babu Patil and he was in possession and cultivation of the said lands during his life -time. The name of his wife Savubai and his daughter Parubai @ Paravati were entered in the revenue records in respect of the suit schedule properties. During the old age of Savubai, she had given a Waradi to the revenue officials to enter the name of her daughter Parubai @ Parvati. Therefore, her name was entered in the revenue records in diary No. 5122 on 12.08.1977. Subsequently, Parubai @ Parvathi died on 02.06.2009. When the plaintiff and defendant Nos. 2 and 3 tried to enter their names in respect of the suit properties as the legal representatives of Parubai @ Parvathi, they found that on 12.08.1977, defendant No. 1/Sadashiv had given a Waradi said to have been given by Parubai @ Parvathi and created revenue records in respect of the suit properties in his name in diary No. 5125. Defendant No. 1 has no right in respect of the suit properties as he has been given in adoption to another family. Now, on the basis of the revenue entry made in the name of defendant No. 1, he is trying to sell the properties, thereby depriving the legitimate share of the plaintiff and defendant Nos. 2 and 3. Therefore, she has filed the present suit.

(3.) BASED on the above pleadings the trial court framed the following issues: