KASTUREVVA AND ORS. Vs. NINGAPPA

JUDGEMENT

(1.) This is an unsuccessful plaintiffs' regular second appeal against the judgment and decree dated 16.12.2011 made in R.A. No. 96/2010 on the file of the Fast Track Court, Gadag, affirming the judgment and decree dated 18.9.2010 made in O.S. No. 2/2007 on the file of the Additional Senior Civil Judge (Sr.Dn.), Gadag, dismissing the suit for partition and separate possession.

(2.) The plaintiffs are wife and daughters of Parameshwarappa Magalad who is brother of defendant -1 Ningappa. It is the case of the plaintiffs that the suit schedule properties are ancestral joint family properties of plaintiffs and suit 1A land originally belongs to the father of the husband of plaintiff No. 1 i.e. Parameshwarappa, who died on 30.12.1981 leaving behind his wife Yallavva and 3 sons and 3 daughters. To that effect, the mutation M.E. No. 10458 duly certified on 20.5.1987 and subsequently there was a partition amongst them on 7.1.1999 in which southern portion measuring 1 acre 26 guntas was allotted to the share of the 1st plaintiffs husband and father of plaintiffs 2 and 3 and after his death, plaintiffs became owners of suit schedule properties. The defendant who is elder brother of the deceased Parameshwarappa managed to create a sham and bogus document styled as sale deed dated 29.12.99 said to have been executed by Parameshwarappa who was bedridden and was not of sound disposing state of mind as he was suffering from HIV infection about a year before his death and he was treated in Government Hospital at Gadag. For his medical treatment no money was spent by the plaintiffs or the defendant and there was no family necessity for the deceased Parameshwarappa to sell the suit 1A land in favour of defendant. Therefore, the alleged sale deed is not binding on the share of the plaintiffs and therefore, alternatively plaintiffs requested to allot 3/4th share in the suit land. Further, the plaintiffs requested that during the pendancy of the suit defendant dispossessed, for which they requested for possession and also contended that the defendant is trying to disturb the peaceful possession and enjoyment of the suit schedule 1B house. Therefore, the plaintiffs filed the suit.

(3.) Defendant filed his written statement and denied the entire averments and contended that the plaintiffs have no cause of action to file the present suit and specifically contended that after partition in the family on 7.1.1999 the defendant became the absolute owner of R.S. No. 846/1+2A/1 measuring 1 acre 28 guntas. The deceased Parameshwarappa became the absolute owner of R.S. No. 846/1+2A/1 measuring 1 acre 26 guntas towards the southern portion and later Parameshwarappa fell ill due to HIV infection and he was in dire necessity of money for his treatment and livelihood of his family. So, he wanted to sell his landed property for which the plaintiff No. 1 gave consent and accordingly defendant purchased the land under registered sale deed dated 29.12.1999 and has received entire sale consideration. Therefore, from the date of purchase, the defendant became the absolute owner in actual possession and enjoyment of the suit schedule property and later on a partition was effected in the family of defendant on 5.1.2007 between the defendant and his sons, in which 1 acre 14 guntas of Southern portion was allotted to the share of defendant and 2 acres of Northern portion was allotted to defendant's son and same was mutated in the mutation entry No. 337 and since from the date of partition the defendant and his sons are cultivating their respective lands separately, and therefore, he contended that the very suit of the plaintiff is not maintainable and sought for dismissal of the suit.