IRAMMA AND ORS. Vs. CHANDRASHEKRAYYA AND ORS.

JUDGEMENT

(1.) This is a plaintiffs' regular second appeal filed against the judgment and decree dated 08.07.2011 made in R.A. No. 15/2009 on the file of Senior Civil Judge, Ron confirming the judgment and decree dated 17.04.2009 made in O.S. No. 116/2008 on the file of the Civil Judge (Jr. Dn.), Ron dismissing the suit for declaration and permanent injunction.

(2.) The appellants - plaintiffs filed original suit for declaration and permanent injunction against the defendants contending that 1/3rd share in the land bearing RS. No. 348/2 measuring 1 acre 8 guntas of Abbigen Village, Ron Taluk and the house bearing VPC No. 894 belongs to the propositus Maharudrayya, who died about 70 years back and has sons by name Shivayya, Kashayya and Ishayya who have died. The said Shivayya had sons by name Chandrashekarayya, Shivaputrayya and Nandikeshavarayya, who are the defendant Nos. 1 to 3. The said Ishayya had two sons by name Maharudrayya and Irayya. The said Maharudrayya died and his wife Iramma and children Channamma and Rekha are the plaintiff Nos. 1 to 3. The suit properties are the properties of said Maharudrayya which have been succeeded by his said sons and further contended that defendant Nos. 1 to 3 have left the village since about 20 to 25 years back, as there was a famine and till today they have not been turned up. The said Maharudrayya and his son Ishayya searched for them and the whereabouts of defendant Nos. 1 to 3 not traced and therefore, the plaintiff published a notice on 31.05.2008 in Navodaya Kannada daily newspaper, but the defendant Nos. 1 to 3 have not turned up and they have not traced out. Defendant Nos. 1 to 3 have disappeared for more than 7 years, since from 20 to 25 years and they are to be considered as dead. The suit properties were in joint possession and enjoyment of the sons of propositus, wherein the said Ishayya got 2/3rd share, but it was sold in favour of Shekawwa wife of Basappa Nadavalagudda and registered sale deed in the year 1996 -97 and the remaining share of the defendant Nos. 1 to 3 are in joint possession and enjoyment of the plaintiffs since 20 to 25 years.

(3.) It is the further case of the plaintiffs that the defendants had 1/3rd share each in the suit houses and said Kashayya has received Rs. 6,000/ - from the plaintiff on 16.04.1987 towards his 1/3rd share in the suit house and relinquished the share in favour of plaintiff No. 1. Therefore, the defendant No. 4 who is the son of deceased Kashayya is made as formal party and the plaintiffs requested the panchayat authorities to enter their name by deleting the names of the defendant Nos. 1 to 3 in the records of the suit properties and they were instructed to get the decree that the defendant Nos. 1 to 3 in the eye of law have died etc. Therefore, they have filed the suit. Notice issued by the defendants could not be served and therefore, suit summons were issued through paper publication in Navodaya Kannada daily newspaper and ultimately placed ex parte.