SHIVARAJAPPA AND ORS. Vs. GANGUBAI AND ORS.

JUDGEMENT

(1.) THE 1st defendant in O.S. No. 17/1998, on the file of Civil Judge (Jr.Dn.), Ranebennur, has come up in this second appeal challenging the partial divergent finding rendered by the lower appellate Court, wherein the dismissal of the original suit for partition is modified to the effect that though the plaintiffs are not entitled to the relief of partition, the defence raised by the 1st defendant with reference to, a portion of the property having come to his possession under the sale deed said to have executed by the 1st plaintiff in favour of husband and father of defendants 2 to 4, is not accepted.

(2.) PER contra, the lower appellate Court has given a finding that the portion of property which was allotted to the share of 1st plaintiff Bhimappa, the title to the share of the property allotted to the 1st plaintiff has not flown to his elder brother Yallappa, who is husband of 2nd defendant and father of defendants 3 and 4. As such the defence raised by the 1st defendant that he has succeeded to the said property through Yallappa is set aside and consequently the relief is granted in favour of 1st plaintiff in the original suit to the effect that the property allotted to the share of 1st plaintiff has remained with him and the title has not flown to the 1st defendant. The aforesaid divergent finding of the lower appellate Court is subject matter of this second appeal.

(3.) IN fact the appellant herein, who is 1st defendant in the trial Court tried to rely upon the judgment rendered in the matter of Aralappa son of Sri Chowrappa v. Sri Jagannath son of late Sri Chikka Hullurappa and others, reported in : ILR 2007 Karnataka 339 and tried to demonstrate that the finding of a coordinate bench of this Court in the said judgment is referred with granting of relief without prayer is inappropriate, more particularly with reference to proviso to Section 42 of the Specific Relief Act. When the said judgment and relevant provision of the Specific Relief Act, viz., Section 42 is looked into, Section 42 of the Act deals with the injunction to perform negative agreement. The relevant portion of the judgment which is relied upon, which is at para No. 27 deals with the judgment said to have rendered by the Apex Court in the matter of Vinay Krishna v. Keshav Chandra and another, reported in : AIR 1993 SC 957. While discussing in the said judgment, a reference to Section 42 is taken. That provision has got no relevancy to the point for consideration in this second appeal.