NINGAPPA Vs. IRAPPA

JUDGEMENT

(1.) THE defendant in O.S. No. 19/2006 on the file of I Addl. Civil Judge, Dharwad, has come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiff for the relief of declaration, injunction and possession.

(2.) ADMITTEDLY the plaintiff and the defendant are brothers. The suit property is the land bearing Sy. No. 83/2 of Kogilageri village in Dharwad taluk, measuring to an extent of 3 acres 16 guntas. The admitted facts leading to this second appeal are that the suit schedule land was purchased by the plaintiff under a registered sale deed dated 17.6.1985 from its erstwhile owner and thereafter the property stood in his name in the revenue records. In this proceedings both the plaintiff and the defendant are residents of Kumbarkoppa village of Dharwad taluk and district. Whereas the suit property is situated in Kogilageri village of Dharwad taluk, obviously a place which is quite far either for plaintiff or defendant to personally cultivate the same under their daily supervision. It is seen that the suit for declaration, injunction and possession is filed on 17.1.2006 contending that the defendant who is none other than the brother of plaintiff has got the suit land clandestinely entered in his name in revenue records and he is trying to set up title to the property adverse to the interest of the plaintiff. In the said suit the defendant after having entered appearance tried to contend that the plaintiff is the karta of joint family in which he is a member and the suit property was the property of joint family which was acquired for the benefit of the plaintiff and as well as the defendant and in furtherance to that a wardi was given by the plaintiff on 15.9.1991 relinquishing his right in the suit property in favour of his brother the defendant, as such the defendant is in exclusive possession and cultivation of the suit property and he has been personally cultivating and enjoying the same. In the said suit the following issues were framed.

(3.) In support of the issues framed, the plaintiff got examined him self as PW. 1 and also another witness by name Baburao as PW. 2. In the said proceeding he produced in all 37 documents which are marked as Exs. P.1 to P.37 to establish his title to the suit property. As against that the defendant got examined himself as DW. 1 and also adduced evidence of two other witnesses i.e., Madivalappa and Devendragouda as DWs. 2 and 3 and relied upon 11 documents which are marked as Exs. D.1 to D.11. Based on the pleadings, oral and documentary evidence available on record, the trial Court answered all the issues in favour of the plaintiff and decreed the suit with right to recover possession of the property from the defendant who had set up a plea that he is in possession of the property.