H. G. BENAKAPPA Vs. VEERAMMA HUCHAPPA

JUDGEMENT

(1.) This matter is listed for admission and I have heard learned counsel for the appellant.

(2.) This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

(3.) The factual matrix of case of the plaintiff before the Trial Court while seeking the relief of declaration and mandatory injunction in O.S.No.177/2009 is that he is the absolute owner of 'A' and 'B' schedule properties and also sought for the declaration that alleged Will dtd. 31/5/1972 executed by the grandfather of the plaintiff in favour of defendant in respect of suit schedule properties are null and void and not binding to the plaintiff and also sought the mandatory injunction directing the defendant to hand over vacant possession of all 'A' and 'B' schedule properties and also issue direction to the Grama Panchayath and concerned authority to enter his name in the records. The specific contention of the plaintiff is that the suit schedule property originally belongs to Dodda Halappa. The father of the plaintiff is the only son and he succeeded to all the properties of family of Dodda Halappa and also contend that all the properties are ancestral properties and they are inherited through main propositus Ningappa and grandfather of the plaintiff had not owned any self-acquired properties during his lifetime. It is also contended that schedule 'A' and 'B' properties are ancestral properties among other ancestral properties in the family of plaintiff. The grandfather of plaintiff had no manner of individual right over the suit schedule 'A' and 'B' properties to dispose in any manner. Even though Will was executed in favour of defendant in respect of 'A' and 'B' schedule properties and the same will not convey any right to the defendant. It is further contended that item Nos.1 and 4 of schedule 'A' property land and item No.3 of 'B' schedule property stands in the name of Dodda Halappa, who was the second son of Ningappa at the relevant point of time i.e., at the time of execution of the alleged Will on 31/5/1972, as such, the said Doda Halappa has no manner of right to execute the Will. It is contended that he came to know about the said Will in 2008 and immediately, he applied for the documents and filed the suit.