HUTCHEGOWDA Vs. JAYAMMA

JUDGEMENT

(1.) this is a plaintiffs second appeal from the judgment and decree dated 11th september, 1984, passed by the principal civil judge, mandya, in civil regular appeal No. 90 of 1978 (Mari Hutchamma and another v. Hutchegowda), arising out of judgment and decree dated 30th september, 1978, passed by munsiff, malavalli, in o.s. No. 138 of 1975," decreeing the plaintiffs claim for partition and possession of 1/2 share in the schedule suit property, allowing the defendants' appeal and setting aside the judgment and decree of the trial court in o.s. No. 138 of 1975 and dismissing the plaintiffs suit in entirety.

(2.) the facts of the case in brief are that the plaintiff- respondent filed this suit giving rise to this appeal for partition and separate possession of 1/2 share of the property in suit, namely, 24 guntas of land bearing sy. No. 19/1, situate in ganiganapura village with the allegations to the effect that the property in suit belonged to 2nd defendant-respondent 2- marihutchamma and that marihutchamma was in possession of the suit property. According to the plaintiffs case, 2nd defendant executed a gift deed in may, 1968, jointly in favour of the plaintiff-appellant and the 1st defendant-respondent 1-Smt. jayamma, putting them in joint possession of the suit property. plaintiff claims to be the joint owner of the property in suit on the basis of the gift deed dated 20th may, 1968 and claimed himself entitled to 1/2 share. Further, he alleged in the plaint that notice for partition had been given, but, defendant 1 did not comply with the same, so, the cause of action for filing the suit for partition and separate possession of 1/2 share claimed by the plaintiff-appellant did arise and so, the suit was filed for the above relief.

(3.) that the defendants-respondents filed the written statement and asserted that the suit in question was not maintainable both on law and on facts. That the defendants denied that plaintiff was in joint possession or in joint legal possession of the suit property. The defendants contended that the plaintiff had agreed to marry 1st defendant and on that score, the 2nd defendant executed the gift deed in favour of plaintiff-appellant and the 1st defendant, but, the gift deed was not yet put into action and before the gift deed could be acted upon, the plaintiff fell out of the terms and did never marry the 1st defendant-respondent 1, so, on 18-6-1973, defendant 2, cancelled the gift deed dated 20-5-1968, by another deed of cancellation. The 2nd defendant further asserted that plaintiff having come to know of the cancellation of the gift deed as well as of the fact that the marriage of 1st defendant had been performed with another person, plaintiff got a notice issued on 18-4-1976, calling upon the defendant 2, to perform the marriage of 1st defendant with the plaintiff and that notice was replied. further, according to defendants, the gift deed had not been acted upon and the condition thereof had not been fulfilled. therefore, plaintiff had no right to the property and no right had passed on under the gift deed and so, the plaintiff suit was liable to be dismissed. Other pleas were also taken and defendants claimed exemplary costs.