SHARADAMMA Vs. N BASAPPA

JUDGEMENT

(1.) A pure point of law or a situation wherein there is a conflict between two concepts of law arises for determination in this appeal. The dispute in the partition suit is in relation to a property that originally belonged to one Sakramma who had 3 sons, Advappa, Nanjappa and Basappa. The suit is directed against Basappa through his legal heirs and the prayer is for partition of the property on the basis of 1/3rd each by the legal heirs of Advappa and plaintiff No. 5 Nanjappa. I need to mention here, that Nanjappa had since died leaving behind no legal heirs and it is effectively therefore a straight contest between the legal heirs of the two brothers. The property of deceased Sakramma must be partitioned in 3 ways, one share going to each of the 3 branches represented by each of their sons. Sakramma died intestate and therefore, by virtue of the law of succession each of the sons would be entitled to a 1/3rd share and they would have to be treated as co-owners in respect thereof. The contention was that the defendant was in possession and had not agreed to give the shares to the other two brothers and therefore, a decree was sought from the Court.

(2.) The defence pleaded in this suit was that the defendants have been maintaining the property all through by way of paying taxes and amounts have been spent for securing water connection etc. The Dft. also refers a mortgage which has been redeemed by him. The basic plank of the defence is that Basappa has been in possession of the property for more than 12 years and therefore has a perfect and (sic) absolute title by way of adverse possession. It is on this plea that this suit had been resisted.

(3.) The learned trial Judge on consideration of the material before him and the position in law has upheld the plea of adverse possession that was canvassed. According to his finding since the record demonstrated that Basappa has been in possession right from the year 1949 onwards and since this possession has been to the knowledge of his brothers who had not resisted it, that he was entitled to contend that he has perfected his title through efflux of time. In the opinion of the learned trial Judge since 12 years had elapsed and since the title in question was hostile to the other two brothers who had not done anything to agitate their rights during this long period, the plea of adverse possession was liable to be upheld. Under this circumstance the suit came to be decreed and it is against this decree that the appeal has been directed.