NARAYAN NILAKANTASA BHUTE Vs. LAXMAN CHINNUSA MEIIARAWADE

JUDGEMENT

(1.) this is plaintiffs second appeal arising from the judgment and decree dated 27-10-1984 delivered by Sri K.H. Rajashekhar, civil judge and principal, j.m.f.c., ranebennur in regular appeal No. 23 of 1983 (lakshman ckinnusa meharwade v narayan neelakantasa bhute and another) whereby the learned lower appellate court had allowed the 1st defendant's first appeal from the judgment and decree dated 17-9-1983 passed by the first additional munsiff, ranebennur in original suit No. 68 of 1980, whereby the trial court had decreed the plaintiffs suit. The lower appellate court after having set aside the trial court's decree has dismissed the plaintiffs suit for the reliefs claimed in the plaint.

(2.) the facts of the case, in brief, are that the present appellant-plaintiff filed a suit claiming the decree for partition and separate possession of his alleged 2/3rd share in the suit property viz., the open space or open land bearing c.t.s. No. 969 situate in ranebennur town. The plaintiff-appellant's case has been that the plaintiff had purchased house property which is situate on c.t.s. No. 972 and that he had also purchased 1/3rd share in the suit land viz., c.t.s. No. 969 which according to the plaintiff is situate adjacent to the house property of the plaintiff which he had purchased from one chamansab nannesab ladakhanvar by registered sale deeds. So far the house properties are concerned, according to the plaintiff, he has purchased that house by under registered sale deed dated 13-6-1975 and the land in dispute mentioned above had been purchased by him under registered sale deed dated 18-2-1978. The plaintiff-appellant claimed to be in actual possession and enjoyment of the alleged 2/3rd share in the suit property viz., land bearing c.t.s. No. 969. The plaintiff in the plaint admitted that 1/3rd of that open site in c.t.s. No. 969 had been in use, occupation and enjoyment of defendants 1 and 2, who are the present respondents. According to the plaintiff, the open land or the open space on the suit land bearing c.t.s. No. 969 was being jointly enjoyed by plaintiff-appellant and the defendants under a mutual agreement. The plaintiffs case is that the plaintiff-appellant experienced certain difficulty in enjoying the suit open apace jointly with the defendants. So he filed a suit for partition. The defendant 1 contested the plaintiff's claim and denied the claim made by the plaintiff. He denied that the plaintiff had got 2/3rd share and defendants 1 and 2 have got 1/6th share each i.e., 1/3rd share jointly in the suit property. The 1st defendant alleged that it is false to say that plaintiff purchased 2/3rd share in the open space from one chamansab ladakhanvar, the 1st defendant further asserted that the plaintiff had got no cause of action to file the suit for partition and separate possession of any such alleged share in the suit property as it did not belong to the family of the plaintiff-appellant. According to the defendants case, the suit property was being used as a passage jointly by the vendor of the plaintiff and the defendants and also by other persons of the locality and the plaintiff has admitted that it was under the common enjoyment of all the persons residing on the four sides of land in dispute viz., c.t.s. No. 969. The plea of non-joinder was also taken. It may be mentioned that suit proceeded ex parte against defendant 2 and that 2nd defendant died during the pendency of the first appeal and his heirs were not brought on record. The trial court on the basis of the pleadings of the parties framed the following issues: 1. Whether the plaintiff proves that he has 2/3rd share in the suit property ? 2. Whether he further proves that he is entitled to partition and separate possession of his share ?

(3.) what order or decree ?3. The parties viz., plaintiff and defendant 1 examined themselves as p.w.1 and d.w.1 and examined no other witness and plaintiff filed three documents as exhibits p-1, p-2 and p-3.