SHARANAPPA Vs. SANGAMMA

JUDGEMENT

(1.) This is the regular second appeal preferred by the plaintiffs against the judgment and decree passed by the Trial Court dismissing the suit of the plaintiffs which is confirmed by the First Appellate Court.

(2.) The brief facts of the case are that plaintiffs filed the suit stating that the suit properties are situated in Nidgunda bearing Sy.Nos.231/A2,244, 374, 376, 377 and house Nos. 1-72, 1-72/1 and 1-72/1. They have claimed the relief that they are the owners of the suit properties as per the Will executed by Ramanna. The relief claimed in the suit is declaration of ownership and for perpetual injunction. However, it appears that during the pendency of the suit, plaintiffs have lost possession of the suit properties. Consequently, by way of amendment of plaint, they also filed suit for the relief of recovery of possession. Hence, it is suit for declaration of title and recovery of possession.

(3.) Defendant No. 1 in the said suit is the mother of defendant Nos. 2 and 3. One Ramanna s/o Irappa Bachetti was the absolute owner and in possession of the suit properties. They are the ancestral properties of the said Ramanna. The aforesaid Ramanna had two brothers, one Sidramappa and second one Sharanappa. Among them Ramanna was the youngest. The said Sidramappa the elder brother of Ramanna was taken in adoption long ago by one Smt. Eramma w/o Irappa a collateral. Hence, the said Sidramappa has lost all his rights in the family properties of his birth. Defendant No. 1 is the daughter-in-law of the aforesaid Sidramappa. Another brother Sharanappa had two wives, namely, Shivalingamma and Sangamma. The said Sharanappa had a son by name Sangappa from the first wife Shivalingamma. The said Sangappa was leper. The first wife Shivalin gamma predeceased Sharanappa. Hence, the said Sharanappa had married Sangamma. The said Sharanappa died in the year 1963 leaving behind his second wife Sangamma and his son Sangappa. The said Sangappa had also died in the year 1964 being unmarried leaving behind his stepmother Sangamma. The said Sangamma also died issue less in the year 1972. Consequently, the said Ramanna being the only legal heir has inherited all the properties of Sharanappa of his brother. Ramanna had executed a registered Will on 30.12.1977 bequeathing of his properties in favour of the plaintiffs. The plaintiffs are the sons of Ramanna's wife's brother one Sharanasiddappa and as said Ramanna had no issues and he was looked after by the plaintiffs during his old age. One Shivaputrappa the late husband of the defendant No. 1 and father of the defendant Nos. 2 and 3 had filed a suit bearing O.S.No. 11/1972 before the Munsiff Court, Chincholi against the said Ramanna and Sangamma seeking the relief of title and also the possession in respect of the suit properties by contending that late Sangappa s/o Sharanappa had executed a Will deed on 15.06.1964 in his favour bequeathing the suit properties to him. The said suit came to be decreed on 31.10.1973. During the pendency of the said suit, said Sangamma died. Later, Ramanna preferred an appeal to the Appellate Court in R.A.No.l 11/1973 and same came to be dismissed. Later, the said Ramanna had preferred Regular Second Appeal to the Honourable High Court of Karnataka bearing R.S.A. No. 1073/1974. That during the pendency of the said RSA the said Ramanna died on 28.03.1978. Then the present plaintiffs and one Basamma the wife of said Ramanna filed an application before the Honourable High Court of Karnataka requesting to bring them on record as legal heirs of deceased Ramanna. However, the Honourable High Court of Karnataka was pleased to bring only Basamma on record as the legal heir of deceased Ramanna. The application filed by the plaintiffs was disallowed on the ground that the disposition of property by way of Will by the deceased cannot be acted upon in the proceedings unless the Will is probated. Subsequently the said Basamma also died on 09.09.1980. Hence, the appeal is abated on 16.06.1981. As the plaintiffs had given the Will deed to the Advocate representing them and said Advocate of High Court had misplaced the same, hence, the plaintiffs could not file the original Will. The plaintiffs have sought permission to file the certified copy of the Will to lead secondary evidence. That Shivapurtrappa the husband of defendant No. 1 also expired on 04.10.1981 leaving behind defendant Nos. 1 to 3 as his only legal heirs. Thus, the judgment in O.S.No. 11/1972 is no bar to present suit. The plaintiffs are in possession of the suit properties as the owners in the capacity of legatees of Ramanna since his death. That prior to it, the said Ramanna was in possession of the suit properties. The defendants are trying to interfere in the peaceful possession of the plaintiffs over the suit properties on the strength of the decree passed in O.S.No. 11/1972. Hence, the plaintiffs have filed the present suit. It is further pleaded that during the pendency of the present suit, the defendants have taken the possession of the suit lands in execution of decree in O.S.No.11/1972. Hence, the plaintiffs are also entitled for the possession of the suit lands.