H ANANTHAPPA Vs. H M BHOJAPPA

JUDGEMENT

(1.) THE appellant herein filed the suit in O. S. No. . 313/1996 for declaration, possession and mesne profits in respect of the suit properties against the respondent-defendant and the said suit was dismissed by the trial Court. The appeal preferred by the appellant in r. A. No. 31/1999 also met with the same fate at the hands of the lower appellate Court and hence this second appeal by him.

(2.) THE essential facts are to the effect that one Thulasamma, mother of the appellant as well as the defendant, was allotted certain properties including the suit schedule house under a partition that took place on 18-5-1966. In respect of the suit property which was given to the above said thulasamma under the registered partition deed, a condition was put to the effect that Thulasamma shall have the right to sell the suit house for the purpose of performing the marriage of the children of Mallappa, (the husband of Thulasamma ). Thulasamma sold the suit property in favour of her son, the plaintiff, under a registered sale deed dated 22-4-1983. The plaintiffs case is that he put his brother, the defendant, in permissive possession of the suit house, but however, the defendant refused to vacate the suit premisses and, therefore, the plaintiff was forced to file the suit as above praying for the relief of declaration, possession and mesne profits. The said suit of the appellant herein was contested by the defendant by taking up the stand that the suit property was given to Thulasamma under the registered partition deed only for the purpose of performing the marriage of the children, who were not married at the time of partition and, therefore, as the children were married much before the sale deed was executed by Thulasamma in favour of the plaintiff and as Thulasamma had not spent any amount towards the marriage expenses, she had no saleable interest in the suit property and, therefore, the sale effected by her is invalid and, it was further contended by the defendant that he has been in possession of the suit property and has been in enjoyment of the same as owner uninterruptedly even prior to the sale deed i. e. , 22-4-1983 and, therefore, the suit of the plaintiff was liable to be dismissed for the aforesaid reasons and also on the ground of limitation.

(3.) THE learned Trial Judge framed as many as ten issues and after appreciating the evidence let in before him, he answered issue Nos. 4, 8 and additional issue No. 1 in the affirmative and all the other issues in the negative. The trial Court, in the course of its judgment, came to the conclusion that Thulasamma had no saleable interest in the suit property and, therefore, the question of the plaintiff acquiring title under the sale deed dated 22-4-1983 did not arise and this finding was also based on the reasoning that the appellant had failed to place evidence to show that thulasamma had sold the suit property to meet the marriage expenses of her children or for clearing any loan taken by her. As a result of the said reasoning, the suit of the plaintiff was dismissed. The lower appellate court concurred with the trial Court's findings on all the issues and the appeal filed by the plaintiff was dismissed giving rise to this second appeal.