SEETHAPPA Vs. LAKSHMAMMA

JUDGEMENT

(1.) O.S. No.482 of 1995 on the file of I Addl. Civil Judge (Jr. Dn.), Malur was instituted by Smt. Lakshmamma, W/o Ramaiah, against Smt. Maramma W/o late Venkatagiriyappa, to pass a decree for partition and separate possession by contending that the suit schedule properties are the properties of late Venkatagiriyappa and that she was taken in adoption by him. A declaration was sought that she is entitled for lA share in all the items of suit schedule properties. Smt. Maramma, the sole defendant filed written statement and contended that the plaintiff was not adopted by Sri Venkatagiriyappa and as such she is not entitled to any share in the suit schedule properties. It was stated that she is the second wife of Venkatagiriyappa, during whose lifetime, Seethappa S/o Giddappa was taken in adoption and that Venkatagiriyappa executed a Will dated 21.05.1980, wherein a bequeath was made in favour of the said Seethappa. Based on the pleadings issues were raised and the evidence having been adduced by both sides, the suit was decreed on 07.06.2002, entitling the plaintiff to 1/2 share in the suit schedule properties.

(2.) The defendant assailed the said decree in R.A. No. 124/2002, on the file of Senior Civil Judge, Malur. The appeal having been assigned to the Fast Track Court - III at Malur, was allowed on 10.01.2006 and the case remanded. An additional issue was raised, the trial was directed to be held. The said Judgment was assailed in MSA No. 105/2006 by the plaintiff. By a Judgment dated 26.06.2007, the appeal was dismissed with a direction to implead Seethappa, as a defendant in O.S. No.482/1995.

(3.) O.S. No.482/1995 having been taken up, I.A.VIII was filed under Order I Rule 10 of Civil Procedure Code to implead Seethappa as defendant No.2. Impleadment having been permitted, Seethappa filed written statement on 10.07.2006. Additional issues were raised. I.A.XI was filed by defendant No.2, under Order 18, Rule 17 Civil Procedure Code to recall PWs.1 to 3 for cross-examination. The application was allowed on 10.08.2006 and the case posted to 24.08.2006 for cross-examination. The witnesses having not appeared even on 07.09.2006, 28.09.2006 and 16.11.2006, by reason of an order dated 14.12.2006, cross-examination of PWs.1 to 3 was taken as nil and the case posted for defendants' evidence by 15.02.2007. 2nd defendant got himself examined as DW-2 on 22.03.2007 and marked Exs.D23 to D31. The case having been adjourned for cross-examination, DW-2 though appeared on 31.05.2007 and also on 07.06.2007, plaintiff having sought adjournment was rejected and the cross-examination of DW-2 taken as nil. I.A.Nos. 12 and 13 having been filed by the plaintiff to recall the orders passed on 07.06.2007, by reason of an order dated 27.07.2007, the applications were dismissed. I.A. 14 filed to recall the said order was dismissed on 13.09.2007. The said order was assailed in W.P. No. 16321/2007. The writ petition was allowed by an Order dated 20.10.2008. DW-2 was cross-examined on 09.04.2009. DWs. 2 to 6 were examined subsequently. After completion of the trial and hearing the arguments the suit was dismissed by a Judgment and decree dated 14.08.2009.