ABDULSAB NANNESAB TOTAD ALIAS JEKINKATTI (SINCE DECEASED) BY HIS L.RS Vs. SAHADEVAPPA MALLAPPA SURAGOND (SINCE DECEASED) BY HIS L.RS AND OTHERS

JUDGEMENT

(1.) The plaintiffs 1 and 2 are brothers being sons of Mallappa Suragond. First defendant is the son of Mahadevappa, who is another son of Mallappa Suragond. The second defendant is the purchaser of the suit property, which consists of agricultural land to an extent of 1 acre 15 guntas in R.S. No. 3/2 of Sheelavanth Somapur Village, Shiggaon Taluk.

(2.) The case of the plaintiffs is that the suit property was purchased by the first defendant's father Mahadevappa while he was acting as Manager of the joint Hindu family even during the lifetime of his father. Their father, Mallappa had eight sons and they were all living in a joint family till 30-1-1964, Mallappa having died somewhere in the year 1963. On 30-1-1964, there took place an oral partition according to which the suit property was allotted jointly to the plaintiffs, and thus, they became the absolute owners of the suit property. But, the first defendant instituted a suit O.S. No. 71 of 1971 in the Court of Munsiff, Savanur, for permanent injunction against the plaintiffs and dispossessed them from the suit property, probably by virtue of an interim order granted in the suit. This suit having been decreed against the plaintiffs, they preferred an appeal R.A. No. 18 of 1973 to the Court of Civil Judge, Haveri. This appeal was also dismissed. Stating that the said suit was merely for permanent injunction and the decree passed therein did not affect their title, they instituted the suit O.S. No. 25 of 1979 seeking declaration of their title over the suit property and for its possession.

(3.) The first defendant did not contest the suit. The second defendant filed written statement and admitted the relationship of parties, but, denied the oral partition dated 30-1-1964. He took up a specific stand that the first defendant's father Mahadevappa separated from the joint family while his father was alive because of differences among the women folk of the family. Having come out of the joint family, he started cultivating the land i.e., the suit property belonging to Dyamanagouda as a tenant, and on 1-3-1958, he purchased the suit property from him for a valuable consideration. Thus, the suit property belonged to Mahadevappa exclusively and it was never a part of joint family. With regard to the decree passed in O.S. No. 71 of 1971, the second defendant contended that the said decree would operate as res judicata, and therefore, the plaintiffs could not lay any claim on the suit property. He has pleaded further that on 4-4-1977 he purchased the suit property from the first defendant and since then he has been in possession. He is a bona fide purchaser for value. Therefore, plaintiffs are not entitled to any reliefs.