RAMAPPA ALIAS RAMACHANDRAPPA Vs. VENKAPPA REDDY

JUDGEMENT

(1.) THIS appeal by Defendant -7 is directed against the judgment and decree of the Civil Judge, Davanagere, in O.S. No. 6 of 1975 decreeing the suit of the plaintiff for cancellation of the decree made against him in O.S. No. 5 of 1941 -42 on the file of the District Judge, Shimoga, and reviving the said suit in O.S. No, 5 of 1941 -42 reserving liberty to Defendant -7 to prosecute the said suit as against the plaintiff. The decree against the other Defendants 1 to 6 remained undisturbed. The parties in this Judgment will be referred to by the ranking assigned to them in this appeal.

(2.) THE facts of the case take us back to a litigation successfully commenced by the appellant four and a half decades ago in O.S.No. 5 of 1941 -42 against Respondent -1 and seven others. Respondent -1 was admittedly a minor in the said litigation and so also the appellant. The said suit was for recovery of possession of immovable properties described in 'A' Schedule and also to obtain possession of moveables or the value thereof as described in 'B' Schedule on the ground that they were the self acquired properties of the appellant's father and also for partition and possession of 'C' Schedule properties on the ground that they were joint family properties and for other incidental reliefs. The suit O.S. No. 5 of 1941 42 (hereinafter referred to as the earlier suit) was filed Information pauperis. The Trial Court decreed the suit directing Respondent -1 and seven other defendants in that suit to put the appellant in possession of 'A', Schedule properties and items 5 and 6 of 'C' Schedule properties. It also made a preliminary decree declaring that the appellant was entitled to 1/3rd share in 'C' Schedule ancestral properties except Item Nos. 5 and 6 and he be put in possession of l/3rd share after division by metes and bounds. It also passed a decree for past mesne profits for a period of 3 years prior to the suit and future mesne profits till the appellant was put in possession of his share in the 'A' Schedule properties and 'C' Schedule properties except Items Nos. 5 and 6 after division by metes and bounds with proportionate costs. This decree was affirmed in appeal by the then High Court of Mysore in R.A.No. 97 of 1942 -43 on 5 -11 -1943. It should be noticed that Respondent -1 did not challenge that decree but only his paternal uncle Rogappa and his 1st son who were Defendants 1 and 2 before the trial Court challenged it.

(3.) ONE would have thought, the matter rested there. But, Respondent -1 who admittedly became a major in the year 1950 filed the present suit in 1961, out of which this appeal arises and obtained a decree in his favour in 1975 cancelling the earlier decree made against him in 1942. Thus the appellant is drawn to another round of litigation to establish his paternity and to retain the properties which were put in his possession about 42 years back. Hence this appeal.