KORAGA MARAKALA Vs. KAMALA

JUDGEMENT

(1.) In order to appreciate the controversy, certain salient features of the case may be noticed :- On 28-12-1942 one Baba Poojary, husband of the first-plaintiff and father of the other plaintiffs, along with the first- defendant and one Manjappa jointly purchased some properties including the suit properties as per registered sale deed for a sum of Rs. 25,000/-. Manjappa agreed to pay half the sale consideration and Baba Poojary and the first-defendant agreed to pay the remaining half of the consideration in equal shares. Subsequently, on 1-8-1955 the said three vendees entered into a registered partition deed under which the suit properties along with some other properties were allotted to the share of Baba Poojary. The plaintiffs claimed that about three months after the said partition, Baba Poojary executed a registered gift settlement deed dated 25-11-1955 in their favour, under which the properties allotted to Baba Poojary in the said partition as well as some other properties belonging to him, appeared to have been gifted to the plaintiffs. It appears that shortly after the partition deed, the first-defendant trespassed into the plaint property consisting of 55 cents of Nanja land in S.No. 54/1 and 29 cents of Bagayat land in S.No. 68/1 of Ambalpady Village and that ever since then the first-defendant has been in possession of the said lands as a trespasser. The plaintiffs have also averred that the first-defendant has subsequently allowed the second-defendant to occupy a shed situate in the suit property. Therefore the plaintiffs brought a suit for possession of the suit properties and for recovery of mesne profits at the rate of 8 muras of rice and cash of Rs. 28/- per annum. However, the plaintiffs have restricted their claim of mesne profits for a period of three years prior to the filing of the suit.

(2.) The first-defendant who is now the first-appellant before us, contested the suit inter alia on the grounds that after the purchase of the property by himself, Baba Poojary and Manjappa, there was on oral partition between them, that out of the properties that were delivered to their khas possession a portion which forms the suit properties was allotted to Baba Poojary, that Baba Poojary leased out the same to the first-defendant on an annual rental of 4 muras of rice and cash of Rs. 15/-, that the first-defendant and Baba Poojary were running a joint fish trade and toddy business and a sum of Rs. 8000/- was due to the first-defendant by Baba Poojary on account of the said joint trade, that rent was actually not paid but was being adjusted towards the interest due to the first-defendant, that even after the regular partition deed dated 1-8-1955 the first-defendant continued to be in possession of the plaint properties as a tenant of Baba Poojary and that therefore he was not a trespasser.

(3.) One of the questions that came up for consideration before the trial court was whether the first-defendant proves the chalgehi tenancy set up by him. The trial court found the said issue in favour of the first-defendant, and consequently dismissed the suit. On appeal, that finding was reversed by the learned Additional Civil Judge, Udipi, who held that the first-defendant was not a tenant of the suit properties and was a trespasser. Accordingly, the suit was decreed with a direction to the defendants to pay mesne profits for three years from 1961-62 to 1963-64 and also the future mesne profits till the date of delivery of possession. The present appeal has been filed against the said judgment and decree of the learned Addl. Civil Judge, by the defendants.