FAKIRAWWA Vs. KAREWWA

JUDGEMENT

(1.) -THESE two second appeals arise from the common judgment and decree dated 26. 7 1990, delivered by Sn a. R. Siddiqi, Principal Civil Judge and CJM, dharwad, in Regular Appeal Nos 44/79 and 46/79, whereby the learned lower Appellate court allowed both the appeals and set aside the judgment and decree dated 13. 3. 1979, passed in Original Suit No. 237/76 and O S no. 115/77, whereby the trial court had dismissed the suit of the present plaintiff-respondent. Thus the lower appellate court has decreed the plaintiff's claim in both the suits and ordered that the plaintiff shall get half share in the suit property by way of separate partition and possession and directed the Commissioner to be appointed for affecting partition These appeals are disposed off by one common judgment

(2.) THE present plaintiff-respondent claim herself to be the wife of one Mallappa Madar suit No. 237/76 was tiled against Fakeerawwa in respect of house property situate in Huliketti village and plaintiff claimed separate possession of her half share therein which the allegation to the effect that she was the legally wedded wife of said Mallappa who had died in the year 1962 and that defendant No. 1 had been the adoptive mother of plaintiff's husband Mallappa. Plaintiff's further case is that her husband was taken in adoption by defendant No 1 on May 25, 1956 and a registered sale deed was also executed. Plaintiff-respondent claimed suit house to be ancestral property of the husband of defendant No 1 and after the death of husband of defendant No 1, defendant No 2 took Mallappa in adoption and Mallappa became the owner of the said property and after the death of Mallappa, the plaintiff-respondent succeeded to him as the legal heir to Mallappa and became owner of the said property original Suit No 115/77 was also filed by the present plaintiff-respondent, with reference to Sy No. 146 and area of 9 acres and 9 guntas, against defendant Fakirawa, that is the present appellant and one Channabasappa, seeking declaration to the effect that upon the death of Fakirawa, husband of defendant No 1 took the plaintiff-respondent in adoption and Mallappa became the absolute owner in possession of the suit land and upon the death of said Mallappa, plaintiff-respondent started cultivating the suit land as absolute owner in possession and that defendant No 1 had no right or interest in the suit land and the land was validly mutated in her favour. Plaintiff contended that defendant No 1 was once upon a time cultivating the suit land as a tenant and he had given up cultivation more than 20 years back and the name of defendant No 2 continued to appear in Revenue record as cultivator so he has impleaded defendant No 2. Plaintiff further alleged that defendant without the knowledge of the plaintiff got the suit land regranted in her name. On the order of regrant declaring her as absolute owner coming to plaintiffs notice the plaintiff-respondent sought declaration that the order of the Tribunal dated 19. 8 1976 was not binding upon her. Plaintiff also claimed decree for permanent injunction and lateron by amendment sought relief for partition of the suit land to the extent of half share on the ground that she is entitled to half share therein alongwith defendant No. l (that is the present appellant)being the legal heir of deceased Mallappa, in case the court does not hold the plaintiff-respondent to be the exclusive owner

(3.) THE suit was contested by the present appellant that is defendant No. 1 The defendant denied that the plaintiff is the legally wedded wife of deceased Mallappa. It was also denied that Mallappa was the adopted son of defendant No 1 or that plaintiff has been enjoying possession of the suit property that is the suit home and the land Defendant denied plaintiff's right to the property in dispute and further stated vested right cannot be divested. It was asserted that the suit was misconceived and not maintainable and defendant asserted that it be dismissed