LAWS(KAR)-2008-3-13

MUNIYAPPA Vs. KENDAMMA

Decided On March 28, 2008
MUNIYAPPA Appellant
V/S
KENDAMMA Respondents

JUDGEMENT

(1.) THE second appeal is by the plaintiff in OS No.174/1984, whose suit for declaration, possession and mesne profits in respect of as many as 12 parcels of agriculture lands and one house property, had been substantially decreed, in the sense, except for one parcel of agriculture land in item No.10, the suit was decreed for the half share claimed by the plaintiff and was also declared that he was entitled to recover possession from the defendant No.2, but that decree having been reversed by the lower appellate court in Regular Appeal No.38/1992 preferred by the 2nd defendant in the suit and the lower appellate court having denied the half share in respect of several suit items, though had been decreed by the trial court particularly indicating that the plaintiff was not entitled for any share in respect of suit items No.1, 3, 4, 6, 11 and 12 in terms of its judgments and decree dated 25.11.1996 this appeal by the plaintiff to get back the decree as originally granted by the trial court.

(2.) THE case of the plaintiff was that he is the grandson of one Nanjappa through Nanjappa"s pre-deceased daughter Channakka; that at the time of the death of his grandfather he was a minor; that his grand father Nanjappa and one Venkatappa are the sons of one Muniswamy and they had partitioned the family properties during their life time; that Nanjappa had no other heir and died in or around the year 1972 and the plaintiff being the sole heir to all the properties that had fallen to the share of Nanjappa is entitled to succeed to all such properties of Nanjappa; that the suit properties are the family properties of Nanjappa and Venkatappa though been partitioned, remained in the joint possession of the parties and therefore, the plaintiffs entitlement of half share of Nanjappa as a sole successor of Nanjappa should be declared and defendants who are claiming under Venkatappa, the brother of Nanjappa, should be directed to hand over possession of half share of Nanjappa and decree to this effect and mesne profits also .

(3.) IT is in the light of such pleadings the trial Court had framed the following seven issues. 1. Whether plaintiffs prove that Chinnakka is the daughter of Nanjappa? 2. Whether the plaintiff proves that he is the legal heir to the property of Nanjappa described in the plaint schedule? 3. Whether the plaintiff proves that Nanjappa acquired the suit schedule properties at a partition among himself and his brother Venkatappa? 4. Whether the plaintiff is entitled for declaration of title and possession? 5. Whether the plaintiff is entitled to mesne profits?