SEETHARAMA BHATTA Vs. LAKSHMINARAYANA BHATTA

JUDGEMENT

(1.) The legal heirs of original defendant Seetharama Bhatta in O.S.No.144/1986 on the file of Principal Munsiff, Udupi, D.K. have come up in this appeal impugning the concurrent finding of both the Courts below in decreeing the suit of plaintiff for the relief of recovery of possession.

(2.) Admittedly, the original plaintiff and original defendant in O.S.No.144/1986 are brothers. The plaintiff is the younger brother and defendant is the elder brother. The dispute between them is with reference to possession of suit schedule property, which is a tiled storied residential building bearing Kaup Panchayath Door No.3-14, situated partly in Sy.No.46/27 and partly in Sy.No.46/30 of Padu village, Udupi District. The fact that the said property was joint family property of Gopalakrishna Bhatta, father of plaintiff and defendant is not in dispute. It is also not in dispute that late Gopalakrishna Bhatta had other children and in the partition, the suit property had come to the share of children of late Gopalakrishna Bhatta.

(3.) It is the case of the plaintiff in O.S.No.144/1986 that the share of the defendant in the suit property was released by him in favour of plaintiff under a registered deed and thereafter, he continued in possession of the said property on the basis of rent agreement that was entered into between the plaintiff and defendant. It is only when the plaintiff called upon the defendant to vacate the suit schedule property he refused to do so, it has necessitated in filing of the suit in O.S.No.144/86. In the said suit, on service of notice, the original defendant Seetharama Bhatta who was alive then, had entered appearance through counsel and had filed written statement, wherein he admits that suit property was joint family property belonging to his father Gopalakirshna Bhatta and that he had a share in it. However, when it comes to the execution of release deed of his rights in favour of his brother Lakshminaraya Bhatta who is plaintiff in the original suit is concerned, he admits having executed the said documents and also the rent agreement, which according to him is by an element of fraud and misrepresentation.