AVALAPPA Vs. KRISHNAPPA

JUDGEMENT

(1.) The appellant is the plaintiff in the original suit and respondent-1 is the second defendant where as the 2nd respondent is the first defendant. One Jangamaiah was the father of the plaintiff and first defendant. Plaintiff brought the original suit for declaration of his title to the schedule properties and for permanent injunction restraining the defendants from interfering with his possession. He claims to be owner of as many as eight agricultural lands shown in the schedule and he pleaded that these properties had fallen to his share in a partition that took place on 22-6-1962 between him and his elder brother defendant-1 Narayanappa. Their father died in or about the year 1946. Since partition he had been in actual possession and enjoyment of all the schedule properties fallen to his share. Munivenkatappa the paternal grandfather of the second defendant happens to be the elder brother of Jangamaiah. Narayanamma wife of said Munivenkatappa and Doddakempamma wife of Jangamaiah were full sisters being the daughters of Chowdamma. Though admittedly Doddakempamma was the wife of Jangamaiah, Chikka Kempamma was alleged to be in the keeping of said Jangamaiah and the plaintiff and first defendant were born to her. Doddakempamma had no issues. It is rather significant that even the first defendant agreed with the case of the second defendant when he contended that Chikka Kempamma was a kept mistress of their father Jangamaiah. But the Courts below have not accepted this plea of the defendants but have found that even Chikka Kempamma was the wife of Jangamaiah. It is now unnecessary to examine this relationship as the finding of the Courts below on this point is accepted by parties to this appeal. The plaintiff alleges that he was compelled to file the suit as the second defendant had started interfering with his possession of the schedule properties by trespassing on them. He even attributed jealousy to the first defendant of his affluence and further alleged collusion between him and the second defendant with ulterior motive.

(2.) Inter alia the first defendant also pleaded that their father had settled some properties on their mother Chikka Kempamma in consideration of keeping her, under registered settlement deed dated 11-6-1936. In spite of that, these properties continued to be in possession of Jangamaiah till his death. The 2nd defendant's father was one Errodappa. In about the year 1956 according to him the plaintiff and himself went to Chintamani and joined the second defendant and Doddakempamma who were in possession of the properties covered by the settlement deed and all the properties of the second defendant. At that time the second defendant was a minor and Doddakempamma was looking after him and his properties. The plaintiff also started looking after the second defendant and Doddakempamma and also his properties and this is how the plaintiff and both the defendants lived with Doddakempamma till her death and thereafter. While admitting that there was a partition between him and the plaintiff in the year 1962, he pleaded that by false representation the plaintiff had included four items of the properties shown in the schedule in the partition and also survey No. 275/2 of Nekkundi village. It may be mentioned here that these four items are the properties in dispute in this appeal and they are :- survey No. 230/6 - 24 guntas ; survey No. 354/ 1 - 3 guntas ; survey No. 274/3 -6 guntas ; and survey No. 2277/1 - 17 guntas of Nekkundi. village in Chintamani Taluk of Kolar District. The plaintiff and the second defendant according to him have been living together and it is the second defendant who has been cultivating these four properties.

(3.) The second defendant pleaded that after effecting settlement of some of the properties over his mistress; Chikka Kempamma, Jangamaiah sold these four items and two other properties, namely, survey No. 275/2 and a portion of the house in Chintamani to his father Errodappa under registered sale deed dated 25-11-1943 and put him in possession of the same. Since then these properties have been in their actual possession. In the early part of the year 1945 the parents of the 2nd defendant his younger brother, as well as Jangamaiah died of plague and he was hardly 3 1/2 years of age and his elder sister 5 years of age at that time.