MADHUKAR VISHWESHWAR SHET POKLE Vs. SHAILESH

JUDGEMENT

(1.) THE appellant in R.S.A No. 46/2005 is the plaintiff in O.S. . No. 26/1984 which resulted in R.A No. 7/1997, The very same appellant is also the appellant in R.S.A No. 579/2005, In that case, he was the defendant in O.S. No. 202/1984 which resulted in R.A. No. 27/2003. The suit in O.S. No. 26/1984 was filed by the appellant herein and the third respondent herein seeking for a declaration that they are the owners of the suit scheduled properties and also to declare the sale deed dated 17.06.1981 and 30.05.1983 as illegal. The said suit was dismissed by the Prl. Civil Judge, Karwar on 12.01.1989. The appeal in R.A No. 7/1997 was dismissed by the District Judge at Karwar on 30.09.2004. The suit in O.S. No. 202/1984 was filed by the respondent in these appeals who was one of the defendants in O.S. No. 26/1984. The suit in question was filed seeking for declaration and possession of the suit schedule property, which in fact is also the subject matter in O.S.No26/1984. The said suit (O.S. No. 202/1984) was decreed in favour of the plaintiff by the Prl. Civil Judge (Jr. Dn.), Honnavar on 13.01.2003. The appeal in R.A No. 27/2003 was dismissed by the Civil Judge (Sr. Dn.), Honnavar on 13.12.2004. The rival contentions being similar in both the suits, the contention pleaded in the plaint was literally the defence in the written statement. Though the two suits and regular appeals were considered and disposed of in different Courts, the conclusion of all the four Courts is the same. Hence the same appellant herein in both these appeals has suffered concurrent findings and judgment in the said two proceedings. Against such concurrent findings and judgment, the appellant is before this Court in these appeals. Since the parties are the same, dispute being on same set of facts and further since a common substantial question of law is to be considered, the appeals were heard together and is being disposed of by this common judgment.

(2.) THOUGH several facts have been pleaded and contentions have also been urged, the pleading in the two sets of cases need not be restated. Only the gist of the contention which arise for consideration need to be summarised. Since some of the original parties to the suit have expired and the legal representatives are on record and further since the array of parties is with different rank in the two suits, the contesting parties would be referred in the original name of one of the rival contestants for the sake of convenience, and clarity. The reference to Sri. Madhukar would mean the appellant herein i.e., the plaintiff in O.S. No. 26/1984 and defendant in O.S. No. 202/1984. The reference to Late Timmanna Hebbar would mean the original contesting respondent in these appeals who is the plaintiff in O.S. No. 202/1984 and contesting defendant in O.S. No. 26/1984 who is presently represented by his legal representatives.

(3.) IN this background, the substantial question of law framed for consideration at the time of admission on 10.03.2005 and 31.03.2006 respectively which is common in both these appeals is as follows: