GURUSHANTAPPA Vs. SHANKAR

JUDGEMENT

(1.) The plaintiffs being aggrieved by the judgment dated 17.03.2006 passed in O.S.No.327/2002 by the III Addl. Civil Judge (Sr.Dn.), Gulbarga confirmed in R.A.No.56/2006 by the Prl. Sessions Judge, Gulbarga by judgment and decree dated 05.03.2007 have filed this regular second appeal.

(2.) The parties are referred to with their rank before the trial court.

(3.) Plaintiff Nos.1 and 2 filed the suit bearing O.S.No.327/2002 seeking the relief of declaration of ownership and consequential relief of perpetual injunction against defendant Nos.1 and 2 in respect of the suit schedule property. It is the case of the plaintiffs that property bearing Sy.No.52 measuring 9 acres 22 guntas situated at Nandi Sinoor village, Gulbarga Taluka was one of the family property. The plaintiffs, defendant No.1 along with two other brothers were members of the joint Hindu family of which their father was the manager and the karta till 1982. They have further stated that in the year 1982, there was a partition among the plaintiffs and their brothers in respect of joint family properties and that the suit property was divided into two portions and the said portions were allotted to the plaintiff Nos.1 and 2 respectively and ever since from the date of partition, they are in actual possession and enjoyment of the suit property as owners. Subsequently, the memorandum of partition was also prepared which was signed by the plaintiffs and their brothers and the father and the same was given to the custody of father. However, the plaintiffs did not take any steps immediately as such the family properties are even now standing jointly in the name of the parties. Taking advantage of his position as karta, the father refused to hand over the memorandum of partition. Thereafter, first defendant filed a suit through the father in O.S.No.620/1990 before the I Addl. Civil Judge (Jr.Dn.) Gulbarga for declaration of title over the suit land and the said suit came to be decreed. Thereafter, appeal was preferred before the District Court Gulbarga in R.A.No.32/1997 and the same is pending for consideration. They have alleged that father of the plaintiffs in collusion with other children got illegally mutated his name in respect of the suit land which was challenged before the Assistant Commissioner in appeal and the appeal came to be allowed and the name of plaintiffs was entered in the records of the suit property. It is further alleged that the first defendant filed another suit against the plaintiff in O.S.No.99/1994 and thereafter sold a portion of the suit land illegally in favour of the second defendant under a registered sale deed dated 2/5-1997 and the said sale deed is illegal and not binding on the plaintiffs and now the defendant No.2 on the basis of the alleged sale deed is interfering in their possession and enjoyment. Therefore, the plaintiffs were constrained to file the said suit.