1. This is a 1st defendant’s Regular Second Appeal against the judgment and decree dated 11.11.2013 made in RA No.33/2012 on the file of the Senior Civil Judge, Hukkeri, dismissing the appeal on the ground of delay as well as on merits, confirming the judgment and decree of the trial court dated 16.09.2011 made in O.S. No.199/2009, on the file of the Civil Judge, Sankeshwar, decreeing the suit of the plaintiff declaring that the plaintiff is entitled to 1/3rd share in the suit schedule properties and separate possession by metes and bounds.

2. Respondent No.1, who is the plaintiff in the trial court, filed the suit for partition and separate possession against the defendants contending that the suit schedule properties are ancestral joint family properties and the deceased Bhimagouda was having four children, namely, the defendant No.2—Mahadev, defendant No.1—Sadashiv, defendant No.3— Ramagouda and the plaintiff—Smt.Rajeshwari. Bhimagouda’s wife Parubai @ Parvati is no more. Defendant No.1/Sadashiv was given in adoption under a registered adoption deed dated 02.09.1968 to Balagouda Jyoteppa Patil and Gangubai Balagouda Patil of Solapur and therefore, he has lost all his rights in the suit properties. The suit properties were the properties of Parubai @ Paravati’s father Babu Patil and he was in possession and cultivation of the said lands during his lifetime. The name of his wife Savubai and his daughter Parubai @ Paravati were entered in the revenue records in respect of the suit schedule properties. During the old age of Savubai, she had given a Waradi to the revenue officials to enter the name of her daughter Parubai @ Parvati. Therefore, her name was entered in the revenue records in diary No.5122 on 12.08.1977. Subsequently, Parubai @ Parvathi died on 02.06.2009. When the plaintiff and defendant Nos.2 and 3 tried to enter their names in respect of the suit properties as the legal representatives of Parubai @ Parvathi, they found that on 12.08.1977, defendant No.1/Sadashiv had given a Waradi said to have been given by Parubai @ Parvathi and created revenue records in respect of the suit properties in his name in diary No.5125. Defendant No.1 has no right in respect of the suit properties as he has been given in adoption to another family. Now, on the basis of the revenue entry made in the name of defendant No.1, he is trying to sell the properties, thereby depriving the legitimate share of the plaintiff and defendant Nos.2 and 3. Therefore, she has filed the present suit.

3. Defendant No.1 appeared through his counsel, but has not filed any written statement. Defendant No.2 filed his written statement. Defendant No.3 was placed ex parte’. Defendant No.2 has not disputed the claim of the plaintiff and supported the case of the plaintiff.

4. Based on the above pleadings the trial court framed the following issues:

(i) Whether the plaintiff is entitled for the reliefs as claimed in the suit properties?

(ii) What order or decree?

5. In order to establish the plaintiff’s case, the plaintiff examined as PW1 and marked documents Exs.P1 to 16. The defendants have not adduced any oral evidence nor produced any documents.

6. After considering both oral and documentary evidence on record, the trial court recorded a finding that the plaintiff is entitled to 1/3rd share in the suit properties. Accordingly, the suit came to be decreed, granting 1/3rd share to the plaintiff in the suit properties and its separate possession by metes and bounds.

7. Aggrieved by the said judgment and decree of the trial court, defendant No.1 filed an appeal in R.A. No.33/2012 before the Senior Civil Judge, Hukkeri, who after hearing both parties passed the impugned judgment and decree dated 11.11.2013, has dismissed the appeal both on the ground of delay as well as on merits. Hence, the present second appeal is filed.

8. I have heard the learned counsel for the parties to the lis.

9. Sri.Sachin S.Magadum, learned counsel for the appellant, has str