The burden of establishing title over ancestral property lies with the plaintiff, and the non-framing of specific issues regarding title does not render the decree unsustainable when parties were aware of their rights and led evidence on those aspects.

JUDGMENT

Ravi V. Hosmani, J. - Challenging judgment and decree dated 09.02.2021 passed by Sr. Civil Judge & JMFC, Shiggaon (for short, "first appellate court") in R.A. No. 163/2017 and judgment and decree dated 09.06.2017 passed by Civil Judge & JMFC, at Shiggaon (for short, "trial court") in O.S. No. 76/2012, this Regular Second Appeal is filed.

2. Appellant herein was plaintiff before trial court and appellant before first appellate court, while respondent herein was defendant before trial court and respondent before first appellate court. For sake of convenience, parties to this appeal are referred to by their ranks before trial court.

3. Plaintiff filed O.S. No. 76/2012 against defendant seeking for decree of declaration of ownership over suit schedule property and for permanent injunction restraining defendants from interfering with his peaceful possession and enjoyment of suit schedule property. In the plaint, it was stated that property bearing no. 21 (old no. 13) situated at Shiggaon municipality, measuring east-west 75 ft., north-south 35 ft. with a house property measuring east-west 19 ft. north-south 33 ft.

4. It was stated that plaintiff was absolute owner in possession of suit schedule property and paying tax regularly. It was further stated that property was used for storage of agricultural implements, firewood etc. It was stated that defendant was plaintiff's brother and adopted son of Sri Ningappa Harigouda. Defendant owned property towards southern side of suit schedule property. But, with help of officials concocted false documents in respect of suit schedule property and got his name entered in revenue records. Said entries were challenged before Deputy Commissioner, Haveri. Appeal was dismissed on 26.02.2003 with observation that entries would be subject to final order in O.S. No. 34/2002. Further challenge before this Court in W.P. No. 602011/2011 was dismissed. Based on above, defendant started to interfere with plaintiff's peaceful possession. Defendant began storing agricultural implements and firewood in suit schedule property, constraining plaintiff to file suit.

5. On service of summons defendant entered appearance and filed written statement denying plaint averments. It was stated that he was adopted into family of Harigouda in the year 1947. Before adoption his adoptive father had died. Therefore, Smt. Puttavva adopted defendant. It was stated that plaintiff's brother was member of municipal council. Using his influence false documents were created to cheat defendant. During March 2002, cowshed in suit schedule property collapsed killing some cattle. Plaintiff objected to defendant's attempt to remove debris. Therefore, defendant filed OS No. 34/2002 for perpetual injunction against plaintiff. After full-fledged trial, injunction was granted against plaintiff. Such being case, without producing any documents to establish title, instant suit was filed only to harass defendant without accrual of any cause of action. It was further stated that when plaintiff questioned order of Deputy Commissioner, dismissing his appeal, this Court while dismissing writ petition reserved liberty to approach civil court for adjudication of his rights. Merely on said basis suit was filed without any merit.

6. Based on pleadings, trial court framed following issues:

1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule house and vacant site shown as "ABCD" and "CDEFGH" in the hand sketch map annexed to the plaint?

2. Whether the plaintiff proves alleged interference caused by the defendants?

3. Whether the plaintiff is entitled for the relief of perpetual injunction order as prayed for?

4. What order or decree?"

7. In order to establish his case, plaintiff examined himself as PW 1 and another witness as PW 2. Exhibits P1 to P.21 were marked. Defendant examined himself as DW 1 and another witness as DW 2. Exs. D1 to 17 were marked. On consideration, trial court answered issues no. 1 to 3