Point of law: Contrary finding recorded by the learned Judge in the First Appellate Court holding that the defendant is a legitimate son and therefore dismissing the suit, in the considered opinion of this Court is a perverse finding.

JUDGMENT :

Present second appeal is filed by the plaintiff against the defendant.

2. The appeal came to be admitted on the following substantial question of law.

"In the light of the finding in the negative over issue No.4 by the trial Court, whether the lower appellate court was justified in reversing the finding, as recorded in para 21 of the judgment and decree of the lower appellate court, so as to dismiss the suit?"

3. Parties are referred to as plaintiff and defendant for the sake of convenience as per their original ranking in the trial Court.

4. Heard Sri T.M. Nadaf and Sri Sadiq N. Goodwala, learned counsels for the appellant and Sri Suraj M. Katagi, learned counsel for the respondent.

5. Brief facts of the case are as under:

A suit came to be filed by the plaintiff in O.S.No.52/2001 before the Civil Judge (Jr.Dn.), Kalghatagi for the relief of declaration and permanent injunction against the defendant declaring that plaintiff is the absolute owner of the following properties.

6. It is contended by the plaintiff that the suit properties are ancestral properties which has fallen to the share of the plaintiff at a partition that took place in the year 1999 with his uncle and other relatives. After the partition in the year 1999, the revenue entries were mutated in the name of the plaintiff and he was enjoying the suit property as its owner in possession.

7. When the matter stood thus, defendant who is a stranger to the family of the plaintiff, started interfering with the suit property and laid a claim over the suit property even though he did not possess right, title and interest over the suit property which constrained the plaintiff to file a suit seeking declaration and injunction.

8. After registration of the suit, suit summons were issued and a detailed written statement came to be filed by the defendant after his appearance.

9. In the written statement, the defendant contended that he is the son of Fakiramma-the second wife of Huchhesad-father of the plaintiff and therefore, he is entitled for half share in the suit property.

10. It is also contended that Fakiramma and Huchchesab had another daughter in their marriage by name Fatubi.

11. Based on the rival contentions, trial Court raised following issues.

(1) Whether plaintiff proves that he is the only son of Huchhesab Sannamani?

(2) Whether plaintiff proves that he has not acquired possession and ownership over the suit property through his father Huchhesab Sannamani?

(3) Whether Plaintiff proves that defendant is not a party to the partition and Varadhi pertaining to M.E.No.817?

(4) Whether defendant proves that the his mother is the 2nd wife of Huchhesab Sannamani?

(5) Whether defendant proves that himself and plaintiff are the joint allotees of the suit properties?

(6) Whether this court is having pecuniary jurisdiction to try this suit?

(7) Whether plaintiff proves his absolute ownership and exclusive possession over the suit properties as on the date of suit?

(8) Whether plaintiff is entitle for the decree of Permanent Injunction as claimed in the suit?

(9) Whether defendant is having half share in the suit properties?

(10) What order or decree?

12. In order to prove the issues, plaintiff got examined himself as PW1 and also three more witnesses as PWs.2 to 4 and relied on 37 documents which were exhibited and marked as Exs.P1 to P37. On behalf of the defendant, defendant got examined as DW1 and he also examined Moulasab and Abdulrazak as DWs.2 and 3 and he also relied on 44 documents which were exhibited and marked as Exs.D1 to D44.

13. Apart from the parties filing the documents, one other document which were available on the Court records was marked as Ex.C1 which is a case file and