Property transferred for permanent alimony grants female absolute ownership, reinforcing the presumption of marriage from cohabitation, not barred by res judicata.

JUDGMENT :

RAJESH RAI K., J.

1. This is defendants' second appeal.

2. The plaintiff has filed a suit for declaration to declare that she is the absolute owner of the suit schedule property which is delivered in her favour by the original defendant (Kanthappa Gowda) in view of bilateral agreement dated 31.03.1993 as permanent alimony and consequently, for permanent prohibitory injunction restraining the defendant, his men, servants, or any other persons claiming through him from trespassing into the possession and enjoyment of the suit schedule property by the plaintiff.

3. It is the case of the plaintiff that the defendant entered into second marriage with the plaintiff since he had no male issues from his first wife and at the time of marriage, the defendant was aged about 60 years. After marriage, they both lived together for a period of 10 months along with the first wife. Later, the defendant at the instance of first wife started to harass the plaintiff. As such, the plaintiff demanded him to provide permanent alimony for her livelihood. Hence, vide agreement dated 31.03.1993 (EX.P2), the defendant agreed to settle the suit schedule property in favour of the plaintiff as there was a residential house in it, to keep up his earlier promise made at the time of marriage.

4. It is the further case of the plaintiff that the suit schedule properties were originally granted in favour of defendant under darkasth proceedings. The plaintiff was put in possession of the suit schedule property and the defendant assured that he would execute registered Conveyance Deed in her favour. Later, he turned hostile by instigation of his first wife and children and failed to act upon the agreement. Thereafter, the defendant filed a suit in O.S.No.91/1993 for declaration and permanent prohibitory injunction, which was decreed. However the First Appellate Court reversed the said judgment in R.A.No.15/1997, against which a regular second appeal was preferred before this court in RSA No.103/2009. This court has allowed the appeal in part by declaring the plaintiff as the owner of the suit schedule property by rejecting his prayer for permanent injunction since he is not in possession of the suit schedule property. Further this Court reserved liberty to the plaintiff to file a duly constituted suit for the appropriate relief, and upon filing of such suit, the Trial Court was directed to consider the same independently and uninfluenced by the reasons given in the said judgment. Thus, in view of the liberty granted by this Court in R.S.A No.103/2009, the plaintiff has filed the present suit.

5. The defendant, after entering appearance filed written statement and denied the plaint averments. The execution of the agreement dated 31.03.1993 in respect of suit schedule property as maintenance was also denied and contended that he never delivered possession of the suit schedule property. He also contended that the suit is clearly barred by the principles of res judicata. Accordingly, he prays to dismiss the suit.

6. The Trial Court, after considering the rival pleadings, framed relevant issues and after examining the evidence in detail, decreed the suit by declaring the plaintiff as the absolute owner of the suit schedule property delivered in her favour by way of bilateral agreement dated31.03.1993.

7. On appeal by the defendant, the First Appellate Court, upon re-appreciation of evidence, has held that this court in RSA.No.103/