The court upheld the principle that ownership must be substantiated by clear evidence, particularly regarding property rights where prior decrees and potential collusion affect claims.

JUDGMENT :

H.P. SANDESH, J.

1. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

2. This matter is listed for admission. Heard the learned counsel appearing for the respective parties.

3. The factual matrix of case of the plaintiff before the Trial Court in O.S.No.514/2010 seeking the relief of declaration and permanent injunction is that scheduled property is land bearing Sy.No.110/11 totally measuring 2 acres 3 guntas out of which, 1 acre 1½ guntas is situated at Hosakote Village and also contend that plaintiff’s father and late Eranna were brothers and land bearing Sy.No.110/11 totally measuring 2 acres 3 guntas was ancestral and joint on the property of them. After the death of Eranna, plaintiff filed a suit against defendant No.1 in O.S.No.49/2005 and there was a decree and also FDP proceedings was also initiated. Defendant No.2 being the close relative of defendant No.1 has taken a sale agreement from defendant No.1 in respect of the entire land to the extent of 2 acres 3 guntas and filed the suit for the relief of specific performance and thereafter also filed an execution petition. Defendant No.1 is not the exclusive owner of the entire land. The decree if any obtained by defendant No.2 in respect of the entire land is in respect of Sy.No.110/11 measuring 2 acres 3 guntas does not bind on the share of the plaintiff as declared in O.S.No.49/2005. Plaintiff is the owner of the suit schedule property by virtue of the decree passed in O.S.No.49/2005. After taking decree, FDP No.9/2005 is pending. Defendant No.2 has obtained a decree against defendant No.1 in O.S.No.36/2005 in respect of the suit schedule property. hence, decree passed in O.S.No.36/2005 does not bind the share of the plaintiff and defendant No.1 had no right to sell the suit schedule property including the share of the plaintiff. Hence, the suit is filed for the declaration to declare that he is the owner and also the decree obtained by defendant No.2 not binding.

4. In pursuance of the suit summons, defendants appeared and filed written statement denying the entire averments of the plaint and contend that defendant No.1 was the exclusive owner of the property on account of death of Eranna who is her husband and subsequent to the death the defendant No.1 had executed a sale agreement. Since Katha was standing in the name of the said Doddakka, she did not execute the sale deed and hence, filed a suit in O.S.No.36/2005 and the Trial Court having considered the material on record granted the relief of specific performance on 19.04.2010. It is also contended that defendant No.2 came to know about the filing of a suit in O.S.No.49/2005 only with an intention to defeat the rights of this defendants and such decree is obtained by fraud and collusion with defendant No.1. Hence, the plaintiff cannot be declared as the owner of the property and also there cannot be any decree holding that the judgment and decree passed in O.S.No.36/2005 is not binding.

5. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court having considered both oral and documentary evidence placed on record, answered Issue No.1 as negative in coming to the conclusion that plaintiff is not the absolute owner and possession and enjoyment of the suit schedule property by virtue of the decree in O.S.No.49/2005. On the other hand, the Trial Court comes to the conclusion that defendant No.2 has proved that he has obtained the decree in O.S.No.49/2005 fraudulently and in collusion with defendant No.1. While coming to such a conclusion, the Trial Court held that the judgment and decree obtained by the plaintiff is noth