IMPORTANT POINT
Adverse Possession – Unless title is established by parties, they cannot be unsuited with regard to possessory rights.

JUDGMENT

This Regular Second Appeal is filed by the plaintiffs 1 and 3, challenging the judgment and decree dated 15th June, 2010 passed in Regular Appeal No.96 of 2003 on the file of the Principal Civil Judge (Sr.Dn.), Ranebennur (hereinafter referred to as ‘the First Appellate Court’, for brevity), setting aside the judgment and decree dated 17th November, 2003 passed in Original Suit No.144 of 2000 on the file of the Principal Civil Judge (Jr.Dn.), Ranebennur, (hereinafter referred to as ‘the trial Court’, for brevity), decreeing the suit of plaintiffs.

2. For the sake of convenience, the parties to this appeal shall be referred to in terms of their status and ranking before the trial Court.

3. It is the case of the plaintiffs that, the original propositus–Siddalingappagouda had a son by name Gangangouda, who had three children, viz. Fakkirgouda (defendant No.2), Basangouda (deceased represented by his wife Basawwa defendant No.1); and Shivangouda who died leaving behind his son Shankargouda (plaintiff No.1). Plaintiffs 2 and 3 are the children of Fakkirgouda (defendant No.2). It is further averred in the plaint that, the original propositus-Siddalingappagouda died on 31st October, 1953 leaving behind his son-Gangangouda. It is further stated in the plaint that, the joint family property was partitioned between Gangangouda and his children on 01st January, 1965 and the suit schedule property had fallen to the share of the said Gangangouda. Gangangouda executed registered Will dated 19th October, 1971, bequeathing the property in question in favour of plaintiffs and defendant No.3 and as such, after the demise of Gangangouda, plaintiffs and defendant No.3 became owners in possession of the suit schedule property. It is further averred in the plaint that, by virtue of the registered Will dated 19th October, 1971, out of 6 acre 08 guntas of land, 3 acre 08 guntas was bequeathed to plaintiffs 2, 3 and defendant No.3, and remaining 3 acres of land was bequeathed to plaintiff No.1. It is further stated in the plaint that plaintiffs and defendant No.3 were minors at the time of execution of the registered Will and therefore, defendant No.2–Fakkirgouda gave varadi to revenue authorities for change of khata. It is further narrated that on 04th September, 1974 mutation was made in terms of the registered Will dated 19th October, 1971 and to the shock of plaintiffs, mutation was changed by the authorities, without the knowledge of plaintiffs, at the instance of defendant No.2. It is the specific case of plaintiffs that, defendant No.2, colluding with the husband of defendant No.1 and his brothers, got entered their name in the varadi and based on the said varadi, suit schedule property was sold on 16th April, 1975 in favour of defendant No.1. It is the contention of plaintiffs that, defendant No.1 has no right title or interest insofar as suit schedule property is concerned and as such, plaintiffs have filed Original Suit No.144 of 2000 before the trial Court seeking relief of declaration, possession and permanent injunction against the defendants.

4. On service of notice, defendants entered appearance. It is the specific defence of defendant No.1 that, after the death of Siddalingappagouda, who is the grandfather of the husband of defendant No.1, the schedule property was succeeded by his son Gangangouda and he died on 31st July, 1972. Gangangouda was residing in the house of defendant No.1 and after his death, defendant No.1 and her husband performed the last rites of Gangangouda. Defendant No.1 denied the fact that the said Gangangouda had executed registered Will on 19th October, 1971. Accordingly, defendant No.1 contended that the sale deed dated 16th April, 1975, registered in favour of defendant No.1 is correct and cannot be questioned by plaintiffs and as such, sought for dismissal of the suit. Defendant No.1 further filed