ORAL JUDGMENT

Assailing the concurrent findings of facts recorded by the Courts below, the defendant is before this Court in this regular second appeal.

2. Parties herein are referred to as per their rank before the trial Court for the sake of convenience.

3. Suit for declaration and possession to declare that the plaintiff is the lawful owner of the suit land by virtue of succession, and decree for possession of the suit land from defendant and for grant of mense profits.

4. Property bearing Sy.No.238 was totally measuring 5 acres 36 guntas, land measuring to an extent 1 acre 12 guntas towards Southern side out of 2 acres 26 guntas in RS No.238/2 (hereinafter referred to as the ‘suit land’ for the sake of convenience). The case of the plaintiff is that the suit land was originally in the name of Tippanna Atagali, who had two wives and the suit land was divided into two parts i.e.,Sy.No.238/1 consisting of 3 acres 9 guntas and Sy.No.238/2 consisting of 2 acres 26 guntas, and were allotted to the first and second wife of Tippanna Atagali respectively in a partition. RS. No.238/2 was allotted to the second wife, the sons of Tippanna through his second wife namely Yallappa and Fakeerappa succeeded to RS No.238/2, the plaintiff is the wife of Fakeerappa, Yallappa the other son of Tippanna is no more, Yallappa and Fakeerappa had main strips in the suit property and the suit property was in cultivation of the plaintiff’s husband, on his death, the plaintiff became owner of the suit property. That there is a certification of ME. No.586 based on the relinquishment of right by Fakeerappa in the name of defendant, the son of Yallappa brother of husband of the plaintiff. The plaintiff contended that her husband has not relinquished his rights in favor of the defendant, the mutation entry is not evidence by any registered document and the defendant cannot contend that he is the absolute owner based on the mutation entry.

5. On notice, the defendant appeared and filed his written statement intra alia contending that the land bearing Sy.No.238/2 measuring 2 acres 26 guntas shown as ‘EFGH’ is standing jointly in the name of two brothers by names Yallappa and Fakeerappa, and two strips ‘EFGH’ and ‘GHCD’ have been effected. It is admitted that Yallappa died on 15.08.1997 leaving behind his legal heirs as Sangawwa, Gangawwa and Tippanna. It is the case of the defendant that the plaintiff’s husband was in need of money and he transferred the suit land for a sale consideration amounting to ₹24,000/- on 13.08.1988 by executing an agreement of sale by receiving the full sale consideration amount and the sale agreement was for legal necessity, further contended that the plaintiff’s husband has relinquished his right in the suit land in his favor and on the said basis Varadi was submitted to the revenue authorities and his name has been entered in the suit land through ME.No.586, further that the defendant has perfected his title over the suit land by way of adverse possession and he is in possession of the suit land peacefully, openly adverse to the knowledge of the plaintiff.

6. The trial Court based on the pleadings framed the necessary issues. In order to substantiate their claim, the plaintiff examined herself as PW1, two witnesses as PW2 and PW3 and marked documents at Exs.P1 to P16. On the other hand defendant examined himself as DW1 and one witness as DW2, no documents were marked on behalf of the defendants.

7. The trial court based on the pleadings, oral and documentary evidence arrived at a conclusion that:

(i) The plaintiff has proved her lawful ownership and possession over the suit land.

(ii) The defendant failed to prove that the husband of the plaintiff transferred the suit land for sale consideration of ₹24,000/- on 13.08.1988 by executing an agreement of sale.

(iii) The defendant failed to prove his title over the suit land by way of adverse possession.

By the judgment and decree the trial Court decreed the suit declaring that the plaintiff