AND

DECREE

DATED

13.09.2022

PASSED

IN

O.S.NO.33/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND

JUDICIAL MAGISTRATE FIRST CLASS, KHANAPUR, DISMISSING

THE SUIT FILED FOR DECLARATION AND CONSEQUENTIAL

RELIEF OF POSSESSION, MESNE PROFITS.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

Challenging

impugned

judgment

and

decree

dated

13.09.2022 passed by Senior Civil Judge and JMFC, Khanapur,

in O.S.no.33/2013, this appeal is filed.

Appellants herein were plaintiffs no.1(a) and 1(b),

while respondents herein were defendants. They will be

referred to herein as such.

3.

Originally O.S.no.51/1996 was filed by plaintiff on

26.02.1996, before Senior Civil Judge, Belagavi. It was decreed

ex-parte on 11.02.1997. In Ex.Petn.no.80/1997, plaintiff

obtained actual possession of three among suit properties i.e.

one house property and two agricultural lands. Subsequently,

defendant filed Misc.no.35/1997 for setting aside ex-parte

decree. It was allowed on 02.03.2009 and suit was restored to

original file. Suit was later transferred to Court of Senior Civil

Judge, Khanapur and renumbered as O.S.no.33/2013.

4.

In said suit, plaintiff Sadeppa Mallappa Mutnal

sought for decree:

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A. Declaring that the plaintiff is the owner of the suit properties

and they succeeds to the suit scheduled properties being

Class II heirs of the deceased Sangappa and his wife

deceased Singawwa.

B. Awarding actual possession of the sit properties the plaintiff

from the Defendant.

C. Awarding full costs of this suit to the plaintiff from the

Defendant.

D. Awarding future mense profits from the date of this sit till

the actual delivery of possession of the suit properties to the

plaintiff form Defendant.

E. Permission to amend the plaint may be granted to Plaintiff

as and when necessary.

F. Awarding any other relief to which the plaintiff is found

entitled to.

G. A Consequential relief of permanent injunction may kindly be

issued against the Defendant, restraining him, his agents,

servants, coolies etc., or anybody acting on his behalf from

interfering in the actual possession, wahivat and enjoyment

of the suit scheduled properties.

In plaint, it was stated that suit properties were situated in

Itagi village, Khanapur taluk. They belonged to family

propositus Kenchappa Mutnal, who died in year 1926,

leaving behind two sons viz., Mallappa and Sangappa.

Mallappa also died long back leaving behind children viz.,

Sadeppa, Dymappa, Dymawwa, Basawwa and Mallawwa

as legal heirs. Among them, Dymappa died issueless in

year 1952. While Dymawwa and Basawwa died about 15

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years prior to suit. Even Sangappa died in year 1980. As

per genealogy mentioned in plaint, his wife – Shingawwa

died without issues in year 1983 or 1984.

5.

It was further stated that after death of Kenchappa

– propositus, his sons Mallappa and Sangappa succeeded to

suit properties and there was no partition effected between

them. Thereafter, Mallappa began residing at Kalbhavi village

with his wife. It was alleged that taking advantage of their

absence, name of Sangappa was mutated in revenue records in

respect of all suit properties. Thereafter, under an alleged Will

stated to be executed by Sangappa bequeathing suit properties

and waradi allegedly given by Sangappa and Shingawwa to

village accountant, name of defendant was entered in revenue

records. It was contended by plaintiff that in absence of

partition between Mallappa and Sangappa neither Will nor

waradi would authorise Sangappa to execute Will. Therefore

M.E.no.3496 was void ab initio and defendant did not acquire

right, title or interest on basis of said M.E.no.3496. It was

alleged that defendant was in no way concerned with family of

Kenchappa and after death of Sangappa and his wife, plaintiffs

succeeded to their properties being Class-II heirs.

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6.

It was alleged that defendant was in unauthorized

possession of suit properties and had no right to continue in