Challenging judgment and decree dated 05.01.2007

passed by Civil Judge (Sr.Dn.), Sirsi, in R.A.no.87/1995 dismissing

appeal confirming judgment and decree dated 28.09.1995 passed by

Addl. Munsiff, Sirsi, in O.S.no.64/1989, this appeal is filed.

Appellants herein were defendants no.1 and 2, while

respondents no.1 and 2 herein were defendants no.4 and 3 in original

suit. Original plaintiff died during pendency of first appeal.

3.

O.S.no.64/1989 was filed seeking for declaration that

plaintiff would not be affected by revenue entries illegally made on

basis of partition deed dated 08.02.1992 and for permanent injunction

restraining defendants from interfering with plaintiff's peaceful

possession and enjoyment over suit schedule property. It was further

prayed that in case, plaintiff was found to be not in possession of suit

properties, for possession of suit properties from defendants no.1

and 2.

4.

In plaint, it was stated that plaintiff was absolute owner of

suit schedule properties, defendants no.1 and 3 were his daughters,

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defendant no.4 his wife and defendant no.2 was his son-in-law. It was

stated that since he had no male issues, defendant no.2 was treated

with love and affection as a son and he was assisting plaintiff in

managing affairs of suit properties. Thus having gained confidence of

plaintiff, defendant no.2 got plaintiff to execute a registered deed

allegedly on pretext of convenience in managing suit properties.

Though names of defendants came to be entered in revenue records,

in terms of said document dated 08.02.1982, it was nominal, only for

purposes of enabling management of suit properties and did not confer

any right or title in favour of defendants. Possession continued to be

with plaintiff. However, when defendants no.1 and 2 began

threatening plaintiff to give possession in terms of said document,

cause of action to file suit arose.

5.

Despite service of suit summons, defendants no.3 and 4

did not appear. They were placed ex-parte. Defendant no.1 adopted

written statement of defendant no.2. In his written statement,

defendant no.2 out-rightly denied that plaintiff was absolute owner of

suit properties, but admitted relationship between plaintiff and

defendants. It was contended that plaintiff had executed partition deed

on 08.02.1982 out of his free will, and denied that no provision for

livelihood of defendant no.4 was made therein. It was stated that

partition deed dated 08.02.1982 was legal and valid and conferred

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absolute title in favour of defendants no.1 and 2 and they were in

possession from date of execution. It was therefore contended that

suit was barred by limitation. Subsequently, by filing additional written

statement after plaintiff got plaint amended seeking for relief of

possession also, defendants no.1 and 2 contended that suit was not

maintainable without seeking relief of declaration or for cancellation of

document dated 08.02.1982 and suit was also barred by provisions of

Benami Transaction Prohibition Act, 1988. It was also contended that

said deed would establish family settlement and therefore bind other

defendants. It was also contended that suit was not maintainable

without questioning revenue entries and defendants no.1 and 2 had

perfected their title over suit properties by way of adverse possession.

6.

Based on pleadings, trial Court framed following:

ISSUES

(1)

Whether the plaintiff proves his title to the suit

property?

(2)

Whether the plaintiff proves that partition deed,

dated 08.02.1982 is a nominal one executed in

favour of defendants no.1 and 2, under the

circumstances pleaded in plaintiff para-3 and 4?

(3)

Whether the defendants no.1 and 2 prove that

partition dated 08.02.1982 is legal and valid,

executed by the plaintiff out of his own free Will for

the benefit of his family?

(4)

If so, whether the defendants no.1 and prove their

independent title to suit property by virtue of above

partition?

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(5)

Whether the suit is time barred?

(6)

Whether the plaintif