JUDGMENT

This appeal is filed by the unsuccessful plaintiff aggrieved by the judgment and decree dated 22.09.2017 passed in O.S.No.137/2008 on the file of II Additional Civil Judge and J.M.F.C, Kundapura (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 26.07.2022 passed in R.A.No.39/2017 on the file of Senior Civil Judge, Kundapura.

(hereinafter 'the First Appellate Court').

2. The above suit is O.S.No.137/2008 is filed by the plaintiff/appellant herein seeking relief of partition in respect of suit schedule property which is land bearing Sy.No.3-1B1.P2 measuring 0.19 cents on the premise that the said land was granted by the Land Tribunal, Kundapura in the name of Late Venkataramama Ganiga, who is the husband of the defendant No.1 and the father of the defendant No. 2 and plaintiff in the proceeding number TRI No. 4069/1977-78. It is case of the plaintiff, ever since the date of grant made as above plaintiffs, defendants and Late Venkataramana Ganiga were in the joint possession and enjoyment of the schedule property in which there is a residential house constructed by the amount invested by the plaintiff and Late Venkataramana Ganiga. It is further contended that defendant No.2 who has been involved in criminal activities was constantly creating mischief and nuisance to the defendant No.1 and her husband. The father of the defendant No.1 and the plaintiff unbearable torture of went into illness from which he never recovered. He was admitted to the hospital between 07.06.2008 to 17.06.2008. That he was in unconscious stage when he was admitted to K.M.C. Hospital, Manipal. That, upon the request of the defendant No.2 to discharge his father, he was discharged against the medical advise of the doctor and defendant No.2 had taken him while he was in unconscious stage and readmitted him to S.D.M. Ayurvedic Hospital, Udupi. Again on 17.06.2008 at about 3.00 p.m., defendant No.2 had came to S.D.M. Ayurveda and insisted the doctors to discharge the him. Accordingly, doctors had discharged him at 3.00 p.m. Defendant had taken him in a vehicle and came home at 6.00 p.m. and found that her husband was in deep coma stage. As such he was shifted to N.R.Acharya Memorial Hospital, Koteshwara on 18.06.2008 and was kept in Intensive Care Unit till he passed away on 20-06-

2008.

2.1 It is contended that plaintiff and defendant No.1 together completed all the final rites and rituals of Venkataramana Ganiga. Soon thereafter defendant No.2 had given ultimatum to the defendant No.1 and the plaintiff to vacate the house situated in the suit schedule property, though the plaintiff and the defendant were entitled for 1/3rd equal share over the suit schedule property. When the plaintiff demanded partition of the suit schedule property seeking allotment of 1/3rd of his share, same was refused. Hence, he filed the suit.

2.2 The defendant No.1 filed the written statement admitting the claim of the plaintiff. The defendant No.2 in his written statement has denied the plaint averments. He however admitted the grant of occupancy rights in respect of suit schedule property in favour of his father. He contended that the suit schedule property was the self acquired property of deceased Venkataramana Ganiga and as such he was in occupation and enjoyment of the said property. It is further contended that said Venkataramana Ganiga during his lifetime in exercise of his absolute ownership over the property had executed a Registered Deed of Gift dated 17.06.2008 in favour of defendant No.2. The allegation made in the plaint in regard to health condition of the deceased Venkataramana Ganiga has been denied. It is contended that right, title and interest in the suit schedule property was duly conveyed by Venkataramana Ganiga in favour of defendant No.2 by virtue of said Registered Deed of Gift dated 17.06.2008 which is valid and subsisting.

Hence, sought for dismissal of the suit.

3. Based on the pleadings, the Trial Court framed the foll