J U D G M E N T

This appeal is filed challenging the judgment and decree dated 23.12.2005 passed in R.A.No.62/2002 by the Civil Judge (Sr. Dn.), Arasikere.

2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

3. The factual matrix of the case of the plaintiff in O.S.No.169/1995 that the plaint schedule property bearing Sy.No.19/7 to the extent of 2 acres 7 guntas is situated at Kanakatte hobli of Holalkere village. The said property is morefully described in the plaint as schedule property. It is contended by the plaintiff that the said property originally belongs to Julalingappa who is the husband of the plaintiff’s father’s sister. The said Julalingappa and his wife Mallamma had only one son by name Ningappa. The said Julalingappa, Mallamma and their son Ningappa were residing together with the plaintiff and his father during their lifetime. The suit schedule property was enjoyed by him and his family members during their lifetime. After his death, the plaintiff’s father Basappa became the lawful owner and was in possession and enjoyment of the suit schedule property for a period of 41 years to the knowledge of entire locality. The defendant had filed a suit in O.S.No.261/1987 against the plaintiff alleging that he is in possession and enjoyment of the suit schedule property by means of sale deed dated 27.05.1974 having purchased from one Kariyamma who is the wife of Ningappa. In the said suit, he has filed an application under Order 39 Rule 1 and 2 and sought for grant of temporary injunction and the same was granted in favour of the defendant vide order dated 25.05.1987 and the defendant has taken the possession of the suit schedule property by force based on the interim order.

4. It is contended by the plaintiff that the defendant is in illegal possession. It is further contended that the said Kariyamma is a fictitious person and Malamma and Ningappa are the persons who had succeeded after the death of Julalingappa. After his death, Basappa and his son i.e., the plaintiff are in possession and enjoyment of the suit schedule property being lawful owners. Hence, the plaintiff is entitled for the relief of declaration and possession. The suit filed by the defendant in O.S.No.261/1987 was dismissed and against the said judgment and decree, an appeal was preferred in R.A.No.75/1990 wherein the First Appellate Court confirmed the order of the Trial Court and against the judgment and decree of the First Appellate Court, Regular Second Appeal was filed in R.S.A.No.996/1992 and the said RSA was also got dismissed. The plaintiff had requested the defendant to hand over the possession of the suit schedule property but he declined for the same. Hence, the suit is filed for the relief of declaration and possession.

5. In pursuance of the suit summons, defendant appeared and filed the written statement denying the averments made in the plaint contending that the plaintiff and his father are not the relatives of Julalingappa. The defendant also denied that Basappa had a sister by name Mallamma. The plaintiff nor his father had paid the kandayam in respect of the suit schedule property. It is contended in the written statement that the said Julalingappa had two wives by name Kariyamma and Mallamma among whom the Kariyamma was the first wife. As Kariyamma had no issues, she got married Mallamma to Julalingappa. Through the second wife Mallamma, Julalingappa had a son by name Ningappa who died unmarried. Among the family members, Julalingappa predeceased his wife Mallamma wherein Kariyamma was alive and the said Kariyamma was the aunt of the defendant’s father as she was alone, she was looked after by the family of the defendant.

6. It is also the case of the defendant that said Kariyamma sold the property in favour of the defendant by means of registered sale deed dated 27.05.1974. On the very same day, the possession of the suit schedule property was al