The present regular second appeal is filed by the

appellant/plaintiff No.2 aggrieved by the concurrent

findings rendered in the judgment and decree dated

06/09/2000 in O.S.No.1449/1991 by the II Additional

Civil Judge (Junior Division) Mangalore, D.K. (for short

hereinafter referred to as 'the Trial Court') and the

judgment

and

decree

dated

14/03/2013

in

RA.No.193/2000 by the III Additional Senior Judge,

Mangalore, D.K. (for short hereinafter referred to as

'the first appellate court').

2.

The parties are referred to as per their

original rankings before the trial court.

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3.

Originally the suit in OS.No.1449/1991 was

filed by one Narayana Moolya, the plaintiff against his

son and daughter namely, Sanjiva and Revathi, the

defendant Nos.1 and 2, seeking partition of plaint 'A'

schedule property and for allotment of his share.

During pendency of the said suit, Narayana Moolya

died and thereafter, the present appellant-N.Poovappa

was impleaded as supplemental plaintiff No.2 on the

basis of a registered Will executed by Narayana

Moolya in his favour.

4.

The case of the plaintiff was that the suit

'A' schedule property consisting 3 items of immovable

properties in Sy.No.40 measuring 1 acre 10 guntas,

Sy.No.40 measuring 1 acre 10 guntas and Sy.No.111

measuring 1 acre together with residential house, a

bunk shop, 6 coconut trees and 3 jack fruit trees were

acquired by the plaintiff and his wife deceased-Smt.

6

Bhavani jointly in terms of a registered Mulgeni Deed

dated 18/07/1961. That with the advent of Karnataka

Land Reforms Act (for short hereinafter referred to as

'the Act') they had filed a declaration and occupancy

rights were granted in their favour as per the order

dated 27/07/1979 passed in LRT.No.364/1979-80 and

accordingly occupancy patta certificate was issued on

23/11/1979. That Smt. Bhavani, the wife of plaintiff

and mother of the defendant Nos.1 and 2 passed

away subsequent to the grant of occupancy right.

Since the occupancy right was jointly granted in

favour of plaintiff and his wife, the plaintiff claimed his

half share in the suit schedule property and a share in

the remaining half portion of the property belonging to

his deceased wife-Smt. Bhavani. That during the

pendency of the said suit, the original plaintiff-

Narayana Moolya also passed away and thereafter the

present

appellant

Poovappa

was

added

as

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supplemental plaintiff No.2 based on a Registered Will

dated 28/08/1992 executed by original plaintiff

Narayana Moolya bequeathing his rights in the suit

schedule property. Thus, the said Poovappa, the

plaintiff No.2 claimed 4 shares out of 6 shares in the

suit schedule property.

5.

The defendant No.1 filed written statement

which was adopted by the defendant No.2, wherein

the grant of occupancy rights in favour of their father

Narayana Moolya, the plaintiff No.1 and their mother-

Smt. Bhavani was admitted. It was contended that

the suit schedule property was acquired by their

mother on Mulgeni rights although plaintiff's name

was included. It was contended that their mother

Smt. Bhavani was paying Mulgeni rent. That suit

schedule property was non-agricultural property.

However, on the ill-advise the plaintiff No.1 and his

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wife Smt. Bhavani, had filed declaration before the

Land Tribunal which granted occupancy right in their

joint names. The said Poovappa, the plaintiff No.2

herein had instigated the plaintiff No.1 to file the suit

for partition. The mother of the defendants had spent

Rs.50,000/- for construction of a residential house

which is presently occupied by the defendant No.1 and

his wife and children. The defendant No.2, who is a

married visits and stays in the said house. On

impleadment of the plaintiff No.2 based on the Will

executed by plaintiff No.1, the defendants filed

additional

written

statement

denying

the

due

execution of the registered Will dated 28/08/1992 as

the same is fraudulent and got up document. That

plaintiff No.2 is a postman and a scheming litigant and

had ob