THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 25.2.2014 PASSED IN R.A.NO.63/2005 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, TUMKUR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 31.8.1998 PASSED IN OS.NO.3/1989 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, TUMKUR.

THIS APPEAL, COMING ON FOR FURTHER DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

ORAL JUDGMENT

1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 25.02.2014 passed in R.A. No.63 of 2005 by the learned Fast Track Court, Tumkur and the judgment and decree dated 31.08.1998 passed in O.S. No.3 of 1989 by the learned Principal Civil Judge (Jr.Dn.), Tumkur.

2. For the sake of convenience, the parties are referred to based on their ranking before the Trial Court. The appellants are the legal representatives of the deceased defendant and the respondents are the legal representatives of the deceased plaintiff.

3. Brief facts leading rise to the filing of this appeal are as follows:

4. The plaintiff filed a suit for declaration of title and injunction. It is the case of the plaintiff that the plaintiff had purchased the suit schedule property under a registered sale deed dated 31.10.1974 from Abdul Khadar, son of Dastagir Khan.

5. The plaintiff was put in possession of the suit schedule property under the registered sale deed and the name of the plaintiff was entered in the revenue records and the Pahani stood in the name of the plaintiff till 1988-89 and the plaintiff was paying tax on the suit schedule property.

6. The defendant had no right, title or interest over the suit schedule property. He started to interfere with the plaintiff's peaceful possession and enjoyment over the suit schedule property. The plaintiff requested the defendant not to interfere with the plaintiff's peaceful possession and enjoyment over the suit schedule property, however, the defendant did not give any heed to the requests made by the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and injunction.

7. The defendant filed a written statement denying the averments made in the plaint. It is denied that the plaintiff had purchased the suit schedule property from Abdul Khadar, son of Dastagir Khan. It is contended that Abdul Khadar, son of Dastagir Khan had no right, title or interest to sell the suit title property in favour of the plaintiff under the registered sale deed. It is contended that the plaintiff had not acquired any right, title or interest in the suit schedule property under the registered sale deed dated 31.10.1974.

8. It is contended that one Doddegowda was the propositus of the family and he had three children, namely Palyada Thimmaiah, Budda Thimmaiah and Kurle Gowda. It is contended that the land bearing Survey No.67/15 of Bommanahalli village was purchased by the joint family in the name of K.Muniswamaiah in 1938 under a registered sale deed dated 20.05.1938.

9. The children of late Doddegowda got partitioned the joint family properties among themselves under an oral partition and they are enjoying their respective properties peacefully.

10. It is contended that there was no partition in writing. The grandchildren of Doddegowda entered into a partition during 1976 as evidenced by the Palupatti dated 28.12.1976. The land bearing Survey No.67/15, measuring 24 guntas had fallen to the share of the defendant herein, and 24 guntas of land in Survey No.67/15 fell to the share of Doddegowda and an extent of 25 guntas in Survey No.67/15 fallen to the share of Timmegowda and they are in peaceful possession and enjoyment of their respective shares.

11. The plaintiff by suppressing the revenue proceedings has created a sale deed date dated 31.10.1974 and the revenue entries were got created. The suit filed by the plaintiff is not maintainable. Hence, he prays to dismiss th