Appellant/plaintiff feeling aggrieved by judgment and

decree on the file of VI Additional District Judge, Belgaum,

in R.A.No.108/2010 dated 09.09.2010, preferred this

appeal.

2.

Parties to the appeal are referred with their

ranks as assigned in the trial Court for the sake of

convenience.

3.

The factual matrix leading to the case of

plaintiff can be stated in nutshell to the effect that the

propositus of the family Sri.Gangappa S/o Hanamanth

Waddar, was having three wives viz Yallawwa, Bhimawwa

and Gourawwa. The first wife-Yallawwa died living behind

her son Tammanna and he died living behind his wife

Hanamawwa. The second wife-Bhimawwa died living

behind Hanumanth-defendant No.1 and Chawadawwa.

Third wife Gourawwa died living behind Mukkar, Babu,

Tammanna, Shivaram, Malpuri and Gangawwa. Deceased

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Sri.Gangappa S/o Hanamanth Waddar, is propositus of

the family owning suit schedule A and B properties. On his

death his three wives succeeded to the schedule A and B

properties and each of them got 1/3rd share in the suit

schedule properties. There was no partition between all

three wives of deceased Sri.Gangappa S/o Hanamanth

Waddar, at any point of time. The defendants tried to

alienate the suit property and refused to give the

legitimate share of plaintiff. Therefore, plaintiff was

constrained to file the suit on hand for the relief claimed in

the suit.

4.

In response suit summons, defendant Nos.1

and 2 appeared through counsel and filed written

statement contending that plaintiff is not at all concerned

in any way with properties left by deceased Sri.Gangappa

Hanamanth Wadder. The father of defendant Nos.1 and 2

absolutely

had

no

connection

with

Smt.Yallawwa,

Tammanna or the present plaintiff. Therefore, there is no

question of plaintiff seeking her right of share in suit

schedule properties. The genology appended to the plaint

is concocted. The deceased Sri.Gangappa is father of

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defendant Nos.1 and 2 was having only two wives

Bhimawwa and Gouraww. On his death they have

succeeded to the suit properties. The suit properties left

behind by Sri.Ganagappa Hanamanth Waddar, was subject

matter of O.S.No.01/1978 and preliminary decree has

already been drawn. Defendant Nos.1 and 2 are in actual

possession of the suit schedule properties. Therefore,

prayed for dismissal of suit.

5.

The trial Court has framed necessary issues.

Plaintiff to prove his case relied on the evidence of P.W.1

and documents Exs.P.1 to 26. Defendants relied on the

evidence of D.W.1 and documents Exs.D.1 to 6. Trial Court

after appreciation of evidence on record, decreed the suit

of the plaintiff holding that plaintiff is entitled for 1/3rd

share in the suit schedule properties and accordingly,

directed to draw preliminary decree.

6.

The defendants challenged the said judgment

and decree before the first appellate Court on the file of VI

Additional District Judge, Belagaum in R.A.No.108/2010.

The first appellate Court after re-appreciation of evidence

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on record has allowed the appeal and dismissed the suit of

the plaintiff.

7.

Appellant/plaintiffs who are the legal heirs of

deceased Hanamawwa challenged the divergent finding

recorded by the first appellate Court contending that first

appellate Court has misconstrued the name of husband of

original plaintiff Hanamawwa i.e. Tammanna through the

first

wife

Smt.Yallawwa

is

different

person,

since

Tammanna referred by first appellate Court is the son of

third wife Gourawwa. The first appellate Court also

committed serous error in holding that the suit is bad for

non-joinder of necessary parties. The defendant No.1

represent the branch of Bhimawwa and defendant No.2

represent the branch of Gourawwa. Otherwise also the

first appellate Court should not have dismissed the suit of

plaintiff for non-joinder of necessary parties. The first

appellate Court would have directed the plaintiff to

implead other heirs representing the branch of Bhimawwa

and Gourawwa. The first appellate Court has com