The State Of Karnataka Rep By Its … vs Onkarappa S/O Shanthappa @ … on 8 September, 2009

REGULAR SECOND APPEAL NO.£_324_ or 200'6i:[§'DEC Vs: Imjj " . 

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE ST" DAY OF SEPTEMBER 2099

BEFORE

THE HON'BLE MR. JUSTICE  

BETWEEN:

1.

 AND:

The State of Karnataka, A

rep. by its Chief Secretary,  _V
Vidhana Soudha,  "
BANGALORE -- 560 001. TV

Block Educational (;:)'t'fi_cer_;VA A
Channagm Taluk, 4' T . *   A}
CHANNAGIRI -- 577M273'. 5

(By S1*i.Bara_fne---Got§§%da:;   I

S/0 shgnzhappa'  *Sli;s.nthaiah,
Major. AgI'lCE,2lttiI'iS't, 

Onl:are1'19I5a,\ V 2  '

V, R/0 Maradi ".f.il1age,
-,e.C'HANNAGIRI  -- 5'77 213.

 " Mallikaijdnappa,
 S 0. A late S}1a.:1thaVeerappa.

A '  I§3asaVéi1E3' dppa,
'S /0=..lat'e 'Shanthaveerappa.

Bdth «Majors, Agricultunet,

A ' 0 Maradi Village,

A "  CHANNAGIRI TALUK --- 577 213.

.. RESPONDENTS.

(By Sri.R.G0pa1, Adv. For R-1
Respondent N052 & 3 — Served}

‘W:

.. APPELLANTS.

This Appeal is filed under Section 100 of the Civil
Procedure, against the Judgment and Decree da.ted»y’:1$’.’Q8;2005
passed in R.A.No.2l5/2002 on the file of the:”AddVitioiiial”:Cii{il

Judge [Sr.Dn.], Davangere, dismissing’ the ap’p’eal::’_ar’1dV: coVnfi_rn”1’ing~–_p

the Judgment and Decree dated in

O.S.No.473/1994 on the file of”~.the._’ctvti,,rua~ge«:_”‘itIr;Dh.),

Channagiri.

This Appeal is coming ont-forA.’A_.drn.ission’ thisday, the Court

delivered the following:

_~g§uGMhN§.

Heard tliie’ “£_’woyernrne’nti—–iAidVocate for appellants

regarding adinission. V”

2. ‘I’la__is ._secontia._»4appeal’~._is- -‘filed by defendants 1 and 2

challengingthe coiicurrentfifndings of both the Courts holding that

V the suit sehedti1e_f_pproperty is absolute property of the plaintiff –

V first_respondei:ij herein.

facts leading to this appeal are that the

V _ plaintiff that the property bearing Panchayath l\Io.ll3,

:j’)£0perty”»No.78 measuring to an extent of 40 feet by 200 feet.

if is suit schedule property belonged to his father late

Shanthappa @ Shanthaiah, the said Shanthappa was using the

same as “kana”, after his death the plaintiff and his brother

‘ta,/1

Malleshappa have succeeded to the said property, plaintiffs
brother Malleshappa has put up cattle shed in a portion of the suit
land, they have permitted their sister Gangamrna a

small house in a corner of the said property

their manure pit in a portion of said land -the-.__

remaining portion. It is their case that their one

Shanthaveerappa, father of defendant’No’s.i3 andviias a
Gift Deed in respect of the prope–rty._alleged__ to
under a Gift Deed dated 27.0?_..1u9j93″ieirecuted.._in_.favour of the
second defendant. Accordifiggttagplaintiff;the schedule referred to
in the said Gift Deed is property belonging to

his father, whic’h'”§1e’Ver’belonged’ Atoll”Shanthaveerappa. At any

point of neiiheepr’iShanth_aveerappa nor his children were in
possession’ of the property. According to plaintiff,

late Shanthaveerappa was owner of an extent of 75 feet X 200 feet

he has di”s’1′:ributed equally among all his three sons,

7:.e..{25. feet to the share of each of them and they have

beenin’ and enjoyment of the said property by putting

up construction on their respective portion, which are situated

i,”iJ,”””.1iC’ij..acent to that of the plaint schedule property on its southern

side on northern side of suit schedule property a school is

lsitulated. The further case of plaintiff is that the property as shown

“M

in the piaint schedule is the one, which belong to their father. At
any point of time. it was not the property of Shanthaveeiappa with

a right to gift the same in favour of second defendantfl

4. In this proceeding, the second defendant’~–.though entered

appearance and contested the Stilt’ “i1asnotany_

documents to show that the said.’ fI–hanthavVeerapp”a_”was in

possession and enjoyment of thesuit proper’Ly away
the same to the 2115′ defendant They–:haveEalso failed to
establish that the possevslrsibn property of the Gift
Deed was delivered to second to the gift deed

and the secondjdefendanzt h:as..~’been”i’n–possession and enjoyment

of the lli’\’lfh.en’»;Afthc.Zriiatter taken up for evidence, one
Malleshappa has on behalf of the plaintiff and has

produced dloc.umenlts, to P-14 to – establish titie and

…..posse.ssion’*iof plaintiff___over the suit schedule property. As against

that~.the defendant Nos.1 and 2 have neither produced

any d’ocyu1ne–nts iricluding the disputed Gift Deed nor adduced any

evidence in ~s_upport of their case. However, the fourth defendant

f”‘~.«.._lE.asavara}appa, S/0 Shanthaveerappa, the alleged donee has

into the witness box and has given evidence, which does

Wr-iot”support the case of the defendants. On the contrary, the said

“«.:ev*idence strengthens the case of the plaintiff. With this disputed

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