SANGAPPA SADAPPA BHAVARI Vs. GOURAVVA

JUDGEMENT

(1.) The appellant herein was the plaintiff in the original suit which he has filed against his mother defendant No. 1 and alienees of some of the suit properties. The plaintiff was adopted by defendant No. 1 on 21-1-1941. The adoptive family is possessed of substantial number of agricultural lands and houses. Some of the properties viz. S. Nos. 365/4B, 394/4B, 405/4B, 557/4B and part of 363/4B were sold away by the plaintiff, whereas defendant No. 1 leased the same to Kalloleppa. Though at one stage it was the case of defendant No. 1 that V.P.C. 557 and 600/1 (B) and (C) was mortgaged in the year 1946 to defendant No. 7, later defendant No. 1 herself did not support this mortgage. Similarly, sale in favour of defendants 3 to 5 of V.P.C. Nos. 557 and 600 was not adhered to by her. V.P.C. 559 and four lands have now remained with the family. Thus, by alienation by the plaintiff of the properties aforesaid and lease of the same properties by the defendant No. 1, these properties are no longer in possession of the family of plaintiff and defendant No. 1. Kallolappa the purchaser from the plaintiff died in the year 1946 leaving behind his widow defendant No. 4 and his sons defendants 2 and 3. When these transactions took place defendant No. 1 challenged the adoption of plaintiff in O.S. 8/48 on the file of the Prl. Munsiff at Gokak making a prayer for declaration that the plaintiff was not the duly adopted son and for permanent injunction restraining him from interfering with her peaceful possession of the rest of the suit properties which were not subject matter of transfers. The suit was dismissed in the trial Court and the I Appeal as well as the II Appeal to the High Court of Bombay preferred by the defendant No. 1 failed. Later, she also created lease in favour of defendant No. 8 in respect of other lands. They are described as serial Nos. A, B, C, D, E in para 1(a) of the schedule. That being the position, the plaintiff filed O.S. 93/56 in the same Court on 30-6-56 for possession of northern portion of S. No. 363/4B measuring 35 guntas in the house at para 1 (a) on the plea that being a sole surviving coparcener he was entitled to possession thereof. However, the properties which he had alienated to Kalloleppa were not included in that suit. However, he succeeded only partially in that suit in as much as it was held that the lease of northern 35 Ga. in S. No. 363/4B effected by defendant No. 1 in favour of defendant No. 8 was valid only to the extent of her share. The plaintiff was however, directed to seek his remedy by recovering joint possession along with her or claiming partition. In the meanwhile, defend, ants 2 to 4 the L.Rs. of Kalloleppa filed O.S. 93/56 for possession of the properties sold to Kalloleppa, but the suit came to be dismissed. Sale however, was held to be valid. Defendant No. 1 in her written statement challenged the alienation made by plaintiff. She however, did not support the mortgage and gift of the respective properties created by her. She further pleaded that the defendant is the lessee of all the suit properties and he has been in actual possession of the same. The main and substantial contention of her was that she was in actual possession for 12 years adversely to the interest of the plaintiff and, therefore, the plaintiff cannot now lay any claim of title to these properties. In view of the decision in O.S. 93/56 the suit is hit by principles of res judicata as also Order 2, R. 2, C.P.C. Defendant No. 8 contended that he has been the tenant of the land leased to him by D-1 and hence his possession cannot be disturbed. The trial Court having considered the issues, decreed the plaintiff's suit as follows :-

(2.) In the I Appeal preferred by defendants 1 and 8, the Appellate Court upheld the contentions of the appellants that the suit is barred under Or. II, R. 2, C.P.C. and that defendant No. 1 appellant No. 1 had perfected her title by adverse possession. Consequently, allowing the appeal suit came to be dismissed.

(3.) In this appeal preferred by the original plaintiff, the following substantial questions of law have been set down for determination;