SHANTAWWA W/O. MAHALINGAIAH WADEKAR HIREMATH Vs. NEELAMMA @ NEELAWWA W/O. CHANDRASHEKARAIAH WADEYAR GANDAMATH

JUDGEMENT

(1.) THE appellant -defendant has come up with this appeal against the judgment and decree dated 3 -12 -2001 passed in RA. No. 40/1999 by the Civil Judge (Sr.Dn), Koppal reversing the judgment and decree dated 3 -8 -1999 passed in O.S. No. 256/1992 by Civil Judge (Jr.Dn), Koppal, praying to dismiss the said suit filed by the plaintiff -respondent herein.

(2.) FOR the sake of convenience, the parties will be referred to in their rank assigned to them before the trial court.

(3.) ON appearance before trial Court, the defendant resisted the suit contending that suit house bearing No. 133 of Basapur village belongs to one Rudrawa and she has bequeathed the same in her favour exclusively; that there is no illegality in the order of the Asst. Commissioner passed in respect of land bearing Sy. No. 31/B of Basapura; that all the properties of their family are not brought under the suit for partition and certain ancestral properties have been excluded; that deceased Gangawa has bequeathed her properties in their favour, but the house bearing Panchayat No. 49 of one Rudrawa has mentioned in the Will by oversight and the said Rudrawa has bequeated the said house as well as one more non suit land in her favour on 12 -05 -1967 and she died in the year 1982. That Gangawa died in the year 1966 and plaintiff and defendant succeeded the properties of deceased Gangawa and a joint mutation was effected for entering the names to the said properties. It is farther case of defendant that deceased Gangawa also owned some other moveable properties and after her death all her properties have been devolved upon them; however that since the defendant is residing at Basapur since her marriage and it was not practicable for her to cultivate jointly the suit land bearing Sy. No. 7/E of Bahaddurbandi and vice -versa, they got divided their properties by metes and bounds before the elders and got partitioned orally in the properties devolved upon them and accordingly the suit land bearing Sy. No. 31/B of Basapur is allotted to the defendant and the suit land bearing Sy. No. 7/E of Bahaddurbandi is allotted to the plaintiff alongwith some five thola of gold, live stock etc., thereafter the plaintiff and defendant approached the concerned village account to mutate their names to the respective properties allotted in the said partition and as per his sayings and at the advise of husband of plaintiff and other elders they mutually executed documents of partition, accordingly plaintiff executed a memo on 11/06/1980 acknowledging the antecedent title of defendant with respect of the suit land bearing Sy. No. 31/B of Basapur. So also defendant executed another memo in favour of plaintiff on the said date; that the inaction on the part of the plaintiff in challenging earlier mutations amounts to acquiescence and thereby she is estopped from claiming right over the land bearing Sy. No. 31/B of Basapur, that both of them were intended to create document evidencing earlier separation and it does not require registration and that the same cannot be construed as a relinquishment deed and the suit is barred by limitation. It is further contended that plaintiff is not in possession of said land ever since the family partition effected between them. Hence it is sought for dismissal of suit of plaintiff.