Y. Nagaraj vs Jalajakshi & Ors

3. Respondent No. 1 filed O.S. No. 286 of 1979 (renumbered as O.S. No. 4528 of 1980) impleading the appellant and respondent Nos. 2 and 3 as defendants for partition of the properties specified in Schedules `A' and `B' into four equal shares by metes and bound and for allotment of one share to her with absolute title and possession. She further prayed that the appellant be directed to give account of the income of the suit schedule properties with effect from 27.3.1978 and pay 1/4th share to her. In the alternative, she prayed that an inquiry be ordered under Order XXIX Rule 12 of the Code of Civil Procedure (for short, `the CPC') for determination of mesne profits. The schedules appended to the plaint are extracted below:

4. The claim of respondent No. 1 was founded on the following assertions:

6. Since the High Court has, while disposing of the appeals filed by the appellant and respondent No. 2 relied upon some of the averments contained in the written statement and made observations adverse to the interest of the appellant, it will be appropriate to notice the contents of paragraphs 2, 4 and 6 of the written statement which are extracted below:

They admitted the claim of respondent No. 1 qua the properties specified in Schedules `A' and `B' except Item No. 5 of `B' Schedule, i.e., house No. 100 (new nos. 100/1 and 100/2). Respondent Nos. 2 and 3 pleaded that the house was purchased by their father in the name of the mother by registered sale deed dated 20.12.1943; that, subsequently, the mother transferred the house to the father, who 8 executed Will dated 28.3.1977 and bequeathed a portion of the house to them but, later on, he cancelled the Will and executed registered Settlement Deed dated 18.7.1977 in their favour.

12. During the pendency of the suit filed by respondent No. 1, respondent No. 2 filed O.S. No. 2062 of 1981 for declaration of title in respect of house bearing No. 100/2, Susheela Road, Doddamavalli, Bangalore and possession thereof and also for mesne profits. Respondent No.2 relied upon registered Settlement Deed dated 18.7.1977, which is said to have been executed by Shri D. Yellappa giving separate portions to her and respondent No.3, and pleaded that she was residing in the portion allotted to her and was paying taxes etc. but the appellant was trying to interfere with her possession.

13. The appellant contested the suit filed by respondent No. 2.

I. All the piece and parcel of land with the dwelling houses and outhouses, wells, trees and drains thereon built and planted and situated together with all rights and easements appertaining thereto now and hereafter enjoyed and acquired bearing Municipal Door No. Old 8 and New No. 13. Chintala Venkatappa Lane, Lalbagh, Doddamavalli, Bangalore City, bounded on the North by Sarambigamma's house and Chinnayya's backyard, South by Municipal Road, East b y Ratnakka and her b r o t h e r Anjariappa's house and open space and West by land with public water t a p , measuring East to West 3 5 1 /2 feet and North to South 1 2 ' x 1 2 ' and admeasurements 4 4 3 square feet. Chintala 2 Venkatappa Lane is now called Siddegowda Lane.

1. D. Yellappa and 2 . Erappa.

bilities the version of the defendant that the Set-

acquired property of the deceased.

79/2, 108/2 and 205. By an order dated 28.5.1985, the Division Bench of the High Court allowed the writ petition, quashed the order of the Land Tribunal and remitted the matter for fresh disposal of the application filed by N. Bhadraiah after giving opportunity to the parties. After remand, the Land Tribunal passed order dated 29.10.1988 and again accepted Bhadraiah's claim for occupancy rights.

The second order of the Land Tribunal was challenged by respondent Nos. 1 to 3 in Writ Petition Nos. 20067 and 20068 of 1991, which were allowed by the Division Bench of the High Court on 20.1.1994 and the matter was again 2 remitted to the Land Tribunal for fresh consideration. Of course, learned counsel for the parties did not inform the Court whether the application filed by N. Bhadraiah for grant of occupancy rights has been finally disposed of.

acquired property purchased by him on 01.02.1950 and proceeded to observe:

24. We may have remanded the matter to the High Court for fresh disposal of the appeals filed by the appellant and respondent No. 2 but keeping in view the fact that the findings recorded in the two suits regarding Item No. 5 of Schedule `B' properties specified in the plaint of O.S. No. 4528 of 1980 are contradictory and substantial portion of the judgment of O.S. No. 4528 of 1980 is based on surmises and conjectures, we feel that ends of justice would be met by setting aside the impugned judgment and remitting the matter to the trial Court for fresh disposal of the suits filed by respondent Nos. 1 and 2.

25. In the result, the appeals are allowed. The impugned judgment is set aside. The judgments of the trial Court in O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside and the matter is remitted to the trial Court for fresh disposal of the suits. With a view to avoid the possibility of conflicting findings regarding Item No.5 of Schedule `B' properties specified in the plaint of O.S. No.4528 of 1980, we direct the trial Court to club the two suits and dispose of 3 the same by one judgment. The parties shall be free to file applications for additional evidence and bring on record the orders passed by the Land Tribunal and the High Court in relation to Item Nos. 1 to 4 of Schedule `B' appended to the plaint of O.S. No.4528 of 1980.