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Abdulkarim Ibrahim Soudagar and Others Vs. Salahuddin Gous sab soudagar and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka Dharwad High Court
Decided On
Case NumberRegular Second Appeal No. 5419 of 2009 [Par]
Judge
AppellantAbdulkarim Ibrahim Soudagar and Others
RespondentSalahuddin Gous sab soudagar and Others
Excerpt:
.....passed in o.s.no.484 of 1980 on the file of the ii-addl. civil judge(jr.dn) belgaum, disposing the suit filed for permanent injunction.) 1. the case of the plaintiffs is that the suit property bearing cts no.3793 of kotwal galli consists of house property with open space, more fully described in the schedule to the plaint. that they are the owners of the suit property and the remaining extent belongs to defendants 1 and 2. their names and the names of defendants 1 and 2 have been entered in the cts records. that they are in possession of the same for the last 94 years, from the lifetime of their forefathers and therefore, they have perfected the title over it by adverse possession. based on these contentions, the instant suit was filed seeking for the relief of permanent injunction......
Judgment:

(Prayer: This RSA is filed under section 100 CPC., against the judgement and decree dated 24-04-2009 passed in r.a.no.110 of 1998 on the pile of the I-Addl. civil judge (sr.dn) belgaum, allowing the appeal, filed against the judgment dated 09-11-2000 and the decree passed in o.s.no.484 of 1980 on the file of the II-Addl. Civil Judge(Jr.Dn) belgaum, disposing the suit filed for permanent injunction.)

1. The case of the plaintiffs is that the suit property bearing CTS No.3793 of Kotwal Galli consists of house property with open space, more fully described in the schedule to the plaint. That they are the owners of the suit property and the remaining extent belongs to defendants 1 and 2. Their names and the names of defendants 1 and 2 have been entered in the CTS records. That they are in possession of the same for the last 94 years, from the lifetime of their forefathers and therefore, they have perfected the title over it by adverse possession. Based on these contentions, the instant suit was filed seeking for the relief of permanent injunction. Thereafter, the plaint was amended by including the prayer for declaration, On service of summons, defendants 1 and 2 entered appearance and filed their written statement. They denied the plea of the plaintiffs. But, the entries made in the names of the plaintiffs were challenged before the Special Deputy Commissioner. The entries were set aside. A revision was filed. The matter was remanded to the Assistant Commissioner where, once again the Assistant Commissioner held that the plaintiffs have no right, title over the disputed property, by setting aside the orders of the City Survey Officer. A revision was preferred with the Special Deputy Commissioner who held that the dispute is civil in nature.

2. Defendant No.3 has filed a separate written statement disputing the plaint averments. So also, defendant No.4 disputed the plaint averments. Defendants 6 to 25 who have been impleaded subsequently have supported the written statement filed by other defendants.

3. Based on the pleadings, the trial court framed the following issues and additional issue:

(1) Whether the plaintiffs prove that they are in lawful possession of the suit property as on the date of the suit?

(2) Whether the plaintiffs prove the unlawful interference by the defendants to their lawful possession of the suit property?

(3) Whether plaintiffs are entitled to the relief sought for?

(4) What decree or order?

Additional issue

(1) Whether defendants 6 to 25 prove that the suit is not maintainable as per para 9 of their written statement?

4. The trial court recorded the evidence of two witnesses for the plaintiffs and marked 26 documents. Two witnesses were examined on behalf of the defendants and 25 documents were marked. Issue Nos.1 to 3 were held in the affirmative and additional issue was held in the negative. The suit of the plaintiff was decreed. Aggrieved by the same, an appeal was filed. The first appellate court framed an additional issue with a direction to the trial court record evidence of the parties on the issue as to whether the plaintiffs have proved that they are the owners of the suit schedule properly. The trial court recorded the evidence and submitted its report holding that the plaintiffs are not the owners of the suit schedule property. The first appellate court allowed the appeal. The judgment and decree of the trial court was set aside. The findings of the trial court on additional issue No.1 negating the title of the plaintiff was affirmed. The suit of the plaintiffs was dismissed. Hence, the present second appeal.

5. The learned counsel for the appellants contends that the judgment and decree of both the Courts below are perverse and liable to be set aside. The courts below failed to consider the pleadings of the parties. That both the courts below have wrongly rejected the plea of the plaintiffs.

6. On the other hand, the learned counsel for the respondents disputes the same.

7. On hearing learned counsels, I am of the considered view that the following substantial question of law arises for consideration:

Whether the judgment and decrees of both the Courts below are perverse in dismissing the plaintiffs suit for injunction even while concurrently holding that the plaintiffs are in possession of the suit schedule property as tenants?'

8. Both the courts below have concurrently held that the plaintiffs have failed to prove their title over the suit schedule property. The documents relied upon by the plaintiffs would clearly indicate that they are not in possession of the suit schedule property. That the suit schedule property was mortgaged to the plaintiffs by the defendants and were put in possession of the same as tenants in terms of Ex.D-2. It is a certified copy of the Rent Note which would clearly indicate that the tenancy has been granted in the name of the plaintiffs by the defendants. Based on this Rent Note, the plaintiffs seek ownership of the suit schedule property. The plaintiffs have not produced any material to show that as to how they claim ownership of the suit schedule property. Merely showing the assessment of the building and the certified copy of the orders passed by the City Surveyor would not help the case of the plaintiffs. The orders passed by the City Surveyor on an earlier occasion, no doubt, was in favour of the plaintiffs, but on the subsequent Revision filed before the Special Deputy Commissioner, the orders were set aside on the ground that the dispute between the parties is civil in nature. Therefore, it was the Civil Court alone that could decide the ownership and possession of the parties and not the revenue officials. Therefore, the reliance placed upon Ex.Ps-5 to 9 is misconceived. By placing the reliance on Ex.D-2, both the Courts below held that the possession of the plaintiffs over the suit schedule property is that of a tenant. I do not find any error committed by both the Courts below that calls for interference.

9. However, having held that the plaintiffs are in possession of the suit schedule property as tenants, the plea of the plaintiffs with regard to the injunction was rejected by the first appellate court. I am of the considered view that rejection of the plea for injunction was inappropriate. Having held that the plaintiffs are in possession of the suit schedule property as tenants in terms of Ex.D-2, the possession of the plaintiffs requires to be protected. It is not the case of the defendants that the plaintiffs are required to be ousted. Under these circumstances, the decree for injunction sought by the plaintiffs was wrongly denied by the first appellate court.

10. Consequently, the substantial question of law is answered by holding that the judgment and decrees of both the Courts below are perverse in dismissing the plaintiffs suit for injunction even while concurrently holding that the plaintiffs are in possession of the suit schedule property as tenants. On answering the substantial question of law, the judgment and decree of the first appellate court stands modified.

The judgment and decree of the first appellate court in confirming the findings recorded by the Court below on additional issue No.1 is upheld.

The suit of the plaintiffs is decreed so far as injunction is concerned. The defendants are restrained from interfering in the peaceful possession of the suit schedule property by the plaintiffs, except in accordance with law.

The appeal is accordingly allowed. The judgment and decree of the first appellate court is consequently modified in the aforesaid terms.


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