SMT NASEEMA MUNEER v. LAXMANA

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2. The parties are referred to as per their ranking before the trial Court. The appellants are the legal representatives of original plaintiff and respondents are the defendants.

3. The brief facts leading rise to filing of this appeal are as under:

Plaintiff filed a suit for permanent injunction against the defendants restraining the defendants from interfering into the peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiff that originally 5 acres of land was granted by the revenue department to one P.T.Mohammed on 17.11.1972 and thereafter the said person secured the permission from the Deputy Commissioner on 12.09.1978 for sale of the suit property in favour of Smt. M.V.Aktharunnisa and upon necessary sanction conveyed the same in favour of Smt.M.V. Aktharunnisa under the registered sale deed dated 23.10.1978. The said Aktharunnisa conveyed the suit property to Smt.Poornima W/o Umesh under the sale

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deed dated 03.08.1985 which in turn was conveyed by Smt. Poornima in favour of son of the plaintiff Syed Aftab Ahmed under the registered sale deed dated 29.07.1993. After the death of Syed Aftab Ahmed, there was partition in the family and the suit property was allotted to the share of the plaintiff under registered partition deed dated 30.11.2002. The plaintiff had become the kathedar and revenue records stands in the name of plaintiff. The defendants have no right, title or interest over the suit schedule property. The defendants tried to interfere into the peaceful possession and enjoyment of the suit schedule property. The plaintiff requested the defendants not to interfere into the peaceful possession, but the defendants did not gave any heed to the request made by the plaintiff. Hence, cause of action arose for the plaintiff to file the suit for permanent injunction.

4. The defendants filed the written statement denying the averments made in the plaint contending that the plaintiff had encroached 1.2 acres of land belonging to

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the defendants and the said matter is pending before the Deputy Commissioner. It is contended that the plaintiff's predecessor in title i.e., P.T.Mohammad has not secured necessary patta book and the father of the defendants and others were granted 1 acre 20 guntas each in survey No.185/P and plaintiff encroach the said property. It is contended that they initiated the proceedings under the PTCL Act against the plaintiff before the Assistant Commissioner. The Assistant Commissioner vide order dated 20.08.2008 ordered in favour of defendants and issued a notice to the plaintiff on 07.12.2009 for delivering the possession to the defendants and the said matter is pending before the Deputy Commissioner and there is no cause of action to file the suit. Hence, on these grounds, he sought for dismissal of the suit.

5. The Trial Court, on the basis of the above said pleadings, framed the following issues:

1. Whether the plaintiff proves that she is peacefully in possession and enjoyment of the suit schedule property as on the date of suit?

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2. Whether plaintiff proves that alleged interference by the defendants?

3. Whether plaintiff is entitled for the relief as sought for?

4. What order or decree?

6. The plaintiff in order to prove her case, examined her GPA holder as PW.1 and got marked 15 documents as Ex.P.1 to Ex.P.15. Defendant No.1 got examined himself as DW.1 and got marked 12 documents as Ex.D1 to Ex.D.12. The trial court considering the pleadings, oral and documentary evidence adduced on behalf of the parties answered issues in favour of the plaintiff and consequently decreed the suit of the plaintiff vide judgment dated 24.07.2014.

7. The defendants, aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.58/2014 on the file of I Additional Senior Civil Judge, Chikkamagaluru.

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8. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

1. Whether the impugned judgment and decree passed by the learned trial Court is against law, facts, evidence and probabilities of the case and whether it warrants an interference by this Court?

2. What order or decree?

9. The first appellate court on re-appreciating the oral and documentary evidence answered point No.1 in the affirmative and consequently allowed the appeal and set aside the judgment and decree passed by the trial court and consequently dismissed the suit of the plaintiff with costs.

10. The plaintiff aggrieved by the judgment and decree passed by the First Appellate Court has filed this second appeal.

11. Heard the learned counsel for the plaintiff.

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12. Learned counsel for the plaintiff submits that the defendants have admitted the possession of the plaintiff over the suit schedule property. The First Appellate Court ought to have confirmed the judgment and decree passed by the trial Court, on the contrary, has allowed the appeal solely on the ground that the plaintiff has failed to prove the alleged interference. He submits that the finding recorded by the First Appellate Court is contrary to the records. Hence, on these grounds, he prays to allow the appeal.

13. Perused the records and considered the submissions of the learned counsel for the plaintiff.

14. It is not in dispute that originally the suit land was owned and possessed by one Mohammed. He had sold the said land in favour of Smt. M.V. Aktharunnisa, who in turn sold the said land in favour of Smt. Poornima, thereafter, Poornima had sold the said land in favour of Syed Aftab Ahamed, who died leaving behind his legal representatives. His legal representatives got partitioned

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the suit land. In the said partition, suit schedule property was fallen to the share of the plaintiff. The defendants are trying to interfere into the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff in order to substantiate his case, examined her GPA holder as PW.1 and reiterated the plaint averments in the examination-in-chief and produced the revenue records to establish her possession over the suit schedule property. In rebuttal defendant No.1 was examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief. The defendant No.1 admits the possession of the plaintiff over the suit schedule property, but denied the alleged interference into the peaceful possession and enjoyment of the plaintiff over the suit schedule property. Further, there is proceedings pending between the plaintiff and defendants before the Deputy Commissioner. Though the plaintiff contended that the defendants interfered into the peaceful possession and enjoyment over the suit schedule

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property, the said contention was not accepted by the Deputy commissioner.

15. In the course of cross examination, PW.1 has categorically admitted that the defendants did not trespass into the suit schedule property. The first appellate court extracted the relevant portion of the admission of PW.1 in para 18 of the impugned judgment. From the admission of PW.1, it is clear that the defendants have not made any attempt to trespass into the plaintiff's land. The plaintiff has failed to prove the interference of the defendants with the possession of the plaintiff over the suit schedule property. The First Appellate Court considering the material on record was justified in recording the finding that the plaintiff has failed to prove alleged interference and rightly passed the impugned judgment. Hence, I do not find any substantial question of law that arise for consideration in this appeal. Accordingly, I do not find any grounds to interfere with the impugned judgment.

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16. In view of the aforesaid facts and circumstances, I proceed to pass the following:

ORDER

The appeal is dismissed. In view of disposal of the appeal, pending IAs, if any, do not survive for consideration and are accordingly disposed of.

S^D/-

JUDGE

sks