Allabax vs Munnabi

A.V. Chandrashekara, J.—Concurrent findings are called in question before this Court by the lone defendant of an original suit bearing O.S. No. 49/2007 Which was pending on the file of the Court of Civil Judge (Jr. Dn.) & JMFC, Savanur. Respondents are the plaintiffs 1 and 2 in the said suit.

Suit filed for the relief of permanent injunction in respect of a house bearing TMC No. 220 Block No. V. of Savanur, described in the schedule property has been decreed as prayed for vide considered judgment dated 12.10.2009. Against the said judgment and decree, appeal filed u/s 96 in R.A. No. 72/2009 before the Court of Prl. Senior Civil Judge, Haveri, has been dismissed. Thus the judgment of the trial Court is confirmed. Hence, the defendant is before this Court by filing an appeal u/s 100 CPC. Perused the judgments of both the Courts and heard the learned Counsel appearing for the parties.

The property in question originally belonged to the father of the plaintiffs. Defendant is not connected with the family of the plaintiffs. His case is that he has purchased a portion of the property from one of the tenants in common. Soon after the death of original owner Ahammadsab, the property in question was inherited by his wife and other heirs. Parties are Muslims and question of joint family is not contemplated amongst them and soon after inheritance they became tenants in common.

A suit had been filed in O.S. No. 42/1998 by the plaintiffs herein seeking partition and separate possession and the same was dismissed. Appeal filed u/s 96 of CPC in R.A. No. 8/2003 came to be allowed and suit of the plaintiffs was decreed and plaintiff No. 1 herein was granted 2/9th share and 1/9th share each to plaintiffs 2 to 4 therein. 5/9th share was granted to the plaintiffs together in the said suit which judgment has become final. Consequent upon the judgment passed in R.A. No. 8/2003 final decree proceedings in FDP No. 3/2006 has been initiated and it has been allowed. Against the said judgment and decree passed in FDP No. 3/2006, appeal was filed in R.A. No. 46/2012 and the same has been dismissed and thus the decree drawn has virtually become final though a regular second appeal is filed by the unsuccessful parties against the said Regular Appeal. The trial Court has granted the limited injunction to be in force till the final decree is engrossed on the stamp paper. Anyhow the defendant is not a member of the family of the plaintiffs and his share will have to be worked out and he has to get his share demarcated in the final decree proceedings which is to be concluded.

These facts have been taken into consideration and the Trial Court has restrained the defendant from interfering with the obstruction to the peaceful possession and enjoyment of the schedule property by the plaintiffs till his share is properly allotted by means of conclusive final decree.

The First Appellate Court has reassessed the entire evidence in right perspective and has assigned valid and cogent reasons as to why it has concurred with the judgment of the trial Court. The defendant who is the appellant herein has admitted the fact of R.A. No. 8/2003 being allowed and FDP No. 3/2006 being also allowed and final decree is yet to be engrossed on the stamp paper. The defendant has not placed any evidence to show the basis on which the name of his father has been mutated in the document marked as Exs. P1 and P2.

Nothing is elicited in the cross-examination of PW1 that the suit schedule property is the absolute property of the vendor of the defendant. Since plaintiffs are in possession and enjoyment of the suit schedule property, they are entitled to be in possession physically till the share of the defendant is clearly demarcated in the final decree.

In this view of the matter, no grounds are made out to interfere with the well considered judgment of the trial Court as well as the First Appellate Court. Both Courts have adopted right approach to the real state of affairs that too, after assessing the evidence on the touchstone of intrinsic probabilities.

The substantial questions of law as proposed in the appeal memo are not substantial questions of law in the present case within the purview of Section 100 of CPC and even on perusal of the records no substantial questions of law arise. Hence the appeal is liable to be dismissed as unfit for admission.

ORDER

Appeal is dismissed as unfit for admission. The judgments of the trial Court and the First Appellate Court are confirmed. No order as to costs.