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Judgment
A.V. Chandrashekara, J.—Plaintiffs are aggrieved by the concurrent findings of the trial Court passed in CS. No. 221/1992 and affirmation of the same in R.A. No. 39/2001. Respondents are the defendants in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court. Suit filed for the relief of declaration to the effect that the plaintiffs are the persons in possession of the schedule property on the strength of a permanent lease and for permanent injunction filed in O.S. No. 221/1992 before the Court of Civil Judge (Jr.Dn.), Dharwad has been dismissed. As against the said judgment and decree, an appeal came to be filed u/s 96 of CPC in R.A. No. 39/2001 before the II Additional Civil Judge (Sr.Dn.), Dharwad. The said appeal has also been dismissed by confirming the judgment of the trial Court. Hence, the concurrent findings are called in question by the plaintiffs by filing an appeal u/s 100 of CPC.
The case put forth by the plaintiffs in the trial Court is that they are in possession of an area measuring 420 square yards in CTS No. 699/M of Super Market, Dharwad and the said property is a part and parcel of the big building owned by the defendants. It is the case of the plaintiffs that defendants have to be restrained from interfering with their possession, since they have acquired the title by virtue of permanent lease deed executed in 1926 by the original owner. Defendants had chosen to deny all the material averments before the trial Court. According to the defendants, they have purchased the entire building, which is inclusive of suit property bearing CTS No. 699/M in the year 1991 for valid consideration. Hence, they had requested the Court to dismiss the suit. On the basis of the above pleadings, following issues came to be framed.
i) Whether the plaintiffs prove that the suit property is the ancestral property of plaintiff Nos. 1, 2 and others?
ii) Whether the defendant No. 1 proves that was inherited by Mehaboobsab Reshmawale, and he purchased the suit property from him on 18.07.1991?
iii) Whether the plaintiffs prove that they are in lawful possession of the suit property?
iv) Whether the plaintiffs prove that the alleged sale deed in favour of defendant No. 1 is not binding upon them?
v) Whether the alleged obstruction and threats are true?
vi) Whether the plaintiffs are entitled for declaration sought for?
vii) Whether the plaintiffs are entitled for injunction as prayed for?
viii) What order or decree?
Plaintiff No. 1 is examined as P.W. 1 and six witnesses have been examined and on his behalf and 32 exhibits have been got marked. No evidence is adduced by the defendants, but two exhibits have been got marked on their behalf. Ultimately, issue Nos. 1 and 2 have been answered in the affirmative and issue Nos. 3 and 4 in the negative. Consequently, suit is dismissed. It is this judgment which is called in question before the first appellate Court in R.A. No. 39/2001. Several grounds had also been urged before the first appellate Court challenging the said judgment and decree. An application had been filed under Order 41 Rule 27 of CPC with a request to permit the plaintiffs to adduce additional evidence. The appeal has been dismissed and simultaneously the application filed under Order 41 Rule 27 of CPC has also been dismissed. It is these concurrent findings which are called in question on various grounds as set out in the appeal memo.
Anyhow, suit filed by the plaintiffs is against the true owner. The case of the plaintiffs is that, they are in possession of the schedule property which is a part and parcel of a big building in Super Market on the strength of a permanent lease deed executed by the original owner in the year 1926. Anyhow, the permanent lease deed cannot take away the right of the original owners to convey the property by means of a sale deed. Admittedly, the defendants have purchased the entire building, which is inclusive of suit schedule property on 18.07.1991 through a registered sale deed. Sri. Mehaboob Reshamwale inherited the entire suit schedule property from his father and he has chosen to sell the property in favour of the defendant No. 1. Taking all this into consideration, the trial Court has held that the plaintiffs are not entitled for the relief of declaration or permanent injunction, but they are entitled for limited injunction against unlawful dispossession. Thus the suit came to be decreed in part on 14.12.2000 granting injunction against unlawful dispossession on the strength of permanent lease. The lessee can be evicted by defendant No. 1 on the strength of the sale deed subject of course to the provisions of law dealing with the eviction of tenants.
The first appellate Court has rightly upheld the judgment and decree of the trial Court and it has assigned cogent reasons as to why it has concurred with the findings of the trial Court. In this view of the matter, there are no merits in the appeal and the appeal is liable to be dismissed as unfit for admission. Both the Courts have adopted right approach to the real state of affairs by assessing the evidence on the touchstone of intrinsic probabilities. There is no scope for interfering with the concurrent findings of facts.
ORDER
The appeal filed u/s 100 of CPC is dismissed as unfit for admission.
Notwithstanding the dismissal of the appeal, the appellants are entitled to be in possession till they are evicted under due process of law and the injunction granted by the trial Court is a limited one to be in force till defendant No. 1 takes possession in accordance with law dealing with the eviction of the tenants.
There is no order as to costs.