Mohammed Musthafa v. Naina Mohammed Dead By His Legal Representatives
2013-10-22
A.S.PACHHAPURE
body2013
DigiLaw.ai
Judgment : 1. The unsuccessful defendants have approached this Court in appeal challenging the decree for injunction granted by the trial Court confirmed In the first appeal. 2. The facts relevant for the purpose of this appeal are as under: The parties are referred as per their rank before the trial Court for the sake of convenience. The appellants herein are the defendants, whereas, the respondents are the plaintiffs. They instituted the present suit for the relief of injunction to restrain the defendants from causing obstruction from peaceful possession and enjoyment of the suit property i.e. Sy.No.94/69 measuring 3 acres of land situated at Garigudda Kaval village with the boundaries mentioned in the schedule to the plaint. It is the claim of the plaintiffs that the suit property was granted to their father under the certificate bearing Kaval DR 12/55-56 dated 5.2.1959 by then Tahsildar. The plaintiffs claim that since from the date of grant, they are in possession of the suit property and even as on the date of institution of the suit they claim to be in lawful possession. As there was an obstruction to their peaceful possession and enjoyment of the suit property, the present suit came to be instituted. 3. The defendants appeared and filed written statement denying the averments made and contended that they are in possession of the suit property since long and the plaintiffs are not in possession of the suit property and they sought for dismissal of the suit. 4. On the basis of the pleadings, the trial Court framed three issues calling upon the plaintiffs to prove their lawful possession, obstruction and the nature of relief to be granted. The plaintiffs examined as PW1 and in his evidence got marked the documents Exs.P1 to P4. The defendants examined DWs.1 and 2 and in their evidence Exs.D1 to D29 were marked. The trial Court after hearing the counsel and on appreciation of the evidence on record decreed the suit. Aggrieved by the judgment and decree, the defendants preferred appeal in RA No.163/2009 (old RA No.467/2007) and the first appellate Court after hearing the appeal on merits, dismissed the appeal confirming the decree of injunction granted by the trial Court. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed. 5. I have heard the learned counsel for the appellants. The respondents though served are absent. 6.
Aggrieved by the concurrent findings of the Courts below, the present appeal is filed. 5. I have heard the learned counsel for the appellants. The respondents though served are absent. 6. It is the submission of the learned counsel for the appellants that the defendants are in possession of the suit property since long and that their names appeared in the Record of Rights. Therefore, it is his contention that the Courts below overlooked the voluminous documents produced by him and granted a decree against the appellants. Hence he submits that the Courts below did not consider the documentary evidence and there is substantial question of law for consideration. 7. Perusal of the judgment and decree of the trial Court reveals that so far as the possession of the plaintiffs is concerned, it is on the basis of the grant certificate which has been produced by the plaintiffs at Ex.P1. This grant of the suit property was made in favour of the father of the plaintiffs in the year 1959 and the plaintiffs claimed title to the suit property on the basis of this grant. Ex.P2 is the Record of Rights for the year 2003-2004 and the said Record of Rights also reveals the names of the plaintiffs both in the owners' column and also in the cultivators column. This entry of the name of the plaintiffs in the Record of Rights is not challenged by the appellants at any time. So, in addition to the grant certificate, the name of the plaintiffs was appearing in the Record of Rights and this was the material which was looked into by the Courts below to hold that the plaintiffs are in possession of the suit property and this material was supported by the evidence of PW1 who also spoke to the possession of the suit property. 8. So far as the claim of the defendants is concerned it is on the basis of the unauthorized occupation of the suit property, the trial Court has taken into consideration the endorsements issued by the Tahsildar at Exs.D1 and D2, the certificate extracts, Record of Rights Exs.D3 and D4, D5 to D7 and also D8 to D27. Majority of these documents are in respect of the different survey number, whereas the suit property is bearing Sy.No.94/69 and prior to 1994 the name of the defendants are appearing in the cultivators column.
Majority of these documents are in respect of the different survey number, whereas the suit property is bearing Sy.No.94/69 and prior to 1994 the name of the defendants are appearing in the cultivators column. Anyhow, as could be seen from the material placed on record by the defendants as well, the name of the defendants is never appearing as on the date of the suit or many years prior to institution of the suit. If the said entry was there in the Record of Rights much proper to 1994 and if the name of the plaintiffs was entered subsequently, the defendants ought to have challenged such entry in the Record of Rights. Such steps were not taken by the defendants at any time. That apart though the suit property was granted in the name of the plaintiffs father, this grant certificate is also not challenged by the defendants. Each of these documents have been referred to by the trial Court and also the first appellate Court. 9. On the basis of these materials placed on record, the Courts below have come to the conclusion that the plaintiffs have a title and their name appears in the cultivators column as on the date of the suit and as it is a simple suit for injunction it has drawn presumption of the possession on the basis of the entries in the Record of Rights as contemplated under the provisions of Section 133 of the Karnataka Land Revenue Act. So, in the absence of any material placed on record to rebut the said presumption, I do not think that there was any error on the part of the Courts below in granting a decree for injunction. The Courts below have weighed the evidence adduced by the parties and on appreciation of the same have come to the conclusion that the plaintiffs are entitled to the relief sought for on the basis of the title deed and also the Record of Rights. 10. Considering the material placed on record and the submissions made by the learned counsel for the appellants, I do not find any substantial question of law for consideration. If the appellants are aggrieved by any of the grant made in favour of the plaintiffs father, they are at liberty to challenge the same before the appropriate authorities. 11.
10. Considering the material placed on record and the submissions made by the learned counsel for the appellants, I do not find any substantial question of law for consideration. If the appellants are aggrieved by any of the grant made in favour of the plaintiffs father, they are at liberty to challenge the same before the appropriate authorities. 11. In view of the aforesaid facts, there is no material to admit this appeal. Consequently the appeal deserves to be dismissed and it is accordingly dismissed.