Dismissed

Smt Naseema Muneer v. Laxmana

Karnataka HC6 Oct 2023RSA/1226/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed this regular second appeal challenging a first appellate judgment that dismissed a suit for permanent injunction. The court held that since the plaintiff's witness admitted defendants did not trespass, no interference party was established. Consequently, no substantial question of law arose, and the appeal was rejected.

What did the court decide?

The regular second appeal is dismissed.

Smt Naseema Muneer Vs Laxmana — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:36412 RSA No. 1226 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1226 OF 2015 (INJ)

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BETWEEN:

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SMT NASEEMA MUNEER SINCE DEAD BY LR'S

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MR. SYED MUNIR AHME AGED ABOUT 80 YEARS S/O LATE DR. SYED AHMED R/AT MUNEER COMPLEX MALLUNDAR ROAD CHIKKAMAGALURU – 577 101

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Digitally signed by SUNITHA GANGARAJU

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Location: High Court of Karnataka

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SMT. NAZIMA KAUSAR@ NAZIMA KAUSAR RIZWAN TALKHANI D/O MR. MUNEER AHMED W/O MR. RIZWAN SULEMAN TALKHANI AGED ABOUT 46 YEARS R/AT MALLANDUR ROAD OPP: POOJA THEATRE CHIKKAMAGALURU – 577 101

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ANJUM ARA KHAN D/O MR. MUNEER AHMED AGED ABOUT 44 YEARS R/AT No.7, HARDWICK ROAD SUTTON COLDFIELD B74, 3BT UNITED KINGDOM

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APPLICANT No.2 AND 3 REPRESENTED BY THEIR GPA

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2 - NC: 2023:KHC:36412 RSA No. 1226 of 2015

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MR. SYED MUNIR AHMED AGED ABOUT 80 YEARS S/O LATE DR. SYED AHMED

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SEEMA NAUSHAD D/O MR. MUNEER AHMED AGED ABOUT 42 YEARS C/O MUNIR COMPLEX MALLANDUR PROAD CHIKKAMAGALURU – 577 101.

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SMT. RESHMA MASOOD D/O MR. MUNEER AHMED C/O MUNIR COMPLEX MALLANDUR PROAD CHIKKAMAGALURU – 577 101

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MR. MAHTAB AHMED S/O MUNEER AHMED C/O MUNEER COMPLEX MALLANDUR PROAD CHIKKAMAGALURU – 577 101.

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…APPELLANTS

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(BY SMT. NAFEESA BAIG, ADVOCATE FOR SRI. KETHAN KUMAR, ADVOCATE)

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AND:

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LAXMANA S/O LATE JAVARAPPA AGED ABOUT 52 YEARS R/AT GADEBANAHALLI VILLAGE MYLIMANE, VASTARE HOBLI CHIKKAMAGALURU-577133

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THIMMA S/O LATE JAVARAPPA AGED ABOUT 50 YEARS R/AT GADABANAHALLI VILLAGE MYLIMANE, VASTARE HOBLI CHIKMAGALUR-577133

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3 - NC: 2023:KHC:36412 RSA No. 1226 of 2015

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PUTTA S/O LATE JAVARAPPA AGED 50 YEARS R/AT GADABANAHALLI VILLAGE MYLIMANE, VASTARE HOBLI CHIKMAGALUR-577133

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…RESPONDENTS

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(BY SMT. SUNITHA C., ADVOCATE FOR SRI. K.S. MALLIKARJUNAIAH, ADVOCATE FOR R1 TO R3)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.04.2015 PASSED IN R.A.NO.58/2014 ON THE FILE OF THE 1^ST ADDL. SR. CIVIL JUDGE AND JMFC, CHIKKAMAGALURU. ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 24.07.2014 PASSED IN O.S.NO.26/2011 ON THE FILE OF 3^RD ADDL. CIVIL JUDGE AND JMFC., CHIKKAMAGALURU.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This second appeal is filed by the appellants challenging the judgment and decree dated 07.04.2015 passed in R.A.No.58/2014 by the I Additional Senior Civil Judge, Chikkamagaluru.

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4 - NC: 2023:KHC:36412 RSA No. 1226 of 2015

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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.

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

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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.

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The defendants filed the written statement

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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.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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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?

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

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4. What order or decree?

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The plaintiff in order to prove her case,

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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.

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The defendants, aggrieved by the judgment and

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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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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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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?

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2. What order or decree?

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The first appellate court on re-appreciating the

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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.

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The plaintiff aggrieved by the judgment and

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decree passed by the First Appellate Court has filed this second appeal.

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Heard the learned counsel for the plaintiff.

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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.

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Perused the records and considered the

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submissions of the learned counsel for the plaintiff.

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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.

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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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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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In view of disposal of the appeal, pending IAs, if any,

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do not survive for consideration and are accordingly disposed of.

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SD/JUDGE

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sks

Smt Naseema Muneer v. Laxmana

Case brief

What is this about?

What did the court decide?

Smt Naseema Muneer v. Laxmana

Case brief

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