Sri Mukthiyar Vs Sri Abdul Khaleel

SRI ABDUL KHALEEL W/O LATE HOTTE RAJASAB AGED ABOUT 46 YEARS OCC: AGRICULTURIST RESIDING AT BASAVAPATNA VILLAGE BASAVAPATNA HOBLI CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577551

¶27

…RESPONDENT

¶28

(BY SRI ZAMEER PASHA.,ADVOCATE)

¶29

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.10.2020 PASSED IN R.A.NO.97/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI AND ETC.

¶30

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶31

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

¶32

3 -

¶33

NC: 2025:KHC:39522 RSA No. 149 of 2021

¶34

HC-KAR

¶35

ORAL JUDGMENT

¶36

This appeal is filed challenging the judgment and decree dated 20.10.2020 passed in R.A.No.97/2019 by the First Appellate Court as well as the judgment and decree dated 30.10.2019 passed in O.S.No.174/2016 by the Trial Court.

¶37

This matter is listed for admission. Heard the learned counsel appearing for the respective parties.

¶38

The plaintiff has filed the suit for the relief of declaration and injunction. The Trial Court granted the only relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff’s 2½ feet vacant space towards western side of suit schedule property and rejected the relief of declaration in coming to the conclusion that in the document at Ex.P4, there is a reference of leaving of 2½ feet space for the use of plaintiff’s family members and said fact is also reveals in the document at Ex.P3 – Mutation Register. The Trial Court also considered the documents at Ex.P7 to P12 i.e., photographs

¶39

4 -

¶40

NC: 2025:KHC:39522 RSA No. 149 of 2021

¶41

HC-KAR

¶42

and CD wherein also reveals the fact that there is a vacant space towards western side of the suit schedule property.

¶43

The counsel for the appellants in his arguments would vehemently contend that in the admission on the part of PW1 is very clear that no such space is left out and the said admission has not been considered by both the Courts.

¶44

Considering both oral and documentary evidence placed on record, it discloses that there is a partition deed in terms of Ex.P4 and in Ex.P4, it is categorically mentioned that 2½ feet is left out for the usage of the family members of the plaintiff and the same is discussed in paragraph 11 of the judgment of the Trial Court. The First Appellate Court while reappreciating the question of fact and question law considered the document at Ex.P4 also and in paragraph 12 even extracted the boundaries mentioned in Ex.P4 and held that in Ex.P4 there is a clear mention of 2½ feet space which has been left for the use of the plaintiff’s family and in paragraph 13, fact finding is given by the First Appellate Court. When concurrent finding is given by both the Courts with regard to the left out space of

¶45

5 -

¶46

NC: 2025:KHC:39522 RSA No. 149 of 2021

¶47

HC-KAR

¶48

2½ feet towards western side of the suit schedule property which is for the usage of the plaintiff’s family, the arguments of

¶49

counsel for the appellants that there is no space left out towards western side of the suit schedule property cannot be accepted. Hence, I do not find any merits in this appeal to

¶50

admit the same for framing of substantive questions of law.

¶51

6. In view of the discussions made above, I pass the

¶52

following:

¶53

ORDER

¶54

The appeal is dismissed.

¶55

In view of dismissal of the main appeal, I.A. if