Gulabsha vs Mahammadyusuf and Others

A.V. Chandrashekara, J—Heard the learned counsel for the appellant. Perused the judgment passed in O.S. No. 17/2011 by the Senior Civil Judge, Basavana Bagewadi on 07.08.2013 and the judgment passed by the learned Principal District Judge, Vijaypur in R.A. No. 115/2013 on 11.02.2015.

Petitioner was the sole plaintiff in O.S. No. 17/2011 and respondents were the defendants in the said suit. Plaintiff had filed a suit for the relief of permanent injunction requesting the Court to grant a decree of permanent injunction against the defendants from putting up any construction in ABCD open site belonging to the Dargah. The said suit was contested by the defendants and on the basis of the same, the following issues came to be framed as found in paragraph No. 5 of judgment passed in O.S. No. 17/2011.

"(i) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit property as described in the hand sketch annexed to the plaint?

(ii) Whether the plaintiff further proves obstruction from the defendants?

(iii) Whether the defendants prove that, the suit is not maintainable without seeking the relief of declaration of title?

(iv) What Order or Decree?"

Three witnesses have been got examined on behalf of the plaintiff and 26 documents got marked on his behalf Three witnesses have been examined on behalf of the defendants and 11 exhibits have been got marked. Ultimately, issue Nos. 1 and 2 answered in the negative and issue No. 3 in the affirmative.

The learned Judge has held that suit for permanent injunction is not maintainable without seeking the relief of declaration of title. Ultimately the suit came to be dismissed holding that defendants have already put up a building i.e. Shadi Mahal by receiving donation from the public and that the then jurisdictional MLA had laid foundation of the said building

Being aggrieved by the judgment dated 07.08.2013 plaintiff had filed an appeal in terms of Section 96 of CPC before the Court of Principal District Judge at Vijaypur, in R.A. No. 115/2013. The said appeal has been dismissed by framing the following points for consideration as found in paragraph No. 10 of the judgment passed in R.A. No. 115/2013.

"(i) Whether the findings recorded by the Court below on the issues-1 to 4 are just and proper?

(ii) Whether the impugned judgment and decree passed by the Court below calls for interference by this Court?

(iii) What order?"

During the pendency of the appeal an application had been filed under Order 41 Rule 27 of CPC requesting the Court to permit to lead additional evidence, the said application has been dismissed and the judgment of the trial Court is confirmed.

On appreciation of the oral and documentary evidence the learned Judge has come to the conclusion that towards South side of Darga there is a Shadi Mahal and it is built by Gousiya Masjid Committee. Plaintiff has ignored about the foundation being laid by MLA in the year 2006 and a sum of Rs. 6.00 Lakh being spent for construction. He has admitted that public have also donated amount and functions are being held by the committee members and Shadi Mahal is already built and it has been elicited from the mouth of PWs.1 to 3. The suit was filed in the year 2008 and by that time major portion of the construction was already over. The learned Judge has come to the conclusion that plaintiff was expected to seek the relief of declaration of title. Unless the title is established in respect of a vacant space in respect of which title is specifically denied, the suit would not be maintainable. The learned Judge of the trial Court as well as First Appellate Court have appreciated the evidence in right perspective. No illegality or perversity is found in the approach adopted by both the Courts. No substantial question of law arises for consideration of this Court. Hence, appeal is liable to be dismissed.

ORDER

Appeal is dismissed as unfit for admission.

Notwithstanding the dismissal of the appeal, appellant is at liberty to file an comprehensive suit in terms of the principles laid down by the Hon''ble Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 .

No order as to costs.

In view of the dismissal of the appeal, IA-1/2015 and IA-2/2015 do not survive for consideration.