Mahaboobsab vs Nabisab and Others

A.N. Venugopal Gowda, J.—This second appeal is by the plaintiff. Suit filed to pass decree of declaration and perpetual injunction was dismissed and an appeal filed also having been dismissed, this second appeal was filed.

The appellant filed the suit to pass a decree against the defendants for preferential right to purchase the suit property and for grant of mandatory injunction in respect of one room and verandah bearing Mandal Panchayat House No. 19/96 of Kalkam, sold by defendant No. 1 to defendant No. 2. Defendant No. 1 is the brother of the plaintiff and defendant No. 2 is the purchaser of the aforesaid property from defendant No. 1. Father of the plaintiff and the defendant No. 1, who was a railway employee, had purchased plot measuring 25 ft. x 25 ft. at Wadi, during the year 1965 and thereafter, constructed three rooms. Since defendant No. 1 sold one room and verandah out of the said property to defendant No. 2, O.S. No. 130/1993 was instituted. There being a compromise the suit was dismissed for non-prosecution. Thereafter, O.S. No. 39/2004, was filed on 03.07.2004, to grant the aforesaid relief. Suit was contested by the defendants by filing written statements. The Trial Court, considering the pleadings of the parties framed the following issues:

"1. Whether the plaintiff proves that he is having preferential right to purchase suit house by paying Rs. 12,000-00 by getting registered sale deed of suit property from both defendants:

Whether the plaintiff is entitle for declaration as prayed for?

Whether the plaintiff is entitle for mandatory injunction as prayed for?

What order of decree?"

Plaintiff got himself examined as PW-1 and examined two witnesses. The defendants got themselves examined as DWs 1 and 2. On appreciation of oral and documentary evidence led in the case, Trial Judge answered the issues in the negative and dismissed the suit.

On appeal by the plaintiff, the Senior Civil Judge at Sedam, on a fresh assessment and appreciation of oral and documentary evidence led by the parties and finding, that before selling the suit property by defendant No. 1 in favour of the defendant No. 2, fact was made known to the plaintiff and the suit having been filed after a period of eleven years, was held as barred by limitation. Finding that the plaintiff ought to have shown the express intention of purchasing the property before defendant No. 1 selling the suit property in favour of defendant No. 2 and the same is not forthcoming from the evidence on record, apart from the fact that in O.S. 130/1993, compromise having taken place and the said suit was dismissed for non-prosecution, the lower Appellate Court held that the appellant/plaintiff failed to prove that the Trial Court has committed error in not granting the relief as sought. The lower Appellate Court, finding no ground for interference upheld the findings of the Trial Court on all the issues and dismissed the appeal.

Sri Sanjeev Kumar C. Patil, learned advocate appearing for the appellant, reiterated the very contentions putforth before the Courts below. Learned counsel submitted that the sale of suit property by defendant No. 1 to defendant No. 2 being illegal and as the lawful right of pre-emption of plaintiff over the suit property has been defeated, the Courts below are unjustified in passing the decrees i.e., dismissing the suit and the appeal respectively. Learned counsel submitted that the impugned Judgments have given rise to substantial questions of law and hence, the appeal under S. 100 of CPC is maintainable.

Considered the rival contentions and perused the record.

Defendant No. 1 has sold on 09.06.1993 one room and the verandah, out of the house property bearing Mandal Panchayat House No. 19/96 of Kalkam. The room and the verandah sold by defendant No. 1 to defendant No. 2 is in possession and enjoyment of defendant No. 2 since from 09.06.1993. O.S. 130/1993 was filed by the plaintiff. In the said suit, the defendants entered into a settlement and suit was dismissed for non-prosecution. Long thereafter, O.S. 39/2004 was instituted. The suit having been contested, considering the pleadings of the parties, issues were raised. Parties having adduced evidence, oral and documentary, it was held by the Trial Judge that the plaintiff is not entitled to the decree of declaration and mandatory injunction as prayed in the suit. In the appeal filed, a contention having been raised that the Trial Judge has not properly assessed the evidence and the conclusion is wrongful, following points were raised for consideration:

"1. Whether appellant/plaintiff proves that the trial court has committed an error in not granting relief as sought?

Whether judgment and decree passed by the trial court is erroneous and call for interference?

What order?

On a fresh assessment and appreciation of the oral and documentary evidence led by the parties, the said points were answered in the negative i.e., against the plaintiff/appellant and the appeal was dismissed.

The Courts below, on appreciation of the oral and documentary evidence on record have declined to grant the relief. Sale in favour of the defendant No. 2 has taken place on 09.06.1993. O.S. 130/1993 was dismissed for non-prosecution. O.S. 39/2004 was filed on 03.07.2004. The said suit was instituted after a period of eleven years from the date the sale has taken place. As on date, since more than two decades has elapsed, it will be highly unequitable, at this stage, to interfere with the impugned sale transaction. Defendant No. 2 is well settled in the house and is in its occupation for more than two decades. In the circumstances, there is hardly any scope to interfere with the concurrent findings recorded by the Courts below, in exercise of the power under S. 100 of CPC, in as much as, re-appreciation of evidence is not permissible, as it was not shown, that there is omission to consider any material evidence or there is misreading of any evidence by either of the Courts below, in the matter of recording findings as per the impugned Judgments. As this appeal does not involve any substantial question of law, cannot be entertained.

In the result, there being no substantial question of law arising for consideration, the appeal is rejected.