MAHADEV MALHAR LAD Vs. MOHAMED RASUL HATELSAHEB SHAIK

JUDGEMENT

(1.) The appellant was the defendant in the trial Court. The suit filed by the plaintiff was decreed against the appellant and the appeal filed by him was also dismissed. Against the concurrent decrees of the Courts below the appellant (defendant) has preferred this Second Appeal.

(2.) The Respondent filed the suit for the recovery of possession of an open site which lies between the properties owned by 2 parties, each party asserting his title to the property. The defendant in addition to asserting his title contended that he had perfected his title by adverse possession and that the plaintiff was not in possession of the property at any time within 12 years prior to the institution of the suit. On the question of title and measurements of the open site, the Courts below have found in favour of the plaintiff and these findings are not disputed. On the merits it is only with regard to the 4th and 5th issues relating to the possession of the plaintiff within 12 years prior to the institution of the suit and defendant's title being perfected by adverse possession, that contentions are advanced in this second appeal.

(3.) The first contention urged by Sri Mandagi, learned Counsel for the appellant is that the District Judge who has disposed of the appeal had no jurisdiction to entertain the appeal. He points out that under S.29(2) (ee), Mysore Civil Courts Act, the District Judge cannot hear the appeals from the decrees and orders passed by the Civil Judge, Junior Division. For this proposition, reliance is placed on the decision of this Court in Regular Second Appeal No.287/66(1) wherein it has been held that the appeal against the order passed by the Civil Judge, JD. shall be heard only by the Civil Jugde and not by the District Judge and the order passed by the District Judge is a nullity. But the Court which passed the decree in this case is not the Civil Judge, JD., but. the First Joint Civil Judge, JD., Belgaum. It is not disputed that this dispute arises from Belgaum City and that in Belgaum City a Joint Civil Judge, JD. if appointed to assist the Court of the Civil Judge, SD. If that is so, an appeal filed against the decree pasesd by the Joint Civil Judge, JD. cannot be heard by the Civil Judge. Therefore, the District Judge is competent, to hear the appeal and dispose of the same. This distinction was perhaps not noticed by this Court while Regular Second Appeal 187 of 1966, RSA 187 /66 was disposed of. S.29(2) (ee) clearly states that the appeal filed before the District Judge as in this case does not stand transferred to the file of the Civil Judge. This appears to be the view taken by this Court, in Dattu, Yeshwant v. Indira Bai , (1970) 2 Mys.L.J. 595. Therefore there is no strength in the contention that the District Judge had no competency to decide the appeal. The finding on issues 4 and 5 are not sustainable.