SHARADA BAI Vs. CHAINA SATTAR

JUDGEMENT

(1.) This is a plaintiff's second appeal against the judgments and decrees of the lower appellate Court and the trial Court. The facts in this appeal, in brief, are as follows :

(2.) Plaintiff presented the suit in theR. 26 Court of Munsiff at Ramanagaram in O.S. No. 95/83 seeking the following reliefs :- That the defendants be prevented from interfering with the plaintiff's possession of the suit schedule properties items 1 and 2 - of which she was in lawful possession. Defendants resisted the suit inter-alia on the ground while the plaintiff was the owner of suit item No. 1 schedule property, the item No. 2 belonged to the Makhan property and members of Muslim community were using the same for offering their worship and also celebrating 'Baba Habba' in that part of the property. The trial Court on such pleadings, formulated the following issues for trial :- 1) Whether the plaintiffs prove that they are the owners in possession and enjoyment of the suit schedule properties ? 2) Whether the plaintiffs prove the alleged interference by the defendants ? 3) If so, whether the plaintiffs prove that they are entitled for permanent injunction as sought for ? 4) For what relief the parties are entitled to ? Parties in support of their case led evidence and got marked several documents. Plaintiff examined herself and two others. While defendants examined defendant Nos. 1 and 3 and two others and we see the evidence of P W. 3 was rejected as he was not produced to subject him for crossexamination. At this stage, it is useful to state that plaint averments were supported by certain documents produced along with the plaint by a separate list. Item No. 7 of that list was a rough sketch of said schedule properties 1 and 2. But, for some reason, the same was not marked in evidence. But, however, it is seen that the trial Court has made use of that sketch in reaching its conclusion. On appreciating the oral and documentary evidence, the trial Court came to the conclusion on the issues framed that the plaintiff had not discharged the burden cast on her, and proved that she was in lawful possession of the suit schedule properties and there was interference by the defendants in regard to the enjoyment of those properties by he.r in the manner pleaded, and therefore, dismissed the suit in limine. In appreciating the evidence on record, both oral and documentary he laid stress on the interested nature of the evidence of P.Ws. 2 and 3 and the material contradiction between the oral evidence of P W. 1 and P W. 2. He attached great importance to the evidence of D.W. 1 and the document - Ex. D-2 produced by him which was a licence granted by the village panchayst to construct a compound surrounding the vacant space with defined measurements for the use of Muslim community. He attached some importance to the fact that the plaintiff did not take any steps to challenge the licence granted by the village panchayat for the construction of compound around the vacant space claimed to be the Wakf property by the defendants. He also came to the conclusion that the reliance placed by the plaintiff on the primary documentary evidence viz., Ex. P-1 - the sale deed in favour of the mother of the plaintiff - that it was not evidence of lawful possession of the suit properties as the description of the properties sold under Ex.P-1 did not contain any measurement, but only described the boundaries within which the property was situate. Despite the several photographs exhibited by the plaintiff, there was no clear identification of the suit schedule properties and the interference thereto in the opinion of the learned Munsiff. Therefore, he dismissed the suit in toto.

(3.) On appeal to the Civil Judge at Ramanagaram in R.A No. 4/87, the lower appellate Court after hearing arguments for the parties before it, formulated the following questions for consideration :- 1) Whether the appellant had established her lawful possession over the suit schedule properties ? 2) Whether the interference alleged by the appellant was true ? On the first point formulated by him, he came to the conclusion that the documentary and oral evidence read with the evidence of the defendant No. 1 established that plaintiff was in occupation of item 1 of the suit schedule property - her house which was indeed conveyed to her by her mother by Ex.P-1, and therefore, the trial Court was wrong in coming to the conclusion in respect of item 1 property also plaintiff had failed to prove her lawful possession. On point No. 2 formulated, he came to the conclusion that she had not proved interference with her enjoyment of suit schedule 1 property as disclosed by her own evidence. Therefore, he did not grant any injunction. In the result, the appeal came to be partly allowed, establishing the lawful possession of the plaintiff to the suit item schedule 1 of the property. Having failed to secure the relief prayed for even in the lower appellate court, this second appeal is filed.