JAMIA MASJID Vs. K V RUDRAPPA

JUDGEMENT

(1.) This is plaintiffs second appeal questioning the correctness and legality of the judgment and decree passed by the III Addl. District Judge, Tumkur in RA No. 125/2006 dated 2.7.2007, whereunder appeal filed by the plaintiff came to be dismissed and judgment and decree passed by the Prl. Civil Judge (Sr.Dn.) & CJM, Tumkur, in OS No. 149/98 dated 3.2.2006 dismissing the suit came to be affirmed. This Court by order dated 6.9.2011 has admitted the above appeal to consider the following substantial questions of law:

(2.) Heard Sri C.S. Prasanna Kumar, learned counsel appearing for appellant, Sri P.D. Surana, learned counsel appearing for respondent No. 2 and 3, Sri Shanmugappa, learned counsel appearing for respondent No. 1/caveator, Sri A.V. Gangadharappa, learned counsel appearing for Respondents 6, 8, 10 to 12. R4 and R5 were reported to be dead and their LRs. have been brought on record as R6, R7, R8, R9, R10, R11 and R12 and R6(b) is also reported to be dead.

(3.) The suit in question namely OS: 149/1998 (Old No. 96/84 renumbered as OS No. 162/89) was filed by appellant herein seeking relief of declaration to declare that State Wakf Board is the owner in possession of the suit property which is bearing survey No. 2, Gubbi, Kasaba Hobli, measuring 2 acres and 4 guntas as described in the plaint schedule and for further relief of permanent injunction to restrain the defendants from interfering with plaintiffs possession and enjoyment of suit schedule property and said suit came to be filed by the Jamia Masjid, Gubbi represented by its President Sri Janab Hussain Khan. On service of suit summons defendants 2, 3 and 4 have appeared and filed the written statement denying the plaint averments as traversed in the said written statement. Defendant No. 9 has filed separate written statement. On the basis of the pleadings of the parties, trial court has framed in all 9 issues and by order dated 16.6.2005 which was based on a memo filed by the defendants, it was ordered that issue Nos. 5 & 6 would be treated as preliminary issues. Accordingly, issue Nos. 5 & 6 was taken up for consideration by the trial court. The said two issues taken-up by the trial court as preliminary issues are: