AYESHA Vs. NAZIRAHMED MOHAMMADGOUS KHAZI

JUDGEMENT

(1.) The captioned second appeal is filed by the unsuccessful plaintiff who is questioning the concurrent judgment and decree passed by the Courts below wherein the suit filed by appellant/plaintiff seeking relief of mandatory injunction and for perpetual injunction is dismissed and confirmed by First Appellate Court.

(2.) The facts leading to the case are as under: The appellant/plaintiff filed a suit seeking cancellation of decree passed in O.S.No.849/1995 and for perpetual injunction. The appellant/plaintiff claimed that the suit property is open space bearing CTS No.26571/1 totally measuring 151.34 sq. mtrs. situated at Darbargalli, Belgaum which was originally owned by Porwal brothers. In 1965, the suit property was purchased by defendant No.2 and his cousin. Thereafter, the share of his cousin namely Haron Doni was purchased by defendant Nos.3 and 4 somewhere in the year 1987-88. The appellant/plaintiff further contended that in 1998, defendant Nos.2 to 4 have transferred the suit property in favour of appellant/plaintiff by way of oral gift dtd. 17/11/1998. By virtue of oral gift, appellant/plaintiff is claiming absolute ownership and title over the suit schedule property. The appellant/plaintiff also claimed that he is in exclusive possession and enjoyment over the suit schedule property.

(3.) The appellant/plaintiff also contended that the property owned by respondent No.1/defendant No.1 bears CTS No.3731 and pursuant to decree passed in O.S.No.849/1995, the extent came to be corrected thereby showing the measurement as 120.95 sq. mtrs. and this came to be effected in CTS extract vide order dtd. 22/6/2001 and accordingly, the name of defendant No.1 came to be mutated in CTS extract pertaining to CTS No.3731.The appellant/plaintiff has filed the present suit by contending that defendant No.1 based on a decree passed in O.S.No.849/1995 in collusion with the erstwhile owners is falsely laying a claim over an area of 104.08 sq.mtrs. which is in exclusive possession of appellant/plaintiff and hence, the present suit is filed seeking cancellation of the decree passed in O.S.No.849/1995 and for relief of mandatory injunction and perpetual injunction.