SHAIK USMAN Vs. JAINABI (DECEASED) BY L.RS.

JUDGEMENT

(1.) THIS second appeal arises out of the Judgment and decree passed by the Civil Judge, (Sr. Divn.) Mangalore in R.A. No. 24/95 arising out of Judgment and decree in O.S. No. 249/03 on the file of Prl. Munsiff, Mangalore.

(2.) THE Defendant in the suit is the appellant. The suit was originally filed by Husainabi and Jainabi, who are the cousin sisters through the power of attorney by name Shaik lsmail Sab for mandatory injunction. The plaint averments and the valuation of the properties clearly indicate that it was one for delivery of possession. It is the contention of the Plaintiff that the suit property originally belonged to Fakir Babanna Sab, who is the grand father of Plaintiffs 1 and 2. After the demise of Fakir Babanna Sab, disputes arose between his children and a suit was filed in O.S. 296 of 1907 on the file of Court of District Munsiff, Mangalore, which ended in compromise in the year 1945. According to the terms of compromise, the properties of Fakir Babanna Sab were to be kept as indivisible unit and the property to be managed by the eldest male member of the family for the benefit of entire members of the family of Fakir Babanna Sab. The Plaintiffs 1 and 2 claim that they are sole surviving heirs and are the daughters of two sons of Fakir Babanna Sab as such, claimed that they are managing the properties by terms of compromise. It is stated that the Defendant was put in permissive possession in the suit schedule property. On account of disputes between the parties, the permission granted to stay in the premises is revoked and the suit is filed for ejectment and delivery of possession.

(3.) THE following substantial questions of law are formulated for consideration.