BASIRKHAN, SARVARKHAN SINCE DECEASED BY HIS L.RS. (JAJIRKHAN AND OTHERS) AND RAHIMKHAN Vs. CHANNABASAPPA AND HANIFSAB

JUDGEMENT

(1.) PETITIONER filed O.S. No. 237/1999 seeking for a decree of declaration and permanent injunction against two defendants. By the judgment and decree dated 13.2.2003, the suit was decreed holding that the plaintiffs are the owners of the suit property. It was further ordered that the defendant No. 1 or anybody on behalf of defendant No. 1 are permanently restrained from interfering or obstructing the peaceful possession and enjoyment of the suit schedule property by the plaintiffs. Thereafter the 2nd defendant filed Civil Misc. No. 5/2004 under order 9 Rule 13 of CPC seeking to set aside the judgment and decree. By the order dated 25.4.2009, it was dismissed. Thereafter he filed Misc. Appeal No. 10/2009 questioning the said order. The appellate Court by its order dated 11.1.2013 allowed the appeal, set aside the order passed by the Miscellaneous Court and restored the suit. Aggrieved by the same, the plaintiff filed the present petition. Learned counsel for the petitioners submit that there are no grounds to allow the appeal. That the lower Court has committed an error in allowing the appeal. That the decree was not against both the defendants, but it was only against the defendant No. 1. Miscellaneous petition was filed by the 2nd defendant. Hence the appellate Court has committed a blunder in allowing the appeal.

(2.) LEARNED counsel for the respondent No. 1 contends that he had acquired the right over the suit schedule property and that his brother has been declared to be the owner of the suit schedule property. Hence he had filed the application.