ALLISAB SANNACHANDASAB DHALAYAT Vs. BUDDESAB ALLASAB DHALAYAT

JUDGEMENT

(1.) Appellants/defendants feeling aggrieved by the judgment and decree passed by first Appellate Court on the file of Civil Judge (Sr.Dn.) and CJM, Gadag, in R.A.No.55/2005 dtd. 6/2/2009 preferred this appeal.

(2.) Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.

(3.) The factual matrix leading to the case of plaintiffs can be stated in nutshell to the effect that open site bearing TMC Nos.2595 and 2596 each measuring 15 feet East-West and 15 feet North-South shown as 1(a) and 1(b) in describing the suit properties by letters 'ABDC' and 'CDEF' with the description of boundaries given therein. The entire property including the suit properties and the open site measuring 45 ft. North-South and 15 ft. East-West belongs to one Modinsab Dhalayat and others. The grandfather of plaintiffs Dodda Jandisab Dhalayat purchased same under registered sale deed dtd. 31/5/1943. On the death of Dodda Jandisab, partition took place amongst three sons Allasab, Rajesab and another. In the said partition, 1(b) property was allotted to Allasab and 1(a) was allotted to Rajesab, father of plaintiff No.2. On establishment of Town Municipal Council, property No.1(a) is assigned with TMC No.2595 and property 1(b) is assigned with TMC No.2596. The northern side property is assigned with TMC No.2594. Allasab died leaving behind him two sons Buddasab and Mohammed Rafi who succeeded to property 1(b). The wife of Rajesab i.e., Rajgi, son plaintiff No.2 and two daughters succeeded to property 1(a). The defendant No.1 is father of defendant No.2 and they are living together and they are owners of the open site bearing TMC No.2593 situated to the West of the suit properties. Defendant No.1 kept wooden box shop on public road situated to the southern side of the suit properties. The Town Panchayath Committee of Mulgund, passed order to remove the same and defendant No.1 filed O.S.No.212/2001 and obtained decree against Town Municipal Committee, Mulgund. In the said suit, defendant No.1 had falsely shown that property 1(b) is the property bearing TMC No.2593 and obtained the decree in his favour. The plaintiffs are not parties to the suit and said decree does not bind on them. The defendants started obstructing possession of plaintiffs over the suit properties and they were constrained to file the suit on hand for the relief claimed in the suit.