AMANBI Vs. RASULSAHEB NABISAHEB NAWAZ

JUDGEMENT

(1.) THIS appeal under Section 96 of the Code of Civil Procedure is filed by the plaintiffs. They are aggrieved by the judgment and decree passed by the learned Civil Judge, Gokak in O. S. 26 of 1992, wherein the suit for possession has been dismissed.

(2.) FEW facts that are necessary to appreciate the controversy in question are: the suit property is an agricultural land situate in Kudachi village bearing Sl. No. 161/4b ad measuring 4 acres 26 guntas, which, according to the plaintiffs is valued at Rs. 1,80,000/ -. The case of the plaintiffs is that they are the owners of the land in question. The suit property was brought to sale in a revenue Court auction and one late Smt. Ajamatbi purchased the same. After her death the property devolved on her heirs who are the plaintiffs. According to them, even before the plaintiffs or could establish their possession in respect of the suit land pursuant to an auction sale, the defendant had filed a suit in O. S. No. 323/68 for declaration and injunction on the ground that the said auction in favour of the plaintiffs' predecessor was null an void. The defendant obtained an order of injunction in the said suit and the plaintiffs were kept out of possession. The said suit was decreed by the learned trial Judge on 4. 12. 1971. An appeal was preferred against the said judgment and decree in R. A. No. 30/72 on the file of the Civil Judge at belgaum. The said appeal was allowed and the judgment and decree of the trial Judge was reversed and it was held, according to the plaintiffs, that the auction sale of the suit land in the name of the predecessor in title of the plaintiffs, namely, Ajamatbi was legal and valid. The defendant carried the said Judgments and decrees of the Courts below in this Court in RSA No. 572/82. This Court confirmed the judgment and decree of the learned Civil Judge Gokak reaffirming that the auction sale in favour of Smt. Ajamatbi was legal and valid and the title of the plaintiffs to the suit property was finally confirmed by this Court in the said second appeal. It appears, during this interregnum, the defendant filed an application in Form No. 7 for grant of occupancy rights in respect of suit schedule property in TRV. SR. 1452, inter alia, contending that he was a tenant of the suit land of the plaintiffs. The Land Tribunal without notice to the plaintiffs granted occupancy rights in favour of the defendant which was challenged by a plaintiff in W. P. No. 16269 of 1986 and the said writ petition was allowed and the order of the land Tribunal was quashed. Since the defendant was continuing in possession by virtue of an order of injunction obtained by him in O. S. No. 323/68, they had no option but to institute the present suit seeking possession in respect of the suit schedule property.

(3.) THE defence of the defendant is that the plaintiffs are not the owners of the suit schedule property. He would deny that the suit property was sold in auction and in the said auction it was purchased by Smt. Ajamatbi. He has also denied that after the death of Ajamatbi, the plaintiffs have succeeded to the interest of Ajamatbi in the suit property. It is his case that he purchased the suit property for valuable consideration of Rs. 2500/- under a registered sale deed dated 25. 5. 1951. It is his case that since the date of purchase he has been in possession of the suit property as owner thereof. It is his further case that since the date of purchase in the year 1951, the plaintiffs did not at any point of time initiate any proceedings either before the revenue Court or in the Civil Court seeking possession of the suit property in pursuance of the alleged revenue auction. He would further contend that the suit filed by the plaintiffs is not in time. According to him, the suit itself is liable to be dismissed.