ABDUL LAREEM SAB Vs. AMEER JAN

JUDGEMENT

(1.) This appeal is filed by the plaintiff assailing the judgment and decree dtd. 6/6/2016 in R.A. No. 218/2012 on the file of III Additional District and Sessions Judge, Hassan allowing the appeal and setting aside the judgment and decree dtd. 24/9/2012 in O.S. No. 83/2008, on the file of the Senior Civil Judge and JMFC at Arakalgudu granting share in the Schedule - A property.

(2.) For the sake of convenience, parties are referred to as per their ranking before the trial Court.

(3.) It is the case of the plaintiff that the defendant is his maternal uncle. Plaintiff is the son of Sri. Ismail Sab and Smt. Mohideen Bi. Smt. Mohideen Bi is the sister of defendant - Ameerjan, and Ameerjan is the son of Mohammad Sab. It is the case of the plaintiff that, the parents of the plaintiff had 3 properties, namely Schedule A, B and C properties. It is also stated in the plaint that, the mother of the plaintiff - Smt. Mohideen Bi is entitled for 1/8th share in schedule property and the plaintiff being a residuary will be entitled for 7/8th share in the suit schedule property of late Ismail Sab. It is also stated that mother of the plaintiff died on 9/5/1998, leaving behind a Will dtd. 23/1/1998 in favour of her brother - Ameerjan and therefore, the plaintiff had filed O.S. No. 83/2008 seeking 7/8th share in the schedule property. It is also stated in the plaint that, the plaintiff was minor when his mother-Smt. Mohideen Bi filed O.S. No. 525/1953 before the Court of Munsiff, Arkalagudu against her husband seeking maintenance for herself and the plaintiff, and the said suit came to be compromised and accordingly schedule A property was handed over to the mother of the plaintiff - Smt. Mohideen Bi for maintenance. It is also stated in the plaint that, the mother of the plaintiff had filed O.S. No. 381/1983 against her husband, seeking declaration in respect of schedule-A property and the said suit, came to be dismissed insofar as the declarative relief claimed by the plaintiff therein, however the trial Court granted the relief of permanent injunction against which an appeal was preferred in R.A. No. 55/1992 and the said appeal came to be dismissed. It is also stated in the plaint that the plaintiff has filed O.S. No. 174/1998 before the Civil Judge (Jr.Dn.), Arakalagudu against the defendant seeking relief of declaration with consequential relief of injunction in respect of schedule-A property and said suit came to be dismissed by the trial Court on 14/12/2000 and being aggrieved by the same, plaintiff has preferred and appeal before the first appellate Court in R.A. No. 126/2001 and the same was withdrawn by the plaintiff and therefore, it is the case of the plaintiff that the plaintiff has filed a comprehensive suit in O.S. No. 83/2008 seeking share in schedule-A property before the trial Court.