MAREMBI Vs. UMARSAB

JUDGEMENT

(1.) THE challenge in this second appeal is to the gift deed said to be executed by one Mohiddinsab in favour of his wife Mahaboobi in lieu of mahr and on the basis of which gift deed property was claimed by the plaintiff. The defendants challenged the right of the plaintiff under the sale deed on the ground that his vendor, that is, her own mother, do not have a right to sell the property.

(2.) THE facts of the case are as follows: the suit schedule house originally belonged to Mohiddinsab and he died in the year 1965, leaving behind him his widow Mahaboobi and five daughters who are defendants 1 to 5 in the suit. The defendants 6 and 7 are the brother's sons of deceased Mohiddinsab. The plaintiff is the husband of the 3rd defendant. The plaintiff contends that during the life time of Mohiddinsab, he gave the suit schedule house to Mahaboobi in lieu of mahr and that she later sold it to him under a registered sale deed. It is thus that the plaintiff claims title to the suit schedule property. He filed O. S. No. 80 of 1965 in the Court of the Munsiff at Savanur for declaration of his title and for an injunction against the defendants, basing his claim on possession and that suit was dismissed. R. A. No. 114 of 1974 and R. S. A. No. 1297 of 1978 filed against that decision came to be dismissed. It is thereafter that the plaintiff/respondent filed O. S. No. 94 of 1981 for declaration of his title to the entire suit property and for possession of portion marked as GFOP in the hand sketch with the plaint. The defendants contended that the suit property did not belong to Mohiddinsab, that she did not transfer it to the plaintiff by sale as alleged and as such, the plaintiff was not the owner of the same. The defendants further contended that the plaintiff suit was barred by time and was also barred by res judicata in view of the decision in O. S. No. 80 of 1965 on the file of the Munsiff, Savanur, as later confirmed in R. A. No. 114 of 1974 on the file of the Civil Judge, Hubli and R. S. A No. 1297 of 1978 on the file of this Court.

(3.) THE learned Trial Judge, held that the plaintiff failed to prove his title, that the suit was barred by time and also by resjudicata, in view of the decision in O. S. No. 80 of 1965, as later confirmed in the first and second appeals. The plaintiff being aggrieved by the decision in R. A. No. 43 of 1986 on the file of the Civil Judge, Haveri, which came to be allowed on 3-7-1990. It is against this decision that the defendants 1, 2, 4 to 7 who are aggrieved have filed this second appeal.