KHAJA BEE Vs. JAMIA MAJEED

JUDGEMENT

(1.) THIS second appeal under Section 100 of Code of Civil Procedure by the defendant in OS No. 446 of 1975, on the file of Court of Principal Munsiff at Bellary, has a very long history behind it. The suit of the plaintiff - Jamia Masjeed, Bellary, represented by its mutavalli Khaja Mohiddin - was for a declaration of title of the Masjid in respect of the suit schedule property - an immovable property, a property said to be an open site with thatched sheds in Lalakaman area, bearing door No. 230 (in 1925) and at present bearing Door No. 803, 804, 805 and 806 in V Ward of Bellary City Municipality, measuring east to west 50 feet, north to south 25 feet - is a property belonging to the Masjid, acquired through a gift deed of the year 1925, in favour of the Masjid by one Smt. Hayathbi, through a registered gift deed; that ever since the Masjid was in possession and enjoyment of the property, but in the year 1973, the defendant trespassed into a portion of this property and has put up a hut and started living there; that though a criminal complaint had been registered, which came to be closed, as it was held that the dispute was civil in nature and cannot constitute a criminal case and therefore thereafter the suit had been instituted for declaration of the title and for recovery of possession of the suit schedule property, as also to restrain the defendant and/or her agents/men/servants from interfering with the other portion of the suit schedule property and other incidental relief.

(2.) THE sole defendant had contested the suit, claiming that the property did not belong to the Masjid; that the gift deed is not true and admitted, but on the other hand, the suit schedule property was a property which the defendant's father-in-law had purchased in the year 1937 from one sudharshanlal; that ever since the property has been in possession and enjoyment by the defendant's father-in-law, who was living in a portion and was doing business in firewood in the vacant area; that after the demise of her father-in-law, the property was being enjoyed by her husband sarversab; that the description of suit schedule property was not same as one claimed under the gift deed of the year 1925; that the defendant's husband sold half of the suit schedule property to one Kanda Siddappa through a registered sale deed dated 15. 9. 1952 and the children of said siddappa had executed a sale deed in favour of the defendant as per the registered sale deed dated 17. 3. 1975, but nevertheless, the defendant and her predecessor-in-title have been in open exclusive possession of the property for more than 40 years and in this view of the matter, they have perfected her title by way of adverse possession and also therefore the plaintiff cannot claim any relief, much less declaration and possession as sought and prayed for dismissal of the suit.

(3.) IN the light of such pleadings, the trial Court has framed the following issues and additional issues: original issues/additional issues framed by the trial Court:-