HYDERSAD ABDULNABI MANIYAR Vs. WALIAHMED ABDULNABI

JUDGEMENT

(1.) THE above three appeals arise out of the common judgment dated 28. 10. 1988 rendered in common in Regular appeal Nos. 47/87, 42/87, 43/87 and 44/87 on the file of the Court of the Principal Civil judge, Belgaum.

(2.) BY the common judgment the Lower appellate Court has dismissed all the four appeals and apart from these three second appeals, one more second appeal-RSA No. 90/ 89 had also been filed before this Court. However, it is a common ground of the parties in these appeals that RSA 90/89 had come to be dismissed as having been abated and judgment and decree passed by the trial Court in favour of the plaintiff in the suit has also been executed and nothing survives in that second appeal.

(3.) THE origin of all the three appeals can be traced as under :-All these second appeals arise out of the judgment rendered in common by the court of the Principal Munsiff, Belgaum at Belgaum in respect of OS No. 369 of 1980, OS No. 378 of 1980, OS No. 380 of 1980 and OS No. 38 of 1980. While OS No. 369 of 1980, OS no. 378 of 1980 and OS No. 381 of 1980 were suits filed by common plaintiffs and the first plaintiff being brother of the respective defendants in the three suits, seeking for recovery of possession of portions of the properties said to be in the possession of the defendants in the house property bearing CTS no. 2779 in Tenginkeri Galli of Belgaum City the other suit in OS No. 380 of 1980 was as suit filed by the defendant in OS No. 381 of 1980 and claiming for his 7/64th share in ctsno. 2779 parts of which property are subjectmatter in the three other suits. The suit for recovery of possession filed by the common plaintiffs was on the premise that the suit property CTS No. 2779 was in their ownership and possession having been gifted by the other defendants-parties to the suit etc. The trial court in terms of the common judgment while decreed the suit for recover of possession, dismissed the suit for a share in the property filed by one Rafique Ahmed holding that said Rafique Ahmed having gifted his share in the property in favour cf the defendants, has no right to claim share in the property thereafter. The plaintiff in the suit for share in the property, while filed an appeal against that judgment and decree, he along with other two brothers preferred separate appeals against the judgments and decrees they had suffered for yielding possession. All these four appeals ra No. 41 of 1987, RA No. 42 of 1987, RA No. 43 of 1987 and RA No. 44 of 1987 were heard together and disposed of by a common judgment by the court of the Principal Civil judge, Belgaum at Belgaum and in turn four second appeals had come to be filed before this court. RSA No. 90 of 1989 arising out of RA no. 41 of 1987 and OS No. 378 of 1980 has been subsequently dismissed as having abated as the appellant had died and no further steps had been taken. While the other three appeals, namely, RSA No. 82 of 1989 arising out of ra No. 42 of 1987 and in turn OS No. 369 of 1980, RSA No. 83 of 1989 arising out of RA no. 43 of 1987 and in turn OS No. 381 of 1980, rsa No. 89 of 1989 arising out of RA No. 44 of 1987 and in turn OS No. 380 of 1980, had all been allowed by the common Judgment rendered by this court. The aggrieved respondents in these appeals had carried the matter to the Supreme Court and the Supreme Court in terms of its judgment rendered in common in Civil appeal Nos. 4434 of 1999, 4435 of 1999 and 4436 of 1999, dated 2. 2. 2005, has allowed all the appeals and remanded the second appeals to this court holding that the Judgment of the high Court rendered in common in the three appeals are not sustainable for the reason that the appeals have been allowed without framing substantial questions of law. The background to the above appeals is noticed in the order dated 22. 2. 2008 passed by this Court cited supra when these appeals had been taken up for hearing.