ABDUL JAHAGIR MOHD HANIF Vs. SHAGIRABAI

JUDGEMENT

(1.) This second appeal challenges the judgment and decree dated 15/ 12/2009 passed by the learned Principal District Judge, Amravati in regular civil appeal No. 181 of 2006, whereby the appeal preferred by the appellant challenging the judgment and decree dated 12/9/2006 passed by the Civil Judge, Senior Division, Morshi came to be dismissed.

(2.) The appellant filed a suit for declaration and permanent injunction on the ground that the property bearing Survey No. 19/ 3-A ad measuring 0.87 R., Survey No. 100/3 area 4.48 H.R. and property Survey No.24/l-A having an area of 0.81 R. is in continuous possession of the appellant and before him by their predecessor namely his father from 1974 and their possession was without any obstruction and to the full knowledge of the respondent. It was his case that the sale deeds executed in the name of deceased Alishanbi was nominal and possession of the suit property was not handed over to her by her brothers Mohd. Hanif and Mohd. Raja. The said Alishanbi is the mother of the respondent and she had executed a gift deed in her favour in respect of the suit property. The suit was filed by the respondent against the deceased father and uncle of the appellant on the basis of the gift deed which came to be dismissed and an appeal preferred also came to be dismissed. It is further his case that the respondent applied for mutation on the basis of the gift deed but the mutation was taken as legal heir and not on the basis of gift deed. The Additional Commissioner has held that the claim of ownership on the basis of adverse possession is within the jurisdiction of the Civil Court and not within his jurisdiction and after issuing notice, the plaintiff claiming to be in continuous possession of the suit property for more than 12 years, sought for a declaration that he became owner thereof by adverse possession.

(3.) The respondent filed her written statement denying the contentions of the appellant and claimed that the appellant had failed to specify as to when and how he had become owner by virtue of the adverse possession and he never disclosed his hostile title against the respondent and that the suit has been filed only on the basis of observations made in the order passed by the Additional Commissioner. As such, it was claimed by the respondent that the suit deserves to be dismissed.