SHAIK AMEER JOHNI Vs. SHAIK JOHN AHMED

JUDGEMENT

(1.) The defendant preferred this revision against the reversing judgment of the learned Subordinate Judge in CMA No. 28 of 89. The respondents who are the plaintiffs 1 and 2 in the suit filed IA No. 571 of 89 in OS No. 78 of 89 on the file of the District Munsif's Court at Ponnur for temporary injunction alleging that the property belongs to Khairunnisa Bee, the mother of the first plaintiff and the defendant, (the first plaintiff and the defendant being brothers), that the first plaintiff got the property under Ex. A1 gift deed dated 22-10-88; that even by the date of Ex. A1, the second plaintiff was cultivating the suit land as a tenant and that as such, the plaintiff's are in possession and enjoyment of the suit property by the date of the suit.

(2.) The defence of the defendant is that there is no necessity for Khairunnisa Bee to lease out the suit land when her children who are capable of cultivating the land are available, that she gave the land on lease to the defendant; that he was paying the rent regularly to his mother during her life time; that she did not execute any document during her life time and that after her death, her properties including the suit property are liable to be partitioned among her legal heirs as per the Muslim Law of Succession.

(3.) The learned Distriet Munsif held that there is not even a whisper in Ex. AI that the second plaintiff was cultivating the plaint schedule property by the date of its execution and that the first plaintiff was put in possession through the tenant. The learned District Munsif did not rely upon Exs. A 4 to A 7 cist receipts filed by the plaintiff's as they were issued in the name of Khairunnisa Bee prior to the date of execution of Ex. A 1. The learned District Munsif did not rely upon Ex. A 8 cist receipt for the fasli 1398 dated 10-3-89 issued in the name of the first plaintiff on the ground that disputes arose between the brothers even by then. Consequently, he held that the plaintiff's failed to prove that the second plaintiff was cultivating the suit property as on the date of Ex. A 1. No doubt, the learned District Munsif observed in the course of his judgment that Exs. B 5 t6 B9 certified copies of No. 2 accounts filed by the defendant cannot be acted upon because Khairunnisa Bee had some other land in addition to the suit property and the defendant must prove that Exs. B 5 to B 9 relate to the plaint schedule land. However, since the plaintiff's have not proved prima facie case and balance of convenience, the learned District Munsif dismissed the petition.