Abdulgani S/O. Gudusab Shaikh vs Shabberabegum W/O. Abdulgani ...
2022 Latest Caselaw 2548 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 16TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       REGULAR SECOND APPEAL NO.100134 OF 2014 (INJ)

BETWEEN
ABDULGANI S/O. GUDUSAB SHAIKH
AGE: 70 YEARS, OCC: AUTO DRIVER
R/O. HUMA BUILDING OF RAMZAN JAMADAR,
MALAPUR, NEAR MASJID, DHARWAD
PRESENT ADDRESS: JANATA QUARTERS,
H NO. 13/A, GULAGANJIKOPPA,
2ND CROSS, SAIDAPUR, DHARWAD -580008.
                                                 ...APPELLANT

(BY SRI. M. C. BANDI AND SRI. D. M. BANDI, ADVOCATE)

AND
SHABBERABEGUM W/O. ABDULGANI SHAIKH
AGE: 67 YEARS,
OCC: HOUSEHOLD WORK
R/O. SAIDAPUR, JANATA QUARTERS
H NO. 13/A, GULAGANJIKOPPA
2ND CROSS, DHARWAD
PRESENT ADD: C/O. SALEEM SHAIKH @ BELGAUM,
NEAR RESHMI SCHOOL, CIFF MASJID, DAYANAND
COLONY, KESHWAPUR, HUBLI,
DIST: DHARWAD 580023
                                               ...RESPONDENT

      RSA FILED U/S.100 ORDER XLII RULES 1 AND 2 OF CPC.,
PRAYING TO SET ASIDE THE JUDGEMENT & DECREE DATED
24.10.2013 PASSED IN R.A.NO.120/2012 BY THE III ADDL. SENIOR
CIVIL JUDGE & CJM, DHARWAD AND ALSO THE JUDGMENT AND
DECREE DATED 31.10.2012 AND THE DECREE PASSED IN O.S.
NO.204/2009 BY THE III ADDL. CIVIL JUDGE & JMFC., DHARWAD.
                              2




     THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The captioned regular second appeal is filed by the

unsuccessful defendant whereby the suit filed by the

respondent-plaintiff seeking relief of bare injunction is

decreed and confirmed by the First Appellate Court.

2. The parties are referred to as per their ranks

before the Trial Court.

3. The facts leading to the case are as under:

The present appellant-defendant is the husband of

respondent-plaintiff. The respondent-plaintiff filed a bare

suit for injunction in O.S.No.204/2009 by specifically

contending that she is absolute owner of the suit

schedule property and same was allotted exclusively in

her favour by the Government. She claimed that along

with family members she is residing in the suit schedule

property without anybody's obstruction. The respondent-

plaintiff further contended that the appellant-defendant

has got two residential houses in Dharwad and also

getting rent from the said residential houses. The

respondent-plaintiff has further pleaded that the

appellant's-defendant's relation with respondent-plaintiff

and her family members is not cordial and therefore, he

is residing in a separate house. The grievance of the

respondent-plaintiff is that though appellant-defendant is

residing in a separate house, he is often coming to the

suit schedule property along with some Gundas and

threatening the respondent-plaintiff and her children to

vacate the suit schedule property. In continuation of

further illegal activities, the appellant-defendant along

with his supporters and henchmen came to the suit

property on 23.04.2005 and threatened the respondent-

plaintiff to vacate the suit schedule property and

therefore, the respondent-plaintiff was compelled to file a

suit for injunction.

4. On receipt of summons, appellant-defendant

contested the suit by filing written statement. The

appellant-defendant has stoutly denied the entire

averments made in the plaint.

5. The respondent-plaintiff to substantiate her

claim, examined herself as PW1 and relied on

documentary evidence vide Ex.P1 to Ex.P13. The

respondent-plaintiff produced the tax register, tax paid

receipt, electricity bills, water bill, CTS Map and Rule

card. By placing reliance on these material documents,

she claims that she is in lawful possession of the suit

property and also contended that the appellant-defendant

is illegally interfering with the plaintiff's peaceful

possession over the suit schedule property. The

appellant-defendant, by way of rebuttal evidence,

examined himself as DW1 and relied on documentary

evidence vide Ex.D1 to Ex.D12. The Trial Court having

examined the ocular and documentary evidence adduced

by the respondent-plaintiff, has come to the conclusion

that the respondent-plaintiff is in lawful possession and

enjoyment of the suit schedule property as on the date of

the suit. The Trial Court having examined the tenure of

contest by the appellant-defendant and also the

documents which are placed on record has also recorded

a categorical finding that the appellant-defendant is guilty

of interference with respondent's-plaintiff's peaceful

possession over the suit schedule property.

6. The First Appellate Court on reappreciation of

the oral and documentary evidence has also come to the

conclusion that the respondent-plaintiff by placing cogent

and clinching evidence on record has succeeded in

proving that she is in lawful possession of the suit

property and also proved the alleged interference by the

appellant-defendant. The First Appellate Court having

independently assessed the evidence on record has

concurred with the conclusions and findings arrived at by

the Trial Court and has proceeded to dismiss the suit.

7. Feeling aggrieved by the concurrent findings of

the Courts below, the appellant-defendant is before this

Court.

8. Heard the learned counsel for the appellant-

defendant. Perused the judgments under challenge. The

appellant-defendant is the husband of respondent-

plaintiff. The respondent-plaintiff claims that she is in

lawful possession and enjoyment of the suit property and

to evidence the said factual aspect, she has produced

property tax register for the year 2008-09 as per Ex.P1

and tax paid receipts as per Ex.P2. She has also placed

on record electricity bill vide Ex.P5, water bill vide Ex.P6

and Ex.P7 and also she has placed on record certified

copy of the complaint dated 09.04.2009 lodged by her

against her husband alleging that there is obstruction by

her husband. On perusal of Ex.P9-complaint, this Court

would find that a crime is also registered as per Ex.P9. All

these clinching evidence clearly establish that the

respondent-plaintiff is in lawful possession and enjoyment

over the suit property. Though several documents are

produced by the appellant-defendant, however, both the

courts have declined to consider the rebuttal evidence on

the ground that most of the documents have come into

existence pursuant to filing of the suit and therefore, both

the Courts have rightly disbelieved in taking note of any

of the rebuttal evidence let in by the appellant-defendant.

Both the Courts have concurrently held that the

respondent-plaintiff is in lawful possession and enjoyment

of the suit property and have concurrently held that there

is interference by the appellant-defendant. I do not find

any illegality or infirmity in the judgment and decree

passed by both the Courts below. No substantial question

of law is involved in the present appeal. Hence, the

appeal being devoid of merits is hereby dismissed.

9. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE YAN