Sri.Mohamad Gouse S/O Abdul Razak ... vs Abhiman Housing Society
2022 Latest Caselaw 3282 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 25TH DAY OF FEBRUARY 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.100791/2019 (INJ)
BETWEEN

1.    SRI.MOHAMAD GOUSE S/O ABDUL RAZAK TAMATAGAR
      @ KHADRI, AGE: 57 YEARS,
      OCC: AGRICULTURE,
      R/O KCC BANK ROAD, DHARWAD.

2.    SRI.ABDUL KADAR S/O ABDUL RAZAK TAMATAGAR
      @ KHADRI, AGE: 54 YEARS,
      OCC: AGRICULTURE,
      R/O KCC BANK ROAD, DHARWAD.

                                               ... APPELLANTS

(BY SRI.SANTOSH B.MALLIGAWAD, ADV.)

AND

1.    ABHIMAN HOUSING SOCIETY,
      BY ITS PRESIDENT,
      SRI.BASAVARAJ BASAVENEPPA TEGUR,
      AGE: 65 YEARS, OCC: BUSINESS,
      R/O BASAVARAJ NILAY, BESIDE DAIVAGANA
      KALYAN MANTAP ROAD, DHARWAD.

2.    SHRI.BASANGOUDA APPAYGOUDA PATIL,
      AGE: MAJOR, OCC: RETIRED TEACHER,
      R/O PLOT NO.2224 NO.11, AKKAMAHADEVI
      MARG ROAD, MAHANTESH NAGAR, BELGAUM.

3.    SHRI.M.L.MATTENNAVAR S/O L.S.MATTENNAVAR,
      AGE: MAJOR, OCC: SERVICE,
      R/O EXAM SECTION, KARNATAKA UNIVERSITY DHARWAD.
                               2




4.     SHRI.CHANNAYYA S.HIREMATH,
       AGE: MAJOR, OCC: TEACHER,
       R/O BANK SIDE OF VIDYASREE HOUSE,
       JAYANAGAR BARAKOTTI LINK ROAD,
       OPP.TO PARK TEMPLE, DHARWAD.

5.     SHRI.HEMANNA S/O HUCHAPPA MADIYADAR,
       AGE: MAJOR, OCC: SERVICE,
       R/O KARNATAKA UNIVERSITY DHARWAD.

6.     SHRI.M.S.KOPPAD,
       SINCE DECEASED BY HIS LRS.

6(a)   SUMANGALA W/O MALLAPPA KOPPAD,
       AGE: MAJOR, HOUSEHOLD,
       R/O OPP.SHIRHARI UPHAR, MALMANE BADAVANE,
       NAVODAY NAGAR, KUD GATE, DHARWAD.

6(b)   SHASHIDHAR S/O MALLAPPA KOPPAD,
       AGE: MAJOR, HOUSEHOLD,
       R/O OPP.SHIRHARI UPHAR, MALMANE BADAVANE,
       NAVODAY NAGAR, KUD GATE, DHARWAD.

7.     SMT.J.D.SHAILJI W/O NILKANT
       C/O SRI.S.S.SHIRKOL,
       AGE: MAJOR, OCC: HOUSEHOLD,
       R/O HOUSE NO.C 13/1118, DURGADEVI COLONY,
       HALIYAL ROAD, DHARWAD.

8.     SMT.BASAVVA W/O S.S.SHRIKOL,
       AGE: MAJOR, OCC: HOUSEHOLD,
       R/O HOUSE NO.C 13/1118, DURGADEVI COLONY,
       HALIYAL ROAD, DHARWAD.

9.     SRI.SANJAY S.O B.N.JIRALE,
       AGE: MAJOR, OCC: STUDENT,
       R/O 5TH CROSS, SADHANKERI, DHARWAD.

10.    SMT.SHAKUNTALA W/O DR.K.M.HOSAMANI,
       AGE: MAJOR, OCC: STUDENT,
       R/O 39 SUHASWATI 3RD CROSS,
       SHIVAGIRI, DHARWAD.
                                3




11.   SRI.GOPAL KRISHNA S/O VENKATESH BINDAGI,
      AGE: MAJOR, OCC: SERVICE TYPIST,
      R/O RTO OFFICE, HONNAVAR, DIST: KARWAR.

12.   SRI.MUDDANGOUDA S/O DYAMANAGOUDAR,
      SANGANGOUDA,
      AGE; MAJOR, OCC: SERVICE,
      R/O NEAR MOSQUE, KARNATAKA CIRCLE,
      NAVANAGAR, HUBLI.

13.   SRI.ASHOKRAJ S/O IRAPPA BYALI,
      AGE: MAJOR, OCC: SERVICE STATE BANK OF INDIA,
      R/O PLOT NO.89, RANI CHANNAMMA NAGAR,
      LAST BUS STOP, DHARWAD.

                                                  ... RESPONDENTS

(BY SRI.B.S.SANGATI, ADV. FOR R7, R8 & R12,
SRI.K.L.PATIL, ADV. FOR R1,
SRI.S.R.HEGDE, ADV. FOR R2,
SRI.P.S.TADAPATRI & SRI.B.G.INDI, ADVS. FOR R4,
SRI.M.M.PATIL, ADV. FOR R6(a) & (b),
R9, R11, & R13 ARE SERVED AND UNREPRSENTED,
NOTICE TO R3, R5 & R10 DISPENSED WITH)


      THIS APPEAL IS FILED UNDER SECTION 100 R/W ORDER XLI
RULE 1 OF CPC SEEKING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 22.10.2018 IN O.S.NO.671/2010 PASSED BY THE I ADDL.
CIVIL JUDGE AND JMFC, DHARWAD AND SET ASIDE THE JUDGMENT
DATED 27.09.2019 PASSED IN R.A.NO.49/2018 PASSED BY IV ADDL.
SENOIR CIVIL JUDGE AND JMFC, DHARWAD.


      THIS APPEAL HAVING BEEN HEARD AND RESEVED FOR
JUDGMENT ON 18.02.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                    4




                            JUDGMENT

The captioned second appeal is filed by the

unsuccessful plaintiffs wherein both the courts below

dismissed the suit filed by the appellants/plaintiffs.

2. Brief facts of the case are that:

The appellants have instituted a bare suit for

injunction against the respondents/defendants. Appellants

claim that suit property is a part of Sy.No.96A/2 measuring

37 guntas situated at Saptapur, Dharwad. The

appellants/plaintiffs claim that they are legal heirs of one

Roshanbi Tamatagar and they are in exclusive possession

and enjoyment over the suit property. Appellants/plaintiffs

have specifically pleaded that after the demise of Roshanbi,

the three sons of one Gousemiya got their names mutated

to the property by excluding the names of their sisters.

Appellants/plaintiffs claim that Roshanbi was also one of

the sisters. Appellants/plaintiffs also claim that suit

property was infact allotted to the share of Roshanbi orally.

Appellants/plaintiffs have further contended that legal heirs

of said Gousemiya have sold the properties including the

suit properties, which was infact in possession of the

present appellants herein to respondent No.1/defendant

No.1-society in the year 1993 for a sale consideration of

Rs.3,10,000/-. Appellants/plaintiffs claim that society has

laid plots in the property and respondent No.1-society

without having any right and title insofar as suit schedule

property is concerned measuring 37 guntas attempted to

dispossess the appellants/plaintiffs. Hence, they

constrained to file the present suit for injunction.

3. On receipt of summons, respondent

No.1/defendant No.1-society contested the proceedings by

filing written statement. Respondent No.1-society stoutly

denied the entire averments made in the plaint.

Respondent No.1-society has also seriously disputed the

possession of the appellants/plaintiffs over the property.

Respondent No.1 further contended that suit is bad for

non-joinder of necessary parties and specific contention

was also taken disputing the status of the

appellants/plaintiffs with the said Roshanbi. It was also

specifically contended that bare suit for injunction is not

maintainable without seeking relief of declaration.

4. The purchasers of plots from respondent No.1-

society namely defendant Nos.7, 8, 11 and 12 also

contested the proceedings by filing written statement by

specifically contending that they have purchased respective

plots from defendant No.1-society and that they are in

lawful possession of the said plots from the date of

purchase.

5. The trial court having examined ocular and

documentary evidence let in by the parties to the suit

answered issue Nos.1 and 2 in the negative and has

recorded a categorical finding that appellants/plaintiffs

have failed to prove that they are legal heirs of Roshanbi

Tamatagar. Trial court also held that appellants have failed

to prove that they are in lawful possession and enjoyment

over the suit property as on the date of filing of the suit.

While answering issue No.2, the trial court has also held

that appellants/plaintiffs have failed to prove alleged

obstruction as pleaded in the plaint. In the absence of

prayer in regard to plea of adverse possession, the trial

court deleted issue No.3. The trial court has also answered

issue No.5 in the affirmative by holding that present suit

which is for injunction simplicitor is also not maintainable

without seeking relief of declaration.

6. The trial court taking note of the fact that suit is

one for bare injunction has infact culled-out several

categorical admissions given by plaintiff No.3 who is

examined as P.W.1. The extraction of ocular evidence is

found at para 21 of the judgment. Plaintiff No.3 admitted in

unequivocal terms that suit property totally measures 1

acre 37 guntas. He has further admitted that around 80-90

plots were formed in the suit property. He has further

admitted in unequivocal terms that he is in possession of 2

guntas and the same is situated on the western side. In the

cross-examination, the trial court found that respondent

No.1-society has succeeded in eliciting from the mouth of

P.W.1 in the cross-examination that he has no title

document to support his claim pertaining to 37 guntas of

land in the above said Sy.No.98/2. The plaintiffs have also

admitted in cross-examination that their names are not

found in the revenue records. The trial court has also taken

note of the fact that plaintiffs have admitted that in terms

of Ex.P22, it is only Nayakawadi family names are mutated

to the revenue records. The trial court also found that

plaintiffs have further admitted in unequivocal terms that

after the death of Gousemiya, his three sons have infact

effected partition and the suit property has undergone sub-

division. The trial court also found that respondent No.1

succeeding in eliciting that ancestor Gousemiya was owner

to the extent of 4 acres 21 guntas and his legal heirs have

sold the entire extent in favour of respondent No.1-society.

At para 14 of the trial court judgment, the trial court has

further specifically observed and has taken note of the

admission of the plaintiffs wherein they have admitted that

they have no documents to demonstrate that their

grandmother Roshanbi and the present plaintiffs have no

documents to establish that they are in lawful possession

of 37 guntas in the above said survey number. The trial

court having meticulously examined all these significant

details has arrived at a conclusion that appellants/plaintiffs

are not in lawful possession and enjoyment over the suit

schedule property and therefore, they cannot assert

possessory right without seeking relief of declaration when

all three sons of Gousemiya have sold entire extent

measuring 4 acres 21 guntas for valuable sale

consideration in favour of housing society, i.e., respondent

No.1/defendant No.1. On these set of reasoning, the trial

court answered issues against the appellants/plaintiffs and

proceeded to dismiss the suit.

7. Feeling aggrieved by the judgment and decree

of the trial court, the present appellants/plaintiffs preferred

an appeal before the first appellate court. The plaintiffs

specifically contended that trial court has not properly

appreciated the evidence on record. The plaintiffs'

grievance before the first appellate court was that the

Court Commissioner was examined as D.W.1 and photos

were furnished by him which were marked at Ex.C1.

Placing reliance on Commissioner's report and photos, the

appellants/plaintiffs contended that trial court has not at all

examined the Commissioner report and therefore, the

evidence on record is not properly evaluated by the trial

court. Therefore, a claim was made that judgment and

decree of the trial court is erroneous and would warrant

interference at the hands of the first appellate court.

8. The first appellate court having independently

assessed ocular and documentary evidence has held that

respondent No.1-society has acquired valid right and title

pursuant to registered sale deed executed by its vendors

on 19.08.1984 as per Ex.D1. The first appellate court has

taken cognizance of Ex.D4 and D5 which clearly indicate

that sites were formed and the same were distributed. The

first appellate court also taken judicial note of record of

rights which clearly reveals that respondent No.1-society

name is duly mutated to the suit property. Having taken

note of property tax assessment extract and other clinching

rebuttal evidence on record, the first appellate court was of

the view that judgment and decree of the trial court is

based on legal rebuttal evidence let in by respondent

No.1/defendant No.1. The clinching rebuttal evidence

would virtually outweigh slender evidence placed on record

by appellants. The first appellate court on re-appreciation

has also found that present appellants are tracing their

right through Roshanbi. Appellants/plaintiffs have failed to

substantiate their claim and produce clinching and

documentary evidence to establish that Roshanbi had

legitimate right in the suit schedule property and that her

father Gousemiya had relinquished 37 guntas of land in

favour of Roshanbi. No documentary evidence is placed on

record. Therefore, the first appellate court proceeded to

dismiss the appeal.

9. Learned counsel for the appellants/plaintiffs

would vehemently argue and contend before this court that

suit property measures 1 acre 37 guntas in Sy.No.96A/2.

Learned counsel for the appellants/plaintiffs claim that

appellants/plaintiffs are in exclusive possession over 37

guntas, which has not lost its characteristic of agriculture

and there are mango trees in 37 guntas.

Appellants/plaintiffs have placed heavy reliance on

Commissioner's report and contends that Commissioner

report clinches the issue and clearly establishes that

appellants/plaintiffs are in lawful possession. He would

submit to this court that evidence adduced by

appellants/plaintiffs would clearly establish that they are in

lawful possession and therefore, would contend that both

the courts have totally misread the evidence on record. He

would submit that approach of both the courts below is

totally one sided and the evidence adduced by the

appellants/plaintiffs is discarded without assigning reasons.

Therefore, he would submit that judgment and decree of

both the courts below are erroneous and are not at all

sustainable.

10. To buttress his arguments he placed reliance on

the following judgments.

i) Premanath Kakde V. Amarnath reported in 2018 (1)

Kar.L.J. 237.

ii) Mallappa Ramappa Naik and Ors. Vs. Ittappa

Kamappa Band and Ors. Reported in 2021 (4) KCCR

3610.

iii) Malluru Mallappa (D) thr. L.Rs. Vs. Kuruvathappa

and Ors reported in (2020) 4 SCC 313.

iv) N.Swamygowda Vs. Ramegowda and Ors.

reported in 2009 (4) KCCR 3003.

v) Nizar Ahmed Sheriff Vs. A.Kannan reported in

1999(2) KCCR 1010 (SC).

vi) Rame Gowda (D) by Lrs. Vs. M.Varadappa Naidu

(D) by Lrs. and Ors. reported in (2004) 1 SCC 769.

vii) Smt.Rubi Sood and Anr. Vs. Major Rtd. reported

in 2015 SCC online HP 1237.

viii) Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur

and Ors. reported in (2019) 8 SCC 729.

11. Placing reliance on these judgments he would

submit to this court that trial court has strangely not even

taken note of Commissioner report. Therefore, by taking

this court to the provisions of Order XXVI Rule 10 of CPC,

he would submit to this court that Commissioner report

forms part of evidence and therefore, there has to be an

evaluation of Commissioner report in the context of the

controversy between the parties. He would also

vehemently argue and contend that several admission

given by defendants in the cross-examination are not taken

into consideration and both the courts below erred in not

adding credence to the cross-examination of defendants

while recording finding. Therefore, he would submit to this

court that judgment passed without referring to the

evidence is not at all judgment in the eye of law. To

buttress his arguments, he would place reliance on the

judgment rendered by this court in the case of Premanath

Kakde Vs Amarnath1. He would also contend that trial

court has erred in not recording its reasons on all the

issues and therefore, judgment rendered by the trial court

is contrary to the dictum laid down by the Apex Court in

the case of K.V.Ramireddi Vs. Prema2. While questioning

the reasons assigned by the first appellate court, he would

submit to this court that first appellate court has failed in

its duty in independently applying its mind and re-

appreciate the evidence on record of the parties. He would

seriously question the reasons assigned by the first

appellate court on the ground that there is absolutely no

independent assessment by the first appellate court. He

2018 (1) KarLJ 237

AIR 2008 SC 1534

also placed reliance on the judgment of the Apex Court

rendered in the case of Malluru Mallappa (D) thr. L.Rs.

Vs. Kuruvathappa and Ors.3. He has also placed reliance

on the judgment rendered by the Apex Court in the case of

N.Swamygowda Vs. Ramegowda and Ors.4 To buttress

his claim that when the nature of the suit property is in

dispute, the appointment of court commissioner for local

inspection is a must and a party seeking local inspection

cannot be precluded from producing best proof of evidence

and when there is a local inspection and commissioner

report is produced, the same forms part of records and

both the courts below have not dealt with the

commissioner report.

12. Per contra, learned counsel appearing for

respondent No.1/defendant No.1 would counter the

arguments addressed by the learned counsel for the

appellants. He would straightway take this court to para 4

(2020) 4 SCC 313

2009 (4) KCCR 3003

of the plaint. By placing reliance on para 4 of the plaint, he

would submit to this court that averments made in para 4

of the plaint would clinch the issue. He would submit to this

court present appellants have admitted in unequivocal

terms that three sons of Gousemiya Nayakawadi namely,

Maktum Hussain, Hussainsab and Jaffar have dealt with the

suit schedule property in the year 1993 itself by selling the

same to respondent No.1-society for sale consideration of

Rs.3,10,000/- including the property which was in

possession of the plaintiffs. He would also place reliance on

para 6 of the plaint wherein appellants have admitted in

unequivocal terms that defendant No.1 after purchase has

converted the land for non-agriculture use and has formed

a layout and has also alienated some plots and purchasers

name is duly mutated in the revenue records.

13. In the background of these admitted pleadings,

learned counsel for respondent No.1 would then requests

this court to examine the cross-examination of P.W.1. By

taking this court to the cross-examination of P.W.1, he

would submit to this court that appellants/plaintiffs have

admitted in unequivocal terms that suit property totally

measures 1 acre 37 guntas and respondent No.1/defendant

No.1 formed layout and has laid 80-90 plots in the suit

property. He has taken this court to several admissions

given by the plaintiffs which are culled-out by the trial

court in its judgment. He would further submit to this court

that appellants/plaintiffs have admitted and it is well within

their knowledge that respondent No.1-society has

purchased suit schedule property under registered sale

deed way back in 1993 and the said land was converted

and plots were formed. Therefore, without questioning the

sale deed, the present appellants cannot maintain

injunction suit simplicitor. Therefore, he would contend that

both the courts below have concurrently held that

appellants/plaintiffs are not in lawful possession and have

rightly proceeded to dismiss the suit. Therefore, he would

submit to this court that there is no scope of reevaluating

and re-assessing evidence under Section 100 of CPC.

14. Heard the learned counsel for the appellants,

learned counsel for the respondents and perused the

judgments under challenge. I have bestowed my anxious

consideration to the entire trial court records. I have also

gone through the judgment cited by the

appellants/plaintiffs.

15. Though the captioned second appeal is filed

questioning concurrent judgments, in the background of

peculiar facts and circumstances of the case, I deem it

necessary to refer para 4 to 6 of the plaint, which reads as

under:

"4. The propositus Gousamiyya Kadarsab Nayakawadi was the owner and after his demise his 3 sons got their only names mutated by name Maktum Hussain, Hussansab and Jaffer. But name of daughter Roshinbhi not mutated as legal heirs, subsequently in pursuance of Jaffer sold his share to Maktum Hussain and Ismail and Maktum Hussain's Legal heirs gor mutated their names. But

names of Roshabhi and her heirs never come in record of rights but she remained in possession and after her death present plaintiff continue in possession. In the year 1993 all together sole some properties to Abhiman housing co-operative society for total consideration of Rs.3,10,000 including property in possession of the plaintiffs, then it is learnt that same is converted into Non Agricultural use and plot where made and sold to members of the society who are the defendants. This fact came to knowledge of plaintiffs when the survey officials cme to survey the land for subdivision purpose. Then after wards plaintiff availed required documents and shocked to know, that heir of Roshnbhi's brother played fraud and created bogus documents and created sale deed and mutated without the knowledge of the Roshnbhi and present plaintiffs.

5. The plaintiffs are in law full and peaceful settled uninterrupted possession of the suit property without any bodies obstructions till today. But since one month defendants coming to suit site with surveyor and causing obstructions and threatening to dispossess plaintiffs from suit property high handedly illegally in absence due process of law.

6. The 1st defendant by illegal purchase converted land in to non agriculture user and prepare a layout and alienated some plot to defendants 2 to 13 and their names mutated in record of rights for

different areas. By virtue of which they are trying to take possession without due process of law. So plaintiffs are constrained to file the suit."

16. If the averments made in the plaint are

meticulously examined, probably the appellants/plaintiffs

have made a feeble attempt by contending that they are

legal heirs of Roshanbi who is the daughter of one

Gousemiya Nayakawadi. What needs to be examined by

this court is, after the death of Gousemiya his three sons

have dealt not only suit property but other properties.

Respondent No.1-society has purchased entire extent

measuring 4 acres 21 guntas under registered sale deed

and after conversion, plots are formed and the same are

alienated to various purchasers. From the records, it is also

forthcoming that Roshanbi died in the year 1978.

Appellants/plaintiffs claim is that 37 guntas was orally

relinquished by Roshanbi's father in favour of Roshanbi. No

documents are produced. Appellants/plaintiffs have not

placed on record any material indicating that they are legal

heirs of said Roshanbi.

17. If the brothers of Roshanbi have meddled with

the property way back in 1993, nothing prevented

appellants/plaintiffs in initiating proper proceedings and

assert their legitimate share in the suit schedule property.

After alienation, the nature of the suit property was

changed and third party rights are created. If these factual

aspects are examined in the context of categorical

admissions given by the plaintiffs in the cross-examination,

then I am of the view that both the courts below were

justified in holding that appellants/plaintiffs are not in

lawful possession over the suit schedule property. The

categorical admissions are culled-out by the trial court at

para 21 of the judgment of the trial court. These

admissions are fatal to the case of the appellants/plaintiffs

and the said admissions would go to the root of the case.

The appellants/plaintiffs have miserably failed to prove

their lawful possession as on the date of filing of the suit.

18. The suit is one for bare injunction. Therefore,

there cannot be any delegation to Commissioner to

ascertain as to who is in possession of the suit schedule

property and if permitted, the same amounts to collection

of evidence, which is impermissible in a bare suit for

injunction. Even otherwise, both the courts below have

declined to rely on the Commissioner report. If the local

inspection is incomplete or inconclusive, it is well within the

jurisdiction of the court in not relying the report. It is more

than trite law that ultimately, it is for the court to rely or

refrain from relying upon report of the Commissioner while

either granting or refusing a decree. It is trite law that, it is

for the court of first instance to ascertain and find out as to

how much reliance can be placed on the report of the

Commissioner and the evidence taken by him. As stated by

me in the preceding paragraphs, plaintiff No.3 who is

examined as P.W.1 has given several categorical

admissions in regard to change of nature of the suit

schedule property, forming of layout by respondent No.1-

socitey and also alienations made by the society. He has

also admitted in unequivocal terms that Roshanbi's three

brothers who inherited properties from Gousemiya have

sold entire extent of 4 acres 21 guntas way back in 1993.

He has admitted in unequivocal terms that he has no title

documents to support his claim. He has admitted in

unequivocal terms that suit schedule properties totally

measures 1 acre 37 guntas and respondent No.1 formed

layout and has laid 80-90 plots in the suit property. There

is categorical admission that he own 2 guntas of land

adjoining to the suit property. If he admits that he is in

possession of 2 guntas adjoining to the suit property, then

this court is unable to understand as to how he can lay a

claim over 37 guntas in Sy.No.98.2, which totally measures

1 acres 37 guntas. All these significant details are taken int

consideration by both the courts below. Commissioner

report is not conclusive evidence and there is absolutely no

clarity in the commissioner report and the same would not

come to the aid of appellants/plaintiffs. The commissioner

report would lose its credence in the light of the admissions

given by the plaintiffs in the cross-examination and also

several admissions given in the plaint at para 4 to 6.

Therefore, the finding recorded by the courts below is

based on rebuttal evidence placed on record by respondent

No.1-society and therefore, would not warrant any

interference at the hands of this court.

19. Both the courts below have come to the

conclusion that present suit for injunction simplicitor is not

maintainable. In the plaint, appellants/plaintiffs admit that

respondent No.1-society has acquired right and title based

on a registered document. Therefore, it was incumbent on

the part of appellants/plaintiffs to file a comprehensive suit

to prove their relationship with Roshanbi and were also

required to prove that Roshanbi had legitimate right in the

suit schedule property.

20. Admittedly, parties are governed under

Mohammedan Law. Roshanbi died in the year 1978 and her

brothers alienated the suit schedule property. If the sister

predeceased, the appellants/plaintiffs were required to file

comprehensive suit and ought to have established their

right and were required to place on record the evidence

indicating as to how they would inherit the share of

predeceased sister, when parties are governed by

Mohammedan Law. It is in this background, I am of the

view that judgment and decree passed by both the courts

below would not warrant any interference. The suit for

injunction simplicitor filed by appellants/plaintiffs is not at

all maintainable.

21. The judgments cited by the appellants/plaintiffs

have absolutely no application to the present case on hand.

I do not find any infirmity or illegality in the judgments

under challenge. No substantial question of law arises for

consideration in the present case on hand.

Accordingly, the appeal stands dismissed.

Sd/-

JUDGE MBS/-