Karnataka High Court
Noorjahan Harunkhan vs Sharifabi on 27 July, 2011
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
K») their only legal heir. The defendant Neil is daughter of plaintiff and she was given in mairiiageeto the defendant No.2. The suit sohedtilei to her deceased father Nijarng andithexsuit lajr1d"b'eai%iingii' S}/INo.38E>B is a non--agrieult'ur:al. land"~$1ti'di7heieiiiitather Nijarn was living in thejsagid constructing a dwelling house and the dwelling house sittlated entered in the Panehayat D and the Said house and there are four tenants in houses. It is averred that, in the {shed aidjaeerit to' the dwelling house, plaintiff and her. been living together till the marriage of l'levr'i"father Nijam was died on O3.lO.l976, i The p'tiaint;'ift'-and her mother Ashabi being his legal heirs i sueeeeded to the properties and with the eonserit of the name of Ashabi has been entered in the
--«..:re'venue records of the suit properties. Plaintiff has been in possession and enjoyment of the suit properties as owner. She has stated that, taking undue advantage at the old age at the said Ashabi and also as the said % 4 Ashabi was itliterattet the defendant Nos} and 2 the knowtedge of the plaintiff have created if deed of the year 1987 alleged to hvaV'e'e>;ee%'i4te_.rf in their favour and on the basis of the' said .,docurr1er1--t_,f' they wanted to enter the nanieiiofbdefertdartt the revenue records pei*taining"" if iVSy;Njo.386B measuring O--3~8 of has stated without her 1<n.o':'r.t£Ve;:t'1ge,::A_'Adeifetidaritii--:Nos_t:fi1 if and 2 tried to enter the in the records pertainiriVg'i'to"sti.i't pertaining to the house situaltedi number alleging that, Ashabihas aexeeurted iigiftii deed in respect of the said iipropeertay 3'1: favour offldefendant No.1. It is stated as per itheiii defendant No.1 was not at alt i obtained V_the.j3'ossession of the said property and also it " stated "that the attempt of the defendant Nose! and 2 toeriter the name of defendant No.1 in the concerned .:'_"reVeiniue records has become futile. The ptaintiff and her iiwrnother eentintted with the jetnt possession and enjoyment of the suit properties up to 09.05.1998. After the death of her mother Ashabé, she came to i<flC>'W that @' .3 the name of defendant No.l has been ent.er'ed._irisll'the'9 "
revenue records pertaining to item etrid, by stating that Ashabi arid l\loorjsh, def'eridar:.t have orally partitioned theirluhrd~i._$xided f_ari:iljyv_1plroideifies, Hence, she has brought ther""sLiit l'm_~ deel}ara':ioh and possession.
4. Defe1id5ah_t ifiledilliiilritteh statement arid it has beeii diefeiiidaht No.2. In their written ls_tat'emlei'isgthiey"aidmitted the relationship of the parties asset outl'i'r1oil'_.aiht. They also admitted that, __all theilsuit proipertieséiare owned by the father of the l\/lahamad Shaikh. It is further admititedllilthat properties bearing Sy.No.386B is a non land and S}/.l\lo.28Al/3A2 is owned and V' p'osises..sed by Nijam and in a small hut he was repairing also polishing copper and brass vessels. lt is pldraidhiitted that, Nijam was residing iri Sy.l\le.38€:sB of Bobruwada village. it is contended that, defendant No) and her husband repaired the residentialt house of Bobruwada Panehajgat building No.2E38A, Bf C; D and %/ extended the old residential house and at present they have given it on rent to three tenants and are reeoxfering rent from the tenants. It is denied that, plaintiff mother Ashabi were residing together till the plaintiff in a Cattle shed which is s;7tuiated_ _to_ithe original house. It is denied that,.__aft_er to'? V Nijam, the plaintiff and her itihyeiioiint owners of the suit prope'rt_i'es.'.7it"is;dert-i.ed that, iiniaintiff and her deceased in the suit properties "1i§:f'it'iiI'1r-aiaossession and cultivation date as of right.
Defendarjt the year 1987, the deceased i'Ash«abih a Vyavasthapatra in favour of',defeirid.an'tVvNoi-1 ivho was her foster daughter and &grand5»«.'daughter in respect of Sy.No.386B measuring O--i3~...98i.eof viiiage and also structures and trees it '"isituatied_ in the said Vyavasthapatra the " ii::."v'S}t'i.?3Qiv281étiV7":3f:\2 measuring o~ow4 of Babruwada and the housesituated therein was given to the plaintiff. it is .ee'n»tended that, defendant No} took actual possession of i""«._ithe inernovabte preperties on the strength of the gift deed %, ._ ._........mm»m.m» *7 1' and she is in exclusive possession of the same and the suit for declaration is not rnaintainable and the plaintiff has to file declaration for the cancellation registered gift deed executed on if contended that, deceased Ashabi as per :';et:1é'n;e;_ni rancid'-, advise of the Jarnat had also execiitipted registered Ra]/7'];'»'L':1'~'~i\:r]'V'V favour of defendant No.1 in and also to the plaintiff onv®E§..O4.«.1'98fi3_:.':' the advise of elderly persons, the the registered will same day she has executed the properties. lt is COf1't€ii(?l:6':Ci"tl'1';i'iti:,v5, per settlement and advise of iidianiat the village officer and on l2.06.l9_97 theV_:il\rlut'--atiioniililntry l\lo.7249 of Bobruwada fiwas xandiiitheii name of defendant No.l was or respect of suit properties bearing S3'.No'.;.f386'B~iirneasuring O~3~8. It is contended that, in lawful possession and enjoyment and of the suit properties as of right without any ':'ir:.te-reference till todaj; and they pray for dismissal of the All suit. Q ll defendants, have rightly decreed the suit and _ illegality or infirmity in the judgements arrd»el:e.ere.es~ef._ the Courts below and he prays:=,for_-~-<il5srr:issal"
appeal ll. There is that the suit properties originallvgr of the plaintiff namely; and after his death, it was and her mother Ashabi. between the parties that, suitlllttern agricultural land and after ecn.struetion'-at dwelling house, it was assigned nlunibers and there are tenants in the oeeupeat1flovnfnt' .l'.sa.-me. Further, there is no dispute between the-Vflparties that there was a shed situated H to the dwelling house and it was renovated and l_lp.lainlti'ff'land her rnother were together residing there. 12» The learned counsel for the appellants fairtjg submits that; vyaxtasthapatra referred to in the written statement under which the suit properties alleged tr:
%/ substantial {T{L£€S{f()I1 of law, which arises for considerati<m in this; second appeal. Accordingly, the app€a1 is dismissed as merits, S6,/5k~%*&.%jL%%i A XI MBS/ct: byg %QEd. 55> V.