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NC: 2023:KHC-K:5057

(c) He contended that after disposal of the said suit, and during the pendency of Writ Petition No.40761/2008, the plaintiff has been appointed as the Mutavalli of the suit Dargah by defendant No.5 vide its order dated 13-10-2009. Therefore, the plaintiff was constrained to file the suit seeking declaration that he be declared as the Mutavalli- cum- Sajjada Nashin of the Dargah and the encroachment by the defendant Nos. 1 to 4 be removed by way of mandatory injunction and they be restrained from encroaching into the suit property. He also contended that the defendant No.5 had filed an application before the ADLR, Vijayapura, for measurement and to know about the extent of encroachment by defendant Nos. 1 to 4. After survey, the ADLR, Vijayapura, gave a report demarcating the area encroached by defendant Nos. 1 to 4. In the meanwhile, one Lala Sab son of Mohiddin Sab Karajagi, had filed OS NC: 2023:KHC-K:5057 No.3/2007 seeking declaration that the Certificate of Registration of the Wakf dated 25-8-1996 pertaining to the suit Dargah be declared as null and void and it was dismissed on 25-1-2008.

12. After hearing the arguments, the Tribunal answered issue Nos. 1 to 3 in the affirmative and proceeded to decree the suit.

13. Aggrieved by the same, the defendant Nos. 1(a) and 1(b) initially approached this Court in revision and later, the respondent No.5 (who was the defendant No.2) was transposed as the petitioner No.2 in this revision.

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NC: 2023:KHC-K:5057

14. The revision petitioners contend that the judgment and decree impugned herein suffers from serious errors of jurisdiction and the plaintiff had not claimed any title in respect of the suit property, which was denied long back. It is contended that the plaintiff was never in possession of the suit property and he has not sought for the recovery of the possession and as such, the suit was not maintainable in the present form. They contended that no document of title is produced by the plaintiff to substantiate his contentions over 10 guntas of land. It is contended that the report of the ADLR marked at Ex.P2 is neither admissible in evidence to establish the allegation of encroachment nor it was proved as required under law. It is contended that the letter at Ex.P1 is not admissible in law and it is a bogus letter which would not helps the plaintiff in any way. It is contended that the survey sketch at Ex.P2 was not prepared after issuance of notice to the adjoining owners and therefore, the Tribunal could not have relied on the same. It is contended that the plaintiff had neither based his suit on the same cause

21. The learned counsel appearing for the revision petitioners contended that the Ex.P1, letter issued by the defendant No.5 and the map prepared by the ADLR as per Ex.P2 are not proved as required under law. He contends that notice was not issued at the time of the survey and there is no evidence as to at whose instance, the survey was conducted. Ex.P1, letter do not specify that the plaintiff has to take any action against the defendants. Obviously, the remedy of the plaintiff was not by way of the present suit and therefore, the Tribunal has fell into an

28. A perusal of Ex.P1 show that steps were taken by the Mutavalli and the defendant No.5 to protect the property of the Wakf. In pursuance to it, they requested for a survey and the ADLR , Vijayapura, has surveyed the property of the Wakf and gave a report as per Ex.P2. Ex.P2, is obviously, identifies the property of the Wakf as mentioned in Ex.P12. It says that there is some encroachment by the defendant Nos. 1 to 4. The suit filed by the plaintiff is precisely in respect of the obstructions of the defendant Nos. 1 to 4 and therefore, the Tribunal came to the conclusion that Ex.P2 has to be accepted. Nothing is placed on record by the defendant