MATILDA D. LIMA Vs. KHAJA BEE

JUDGEMENT

(1.) This captioned regular second appeal is filed by unsuccessful plaintiffs being aggrieved by the concurrent judgment and decree of the courts below wherein both the courts below have dismissed the suit filed by the appellants/plaintiffs.

(2.) Brief facts of the case are that: Appellants/plaintiffs filed a bare suit for injunction in O.S.No.30/2007. The appellants/plaintiffs contended that suit schedule properties were originally owned by one Soudagar Abdul Razaak Saheb. The appellants/plaintiffs further contended that said Soudagar Abdul Razaak died leaving behind his children who are co-owners of the suit schedule property. The appellants/plaintiffs further contended that said Soudagar Abdul Razaak died on 22/9/1990. The appellants/plaintiffs contended that due to difference in the family, a suit came be filed in O.S.No.17/1976 pertaining to the suit schedule property and also other properties. The appellants/plaintiffs claim that present suit property was allotted to Abdul Rasheed's share pursuant to a compromise recorded in the suit stated supra. In terms of compromise, Abdul Rasheed was appointed as receiver of the suit schedule properties. The appellants/plaintiffs have further contended that said Abdul Rasheed with the concurrence of his brothers obtained a mining lease on 4/4/1986 and later he entered into an agreement on 15/9/1986 with defendant No.5 thereby authorizing defendant No.5 to carryout mining operations on behalf of family of Abdul Rasheed. The appellants/plaintiffs have further contended that Power of Attorney dtd. 14/9/1986 in favour of defendant No.5 was coupled with interest. The appellants/plaintiffs contended that due to unavoidable circumstances, defendant No.5 was not in a position to personally carryout acts, he was not in a position to invest money for mining purpose. Therefore, the appellants/plaintiffs claim that they thought of appointing suitable agent and accordingly, appointed husband of plaintiff No.1 and father of plaintiff No.2 as his agent and executed Power of Attorney on 17/10/1986. Therefore, the appellants/plaintiffs contended that it is in terms of authorization given by deceased defendant No.5 during his lifetime, the suit schedule property was delivered to the present plaintiff.

(3.) The grievance of the appellants/plaintiffs is that in spite of specific demand and requests, the original licencee i.e., Abdul Rasheed failed to secure permission from the forest department to carryout mining operations and in between Abdul Rasheed died leaving behind defendant Nos.1 and 2 as his legal heirs. It is also contended that husband of plaintiff No.1 also died on 26/12/2004. Therefore, the present appellants/plaintiffs were stepped into the shoes of G.L.D'Lima and requested the defendants to perform their part of agreement. The appellants/plaintiffs further contended that they are ever ready and willing to perform their part of obligation under the agreement executed by late Abdul Rasheed. The present suit is filed on an apprehension that defendants are negotiating with private parties by suppressing the agreement dtd. 15/9/1986 executed in favour of defendant No.5.