ABDUL AHAD BHAT Vs. MST MEHTABA

JUDGEMENT

(1.) This Civil 2nd Appeal arises out of judgment and decree dated 21.10.2019 passed by the court of 2nd Additional District Judge, Srinagar (hereinafter for short 'the 1st Appellate Court') in an appeal titled Mst Azizi and Ors vs. Abdul Ahad Bhat and Ors., whereby the 1st Appellate Court has reversed the judgment and decree dated 29.06.2017 passed by the court of 3rd Additional Munsiff Srinagar (hereinafter for short 'the trial court') in a suit titled Abdul Ahad Bat and Ors vs. Mst Azizi and Ors.

(2.) Before this Court proceeds to appreciate as to whether any substantial question of law involves for determination in this appeal, it would be necessary to notice few contextual facts.

(3.) The appellants herein filed a suit against the respondents seeking a decree for permanent injunction to restrain the respondents herein from interfering with the peaceful possession and occupation of the land measuring 21 kanals under khasra No.397, 388, 410 and 395 situated at Batapora Srinagar (hereinafter 'the suit property'). In the plaint, the appellants claimed that the respondent no.1, Mst. Mehtaba was their mother and she had orally gifted away the suit property in their favour in equal shares about 20 years back. It was claimed that ever since, the appellants have been enjoying the peaceful possession of said property and were also receiving the usufructs thereof. It was pleaded that a year before filing of the suit, the respondent no.1, Mst Mehtaba had started interfering with the peaceful possession of the appellants over the suit property and, as such, they were forced to knock the portals of the court by way of filing a civil suit for declaration and permanent injunction. It was further pleaded that the court of 4th Additional Munsiff, Srinagar decreed the suit on 29.03.2003 and declared the appellants as owners and in possession of the suit property. It was, however, claimed that the other respondents thereafter started interfering with the peaceful possession and occupation of the suit property, therefore, they were once again constrained to file a suit, this time against the aforesaid respondents as well. The respondent no.1, Mst Mehtaba, who was defendant no.4 in the suit, in her written statement filed before the trial court did not dispute the averments made in the plaint and prayed that decree of permanent injunction as prayed for by the appellants with respect to the suit property be passed. It was claimed by the respondents that the appellants had no right or cause to maintain the suit property, in as much as, it was the mother of the appellants who could be said to have some locus in the matter. The decree relied upon by the appellants against their mother was also disputed on the ground that the same was collusive and without prejudice to the rights of the respondents. It was specifically pleaded by the respondents in their written statement that the suit property was owned and possessed by the common ancestor and, therefore, the position of respondent no.1, the mother of the appellants was that of a co-sharer holding suit property on behalf of all and not to the exclusion of the respondents. On the basis of pleadings of the parties, the trial court framed as many as eight issues and after permitting the parties to lead their evidence and hearing the rival arguments decreed the suit of the appellants and restrained the respondents/defendants from causing any sort of interference in their peaceful possession in the suit land. The suit was decreed primarily on the ground that the appellants were found to have been in peaceful possession of the property for long and, therefore, entitled to continue in possession and enjoy the property without interference from the respondents.