guntas. After partition, both the brothers enjoyed respective shares as absolute owners. In' theV"y'eaar"'--g " 1939, Syed Khasim Sab has sold" his Sy.No.13/1 out of 8 acres 10 'ltollcne Shadaksharappa under a Vregistered 'salec:j'dee-dwfdated if 29.5.1939
. After soznfie ti1’r’i’e;.l_:;*;j3y€.3.’gKhasin1″éab die
leaving behind his used to
enjoy the suit partition deed
was effected’ the year 1982 and
one of leaving behind him
his three andA:_:thfree_:”daughters executing a Written
assigninentkdeed» fayour of the plaintiffswl to 3
f’relin’dui3sl1ingg_ all rights. Therefore, they were
I the suit seeking for declaration and
perrnanye’ntV.:injunction restraining the defendant from
Jinterfer’ing with the suit property. The defence in
e.’_’t’vyofold firstly that property as the one contended is not
if “in existence. secondly under a partition defendants have
acquired right.
5.
(12) Iii:/ij,{_._::;nsvverishto’ the points are as foliowsz
« * 1?’-ofijnt__ N-.o.(1) — “i1esi_;gative
Point dd?-Jo 1(2). p_—- negative
f V .. Point No .'{3_} negative
» _ -PQintid.No;(4) 99 affirmative
po:n::, _i_\T__o.(5)–As per final order for the
prayed for’?
Whether the passed by
the lower Court is Iiablejf =H1t€1’f€I’€Cl
with’?
What eraser decree?
Whether the plaintiffs / appellant héve ‘ . p
the existence of suit property “t.13at,’ they ” .,
are the absolute owner”‘in-.pos4sess:io.n armed’
suit property?
Whether the plsintiiff/appeilpaiiti:’hzisWproired ” A
the alleged interference with their possession
and enjoyment ofiesniteproperty?
the are entitled
to ‘of;~z:1ee1,arjation and injunction as
6. Heard both sides. Each of the
counsel appearing for the parties relied *
documenta evidence claimin .-title. and do-ss»exssion;’.,i it
Points that arise for c0nsiderati0n”i.s:7._ A’
“Whether the trial Court appellate
Court were justified in””reccrding <1 'ftndimg
without knowing i_cle_ntIZty of _'t.he~ property or
topography of the property???" ' *
'7 . it the topography,
propertVt._.iS""~ipn' " of the property
claimed by the defendants. So a
finding has' to the identity of property i.e.
, g_ the_»»C51ourts below .1j1__aye to consider the importance of the
the entire property to decide the case.
B"ut';=the' below without considering the identity
of the-.. identity have decided, it has caused injustice to
A .ffthel"parties. Hence, the following substantial question
i of law in favour of the plaintiff.
8. The appeal is allowed. The trial judge is
directed to restore the suit permitting both the sides to
lead evidence and then decide and pass fresh orders in
accordance with law. Further, to permit the partiegto
take out the help of the Commissioner to
identify the topography of the property.
T1*