MADANI MASJID MOSQUE vs ABDULRAHIMAN S/O NAZEERAHEMAD MUNASHI

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RSA No. 100840 of 2023


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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 30 DAY OF SEPTEMBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI


REGULAR SECOND APPEAL NO.100840 OF 2023 (INJ-)

BETWEEN:

MADANI MASJID (MOSQUE)
NEHARU NAGAR, ALNAVAR,
DIST. DHARWAD,
REPRESENTED BY ITS PRESENT MUTAVALI,
ROSHAN ZAMEER SAKALI,
AGE: 64 YEARS, R/O. ALNAVAR TALUK,
DHARWAD-581103.
…APPELLANT
(BY SRI. J.S. SHETTY, ADVOCATE)

AND:

1. ABDULRAHIMAN,
S/O. NAZEERAHEMAD MUNASHI,
AGE: 50 YEARS, OCC. BUSINESS,
R/O. 839, NEHARU NAGAR, ALNAVAR,
DIST. DHARWAD-581103.









Digitally
signed by
ROHAN
HADIMANI
T
Date:
2026.10.12
14:52:53
+0530

ROHAN
HADIMANI
T

2. ATULLA,
S/O. NAZEERAHEMAD MUNASHI,
AGE: 47 YEARS, OCC. BUSINESS,
R/O. 839 NEAHRU NAGAR ALNAVAR
DIST. DHARWAD-581103.

3. MEHARUNNISA,
NAZEERAHEMAD MUNASHI,
AGE: 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. 839, NEHARU NAGAR, ALNAVAR,
DIST. DHARWAD-581103.

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RSA No. 100840 of 2023


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4. SMT. JUBEDA,
W/O. MEHADUL SHEKH,
AGE: 43 YEARS, OCC. HOUSEHOLD WORK,
R/O. 839, NEHARU NAGAR, ALNAVAR,
DIST. DHARWAD-581103.

5. MUSHATAQAHEMAD,
S/O. MOULABHAKSHA TEGUR,
AGE: 66 YEARS, OCC. TIMBER MERCHANT,
R/O. 839, NEHARU NAGAR, ALNAVAR,
DIST. DHARWAD-581103.
…RESPONDENTS

(BY SRI. MAHANTESH M. KORIMATH, ADVOCATE FOR R1 AND R4;
R2, R3 AND R5-NOTICE SERVED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
THAT THE JUDGMENT AND DECREE DATED 23.05.2023 PASSED BY
THE III ADDITIONAL SENIOR CIVIL JUDGE AND CJM IN
R.A.NO.8/2022, REVERSING THE JUDGMENT AND DECREE DATED
12.04.2021 IN O.S.NO.743/2013 PASSED BY THE II ADDITIONAL
CIVIL JUDGE AND JMFC-II DHARWAD, MAY KINDLY BE SET ASIDE,
BY ALLOWING THIS APPEAL, WITH COST THROUGHOUT, IN THE
ENDS OF JUSTICE AND EQUITY.

THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE B. MURALIDHARA PAI

ORAL JUDGMENT

Heard learned Counsel for the Appellant.

2. Defendant No.2 in OS No.743/2013 on the file of
learned II Additional Civil Judge and JMFC, Dharwad has
maintained this regular second appeal.

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3. The plaintiff namely Smt.Zulekha bi maintained
the suit in OS No.743/2013 for the relief of permanent
injunction against the defendants in respect of the property,
i.e., the house and open space bearing TPC No.839 situated
in Nehru Nagar, Alnavar, Dharwad totally measuring 3099
sq.ft., comprising of a house measuring about 722 sq.ft.
According to the plaintiff Town Panchayath, Alnavar is the
owner of the suit property and she is in possession and
enjoyment over the suit property for the past 50 years. She
claims that she is in possession and enjoyment of the suit
property with the permission of Town Panchayath
Committee, Alnavar from the time of her husband. She
contends that she has constructed a house and developed
the property for the purpose of her residence and she is in
settled position of the suit property. She maintained the suit
for permanent injunction on the ground that the defendants
are trying to interfere with her peaceful possession and
enjoyment over the suit property though have no manner of
right, title or interest over the said property.

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4. On service of the summons, the defendants
appeared before the court through their counsel. Defendant
No.1 filed his written statement denying entire averments of
the plaint and contended that the plaintiff is no way
concerned with the schedule property. He alleged that the
plaintiff created illegal temporary shed adjoining to the
compound wall of Madani Masque and that she has no right,
title or interest over the said structure. He contended that
the plaintiff in order to encroach upon the property of the
mosque has illegally demolished a portion of the compound
wall and made several attempts to intrude across the
compound wall. He further contended that the description of
the suit property is vague and the plaint is bad for want of
compliance of Rule 3 of Order VII of CPC. Hence, he prayed
to dismiss the suit.

5. Defendant No.2 filed their written statement
adopting the contentions raised by Defendant No.1. They
further submitted that the plaintiffs are in the habit of filing
the false suits and that all such suits were dismissed. Hence,

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they prayed to dismiss the suit on the ground that it is also a
false suit.

6. The plaintiff died during pendency of the suit.
Hence, her legal representatives came on record and
prosecuted the suit.

7. The trial court, based on the pleadings, framed
necessary issues, recorded the evidence adduced by the
parties, heard them on merits of the case and dismissed the
suit vide its judgment dated 12.4.2021. On appreciation of
the materials on record the trial court observed that it is not
the case of the defendants that they are in possession and
enjoyment of the suit property bearing No.839 and that
Madani Masjid is not the subject matter of the suit. The trial
court further noted that the gift deed dated 20.7.1991
produced at Ex.D1 pertains to property bearing R.S.
No.174/2+3A2 and it is no way concerned to the suit
property. Even then, the trial court brushed aside the entry
in tax assessment register extract produced at Ex.P1
standing in the name of Nazeer Ahmed Muddin Munishi, the

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husband of the plaintiff, on the ground that the plaintiff has
not produced any document to support the basis for such an
entry. The trial court held that the plaintiff has neither
produced the documents such as Voter’s ID, Aadhaar Card,
Ration Card, etc. nor examined the Committee Members of
Town Panchayath, Alnavar or its officials, to prove her
alleged possession over the suit property. The trial court also
held that the documents produced at Exs.P1 to P16 do not
prove the plaintiff’s lawful possession and enjoyment over
the suit property in the absence any title deeds, and as such,
the case of the plaintiff cannot be accepted.

8. The legal representatives of the plaintiff preferred
the appeal in RA No.08/2022 challenging the judgment and
decree of the trial Court. The first appellate court, on re-
appreciating the materials on record, allowed the appeal and
decreed the suit, restraining the defendants from interfering
with the plaintiff’s possession and enjoyment over the suit
property, i.e, house property situated in the extent of 722
sq.ft. as shown in Ex.P15. The first appellate court held that

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Ex.P1 contains name of the husband of the plaintiff as
occupant of the residential area of the property, which is a
Mangalore tiled mud house situated in an extent of 722 sq.ft.
It further held that as per Exs.P2 to P14 the plaintiffs are
paying tax to TMC, Alnavar in respect of suit property since
1993-94, and that as per these documents the plaintiffs are
in possession and enjoyment of the suit property. Thus, the
first appellate court held that it is crystal clear that the
plaintiffs are in settled possession of the suit property. The
first appellate court concurred with the finding of the trial
court that the defendants have failed to prove their
contentions and that the act of the defendants disputing the
right of the plaintiffs over the suit property itself shows their
interference with the plaintiffs’ possession and enjoyment
over the suit property. Feeling aggrieved, Defendant No.2
has preferred this regular second appeal.

9. Sri J. S. Shetty, learned Counsel appearing for
Defendant No.2 strenuously submitted that the first
appellate court erred in allowing the appeal though the

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plaintiffs have failed to give proper description of the
property in dispute. He submitted that the plaintiffs have not
placed any document to prove their title over the property
and the first appellate court allowed the appeal on the
ground that another view was possible in the case and
without properly appreciating the reasons assigned by the
trial Court for dismissing the suit. He submitted that the first
appellate court committed an error even by dismissing their
application filed under Order 41 Rule 27 of CPC. Thus, he
contended that the facts and circumstances of the case give
rise to substantial questions of law as narrated in the appeal
memo, which needs consideration of this Court.

10. As pointed out earlier, the plaintiff namely Smt.
Zulekha Bi maintained the suit for permanent injunction in
respect of ‘a house and open space’ bearing TPC No.839
situated in Nehru Nagar, Alnavar, Dharwad totally measuring
3099 sq.ft. While describing the suit property, the plaintiff
also mentioned that “out of it the house is measuring about
722 sq.ft.”. The first appellate court, while stating about the

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description of the suit property, in para 4 of its judgment
noted that “the suit property is an house and open space
bearing TPC No.839 situated in Neharu Nagar, Alnavar,
totally measuring 3099 sq.ft., out of it, the house is
measuring 722 sq.ft.”. However, the first appellate court
allowed the appeal and decreed the suit only in respect of
the house property in an extent of 722 sq. ft. The legal
representatives of the plaintiffs have preferred an appeal in
RSA No.100589/2023 questioning the correctness of
disallowing their prayer in respect of entire extent, i.e, the
house and open space bearing TPC No.839, which totally
measures 3099 sq.ft. As such, this Court need not go into
the said aspect and it is not germane to this appeal.

11. The first and foremost contention raised by
Defendant No.2 is that the plaintiffs have failed to give
proper description of the property in dispute. They had
raised this contention even before the first appellate court.
The said court while appreciating the above contention noted
that when the suit property can be identified by its number,

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there was no need of furnishing boundaries of the property.
This reasoning of the first appellate court is in consonance
with the stipulation in Order VII Rule 3 of CPC.
Undisputedly, the plaintiff has furnished CTS Number and the
extent of the suit property while describing the property in
dispute. Hence, this Court finds no merit in the objection
raised by Defendant No.2 regarding alleged failure on the
part of the plaintiff to furnish proper description of the
property in dispute.

12. The plaintiff maintained the suit for permanent
injunction, restraining the defendants from interfering with
her peaceful possession and enjoyment of the suit property.
It is the definite case of the plaintiff that the suit property
belongs to Town Panchayat, Alnavar and that she is in
possession and enjoyment of the said property for more than
50 years by constructing a house and developing the
property for her residential purpose. On the other hand, the
defendants contend that the plaintiff is no way concerned to
the suit property and that it is a wakf property.

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13. The first appellate court on re-appreciating the
evidence on record such as property assessment extract
(Ex.P1), the tax paid receipts (Exs.P2 to P14) and the
property extract (Ex.P15) held that these documents clearly
establish plaintiffs settled possession and enjoyment over
the suit property. Further, it held that the document relied
on by the defendants, i.e, the gift deed (Ex.D1) pertains to
the property bearing R.S. No.174/2+3A2 and it is no way
concerned to the suit property, i.e, TPC No.839. Defendant
No.2 has not pointed out any error committed by the first
appellate court in holding that the plaintiff is in settled
possession of the suit property.

14. On the other hand, the averments of the written
statement indicate that the defendants categorically admit
the plaintiffs’ possession of the property in dispute. It is
their case that the plaintiff has put up an illegal temporary
shed adjoining to the compound wall of Madani Mosque.
Thus, it becomes clear that the suit property is located by
the side of the compound wall of Madani Mosque and that

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the plaintiff is possession of the property situated outside
such compound wall.

15. The contention of Defendant No.2 is that the first
appellate court erred in allowing the appeal when the
plaintiffs failed to prove their title over the suit property and
the first appellate court allowed the appeal on the ground
that another view was possible in the case. This Court finds
no substance even in these contentions of the Defendant
No.2. It is because the suit of the plaintiff was for bare
permanent injunction and the plaintiff is not seeking such a
relief against the true owner or the person, who permitted
her to be in possession of the suit property. Further, the
findings recorded by the first appellate court regarding the
plaintiffs’ possession and the interference by the defendants
are based on evidence on record, noting the perversity
committed by the trial court in appreciating the materials on
record.

16. Learned Counsel for Defendant No.2 vehemently
contended that the first appellate court erred in dismissing

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their application under Order XLI Rule 27 of CPC. The first
appellate court while considering the said application noted
that the document sought to be produced by Defendant No.2
is a property extract issued by TMC pertaining to the year
2023. The first appellate court observed that the suit is of
the year 2013 and the plaintiff was required to prove her
possession over the suit property as on the date of the suit.
Hence, the first appellate court rejected the application filed
by Defendant No.2 on the ground that the document sought
to be placed before the Court is not relevant. In the facts
and circumstances of the case, this Court finds no error
committed by the first appellate court in rejecting the
application. Thus, on careful appraisal of the materials on
record this Court holds that the first appellate court was fully
justified in reversing the judgment and decree passed by the
trial court and decreeing the suit. In view of the same, it is
held that no substantial question of law arises for
consideration in the appeal.

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17. In the result, this Court proceeds to pass the
following:
ORDER
dismissed
The regular second appeal is .
The pending applications, if any, stand disposed of, as
they do not survive for consideration.


SD/-
(B. MURALIDHARA PAI)
JUDGE

HMB, ASN
CT:PA
LIST NO.: 1 SL NO.: 33