The

unsuccessful

plaintiffs

are

assailing

the

concurrent findings of the Courts below dated 07.02.2022

in RA No.158/2005 on the file of the II Additional Senior

Division, confirming the judgment and decree dated

10.08.2005 in OS No.687/2001 on the file of the I

Additional Civil Judge, Hubballi.

The parties herein are referred to as per the

ranking before the trial Court for the sake of convenience.

3.

The appellants-plaintiffs filed a suit for possession

in respect of northern portion of the residential premises in

CTS No.3963/B, CTS Ward No.1 measuring 20 X 30 ft. at

Gavali Galli, Bhandiwadbase, Hubli. It is averred in the

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plaint that plaintiff No.1 is the mother of plaintiff No.2 and

they are the absolute owners of the suit schedule property

and they have paid taxes and cesses of suit schedule

property. The defendant has no right, title or interest in

the suit schedule property and has illegally tresspassed

into the suit property and is in unlawful possession of the

same since five years. The plaintiffs demand for the

vacant possession of the suit property from the defendant

has turned futile, in spite of legal notice issued by the

plaintiff and hence, constrained to file a suit for

possession.

4. In pursuance to the notice ordered by the trial

Court, the defendant appeared and filed written statement

inter alia denying that the plaintiff is in actual possession

of the suit schedule property just five years back. The

defendant contended that plaintiff No.1 is not the wife of

deceased Imamhussain Allabaksh Yadwad and plaintiff

No.2 is not the only the son of Imamhussain Allabaksh

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Yadwad and disputed the relationship. The defendant

contended that the entire residential property comprised in

CTS No.3963/B CTS ward No.1 was belonging to one late

Allabaksh S/o Hajaratsab Yadwad and said Allabaksh S/o

Hajaratsab Yadwad had two sons namely, Imamhussain

Allabaksh Yadwad and Hajaratsab Allabaksh Yadwad who

have succeeded to the entire suit schedule property. After

the death, Imamhussain Allabaksh Yadwad and Hajaratsab

Allabaksh Yadwad have got mutual partition of the suit

schedule property and as per the mutual partition

southern portion of said CTS No.3963/B, CTS ward No.1

25 X 15 ft. was fallen to the share of Hajaratsab Allabaksh

Yadwad and remaining northern portion of the said CTS

fallen to the share of Imamhussain Allabaksh Yadwad who

is none other than the husband of plaintiff No.1 and from

the date of mutual partition Hajaratsab Allabaksh Yadwad

and Imamhussain Allabaksh Yadwad were making vahiwat

of the property fallen to their share.

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5. It is stated that from the date of mutual partition,

the northern portion of the suit property herein has been

in actual possession and enjoyment of the plaintiffs and

likewise, the actual possession and enjoyment of the

southern portion of said property has fallen to the share of

said Hajaratsab Allabaksh Yadwad. This being so, it is

stated that Hajaratsab Allabaksh Yadwad was unmarried

and was residing in the southern portion fallen to the

share along with defendant and his brothers and his

parents since many years as a dependent who is also the

co-brother of the said Hajaratsab Allabaksh Yadwad. It is

stated that the deceased Hajaratsab Allabaksh Yadwad

during his life time, out of his love and affection towards

defendant and his brother, has orally gifted the southern

portion of the property bearing CTS No.3963/B in favour of

the defendant and his brother on 07.11.1995 as per the

provision of Mohammdan Law and contended that the

defendants are in possession of the suit property. It is

contended that in the suit property the plaintiff is in

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possession and defendant never tried to tresspass upon

the suit property at any point of time. It is stated that suit

of the plaintiffs needs to be dismissed. The plaintiffs are

seeking possession of the property in which the plaintiff is

in possession i.e., northern portion. It appears that the

pl