Karnataka High Court
Farooq Ahamed And Ors vs The State Of Karnataka And Ors on 3 July, 2024
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RSA No. 200370 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200370 OF 2019
(DEC/INJ)
BETWEEN:
1. FAROOQ AHAMED
S/O MOHD. IBRAHIM SAB KADKU,
AGED: 63 YEARS,
OCC: AGRICULTURE BUSINESS.
2. MOHD. AKBAR SAB
S/O MAHD. IBRAHIM KADKU,
AGED : 61 YEARS, OCC: AGRICULTURE.
ALL ARE R/O. TIMMAPUR,
TQ: SHORAPUR,
Digitally signed
by SWETA DIST: YADGIRI-58532.
KULKARNI
Location: HIGH
COURT OF
KARNATAKA
...APPELLANTS
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH DEPUTY COMMISSIONER,
KALABURAGI.
2. THE SR. ASST. DIRECTOR
OF HORTICULTURE
Z.P. KALABURAGI.
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RSA No. 200370 of 2019
3. THE EXTENSION OFFICER,
INDUSTRIES & COMMERCE,
Z.P. KALABURAGI.
4. THE EXECUTIVE OFFICER (EO),
T.P SHORAPUR THROUGH HIM,
THE HARIJAN BOY'S & GENERAL
II HOSTEL, SHORAPUR.
5. THE ASST. DIRECTOR OF
SERICULTURE, JEWARGI,
DIST: KALABURAGI.
6. THE TAHASHILDAR SHORAPUR,
DIST: YADGIR.
7. THE CHIEF OFFICER,
TMC SHORAPUR ,
DIST: YADGIR.
8. ABU SHAM
S/O ABDUL SALEEM SAB KADKAR,
SINCE DECEASED BY LR'S.
a) JUKRUNNISA BEGUM
W/O LATE ABU SHAM,
AGE: 46 YEARS,
OCC: HOUSEHOLD AFFAIRS,
b) ATAUL KAREEM
S/O LATE ABU SHAM,
AGE: 26 YEARS, OCC: AGRICULTURE.
c) SHAHAJAD ATAUD
S/O LATE ABU SHAM,
AGE: 22 YEARS, OCC: AGRICULTURE.
d) MEHERUNNISA BEGUM
D/O LATE ABU SHAM,
AGE: 20 YEARS, OCC: HOUSE HOLD AFFAIRS.
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RSA No. 200370 of 2019
e) MAHEMOODA BEGUM
D/O LATE ABU SHAM,
AGE: 19 YEARS, OC: HOUSEHOLD AFFAIRS.
f) MOHAMMED DANISH
S/O LATE ABUSHAMA
AGE: 13 YEARS, MINOR.
g) ADIL AHEMED
S/O LATE ABUSHAMA,
AGE: 9 YEARS, MINORS,
BOTH MINORS U/G OF THEIR NATURAL MOTHER
JUKRUNNISA BEGUM
W/O LATE ABUSHAMA,
ALL ARE R/O. TIMMAPUR,
TQ. SHORAPUR, DIST: YADAGIRI.
...RESPONDENTS
(BY SRI RAJKUMAR A. KORWAR, HCGP FOR R1 TO R7)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
CALL FOR THE RECORDS AND SET-ASIDE THE JUDGMENT AND
DECREE DATED 15.12.2018 BY THE COURT ADDL. CIVIL JUDGE
AND JMFC AT SHORAPUR PASSED IN O.S. NO.70/2008
CONFIRMING THE DATED JUDGMENT AND DECREE DATED
11.09.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC
AT SHORAPUR IN R. A. NO.21/2019 AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200370 of 2019
JUDGMENT
Against the concurrent findings of facts recorded by the Courts below, plaintiff Nos.1 and 2 are before this Court in the regular second appeal.
2. Parties herein are referred to as per the rank before the Trial Court for the sake of convenience.
3. Suit seeking for relief of declaration, possession and mandatory injunction with the prayer to declare that the plaintiffs are the owners and possessor of the lands bearing Sy.No.11/A measuring 4 acres 1 gunta out of 5 acres 1 gunta, Sy.No.11/Aa measuring 2 acres out of 2 acres 20 guntas and Sy.No.11/E measuring 2 acres 6 guntas out of 2 acres 20 guntas situated at Hasanapur village (hereinafter referred as "suit properties" for short), for possession and for mandatory injunction directing defendant Nos.1 to 7 to demolish the constructions made thereon.
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4. On notice, defendants appeared and filed their written statement, defendant Nos.6 and 7 filed separate written statements, defendant Nos.1 to 5 adopted the written statement filed by defendant No.6 by filing a memo.
5. Defendant No.6 inter alia contended that the Sericulture Department has constructed a chawki rearing center of size 30 x 40 in the site measuring 100 x 100 in land Sy. No.11/A situated at Hasanpur village being the land gifted by one Sri Pradhanappa s/o Danappa vide gift deed dated 06.09.1983. Defendant No.6 denied about the Sericulture Department encroached upon the plaintiff's land to the extent of 9 guntas in Sy. No.187/2 and about any encroachment in the suit property.
6. Defendant No.10 inter alia denied the averments in the plaint. Subsequently, defendant Nos.8 to 10 was deleted based on the memo filed by the plaintiff.
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7. The Trial Court on basis of the pleading framed the following issues:
1. "Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
2. Whether the plaintiffs further prove that the defendants illegally encroached suit schedule properties and put up construction?
3. Whether the suit is barred by time?
4. Whether the plaintiffs are entitled for the relief of declaration and injunction?
5. What order or decree?"
8. In order to substantiate their claim, plaintiff No.2 examined himself as PW1, got marked documents at Ex.P1 to P9. On the other hand, defendants did not led any evidence.
9. The Trial Court on the basis of pleading, oral and documentary evidence held that:
1. The plaintiffs failed to prove that they are the absolute owner of the suit properties.
2. That the plaintiffs failed to prove that the defendants illegally encroached the suit properties and put up construction, -7- NC: 2024:KHC-K:4524 RSA No. 200370 of 2019 By the judgment and decree the Trial Court dismissed the suit of the plaintiffs.
10. Aggrieved, the plaintiffs preferred appeal before the First Appellate Court, the First Appellate Court while re-appreciating and reconsidering the entire oral and documentary evidence concurred with the judgment and decree of the Trial Court. Aggrieved, the plaintiffs are before this Court in the regular second appeal.
11. Heard Sri Liyaqat Gareed Ustad, learned counsel for the appellants and Sri Rajkumar Korwar, learned HCGP for respondent Nos.1 to 7 and perused the judgment and decree of the Courts below.
12. Suit is for relief of declaration, recovery of possession and mandatory injunction in respect of the suit properties, the specific case of the plaintiffs is that there is an encroachment made by the defendants by putting up buildings, PW1 categorically admitted in his cross- examination that the defendants have constructed -8- NC: 2024:KHC-K:4524 RSA No. 200370 of 2019 compound wall for the buildings about 25 years back. The burden was on the plaintiff to prove that he is the absolute owner in possession of the suit property and there is an illegal construction put up in the suit property. Ex.P1 to Ex.P9 are the revenue records in respect of the suit properties, which stands in the name of the plaintiffs.
13. The entry of the name of the plaintiffs in the revenue records is not based on title deed, according to the plaintiffs, the suit properties are inherited from his father, in order to indicate that there was an inheritance of the suit properties from his father no materials are forthcoming, the documentary evidence produced by the plaintiffs is in respect of entry made in his name. The averments in the plaint and the evidence are silent as to the acquisition of title to the suit properties by the plaintiffs. Based on revenue records indicating the name of the plaintiffs is not sufficient to entitle the plaintiffs for declaration, as the revenue records does not confer any right, title to the parties.
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14. The plaintiffs having not produced any title documents to establish their right over the suit properties, the plaintiffs are not entitled for declaration, the oral and documentary evidence tendered by the plaintiffs even does not establish that there was an encroachment in the suit properties. When the plaintiffs have failed to prove his declaration, the question of encroachment by the defendants would not arise and merely because the defendants have stated in their written statement that they are in possession of certain portion of the suit properties does not indicate that the plaintiffs are the owners of the remaining portion as contended by the plaintiffs.
15. The plaintiffs have failed to establish his title over the suit properties and the alleged encroachment, the Trial Court considering the oral and documentary evidence has held that the plaintiffs have not produced any title document to establish their title over the suit properties.
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16. The First Appellate Court being the last fact finding Court re-appreciated and reconsidered the entire oral and documentary evidence and arrived at a conclusion that the plaintiffs claim their ownership over the suit properties on basis of inheritance but they have not produced any documents to show that the father had acquired the suit properties and before him his grandfather, in the absence of the same, the plaintiffs are not entitled for declaration and for mandatory injunction. The defendants have constructed buildings over the suit property since more than 25 years as admitted by P.W.1 himself. The plaintiff has kept silent and not asserted his right, the cause of action shown in the plaint is 1997, when illegal construction was made, according P.W.1 himself much prior, i.e., nearly 25 years. The recovery of possession is also barred by limitation, the Trial Court and the First Appellate Court dismissed the suit of the plaintiff on the ground of limitation as well. The manner in which the courts below have assessed the entire oral and
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NC: 2024:KHC-K:4524 RSA No. 200370 of 2019 documentary evidence, this Court is of the considered view that the same does not warrant any interference, no substantial question of law arises for consideration under Section 100 CPC, accordingly, this Court pass the following:
ORDER I. The regular second appeal is hereby dismissed. II. The judgment and decree of the Courts below stands confirmed.
Sd/-
JUDGE AT List No.: 1 Sl No.: 36