Karnataka High Court
Ameenuddin vs Hussainbee on 4 July, 2024
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NC: 2024:KHC-K:4609
RSA No. 200043 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 04TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200043 OF 2019
(DEC/INJ)
BETWEEN:
AMEENUDDIN S/O LALSAB
AGED ABOUT 66 YEARS
OCC: SUPERVISOR IN SU-STORES
MALLAPPA SHAFT, HGM CO., LTD., HATTI
R/O. OPPOSITE TO OLD PANCHAYATH OFFICE,
HATTI VILLAGE, TQ:LINGASUGUR
DIST: RAICHUR-584101.
...APPELLANT
(BY SRI A. M. NAGARAL, ADVOCATE)
AND:
HUSSAINBEE W/O RAJABAKSHI
AGED ABOUT 66 YEARS
Digitally signed
by SWETA R/O. HATTI VILLAGE,
KULKARNI TQ: LINGASUGUR
Location: HIGH DIST: RAICHUR-584101.
COURT OF
KARNATAKA
...RESPONDENT
(BY MISS. SUMAN SIDHAPURKAR, ADV. FOR
SRI R. S. SIDHAPURKAR, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
DECREE DATED 2.11.2018 PASSED BY THE SENIOR CIVIL
JUDGE AND JMFC, AT LINGASUGUR, IN R.A. NO.13/2016 AND
CONFIRM THE JUDGMENT AND DECREE DATED 16.08.2016,
PASSED BYT EH ADDITIONAL CIVIL JUDGE, AT LINGASUGUR,
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NC: 2024:KHC-K:4609
RSA No. 200043 of 2019
IN O.S. NO.178/2009, BY ALLOWING THIS APPEAL AND
DISMISS THE SUIT OF THE PLAINTIFF AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Assailing the correctness and legality of the judgment and decree in RA No.13/2016 dated 02.11.2018 on the file of the Senior Civil Judge and JMFC at Lingasugur, reversing the judgment and decree dated 16.08.2016 in O.S No.178/2009 on the file of the Addl. Civil Judge at Lingasugur, the defendant is 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 for declaration to declare that the plaintiff is the owner and possessor of the open plot bearing panchayat No.4-23 (part of Old No.2-94) measuring 40 X 20 feet (herein after referred to as "suit property" for short) situated at Hutti village, Lingasugur Taluk, District Raichur and for injunction. The plaintiff also sought for rectification of the entry in the revenue records, the claim -3- NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 of the plaintiff is that the suit property is the ancestral property and she succeeded to the suit property after the death of her husband Rajabhakshi.
4. It is stated that the common ancestor Malaksab, was the owner and possessor of the open sites bearing Nos.2-93 and 2-94 totally measuring 40 X 60 feet, after his death, his four sons succeeded to the property and the portion of the property bearing Nos.93 (4-19 and 4-20), was transferred in the name of Mehaboob Ali, remaining property No.2-94 was divided between Imamsab, Moulasab and Rajabhakshi, the sons of Malakasab. It is stated that the property No.2-94 was given new numbers as 4-21, 4-22 and 4-23, the husband of the plaintiff was allotted 4-23. It is stated that the defendant illegally got his name entered in the revenue records, hence, the present suit.
5. On notice, the defendant appeared and filed his written statement, inter alia, denying the plaint averments contending that Moulasab and Imamsab were the owners -4- NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 in possession of the open plot No.3-21 measuring 40 X 30 feet about 30 years back and they sold the property to the defendant by executing an unregistered sale deed on 19.11.1979. The defendant contended that he is in possession of the suit property and his name appears in the revenue records from past 30 years and sets up a plea of adverse possession.
6. The Trial Court based on pleadings framed the following issues.
1. "Whether the plaintiff proves that she is the owner in possession and enjoyment of the suit schedule property?
2. Whether the defendant proves that the suit open plot is measuring 40 feet East-West and 30 feet North- South?
3. Whether the defendant proves that he has been in peaceful open and continuous possession of the suit property for more than 12 years, since 19-11-1979 without any interruption by the true owners or anybody including plaintiff and as such he has perfected his title by adverse possession?
4. Whether defendant proves that the suit of the plaintiff is barred by limitation?
5. Whether the plaintiff is entitle to the relief of declaration, permanent injunction and rectification of records?
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NC: 2024:KHC-K:4609 RSA No. 200043 of 2019
6. What order or decree?"
7. In order to substantiate their claim, the plaintiff examined herself as PW1, four witnesses as PW2 to PW5, got marked documents at Ex.P1 to P5. On the other hand, the defendant examined himself as DW1, one witness as DW2, got marked documents at Ex.D1 to D4.
8. The Trial Court on the basis of pleadings, oral and documentary evidence held that:
1. The plaintiff has failed to prove that she is the owner in possession of the suit property.
2. The defendant failed to prove that the suit open plot is measuring 40 feet East-West and 30 feet North-South.
3. The defendant failed to prove his peaceful open and continuous possession of the suit property for more than 12 years since 19.11.1979.
By the judgment and decree, the Trial Court dismissed the suit of the plaintiff.
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NC: 2024:KHC-K:4609 RSA No. 200043 of 2019
9. Aggrieved, the plaintiff preferred the appeal before the First Appellate Court, the First Appellate, Court while re-appreciating and reconsidering the entire oral and documentary evidence, set aside the judgment and decree of the Trial Court and decreed the suit of the plaintiff. Aggrieved, the defendant is before this Court.
10. Heard Sri A. M. Nagaral, learned counsel for the appellant and Ms. Suman Sidhapurkar, learned counsel for Sri R. S. Sidhapurkar, learned counsel for the respondent.
11. Learned counsel for the appellant submits that the plaintiff has not produced any documents to indicate that the suit property was standing in her name or in the name of her husband and the decreetal of the suit by the first appellate Court for declaration is in the absence of any title deed. The First Appellate Court has given an erroneous finding, which, on the face of it, is unsustainable. Learned counsel further submits that the First Appellate Court committed an error in holding that the defendant has not proved his title over the property by -7- NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 way of adverse possession and the judgment and decree of the First Appellate Court suffer from perversity and illegality warranting interference by this Court, and that there arise substantial questions of law for consideration in the present appeal.
12. Per contra, learned counsel for the respondent justifies the judgment and decree of the First Appellate Court and submits that the First Appellate Court has rightly assessed the oral and documentary evidence and arrived at a conclusion that the plaintiff is entitled for declaration, she brings to the notice of this Court that against the findings of the Trial Court on issue Nos.2 and 3, wherein, the Trial Court held that the defendant has failed to prove that he has perfected his title by adverse possession is not assailed by the defendant and the said finding has attained finality.
13. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
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NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 The family pedigree is as under:
14. Plaintiff is the wife of Rajabhakshi and defendant claims under Moulasab, according to the defendant, Moulasab executed an unregistered sale deed in his favour on 19.11.1979. The plaintiff has approached the Court seeking for declaration and injunction in respect of the suit property, contending that suit property was allotted to the share of her husband, originally the open plot bearing Panchayat No.4-23 and non suit No.4-22 were standing in the name of Lalbee, the daughter of deceased Moulasab, plot No.4-24 stood in the name of Moulali, who -9- NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 is the son of the deceased Imamsab and brother of the deceased husband of the plaintiff.
15. The evidence of PW4-Lalbee, daughter of Moulasab-the brother of deceased husband of the plaintiff, would indicate that the plaintiff is the owner and possessor of plot No.4-23, the property being partitioned and the property being allotted to the deceased husband have not been disputed by the brothers of Rajabakshi.
16. PW5 is Moulali, who is the son of Imamsab-the another brother of deceased husband of the plaintiff, he also categorically stated about the division between the brothers and the suit property being allotted to the husband of the plaintiff Rajabakshi.
Nothing fruitful has come out in the cross- examination of PW4 and PW5 to disbelieve the version of the witnesses. On the other hand, the specific defence of the defendant is that he has purchased the suit property under an unregistered sale deed dated 19.11.1979 from Moulasab and deceased Imamsab, according to the
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NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 defendant, from date of purchase of the suit property, he is in possession and he has perfected his title by way of adverse possession.
17. The Trial Court, while answering issue No.3, answered the said issue regarding the plea of adverse possession against the defendant. The claim of the defendant is on two counts, one under the unregistered sale deed and also by taking a plea of adverse possession. Under the unregistered sale deed he claims to be the owner of the property and by taking a plea of adverse possession, he admits the title of the plaintiff over the property. The title and the plea of adverse possession are contradictory to each other, in order to establish adverse possession, the principles and essential ingredients that are necessary are that:
(a) Possession must be open, clear, continuous and hostile to the claim or possession of the other party.
(b) The essential ingredients must co-exist
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(i) nec vi i.e., adequate in continuity
(ii) nec clam l.e., adequate in publicity
(iii) nec precario adverse to a competitor, in denial of title and knowledge, which means the adverse possession is proved only when possession is peaceful, open, continuous and hostile, and merely a long period of possession, does not translate into a right of adverse possession. Merely on the basis of denial of another's title over the property for that would be violative of the basic rights of the actual owner.
18. The Apex Court, in the case of Karnataka Board of Wakf Vs. Government of India and others1, has held that the principle of adverse possession is well settled and the party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario" i.e., peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in the extent to show that their possession is adverse to 1 (2004) 10 SCC 779
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NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 the true owner. It must start with a wrongful dispossession of a right owner and be actual, visible, exclusive, hostile and continued over the statutory period. The defendant has set up their claim on basis of an unregistered sale deed to claim title and also set up a plea of adverse possession. The defendant did not state as to when his possession becomes adverse to the knowledge of the true owner, the claim of independent title and adverse possession simultaneously on the same date cannot be recognized and it would be taking a contradictory plea and when a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property and thus, the pleas of title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former in renounced.
19. The Apex in this regard has held in the case of Narsamma and others Vs. A. Krishanappa (Dead)
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NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 through Legal Representative2 at paragraph No.33 held as under:
33. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."
(emphasis supplied)
20. The finding recorded by the Trial Court on issue No.3 regarding the plea of adverse possession has been un-assailed by the defendant. The First Appellate Court, before whom the plaintiff had preferred the appeal against the dismissal of suit for declaration, reassessed the entire oral and documentary evidence and arrived at a conclusion that the plaintiff is the absolute owner and possessor of the suit property and restrained the defendant from interfering into the peaceful possession of the plaintiff perpetually, there is no perversity or illegality in the order 2 (2020) 15 SCC 218
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NC: 2024:KHC-K:4609 RSA No. 200043 of 2019 passed by the First Appellate Court warranting any interference under Section 100 CPC, no substantial question of law arises for consideration and this Court pass the following:
ORDER i. The regular second appeal is dismissed. ii. The judgment and decree of the First Appellate Court stands confirmed.
Sd/-
JUDGE AT List No.: 1 Sl No.: 45 CT: VD