Mustafa S/O Mohd Yunus Shaikh vs Halimabi W/O Abdul Ghani Shaik
2022 Latest Caselaw 1620 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 03RD DAY OF FEBRUARY, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.5536/2013 (DEC/INJ)

BETWEEN

SRI MUSTAFA
S/O MOHD YUNUS SHAIKH,
AGE: 48 YEARS, OCC: SERVICE,
R/O SADAR SOFA,
OLD HUBLI, HUBLI,
DIST: DHARWAD.
                                            ... APPELLANT
(BY SRI SANTOSH B NARGUND, ADV.)

AND

1.    SMT.HALIMABI
      W/O ABDUL GHANI SHAIK
      AGE: MAJOR,
      OCC: HOUSEHOLD,
      R/O PLOT NO.3,
      BEHIND MODI,
      SHOLAPUR (M.S.) REP.BY HER
      GPA HOLDER GOUSUMIA
      HAZARATSAB GIRANI,
      OLD HUBLI, HUBLI,
      DIST: DHARWAD.

2.    THE STATE OF KARNATAKA
      REPTD. BY DEPUTY COMMISSIONER,
      DHARWAD.
                             2




3.    ASST.DIRECTOR OF LAND RECORD,
      CITY SURVEY, HUBLI.

4.    SMT.MEHAJANBIN
      W/O MUSTAFA SHAIKH,
      AGE: MAJOR, OCC: HOUSEHOLD
      R/O SADAR SOFA, OLD HUBLI,
      HUBLI, DIST: DHARWAD.

5.    SMT.MEHABOOBBI
      D/O ADAMSAB GIRANI
      AGE: MAJOR, OCC: SERVICE
      R/O OLD HUBLI, HUBLI,
      DIST: DHARWAD.
                                          ... RESPONDENTS

(BY SMT.GIRIJA S.HIREMATH, HCGP FOR R2 & 3)
(NOTICE TO RESPONDENT NOS.1, 4 & 5 : SERVED.)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE

OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET

ASIDE THE JUDGEMENT & DECREE DATED 28.03.2013 PASSED

IN R.A.NO.14/2002 BY THE I ADDITIONAL DISTRICT AND

SESSIONS JUDGE DHARWAD, SITTING AT HUBLI, DISMISSING

THE   APPEAL,   FILED   AGAINST   THE   JUDGMENT   DATED

28.01.2002 PASSED IN O.S.NO.48/1994 ON THE FILE OF THE

ADDL. CIVIL JUDGE (SR.DN.), HUBLI, DECREEING THE SUIT

FILED FOR POSSESSION AND MANDATORY INJUNCTION.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,

THE COURT DELIVERED THE FOLLOWING:
                               3




                      : JUDGMENT :

This captioned second appeal is filed by the

unsuccessful defendant No.3 questioning the

concurrent judgment and decree of the Courts below

directing the appellant-defendant to hand over the

vacant possession of the suit property and also to

delete the name of defendant Nos.1 and 2 from

CTS records of the suit property.

2. The facts leading to the above said case

are as follows:

The respondent-plaintiff filed a suit for

possession and mandatory injunction by specifically

contending that he is the absolute owner of the suit

schedule property. Respondent No.1-plaintiff

specifically pleaded that his ancestor filed a suit

against ancestor of defendant Nos.3 to 5 in

L.C.No.480/1942 seeking his legitimate share in the

property including the suit property and the said suit

came to be decreed on 30.09.1944. Respondent No.1-

plaintiff contended that the execution petition was

filed in L.D.No.108/1945 and the same was disposed

of on 30.03.1959 and possession was delivered in

terms of partition decree.

3. Respondent No.1-plaintiff further

contended that the defendants who are her relatives

and since her husband was employee in Maharashtra

State, suit schedule property was kept vacant and

therefore uncle of respondent No.1-plaintiff and

defendant Nos.3 to 5 requested her to permit the

defendants to reside in the suit schedule property and

it is in this back ground, respondent No.1-plaintiff

permitted the appellant-defendant to reside in the suit

property and therefore he is permissive occupier.

Respondent No.1-plaintiff specifically contended that

the appellant-defendant has no semblance of right,

title or interest.

4. Respondent No.1-plaintiff has further

pleaded that however appellant-defendant No.3 taking

undue advantage of innocence of respondent No.1-

plaintiff, got his name mutated in the CTS records

along with his wife on the basis of a concocted gift

deed purported to have been executed by

Smt.Gudumani wife of Late Adamsab Girni. Therefore,

respondent No.1-plaintiff issued a notice and

consequently filed the present suit seeking relief of

possession.

5. After receipt of summons, the present

appellant-defendant No.3 contested the proceedings.

The present appellant-defendant No.3 along with

defendant Nos.4 and 5 contested the proceedings by

filing written statement. The present appellant-

defendant contended that one Smt.Gudumani has

gifted the suit schedule property and therefore he

along with defendant Nos.4 and 5 has acquired valid

right and title and therefore sought for dismissal of the

suit. In the alternative, the present appellant-

defendant No.3 and defendant Nos.4 and 5 also

contended that they have perfected their title by way

of adverse possession.

6. Respondent No.1-plaintiff led in ocular

evidence by examining herself as PW.1 and examined

one independent witness as PW.2 and produced

documentary evidence vide Exs.P.1 to P.17. The

present appellant-defendant No.3 having contested

the proceedings by filing written statement however

did not choose to lead any oral and documentary

evidence.

7. The Trial Court having examined oral and

documentary evidence has come to conclusion that

respondent No.1-plaintiff is the absolute owner of the

suit schedule property and that the present appellant-

defendant No.3 and defendant Nos.4 and 5 are in

possession of the suit schedule property as licencee.

The Trial Court also found that the present appellant-

defendant No.3 having claimed title by way of counter

claim that he has acquired valid right and title on the

basis of gift deed executed by one Smt.Gudumani did

not choose to lead any rebuttal evidence. The Trial

Court having assessed the oral and documentary

evidence adduced by respondent-plaintiff decreed the

suit and the same was confirmed by the First Appellate

Court.

8. The present appellant-defendant No.3 has

set up two defences. One is that he has acquired valid

right and title pursuant to gift deed executed by one

Smt.Gudumani.

9. Secondly, appellant claimed that he has

perfected his title by way of adverse possession. Both

the Courts having examined the oral and documentary

evidence which is adduced by respondent No.1-

plaintiff have recorded a categorical finding that the

husband of Smt.Gudumani had no right and title over

the suit schedule property. Both the courts

concurrently held that the donor himself did not

possess any right and title over the suit schedule

property. Moreover, the present appellant-defendant

No.3 having claimed title on the basis of gift deed has

not at all pleaded in regard to gift deed executed by

Smt.Gudimani. The appellant has failed to produce

registered document indicating that the suit schedule

property was gifted by donor who possessed right and

title over the suit schedule property. Therefore both

the Courts have concurrently drawn adverse inference

against the present appellant and defendant Nos.4 and

5.

10. The appellant-defendant No.3 has also set

up plea of adverse possession. Once plea of adverse

possession is set up, then respondent No.1-plaintiff

who is seeking possession based on title over the suit

property can be non-suited, only if appellant-

defendant No.3 succeeds in establishing that he has

perfected his title by way of adverse possession. The

appellant has not stepped into the witness box and not

produced any documentary evidence. Both the Courts

have rightly answered Issue No.4 relating to adverse

possession in the negative.

11. When there is no contest by appellant-

defendant No.1, I am of the view that the concurrent

judgment and decree of the Courts below in holding

that respondent No.1-plaintiff is the owner and is

entitled for possession is based on legal evidence on

record. No substantial question of law arises. The

appeal is devoid of merits. Accordingly the same

stands dismissed.

SD/-

JUDGE EM