Khajahussain Since Deceased By ... vs Mohammed Abdul Hussain S/O Abdul ...
2022 Latest Caselaw 1950 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 08TH DAY OF FEBRUARY, 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

            R.S.A.NO.787/2006 (DEC/INJ)

BETWEEN

KHAJAHUSSAIN SINCE DECEASED
BY HIS LRS.

1.   MURTUJAB
     S/O KHAJAHUSSAIN,
     AGED ABOUT : 42 YEARS.

2.   TAYUB
     S/O KHAJAHUSSAIN,
     AGED : 30 YEARS.

3.   MOHAMMED MOHIDDIN
     S/O KHAJAHUSSAIN,
     AGED MAJOR : 43 YEARS.

4.   MOHAMMED JAFAR
     S/O KHAJAHUSSAIN,
     AGED MAJOR : 38 YEARS.

5.   MOHAMMED RAHAMAN
     S/O KHAJAHUSSAIN,
     AGED MAJOR : 35 YEARS.

6.   MULLABEE
     S/O AMIR ALI,
     AGED MAJOR : 40 YEARS.
                            2




7.    KARIMMABEE
      W/O KHAJAHUSSAIN USTAD,
      AGE MAJOR : 31 YEARS.

      ALL RESIDING AT TAVARAGERE,
      KUSHTAGI TALUK,
      KOPPAL DIST. 583 231.
                                            ...APPELLANTS
(BY SRI SUNIL S.DESAI, ADVOCATE.)

AND

MOHAMMED ABDUL HASSAIN,
S/O ABDUL KHADER,
AGED ABOUT 60 YEARS,
R/O TAVARAGERE,
KUSHTGI TALUK,
KOPPAL DIST: 563 231.
                                          .... RESPONDENT

(BY SADIQ N.GOODWALA, ADV.)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE

OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET

ASIDE THE JUDGEMENT & DECREE DATED 16.12.2005 PASSED

IN R.A.NO.117/2004 by the CIVIL JUDGE (SR.DN.) AT KOPPAL

SETTING   ASIDE   THE   JUDGMENT    AND   DECREE   DATED

21.11.2002 PASSED IN O.S.NO.151/1999 BY THE CIVIL JUDGE

(JR.DN.) AT KUSHTAGI.


      THIS APPEAL COMING ON FOR FURTHER HEARING THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
                              3




                     : JUDGMENT :

The captioned regular second appeal is filed by

plaintiff questioning the divergent judgments and

decree of the Courts below, wherein the Appellate

Court has modified judgment and decree of the Trial

Court by partly decreeing suit.

2. Facts leading to the above said case are as

under:

The present appellant-plaintiff filed a suit for

declaration and injunction in O.S.No.151/1999. The

Appellant-plaintiff specifically contended that the suit

schedule property bearing Sy.No.67 was originally

owned by one Smt.Aulabi wife of Abbasab and

Smt.Hussainbi wife of Akbarsab. The appellant-

plaintiff specifically contended that the suit property

measures East-West 20 yards and North-South 10

yards. The appellant-plaintiff further specifically

contended that the original owners on account of legal

necessity sold the suit schedule property under a

registered sale deed dated 08.09.1965 in favour of

appellant-plaintiff. Therefore appellant-plaintiff

claimed that he is the absolute owner and in lawful

possession of the suit schedule property.

3. The appellant-plaintiff further contended

that, the respondent-defendant is the adjoining land

owner and possessor of plot No.66. The appellant-

plaintiff sought permission from the Mandal

Panchayath for constructing a house. Respondent-

defendant tendered objections contending that the

extent and measurement of the plot shown in the

plaint is wrong. However local authorities on

inspection found that the extent is correct. The

respondent-defendant tried to encroach over the suit

open space and therefore the present appellant-

plaintiff was compelled to file a suit for declaration and

for consequential relief of injunction.

4. On receipt of summons, respondent-

defendant contested the proceedings and admitted the

sale deed executed in favour of appellant-plaintiff.

However, the respondent-defendant disputed the

measurements on North-South side. It is specifically

denied by respondent-defendant that the

measurement on North-South is 10 yards (30 feet).

5. The appellant-plaintiff in support of his

contention led in evidence and produced the original

sale deed dated 08.09.1965 as per Ex.P.4. The

respondent-defendant also led in ocular and

documentary evidence.

6. The Trial Court having appreciated the oral

and documentary evidence, has answered issue No.1

& 2 in the affirmative and issue No.3 in the negative.

The Trial Court having perused the title document has

recorded a finding that the appellant-plaintiff has

succeeded in proving that he is the owner of the plot

bearing No.67 measuring East-West 20 yards and

North-South 10 yards. The Trial Court having

examined the tenure of contest made by respondent-

defendant held that the appellant has succeeded in

establishing the alleged interference. While dealing

with Issue No.3, the trial Court has recorded a

categorical finding that the respondent-defendant has

failed to prove measurement on North-South Side of

the plot bearing No.66 which is owned by respondent-

defendant.

7. Feeling aggrieved by the judgment and

decree of the Trial Court, respondent-defendant

preferred an appeal before the First Appellate Court.

The First Appellate Court on re-appreciation of oral

and documentary evidence on record has concurred

with the findings of the Trial Court that respondent-

defendant has failed to establish the alleged material

alterations of the measurement in the registered sale

deed. However, has proceeded to reverse the finding

of the Trial Court on the premises that the recital in

the sale deed does not depict the true picture. The

first Appellate Court having examined the recitals in

the sale deed, was of the view that at the time of

purchase there was residential house in the suit

property and therefore the First Appellate Court was

of the view that the sale deed does not indicate

existence of open space abutting to the residential

house which is part and parcel of the plot bearing

No.67. The Appellate Court has come to the

conclusion that the appellant-plaintiff has failed to

establish the measurement of the suit schedule

property towards North-South side. On these set of

reasonings, the First Appellate Court proceeded to

reverse the finding.

8. This appeal was admitted to consider the

following substantial question of law, which reads as

under:

"Whether the lower appellate Court was justified in modifying the decree of the Trial Court without properly appreciating the contents of undisputed document of sale deed?"

     9.    Learned     counsel       appearing     for   the

appellant-plaintiff   would       vehemently     argue   and

contend before this Court that the appellant-plaintiff

by producing title document at Ex.P.4 has succeeded

in establishing his right and title to the extent of the

property as reflected in the sale deed vide Ex.P.4.

Taking this Court to paragraph No.2 of the written

statement, he would submit to this Court that the

respondent-defendant has not at all disputed the sale

of suit schedule property in favour of appellant-

plaintiff. Though there is denial of extent on North-

South side, having taken a specific stand disputing the

extent on North-South side, respondent-defendant

has not led any rebuttal evidence to substantiate his

claim. He would further submit to this Court that even

Appellate Court has concurred with the finding of the

Trial Court insofar as alleged material alterations in

regard to the extent in the sale deed is concerned.

10. Both the Courts have concurrently held

that the allegation in regard to material alteration was

not at all pleaded in the written statement. Even

otherwise there is absolutely no rebuttal evidence

indicating that the appellant-plaintiff has indulged in

carrying out material alteration in regard to the extent

and measurement in the sale deed towards North-

South side.

11. To buttress his argument, learned counsel

appearing for the appellant-plaintiff has placed

reliance on the judgment of the Hon'ble Apex Court in

the case of Jamila Begum (D) through LRs. Vs.

Shami Mohd. (D) through Lrs. And another1

12. Per contra, learned counsel appearing for

the respondent-defendant repelling the argument

canvassed by learned counsel appearing for appellant-

plaintiff would submit to this Court that the First

Appellate Court has rightly appreciated the ocular and

AIR 2019 Supreme Court 72

documentary evidence and the findings recorded by

the First Appellate Court is based on legal evidence

adduced by respondent-defendant and therefore

would not warrant interference at the hands of this

Court. Therefore, he would request this Court to

answer substantial question of law in the negative and

consequently dismiss the appeal

13. Heard learned counsel appearing for the

appellant-plaintiff and learned counsel appearing for

the respondent-defendant. Perused the judgment and

decree of the Courts below. I have also gone through

the Trial Court Records.

14. It is not in dispute that the appellant-

plaintiff acquired valid right and title over the suit

schedule property pursuant to registered sale deed

dated 08.09.1965. The copy of the registered sale

deed is produced at Ex.P.4. The extent in the

registered sale deed clearly indicates that the suit

schedule property measures East-West 20 yards (60

feet) and North-Shout 10 yards (30 feet). Therefore,

on perusal of material on record what emerges is that

the claim of appellant-plaintiff is based on registered

sale deed. The respondent-defendant has admitted

that the suit schedule property was in fact transferred

by relatives of respondent-defendant under registered

sale deed in favour of appellant-plaintiff. But however,

respondent-defendant is questioning and seriously

disputing the extent and measurement shown towards

North-South side. In the registered sale deed the

North-South extent is shown as 10 yards. The

respondent's contention is that it does not measure 10

yards. When the party asserts and claims title based

on a registered document and if the same is disputed

by other side, burden always rest upon party disputing

the contents of the sale deed. Admittedly, the sale

deed is of the year 1965. The document is more than

30 years old document. Therefore, the recital

indicating the extent has got presumptive value.

Though respondent-defendant has not alleged

material alteration in regard to extent on the North-

South side in the written statement, however during

trial a feeble attempt was made by the respondent-

defendant indicting that the appellant-plaintiff has

indulged in material alteration in regard to the extent.

However, the said contention which is raised during

trial cannot be examined as the same is not at all

supported by pleadings in the written statement.

15. On perusal of the judgment rendered by

the Hon'ble Apex Court cited supra, though the First

Appellate Court has virtually concurred with the

findings of the Trial Court and the allegation raised by

respondent-defendant that there is material alteration

was rightly negatived by the Appellate Court, but

however, on perusal of the reasons assigned in the

judgment, this Court would find that the First

Appellate Court has virtually ventured into

unwarranted aspects which were not at all relevant to

decide the present lis between the parties. When it

was nobodies case, the First Appellate Court has suo-

muto has come to conclusion that, what was

purchased by appellant-plaintiff in the year 1965 was

a residential house and therefore, the sale deed does

not indicate the existence of open space and therefore

the First Appellate Court has proceeded to discard the

measurement shown in the original sale deed as per

Ex.P.4 and it is in this background the First Appellate

Court has come to the conclusion that the appellant-

plaintiff has failed to prove the measurement of the

suit property towards North-South side. The First

Appellate Court was of the view that the appellant-

plaintiff has failed to prove that the property

measures 10 yards towards North-South. This finding

is perverse, palpably erroneous and contrary to the

clinching evidence on record led in by the appellant-

plaintiff.

16. When Courts are called upon to examine

the title of litigants in terms of registered document, it

is a trite law that the Courts cannot look into the other

evidence, other than what is stated in the registered

document. Admittedly, the suit property was

purchased way back in the year 1965 and this entire

dispute has arose in the back ground of appellant-

plaintiff intending to put up a new construction.

Therefore, what was required to be examined by the

Appellate Court was whether the appellant-plaintiff is

entitle to seek declaration over the suit schedule

property in terms of what is stated in the registered

sale deed vide Ex.P.4. If the recitals in the registered

sale deed indicate that the suit property measures 10

yards towards North-South, that would clinch the

issue. Any other contrary evidence in the form of oral

or documentary evidence is not at all admissible. The

respondent-defendant except disputing the

measurements towards North-South side has not led

any rebuttal evidence. Therefore the judgment cited

by learned counsel for appellant-plaintiff is squarely

applicable to the present case on hand. The registered

document which was executed at undisputed point of

time and the fact that same is not challenged by

anybody till this date therefore appellant-plaintiff is

entitled for declaration not only on the East-West side

but also on North-South side. The relief that is

granted by the First Appellate Court virtually takes

away the valuable rights of the appellant-plaintiff and

the finding recorded by the First Appellate Court would

clearly negate the sale deed which is not at all

challenged by anybody till this date.

17. In view of the discussions and observations

made by this Court in the preceding paragraphs, the

substantial question of law framed by this Court needs

to be answered in the affirmative. Accordingly the

same is answered in the affirmative. Hence, I proceed

to pass the following order.

: ORDER :

The appeal is hereby allowed.

The judgment and decree dated 16.12.2005 passed in R.A.No.117/2004 by the District and Sessions Judge, Fast Track Court-II, Koppal, is hereby set aside.

Consequently judgment and dated 21.11.2002 passed in O.S.No.151/1999 by the Civil Judge (Jr.Dn.), Kushtagi is hereby confirmed.

SD/-

JUDGE EM