Dawalsab S/O. Janisab Betageri vs Ibrahim S/O. Mohammad Akbar
2022 Latest Caselaw 2389 Kant

                                 1


               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

          DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                               BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.100150 OF 2014(INJ)

BETWEEN:

DAWALSAB
S/O JANISAB BETAGERI
AGED ABOUT 63 YEARS,
R/O OLD HUBLI, HUBLI-580002.
                                                 ...APPELLANT
(BY SRI.SANTOSH B.MANE, ADV.)

AND:

1. IBRAHIM S/O MOHAMMAD AKBAR,
AGED ABOUT 76 YEARS, OCC: BUSINESS,
CLUB ROAD DANDELLI,
TQ: HALYAL DIST: KARWAR-581301

2. SHAHIM W/O RASUL MUJAWAR
AGED ABOUT 68 YEARS, OCC: HOUSEHOLD,
CLUS ROAD, BELGAUM-590016.

3. ISMAIL, S/O MOHAMMED AKBAR
AGED ABOUT 71 YEARS, OCC: BUSINESS,
CLUB ROAD, DANDELLI,
TQ: HALYAL-581301.

4. FEROZA W/O RAFIQ AHMED,
AGED ABOUT 69 YEARS, OCC: HOUSEHOLD,
R/O S/3RD, 2ND CROSS, LAL BHAG ROAD,
BANGALORE-560001.
                                2


5. FARIDA W/O RAZAK SHARIF,
AGED ABOUT 68 YEARS, OCC: HOUSEHOLD,
R/O 8, LAXMI ROAD,
5TH CROSS, SHANTI NAGAR,
BANGALORE-560001.

6. ABDULRAHIM S/O MOHAMMED AKBAR
AGED ABOUT 66 YEARS, OCC: BUSINESS,
R/O CLUB ROAD, DANDELLI,
TQ: HALYAL-581301.

7. FAHIMIDA W/O KHADAR SAYED,
AGED ABOUT 60 YEARS, OCC: TEACHER,
R/O CLUB ROAD, DANDELLI,
TQ: HALYAL-581301.

8. SAYYEDA, W/O KAMAR MULLA,
AGED ABOUT 68 YEARS, OCC: TEACHER,
R/O 1ST CROSS, JAYANAGAR,
DHARWAD-580003.

9. WAHEEDA CONTRATOR
AGED ABOUT 56 YEARS, OCC: TEACHER,
R/O GOPALPUR, MALAMADDI,
DHARWAD-580003.

10. ABDUL LATIF S/O ABDUL RAHIMSAB,
AGED ABOUT 56 YEARS, OCC: TEACHER,
R/O GOPALPUR, MALAMADDI,
DHARWAD-580003.
                                                ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 19.12.2013 PASSED BY THE LEARNED PRL SENIOR CIVIL JUDGE &
JMFC HUBLI IN R.A.NO.5/2011 WHEREBY CONFIRMING THE JUDGMENT
AND DECREE DATED 18/12/2010 PASSED BY THE LEARNED I ADDL.
CIVIL JUDGE HUBLI IN OS NO.458/1990 AND CONSEQUENTLY DISMISS
THE SUIT OF THE RESPONDENTS, IN THE INTEREST OF JUSTICE AND
EQUITY.

     THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                                 3


                          JUDGMENT

The captioned second appeal is filed by defendant No.2

questioning the concurrent judgments and decrees of the

Courts below wherein the suit filed by respondent-plaintiffs

seeking relief of mandatory injunction and delivery possession

is decreed by both the Courts below.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

The plaintiff claims that the suit schedule property was

originally owned by the ancestors of the defendants. The

plaintiff further claimed that the ancestors of defendants

herein sold the suit schedule property in favour of father of

plaintiff under registered sale deed vide Ex.P6 which is of the

year 1936. The plaintiff claims that his father acquired valid

right and title pursuant to the registered sale deed executed

by one Janisab who is none other than the ancestor of present

appellant i.e. husband of defendant No.1. The plaintiff further

contended that he has inducted the defendants in the suit

schedule property as a licencees. However, the defendants

taking undue advantage of absence of the plaintiff has tried to

put up construction in the area shown by letters ABCD in the

plaint hand sketch map. The plaintiff claims that defendant

No.1 is widow and defendant No.2 is her son and since both

are very poor and they requested the plaintiff to allow them to

stay in the suit schedule 'B' property as licencees, they were

inducted in the suit schedule property since defendant No.1

assured the plaintiff that they would take care of the property

from any encroachment by third persons and would also pay

municipal tax in lieu of licence fees. The plaintiff further

contends that defendant No.2 is running a fire wood depot

illegally in the suit schedule property and when he was called

upon to remove the said fire wood depot, the defendant No.2

went on postponing the same and hence, the suit is filed

seeking relief of mandatory injunction as well as possession of

the property.

4. On receipt of summons, the present defendants

contested the proceedings by filing written statement. They

stoutly denied the entire averments made in the plaint. The

defendants contended that one Janisab Bedasur is the

husband of defendant No.1 and father of defendant No.2. The

defendants claim that the authorities have issued a Sanad in

favour of the said Janisab and since the date of sanad, Janisab

enjoyed the suit schedule property as absolute owner and

after his death, the present defendants are residing in the suit

schedule property as absolute owners.

5. The plaintiff in support of his contention examined

himself as P.W.1 and examined four independent witnesses as

P.Ws.2 to 5 and produced documentary evidence vide Exs.P1

to P6. The defendants led ocular evidence by examining

defendant No.2 as D.W.1 and one independent witness as

D.W.2 and relied on documentary evidence vide Exs.D1 and

D2.

6. The trial Court having meticulously examined the

title documents relied on by plaintiff answered additional issue

No.1 in the affirmative by recording a finding that plaintiff has

succeeded in establishing his title in respect of Schedule A and

B properties. The trial Court having examined the clinching

evidence on record has also come to the conclusion that the

plaintiff is entitled to seek possession of suit house which is

shown as EFGHIJKLM in the hand sketch map annexed to the

plaint. The trial Court was of the view that the plaintiff's

father has acquired valid right and title pursuant to the

registered sale deed which is of the year 1935 and having

examined the title document, the trial Court has come to the

conclusion that the plaintiff has succeeded in establishing his

right and title over the suit schedule properties. The trial

Court also found that the sale deed executed by the

defendants' ancestor in favour of father of plaintiff has gone

unchallenged for almost 30 to 40 years and on these set of

reasoning, the trial Court has proceeded to decree the suit

holding that plaintiff is entitled for possession and

consequently directed the defendants to demolish the

structures in suit schedule 'A' property.

7. Feeling aggrieved by the judgment and decree of

the trial Court, the defendants preferred an appeal before the

lower appellate Court. The lower appellate Court on re-

appreciation of oral and documentary evidence has come to

the conclusion that the plaintiff is the absolute owner of the

suit schedule property and therefore, the defendants who

were inducted in the suit schedule property as licencees are

bound to hand over vacant possession of the suit schedule

property to the plaintiff. The appellate Court was also of the

view that Ex.P6 is a registered sale deed and it is more than

30 years old document and therefore, by extending

presumption under Section 90 of the Indian Evidence Act, the

appellate Court has also come to the conclusion that plaintiff is

the absolute owner of the suit schedule property. In the

absence of any rebuttal evidence indicating that the sale deed

of the year 1935 is a nominal sale deed, the appellate Court

has also come to the conclusion that the judgment and decree

of the trial Court is based on legal evidence and the same

would not warrant any interference. On these set of

reasoning, the appellate Court has dismissed the appeal.

8. Heard the learned counsel for the appellants-

defendants and perused the judgments under challenge.

9. On perusal of the clinching evidence on record,

more particularly, the title document as per Ex.P6, this Court

would find that the father of plaintiff acquired valid right and

title pursuant to the registered sale deed executed by husband

of defendant No.1. The sale deed is of the year 1935. The

said title document is not at all challenged either by the

husband of defendant No.1 nor by the defendants. Therefore,

the plaintiff has succeeded in establishing his title over the suit

schedule property. The clinching evidence on record also

indicates that the defendants who were inducted as licencees

have high handedly put up construction in schedule 'A'

property and therefore, both the Courts were justified in

granting the relief of mandatory injunction thereby directing

defendant No.2 to demolish the construction which is illegally

put up in suit schedule 'A' property. Consequently, both the

Courts have held that defendant No.2 is also liable to hand

over the actual and vacant possession of Schedule 'A' and 'B"

properties to the plaintiff within 30 days from the date of the

judgment and decree passed by the trial Court. The

concurrent judgments and decrees of the Courts below in

granting the relief of declaration and consequently ordering to

hand over vacant possession is based on legal evidence which

is placed on record by the plaintiff. The title document on

which reliance is placed has gone unchallenged. The evidence

on record also indicates that immediately after transfer by the

husband of defendant No.1, the name of the father of plaintiff

is duly mutated in the revenue records, which is also

forthcoming from Ex.P1- property extract. Therefore, the

clinching and rebuttal evidence adduced by plaintiff clearly

establishes his title and in the absence of rebuttal evidence to

indicate that the sale deed executed by husband of defendant

No.1 was nominal, both the Courts were justified in decreeing

the suit filed by the plaintiff. I do not find any infirmities in

the judgments and decrees passed by the first appellate Court

as well as the trial Court. No substantial question of law arises

for consideration.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

*alb/-