Mubarak S/O Ibrahimsab Mulla vs Aminabi W/O Usmansab Mulla
2022 Latest Caselaw 8163 Kant

                                                 -1-




                                                             RSA No. 5515 of 2012


                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 06TH DAY OF JUNE, 2022

                                              BEFORE
                              THE HON'BLE MR JUSTICE E.S.INDIRESH
                        REGULAR SECOND APPEAL NO. 5515 OF 2012 (DEC/INJ-)
                   BETWEEN:

                   1.    MUBARAK S/O IBRAHIMSAB MULLA
                         AGE: 57 YEARS, OCC: AGRICULTURE.,
                         R/O JAMBAGI B.K., TQ: JAMKHANDI,
                         DIST: BAGALKOT 587 314

                   2.    MOHAMMADASAB S/O IBRAHIMSAB MULLA
                         AGE: 55 YEARS, OCC: AGRILULTURE.,
                         R/O JAMBAGI B.K., TQ: JAMKHANDI 587 314

                   3.    VAZIRSAB S/O IBRAHIMSAB MULLA
                         AGE: 52 YEARS, OCC: AGRILULTURE.,
                         R/O JAMBAGI B.K., TQ: JAMKHANDI 587 314

                   4.    SMT.JULEKHA W/O BABU MULLA
                         AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
                         R/O TAKKOD, TQ: JAMKHANDI 587 314
                                                                   ...APPELLANTS
SHIVAKUMAR
HIREMATH           (BY SRI. SHRIKANT D. BABLADI, ADVOCATE)
Digitally signed
by SHIVAKUMAR
HIREMATH
Date: 2022.06.10
11:57:18 -0700




                   AND:

                   1.    AMINABI W/O USMANSAB MULLA
                         AGE: 62 YEARS,
                         OCC: AGRICULTURAL AND H.H.WORK,
                         R/O JAMBAGI B.K, TQ: JAMKHANDI
                         DIST: BAGALKOT 587 314
                                   -2-




                                              RSA No. 5515 of 2012


2.   SMT.ASIMBI W/O HASIMPEER MULLA
     AGE: 45 YEARS, OCC: AGRICULTURE & H.H.WORK,
     R/O JAMBAGI B.K., TQ. JAMKHANDI 587 314

3.   SMT.BISMILLA W/O MEERSAB MULLA
     AGE: 32 YEARS, OCC: AGRILULTURE & H.H.WORK,
     R/O JAMBAGI B.K. TQ. JAMKHANDI 587 314
                                                   ...RESPONDENTS

(BY NOTICE TO R1 - 3 - HELD SUFFICIENT)

      THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 24.01.2012
PASSED IN R.A.NO.170/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, JAMKHANDI, DISMISSING
THE APPEAL FILED AGAINST THE JUDGMENT DATED
27.09.2010 AND THE DECREE PASSED IN O.S.NO.281/2002 ON
THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE COURT,
JAMKHANDI,     DECREEING    THE     SUIT   FILED   FOR
DECLARATION AND INJUNCTION.

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

                             JUDGMENT

This appeal is preferred by defendants No.1 to 3 and 6,

challenging the judgment and decree dated 24.01.2012 in RA

No.170/2010 on the file of the Fast Track, Jamkhandi (hereinafter

referred to as 'the First Appellate Court', for brevity), confirming the

judgment and decree dated 27.09.2010, passed by the Principal

Senior Civil Judge, Jamakhandi (hereinafter referred to as 'the trial

RSA No. 5515 of 2012

Court', for brevity), in Original Suit No.281/2002, decreeing the suit

of the plaintiff.

2. For the sake of convenience, the parties are referred to

as per their ranking before the trial Court.

3. The factual matrix of the case are that, the plaintiffs

have filed a suit for declaration, stating that the plaintiffs are the

legal representatives of one Usmansab Mulla and the competent

Tribunal has declared him as the occupant of the suit schedule

property bearing survey No.42/2 measuring 4 acres 24 guntas at

Jambagi KD Village, Jamkhandi Taluk. It is further stated that the

said Usmansab Mulla died in the year 2002 and thereafter the

plaintiffs have succeeded to the estate of deceased Usmansab

Mulla. It is further averred in the plaint that defendants No.1 to 3

have created an illegal document namely "Apsat Watni Patra" in

respect of the land bearing survey No.42/2 and claiming right over

the said property and therefore, the plaintiffs were constrained to

file Original Suit No.281/2002 seeking declarative relief with other

consequential relief.

4. On service of notice, defendants entered appearance

and filed written statement denying the averments made in the

RSA No. 5515 of 2012

plaint. It is the specific case of the defendants that item No.2 of the

schedule property is the joint family property of the said Usmansab

Mulla and the husband of defendant No.1 - Ibrahimsab Mulla and

therefore contended that defendants have a right over the schedule

properties.

5. Based on the pleadings on record the trial Court

framed the following issues:

1. Whether plaintiffs prove that suit land R.S.No.42/2 is the self acquired property of late Usmansab and another land is his ancestral property, therefore after his death, they being the Class-I heirs are the absolute owners of both the suit properties?

2. Do they further prove that entries in respect of suit lands in the name of defendants No.1 to 3 are illegal, null, void and not binding on their interest in the same?

3. Do they further prove that on the basis of 'Apsat Watni Patra" defendants cannot claim any of their right or interest in the suit properties?

4. Deleted.

5. Do they further prove that that they are in lawful possession and Vahivat of the suit properties as on the date of suit?

RSA No. 5515 of 2012

6. Whether defendants No.1 to 3 prove that their father Ibrahimsab and late Usmanasaheb are full brothers and suit properties are their joint family properties?

7. Do they further prove that entry in the records of the suit properties in their name on the basis of the 'Watni Patra' and consequent mutation proceedings are valid and legal one?

8. Deleted.

9. Deleted

10. Whether plaintiffs are entitled for relief of declaration & consequential relief of injunction as prayed?

11. What Judgment or Order?

6. In order to prove their case, plaintiffs have examined

three witnesses as PWs. 1 to 3 and produced 19 documents and

the same were marked as Ex.P1 to P19. Defendants have

examined one witness as DW1 and produced solitary documents

and the same was marked as Ex.D1. The trial Court after

considering them, by its judgment and decree dated 27.09.2010,

decreed the suit of the plaintiffs. Being aggrieved by the same,

defendants 1 to 3 and 6 have preferred appeal in RA No.170/2010

RSA No. 5515 of 2012

on the file of the First Appellate Court and the same was resisted

by the plaintiffs.

7. The First Appellate Court after considering the material

on record dismissed the appeal consequently confirmed the

judgment and decree dated 27.09.2010 passed in Original Suit

No.281/2002. Feeling aggrieved by the same, the defendants have

preferred this second appeal. Appellants have also filed I.A.2/2015

seeking permission to file the additional documents.

8. I have heard Sri. Shrikant D. Babladi, learned counsel

for the appellants and respondents were served but remained

absent.

9. Sri. Shrikant D. Babladi, learned counsel appearing for

the appellants contended that both the Courts below have ignored

the fact that the deceased Usmansab Mulla was a signatory to

Exs.P10 and P14 and further the appellants herein have acquired

the suit schedule property at the time of partition and therefore, the

arguments advanced by learned counsel appearing for the

appellants that more or less the subject land is the joint family

property of the plaintiffs and defendants. He further contended that

RSA No. 5515 of 2012

the finding recorded by the Courts below with regard to Exs.D10

and D14 requires reconsideration in this appeal.

10. Having heard the learned counsel appearing for the

appellants, I have perused the impugned judgment and decree

passed by the Courts below, wherein the scheduled land was

granted to Usmansab Mulla Mulla - husband of plaintiff No.1. The

Land Tribunal has granted occupancy rights in the year 1991 on

the ground that the said Usmansab Mulla was cultivating the land

in question and accordingly, accepted Form No.7 filed by the said

Usmansab Mulla. The core question to be answered in this appeal

is whether the defendants have made out a case that the

Ibrahimsab Mulla and his brother - Usmansab Mulla, grantee of the

land in question, have acquired the property as joint dwellers. In

this regard, a perusal of the finding recorded by the trial Court,

particularly with regard to the issue No.6, whereunder the trial

Court after considering the material on record, arrived at a

conclusion that the defendants have not made out a case to say

that the suit properties are the joint family properties and further it

was held that the subsequent act of reflecting the name of the

RSA No. 5515 of 2012

parties in the 'Watni Patra' and mutation proceedings has not

conferred any right in favour of the defendants.

11. Undisputably, the land was granted to the husband of

plaintiff No.1 - Usmansab Mulla and therefore, he alone is entitled

for occupancy rights as confirmed by the Land Tribunal under the

provisions of the Karnataka Land Reforms Act. Therefore, I am of

the view that the finding recorded by the trial Court is just and

proper, holding that the plaintiffs are the owner in possession of the

suit schedule property.

12. I have also noticed from the evidence on record by the

First Appellate Court, wherein the First Appellate Court has arrived

at a conclusion, after referring to the Exs. P10 - P14, namely

'Watni Patra' and the mutation/RTC extracts and looking into these

documents, the said 'Watni Patra' at Ex.P10 is an unregistered one

and do not confer title to the defendants. That apart, it is

established principle under law that, no revenue records will confer

title to the parties in terms of the catena of decisions rendered by

the Hon'ble Apex Court and therefore, in a suit for declaration, the

parties to the suit have to prove their title based on the

documentary evidence and in this regard, the plaintiffs have

RSA No. 5515 of 2012

produced the documents to establish that the subject land in

question was granted to Usmansab Mulla by the Land Tribunal

under the provisions of the Karnataka Land Reforms Act and

therefore, I do not find any perversity in the judgment and decree

passed by the Courts below. Accordingly, the same is confirmed.

13. Since the appellants herein have not made out a case

for framing of the substantial question of law and resultantly, the

appeal is to be rejected at the stage of admission.

14. In this regard, I have also noticed that, the appellants

herein have filed an application in I.A.2/2015 and sought to

produce certain documents as additional evidence, wherein the

appellants herein have produced the proceedings in Civil Suit

No.19/1964, wherein the suit was compromised between the

defendants and the husband of plaintiff No.1. Undisputably, the

said suit was filed for possession of the suit land and the same was

ended with a compromise. However, looking into the judgment of

the Hon'ble Apex Court in the case of Balawwa and Anr. Vs.

Hasanabi and Ors. reported in (2000) 9 SCC 272, wherein it is

held that all the heirs of the tenant had a right in the tenanted

property, so also the property left by the tenant. The occupancy

- 10 -

RSA No. 5515 of 2012

rights conferred by the land Tribunal shall enure to the benefit of

the heirs of the tenant alone and therefore, even if the suit filed by

the defendants against the husband of the plaintiff No.1 in civil suit

No.19/1964 and the said suit has been filed seeking possession of

the suit schedule property, same cannot be accepted to deny

declaratory right to the plaintiffs. However, the same cannot be

considered as the basis to declare that the defendants have a right

or title in respect of the suit schedule property. Therefore, I am of

the view that, I.A.2/2015 deserves to be rejected.

15. Consequently, the appeal is dismissed.

Sd/-

JUDGE

gab