Sri. Srinivasa vs Ahsanulla
2022 Latest Caselaw 4029 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO.1127 OF 2021 (INJ)

BETWEEN:

SRI. SRINIVASA
AGED ABOUT 51 YEARS,
S/O GURRAPPA,
R/AT OLD TOWN,
NEAR POLICE STATION,
BETHAMANGALA, KGF TALUK,
KOLAR DISTRICT-563116.
                                              ...APPELLANT
(BY SRI. SATISH A., ADVOCATE (THROUGH VC))

AND:

AHSANULLA
AGED ABOUT 63 YEARS,
S/O ABDUL SATTAR,
R/O NEW TOWN,
BETHAMANGALA, KGF TALUK,
KOLAR DISTRICT-563116.
                                             ...RESPONDENT

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 31.07.2021 PASSED IN RA.NO.192/2019 ON
THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, KOLAR, C/C
III ADDITIONAL DISTRICT JUDGE, KOLAR, (SITTING AT K.G.F,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 27.08.2019 PASSED IN O.S.NO.31/2011
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND ADDITIONAL
JMFC, K.G.F.
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     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This Regular Second Appeal is filed by the defendant

in O.S. No.31/2011 challenging the concurrent finding of

fact recorded by both the Courts that the plaintiff is the

owner of the suit property and consequently injuncting the

defendant perpetually from interfering with the possession

of the plaintiff.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The plaintiff claimed that the father of

defendant had sold the suit property in terms of a sale

deed dated 01.04.1997 and thereafter he got his name

entered in the revenue records and was in possession and

enjoyment of the said property. The defendant though

having no subsisting right, title or interest, attempted to

interfere while laying foundation in the suit property.

Hence, the present suit was filed for declaration of his

ownership and for perpetual injunction. The suit was

contested by the defendant, who did not deny the fact that

his father was owner of the land bearing Sy.No.467 of

Bethamangala village. He claimed that this property was

divided between his father and his uncle and 12½ guntas

fell to the share of each of them and that mutation

proceedings were initiated in M.R. No.42/1997-98 and

M.R. No.15/1999-2000 to enter their names in the revenue

records. It was contended that the land in Sy.No.467 was

not converted into sites and the land was not alienated for

non-agricultural purposes and that he was in possession of

the entire extent of 12½ guntas in Sy. No.467.

4. The Trial Court after considering the oral and

documentary evidence held that the plaintiff had proved

the execution of the sale deed by the father of defendant

in respect of the suit property and hence decreed the suit

and appeal preferred by the defendant before the First

Appellate Court was dismissed.

5. Being aggrieved by the aforesaid, the present

second appeal is filed.

6. The learned counsel for defendant submitted

that there were disputes regarding boundaries of the suit

schedule property, which the Trial Court did not consider.

He also contended that his father did not sell the suit

property as the land was neither converted for non

agricultural use nor was a layout formed. He, thus

submitted that the Courts committed an error in decreeing

the suit.

7. Since the father of the defendant had sold the

suit property, the defendant cannot contend that his father

had given wrong boundaries to suit schedule. Since the

antecedent title of the father of the defendant was proved

by the admission by the defendant that his father was the

owner of the land bearing Sy.No.467, the Trial Court and

the First Appellate Court were justified in decreeing the

suit for perpetual injunction. However, it is open for the

defendant to bring suitable action before the Court to

prove that his father had not executed the sale deed in

favour of the plaintiff and that the sale deed related to

some other property. He cannot countenance the claim of

the plaintiff in this suit. There is no merit in this appeal

and the same is dismissed. The defendant is at liberty to

file appropriate suit for declaration of his title against the

plaintiff.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm