Mohammed Siddique Ali Since ... vs Dr.Mohd.Shakeel Anjum And Anr
2022 Latest Caselaw 4761 Kant

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        IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 15TH DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                RSA No.200273/2016

Between:

Mohammed Siddique Ali
Since deceased by his LRs.

1(a). Nazia Ali W/o Late Mohammed
      Siddique Ali,
      Age: 41 years, Occ: Household,

1(b). Shahid Ali S/o Late Mohammed
      Siddique Ali,

1(c). Musadique S/o Late Mohammed
      Siddique Ali,

1(d). Saba D/o Late Mohammed
      Siddique Ali,

     Appellant 1(b) to (d) are minors
     U/g of their natural mother
     appellant No.1(a) &
     all are residing at Jeelanabad
     MSK Mill, Kalaburagi-585 102.

2.   Mohd. Khalid Ali
     S/o Mohd. Bande Ali,
     Age: 39 years, Occ: Business,
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        Jeelanabad MSK Mill,
        Kalaburagi-585 102.
                                                   ... Appellants
(By Sri Liyaqat Fareed Ustad, Advocate)


And:

1.      Dr. Mohd. Shakeel Anjum
        S/o Abdul Sattar,
        Age: 49 years,
        Occ: Medical Practitioner,
        R/o: Madeena Colony, Roza (b),
        Kalaburagi-585 103.

2.      Mohd. Muzzammil Anjum
        S/o Abdul Sattar,
        Age: 43 years, Occ: Civil Engineer,
        R/o: Madeena Colony,
        Roza(b) Kalaburagi-585 103.
                                                 ... Respondents

(By Smt. Hema L.K, Advocate for R1 & R2)

        This Regular Second Appeal is filed under Section
100 of the Code of Civil Procedure praying to call for the
records and set aside the judgment and decree dated
14.03.2016 passed by III-Additional Senior Civil judge at
Kalaburagi       in     R.A.No.59/2011     and   confirming    the
judgment and decree dated 21.04.2011 by the Principal
Civil    Judge        (Jr.   Dn.)   at   Kalaburagi   passed    in
O.S.No.526/2008.
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      This appeal coming on for Admission, this day, the
Court delivered the following:-


                        JUDGMENT

This appeal is filed challenging the judgment and

decree dated 21.04.2011 passed in O.S.No.526/2008 by

the Principal Civil Judge (Junior Division) and JMFC

Gulbarga, confirming the judgment and decree dated

14.03.2016 passed in R.A.No.59/2011 by III-Additional

Senior Civil Judge at Kalaburagi.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are the defendants and respondents are the

plaintiffs before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiffs filed a suit for declaration of ownership

and also for permanent injunction against the

defendants restraining them from interfering with the

peaceful possession and enjoyment of the suit property

by the plaintiffs. It is the case of the plaintiffs that the

suit schedule property was purchased jointly by plaintiffs

and defendant Nos.1 and 2 under registered sale deed

dated 28.04.1995 from its previous owner for valuable

consideration. It is submitted that in the year 1997

defendants approached the plaintiffs for division in the

said property, therefore, division was taken place and

southern half portion was allotted to defendants by

retaining the northern portion i.e., the suit property. In

the third week of October, 1999, plaintiffs found a heap

of stones dumped on the suit plot and on enquiry, it is

learnt that it was done by defendants. The plaintiffs

requested to remove the same, but defendants denied

to do so and denied the ownership of the plaintiffs.

Hence, cause of action arose for filing the suit for relief

declaration and injunction.

3.1. Defendants appeared and filed written

statement contending that the plaintiffs prior to filing of

the present suit, filed suit in O.S.No.655/1999 and in

the said suit, defendants filed written statement denying

the ownership of the plaintiffs over the suit property. It

is contended that the suit is barred by limitation. It is

contended that defendant Nos.1 and 2 have paid entire

sale consideration amount to the vendor and they have

been in possession of the entire plot and also denied

partition effected in the year 1997. It is contended that

the entire suit property is exclusively belong to the

defendants and they are in lawful possession of the

same. There is no cause of action to file suit and prayed

to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

the parties, framed the following issues:

1. Whether plaintiffs prove that they are the absolute owners of the suit property?

2. Whether the plaintiffs prove that they are in possession of the same?

   3.     Whether       the    plaintiffs    prove     that
          defendants     are   interfering     with   their
          peaceful possession and enjoyment?

4. Whether the defendants prove that they are the absolute owners and in possession of the suit property?

5. Whether the defendants prove that this suit is not maintainable and barred by limitation?

6. Whether the plaintiffs are entitled for the relief as sought?

7. What order or decree?

3.3. In order to prove the case, plaintiff No.1

examined herself as PW-1 and got marked the

documents as Exs.P1 to P4. On the other hand,

defendant No.1(a) was examined as DW-1 and no

documents were marked. The Trial Court, after

recording the evidence and considering the material on

record, recorded finding that the plaintiffs have proved

that they are absolute owners of the suit property and

they are in possession of the same and further recorded

finding that the defendants are interfering with the

peaceful possession and enjoyment of the suit property

by the plaintiffs and recorded finding that the

defendants have failed to prove that they are absolute

owners in possession of the suit property and further

defendants have failed to prove that the suit is not

maintainable and barred by limitation and consequently,

held that the plaintiffs are entitled for the relief as

sought and decreed the suit of the plaintiffs declaring

that the plaintiffs are absolute owners and in possession

of the suit property and granted injunction restraining

the defendants from interfering with the plaintiffs'

peaceful possession and enjoyment over the suit

property.

3.4. The defendants being aggrieved by the

judgment and decree passed by the Trial Court preferred

an appeal in R.A.No.59/2011. The First Appellate Court

framed the following points for consideration:

1. Whether the appellants have made out sufficient grounds to produce additional evidence as sought in the application U/o 41 Rule 27 of CPC?

2. Whether the trial Court was right in decreeing the suit holding that plaintiffs are the owners and in possession of the suit property and they are entitled for the relief claimed?

3. Whether the impugned judgment and decree of trial court calls for interference by this Court?

4. What order?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record, dismissed the

appeal confirming the judgment and decree passed by

the Trial Court.

3.6. The defendants aggrieved by the judgment

and decree passed by the Courts below have filed this

appeal.

4. Heard learned counsel for the appellants-

defendants and learned counsel for the respondents-

plaintiffs.

5. Learned counsel for the appellants-

defendants submits that the suit filed by the plaintiffs is

barred by limitation and the said aspect is not

considered by the Courts below and on this ground

alone, he prays to allow the appeal.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. It is not in dispute that the plaintiffs and

defendants have jointly purchased the suit property

under registered sale deed dated 28.04.1995. It is the

case of the plaintiffs that in the year 1997 there was

partition in between the plaintiffs and the defendants

and in the said partition, northern side of the of the suit

property was allotted to the share of the plaintiffs and

southern side of the property was allotted to the

defendants. On the strength of the partition, name of

the plaintiffs was entered in the revenue records as

owners of the northern side property. In order to

support the contention of the plaintiffs, plaintiff No.1

examined herself as P.W.1 and produced the records to

establish that the suit property was purchased jointly in

the name of the plaintiffs and defendants under

registered sale deed Ex.P1 and produced property

extract as Exs.P4 to P7 which disclose that the property

stands in the name of plaintiffs. Defendant No.1(a) was

examined as D.W.1. D.W.1 in the course of cross-

examination has clearly admitted that there was

partition in between the plaintiffs and the defendants.

Though she has denied allotment of southern side of the

property to the defendants and northern side of the

property to the plaintiffs, but D.W.1 has admitted that

they have constructed shops in the southern portion of

the property and southern portion of the property is plot

No.120/4/E which was allotted to the share of the

defendants. If there was no partition as contended in

the written statement then how the defendants have

constructed building over the southern portion of the

property. It was quite natural that northern side of the

property was allotted to the share of the plaintiffs and

southern side was allotted to the share of defendants.

The plaintiffs have established that they are absolute

owners and possessors of the suit schedule property.

Both the Courts below on the basis of the records have

concurrently recorded finding of fact that plaintiffs are

the absolute owners and possessors of the suit schedule

property and the defendants are trying to interfere with

the peaceful possession and enjoyment of the suit

schedule property by the plaintiffs. The Trial Court has

recorded finding on issue No.5 that the suit filed by the

plaintiffs is within time and the said finding is also re-

affirmed by the First Appellate Court and moreover

question of limitation is mixed question of fact and law,

but it is not a substantial question of law.

8. The scope of interference under Section 100

of Code of Civil Procedure is very limited. The Court has

no jurisdiction to interfere with the finding of facts. The

High Court would be justified to interfere under Section

100 of Code of Civil Procedure only if the appeal involves

a substantial question of law. The Hon'ble Apex Court in

the case of Commissioner, Hindu Religious &

Charitable Endowments vs. P.Shanmugama and

others reported in (2005)9 SCC 232 held that the

High Court has no jurisdiction in second appeal to

interfere with the finding of facts. The said view is

reiterated by the Hon'ble Apex Court in the case of

Harjeet Singh and another vs. Amrik Singh and

another reported in (2005)12 SCC 270. In the instant

case, the courts below have concurrently recorded

finding of facts.

9. In view of the above discussion and also

considering the law laid down by the Hon'ble Apex Court

in the aforesaid decisions, I do not find any substantial

question of law in this appeal. Accordingly, the appeal is

dismissed.

Sd/-

JUDGE NB*