Karnataka High Court
Mr. Mohamad Farooq S/O Moulasab ... vs The Deputy Director Of Public on 26 May, 2022
Bench: Sreenivas Harish Kumar, S Rachaiah
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26th DAY OF MAY 2022
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
REGULAR FIRST APPEAL No.200074/2014
Between:
Mr. Mohamad Farooq S/o Moulasab Melinmani
Aged about: 39 Years, Occ: Agriculture & Business
R/o: Almel, Tq: Sindagi, Dist: Bijapur
Rep. by his GPA Holder by name
Sri. Vishwanath S/o Sataveerappa Mareguddi
Aged about 41 Years, Occ: Agri & Business
R/o: Preeti Colony, Near Town Palace
Athani Road, Bijapur
...Appellant
(By Sri Manvendra Reddy
& Narendra M. Reddy, Advocate)
And:
1. The Deputy Director of Public
Instructions O/o DDPI
Bijapur-586 101
2. The Head Master
Govt. Composite High School
Kallakavatagi Village Post Babanagar
Tq. & Dist: Bijapur-586 101
2
3. State of Karnataka by its
Deputy Commissioner, Bijapur
Office of Deputy Commissioner
Bijapur-1
...Respondents
(By Sri J.Sathish Kumar, AGA for R1 to R3)
This RFA is filed under Section 96 of CPC, praying to set
aside the impugned judgment and decree dated 11.06.2014
passed in O.S.No.16/2011 on the file of the I Addl. Senior Civil
Judge & CJM at Bijapur and allow the suit of the
plaintiff/appellant, by allowing the appeal.
This RFA is coming on for hearing this day, SREENIVAS
HARISH KUMAR J., delivered the following:
JUDGMENT
This appeal is filed by the plaintiff in O.S.No.16/2011
on the file of the I Addl. Senior Civil Judge, Bijapur.
2. The case of the appellant is that he is the absolute
owner of the property measuring 9 acres 22 guntas in
Sy.No.21/1 of Kallakavatagi village, Bijapur taluk on the
basis of sale deed dated 31.8.2008 executed by the power
of attorney holder of the owners. The sale deed was
registered on 1.4.2008. In the first week of January, 2010,
the plaintiff noticed the defendants trying to fence the
entire land and at that time he took objection to it. The
plaintiff got his land measured and came to know that the
school building was situated in an area of 1.5 acres in the
same land. To the knowledge of the plaintiff, there was no
acquisition proceeding and that he had not received
compensation also. After issuing notice as required under
section 80 of CPC, the plaintiff brought a suit seeking
declaration of his title and for permanent injunction to
restrain the defendants from interfering with his
possession.
3. The defendants did not contest the suit. No
written statement was filed. The plaintiff adduced
evidence as PW.1 and produced 23 documents as per
Ex.P.1 to 23. He also examined another witness i.e.,
PW.2. The defendants did not cross examine PW.1 and 2.
But the trial court dismissed the suit giving a finding that
the boundaries mentioned in the plaint did not tally with
the boundaries given in the sale deed. It is held that the
plaintiff has given imaginary boundaries.
4. We have heard Sri. Manvendra Reddy, counsel for
the appellant and Sri. J. Sathish Kumar, Addl. Government
Advocate for the respondents.
5. It is the argument of the learned counsel for the
appellant that the trial court has come to a wrong
conclusion to dismiss the suit just because the boundaries
did not tally. It has ignored the fact that there was no
dispute with regard to the survey number of the land. The
Government did not contest the suit. The plaintiff's
witnesses were not cross-examined at all. Ex.P.22 is the
registered sale deed which establishes the title of the
appellant. Based on the sale deed the revenue authorities
accepted the mutation in the name of the appellant and
therefore the RTC extracts marked as per Ex.P.2 to 17
corroborate the evidentiary value of Ex.P.22. In this view
there was no impediment for the trial court for declaring
the title of the plaintiff. The trial court has thus come to a
wrong conclusion for dismissing the suit of the appellant.
6. Learned counsel for the respondents refutes the
argument of the appellant's counsel by submitting that
whenever declaration of title is sought, it is necessary that
the plaintiff should establish the identity of the property by
giving correct boundaries. It might be a fact that the
defendants did not file written statement, but it does not
mean that the plaintiff's suit should be accepted as it is.
There are no infirmities in the judgment of the trial court
and hence appeal is to be dismissed.
7. We have considered the arguments and perused
the plaint and also the evidence, both oral and
documentary.
8. Ex.P.22 is the sale deed upon which the appellant
places reliance for establishing his title. It is a registered
document. It was executed on 31.3.2008, but was
registered on 1.4.2008. This sale deed is not disputed.
Ex.P.22 clearly shows that the appellant purchased 9.22
acres of land in Sy.No.21/1 of Kallakavatagi village,
Bijapur taluk. Of course as has been observed by the trial
court, the boundaries on the two sides of the land as given
in the plaint do not tally with the boundaries mentioned in
the sale deed. The point to be noted here is merely for
this reason, the trial court ought not to have rejected the
suit. Pertinently it can be observed here that on the basis
of the sale deed, mutation was accepted in the name of
the appellant and this is evidenced by Ex.P.2 to 17. The
mutation order as per Ex.P.11 clearly indicates katha being
ordered to be written in the name of the appellant on the
basis of the sale deed. Therefore the validity of the sale
deed cannot be doubted. Ex.P.2 to 17 further strengthens
the evidentiary value of Ex.P.22. Boundaries on two sides
as shown in plaint may not tally with boundaries as given
in the sale deed, but it cannot be a ground for non suiting
the plaintiff.
9. What is found is that in a portion of the plaint
schedule land, a school building is in existence. Probably
this could be the reason for the defendants trying to fence
the entire land as has been alleged in the plaint. But the
allegation in the plaint with regard to interference by the
defendants has remained unchallenged.
10. The evidence led by the plaintiff probabalizes the
title of the plaintiff over the suit property measuring 9.22
acres and also interference by the defendants with his
possession. There are no reasons to discard the evidence.
But what is found is that there is a school in the suit
property, and according to the plaintiff, land was not
acquired and no compensation was paid to him. If this is a
fact, the plaintiff has every right over the entire land.
However, having regard to the fact that the school building
has been in existence, liberty is given to the plaintiff to
claim compensation for that portion of the land where
school building is in existence. To enable the plaintiff to
claim compensation, his title over land is to be declared.
With this discussion, we come to conclusion that the
appeal deserves to be allowed. Hence the following:
ORDER
i. Appeal is allowed
ii. Judgment of the trial court in O.S.No.16/2011
is set aside.
iii. The suit of the plaintiff is partly decreed. The
plaintiff is declared to be the absolute owner of
the suit property and the defendants are
restrained from interfering with plaintiff's
possession of suit property except the portion
where school building is in existence.
Sd/-
JUDGE
Sd/-
JUDGE
sd
