Abdul Wahab S/O Sarmuddin Parsram vs Kulsumbi W/O Sofisab
2022 Latest Caselaw 12492 Kant

                            1

          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 17TH DAY OF OCTOBER, 2022

                          BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

            RSA NO.492/2008 (DEC/INJ)

BETWEEN

1. ABDUL WAHAB S/O SARMUDDIN PARSRAM
AGED ABOUT 46 YEARS, OCC: BUSINESS
R/O DAKHANI MOHELLATA: SHORAPUR
DIST: GULBARGA-585 102

2. MOHD. HUSSAIN S/O NABISAB
AGED ABOUT 51 YEARS, OCC: PRIVATE SERVIE
R/O DAKHANI MOHELLATA: SHORAPUR
DIST: GULBARGA-585 102
                                           ...APPELLANTS

(BY SRI R. S. SIDHAPURKAR, ADVOCATE)

AND

1. KULSUMBI W/O SOFISAB
SINCE DECEASED BY LRS.,

1.ABDUL MAJEED S/O MOHD HUSSAN
SINCE DECEASED BY LRS.,

1. MOHD. MUSTAGGAS/O ABDUL MAJEED
AGE: MAJOR, OCC: AGRIL.

2. CHANDABEE W/O ABDUL MAJEED
AGE: MAJOR, OCC: HOUSEHOLD

3. AKTAR BEGUM D/O ABDUL MAJEED
AGE: MAJOR, OCC: HOUSEHOLD
                             2

ALL R/O. GOGI, TQ: SHAHAPUR
DIST: GULBARGA

4. KHURSHEED BEGUM W/O MOHD. HUSSAIN
AGE: MAJOR, OCC: HOUSEHOLD
R/O. INDIRA NAGAR, TALIKOT
TQ: MUDDEBIHAL, DIST; BIJAPUR-586 101

5. JUBEDA BEGUM W/O ABDUL KAREEM
AGE: MAJOR, OCC: HOUSEHOLD
R/O KURESHI MOHELLA, SHORAPUR

6. DAWALBEE W/O MOHD. HUSSAIN
AGE: MAJOR, OCC: HOUSEHOLD
R/O SIRWAR, TQ: MANVI
DIST: RAICHUR-584 208

7. FATIMA BEGUM W/O MOHA RAJESAB
AGE; MAJOR, OCC: HOUSEHOLD
R/O GOGI, TQ: SHAHAPUR
DIST: GULBARGA-585 103
                                               ..RESPONDENTS

(BY SRI ASHOK PATIL, ADVOCATE FOR R1;
APPEAL AGAINST R2 ABATED; R3 IS TREATED AS LR.
OF DECEASED R2; R4, R5 & R7 SERVED;
R6 SERVED THROUGH HAND SUMMONS)

   THIS RSA   IS FILED U/S.100 OF       CPC AGAINST THE
JUDGMENT    AND    DECREE       DT.5.12.2007     PASSED   IN
R.A.NO.33/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
SHORAPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT    AND    DECREE       DT.4.9.1998     PASSED    IN
O.S.NO.238/87 ON THE FILE OF THE CIVIL JUDGE (JR.DN),
SHORAPUR.


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

The captioned second appeal is filed by

unsuccessful defendant Nos.1 and 2, who have

questioned the judgment and decree of the appellate

Court, wherein, the suit filed by the plaintiff seeking

relief of declaration and injunction though dismissed

at the first instance by the trial Court, is reversed by

the appellate Court and consequently, dismissed the

suit.

2. For the sake of convenience, the parties

are referred to as per their ranks before the trial

Court.

3. The captioned second appeal is filed

questioning the judgment and decree rendered by the

appellate Court on the issue relating to possession

over the suit schedule property. This Court vide order

dated 23.09.2006 concurred with the judgment

rendered by the appellate Court insofar as relief of

declaration in favour of plaintiff, but however, found

that there is no proper appreciation of evidence

relating to the disputed claim of possession over the

suit schedule property by both the parties. Therefore,

this Court while answering substantial question of law

No.1 has held that the plaintiff has succeeded in

proving her title over the suit property. The matter

was remanded to hold an enquiry and re-appreciate

the entire evidence on record to determine the

controversy relating to possession over the suit

schedule property.

4. After remand, appellate Court on re-

appreciation of the evidence on record, has answered

issue relating to possession in favour of the plaintiff

and against the defendants. The trial Court has

disbelieved the unregistered sale deed set up by

defendant No.1. Defendant No.1 asserts title and

traces his right under unregistered sale deed dated

27.08.1973 vide Ex.D1 alleged to have been executed

by the plaintiff's husband Sofisab. The appellate

Court having meticulously examined the said

document, was of the view that unregistered sale

deed relied upon by defendant No.1 vide Ex.D1 is

found to be a suspicious document. To examine the

controversy with regard to relief of possession,

appellate Court has taken note of the cross

examination of DW.2. The appellate Court was of the

view that plaintiff has succeeded in eliciting from the

mouth of DW.2 that original plaintiff Kulsumbi was

residing along with her husband Sofisab in the suit

house. While original plaintiff's husband Sofisab died

in the year 1994, the plaintiff who is the widow was

very much residing in the suit house till her death.

The appellate Court found that entire claim of

defendant No.1 is based on unregistered sale deed

vide Ex.D1. If Ex.D1 is discarded, appellate Court was

of the view that defendant No.1 cannot assert his

possession and any right over suit schedule property.

On these set of grounds, appellate Court has

proceeded to dismiss the appeal.

5. In the second round of litigation, this

captioned second appeal is filed questioning finding of

the appellate Court on the issue of possession.

6. Heard learned counsel for the

appellants/defendants and learned counsel for the

respondents/plaintiffs.

7. The present suit was instituted by original

plaintiff Kulsumbi, who is the widow of Sofisab. It is

not in dispute that the property was originally owned

by Sofisab. The widow after the death of her husband,

claimed to have inherited the suit schedule property

while defendant No.1 is asserting title based on

unregistered sale dated 27.08.1973. The trial Court

dismissed the suit by recording a finding that original

plaintiff Kulsumbi has failed to establish her title over

the suit schedule property, while the appellate Court

reversed the finding and decreed the suit. Thereby,

declaring that original plaintiff Kulsumbi is the

absolute owner in possession of the suit schedule

property.

8. This Court in RSA No.779/2003 concurred

with the finding of the appellate Court insofar as relief

of declaration is concerned while the matter was

remanded to decide the issue relating to the

possession, on examination of the judgment and

decree, this Court would find that appellate Court

being a final fact finding authority has assessed the

entire evidence on record independently. In the

earlier round of litigation, the appellate Court as well

as this Court have concurrently held that original

plaintiff Kulsumbi has succeeded in establishing her

title over the suit schedule property. The appellate

Court while examining the oral evidence of PW.2 and

PW.3 has come to the conclusion that both the

witnesses, who are independent witnesses have

deposed in favour of the plaintiff. Referring to their

evidence, the appellate Court has come to the

conclusion that original plaintiff Kulsumbi has

succeeded in establishing that she was in lawful

possession as on the date of filing of the suit. The

appellate Court has disbelieved Ex.D1 in its entirety.

The appellate Court has also taken judicial note of the

fact that plaintiff has succeeded in eliciting from the

mouth of DW.2 in his cross examination in regard to

possession of the plaintiff over the suit schedule

property. The appellate Court was of the view that

DW.2 has admitted in unequivocal terms that original

plaintiff Kulsumbi along with her husband was residing

in the suit house.

9. If first defendant's title is not established

and if Ex.D1 does not create any title in his favour,

then the document vide Ex.D1, which is found to be a

doubtful document by the appellate Court would not

come to the aid of the defendants to prove their

possession through Ex.D1. If the plaintiff has let in

evidence by examining the witnesses and both the

witnesses in their oral evidence have deposed that it

is the original plaintiff Kulsumbi, who is residing in the

suit house, to displace this contention, there is

absolutely no rebuttal evidence let in by the

defendants except Ex.D1. If the appellate Court has

discarded Ex.D1, then there is absolutely no evidence

indicating that defendants are in physical possession

over the suit schedule property. Therefore, after over

all appreciation of evidence, the appellate Court has

come to the conclusion that it is the plaintiff, who is

the widow of Sofisab is found to be in lawful

possession. The appellate Court has also taken note

of the fact that Sofisab's title is not in dispute.

Therefore, there is no valid transfer of title and if

Ex.D1 does not create any valid title in favour of the

defendants, then this Court is of the view that the

appellate Court was justified in holding that original

plaintiff Kulsumbi is in lawful possession over the suit

schedule property. Therefore, no substantial question

of law arises for consideration.

Accordingly, appeal is dismissed.

Sd/-

JUDGE

Srt