Karnataka High Court

Maktumsab vs Smt Susheela on 17 October, 2022

Bench: R Natarajpresided Byrnj

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                                    RFA No. 174 of 2007


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 17TH DAY OF OCTOBER, 2022

                        BEFORE
          THE HON'BLE MR JUSTICE R.NATARAJ
     REGULAR FIRST APPEAL NO.174 OF 2007 (RES)
BETWEEN:

1.   MAKTUMSAB S/O KHAJASAB,
     AGE: 55 YEARS.

2.   SMT.MEHABOOB BEGUM,
     W/O MAKUTUMSAB,
     AGE: 50 YEARS.

3.   HABEEB S/O MAKUTUMSAB,
     AGE: 35 YEARS.

4.   JAFAR S/O MAKUTUMSAB,
     AGE: 25 YEARS.

     ALL AGRICULTURISTS,
     R/OF WADDARHATTI,
     TQ: GANGAVATHI,
     DIST: KOPPAL-583227.
                                          ...APPELLANTS
(BY SRI. MALLIKARJUN B.HIREMATH, ADVOCATE)
AND:
SMT.SUSHEELA,
W/O VADIRAJ BURUDE,
AGE: MAJOR,
OCC:HOUSEHOLD,
R/O GANGAVATHI,
TQ: GANGAVATHI,
DIST: KOPPAL,
THROUGH HER HUSBAND AND
GPA HOLDER VADIRAJ BURUDE,
S/O VENKATARAMANA BURUDE,
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                                            RFA No. 174 of 2007


AGE: MAJOR, OCC: BUSINESS,
R/O GANGAVATHI-583227.
                                                 ...RESPONDENT
(BY SMT.PRAFULLA NAIK AND SMT.GEETA M.YADAPPANAVAR,
ADVOCATES (THROUGH GPA HOLDER)

     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED
25.11.2006 PASSED IN O.S.NO.5/2005 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) GANGAVATHI, DECREEING THE SUIT
FOR RECOVERY OF POSSESSION.
     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                          JUDGMENT

The defendants in O.S.No.5/2005 on the file of the Civil

Judge (Sr.Dn.), Gangavathi have filed this Regular First Appeal

challenging the correctness of the judgment and decree dated

25.11.2006.

2. The parties shall henceforth be referred to as they

were arrayed before the trial Court.

3. This appeal is filed by the defendants, while the

plaintiff is arrayed as respondent.

4. The plaintiff in O.S.No.5/2005 claimed that she

purchased 3 acres 10 guntas of land in Sy.No.33/1A of

Waddarahatti village from Smt.Moulabi w/o Khajasab,

Khajasab s/o Maktumsab and Mohammed Ghouse @ Sardarsab

RFA No. 174 of 2007

s/o Khazasab, Khajabi w/o Chandusab, Mohammed Khaja s/o

Chandusab, Maktumsab s/o Khajasab, Mabusab s/o Khajasab

for a sum of Rs.49,000/- in terms of the sale deed dated

21.05.1985. Later, she again purchased another extent of 3

acres 10 guntas in Sy.No.33/1A from the aforesaid persons for

a sum of Rs.49,000/- on 25.05.1985. She, thereafter got it

converted for non-agricultural residential use in terms of an

order passed by the Deputy Commissioner dated 03.12.1987.

She formed a layout of residential sites in Sy.No.33/1 and 2

and Sy.No.33/1 and 3 which was approved by the panchayat.

As per the layout formed, there were 138 plots of different size.

The plaintiff claimed that she sold all the plots to various

persons reserving plot No.2 and 13 for herself which measured

40 x 60 feet each. She claimed that she executed sale deeds in

favour of the purchasers excluding the above two sites. In the

sites reserved for herself, she had planted coconut trees.

During the year 2002, the defendants requested the plaintiff to

permit them to stay in the aforesaid two sites by erecting a

temporary hut as they did not have any place to reside and as

their land was situated nearby to the suit sites. The plaintiff

claimed that the defendants assured to safeguard the plots

RFA No. 174 of 2007

from encroachment by strangers and that they would vacate

the plots as soon as required for the use of the plaintiff. The

plaintiff, therefore permitted the defendants to stay in the

temporary huts constructed on plot No.2. When the plaintiff

requested the defendants to vacate the suit plot, they sought a

month's time to vacate. But later refused to vacate which

forced the plaintiff to file a suit for recovery of possession

directing the defendants to vacate and hand over the suit

schedule plots to the plaintiff.

5. The defendants contested the suit claiming that

they had not executed the sale deed in the manner mentioned

by the plaintiff, but they were in need of money to meet their

family needs. Taking advantage of the situation, the plaintiff

and her husband had created a false/vexatious sale deed

without the notice and knowledge of the defendants. They

claimed that they had constructed a Darga of Hazarat Syed

Maheboob Hussain since long time and therefore, the sale of

the land by the defendants was for a different purpose. They

claimed that they are real owners and in possession and

enjoyment of the suit lands and had constructed a Darga and

RFA No. 174 of 2007

using open space for storing agricultural implants and tethering

cattle and livestock.

6. Based on the rival contentions, the trial Court

framed the following issues:

1) Whether plaintiff proves that he is the owner of plot No.2 and 13, each measuring 40' x 60' in Sy.No.31/1 and 2 and 33/1 and 3 situated at Waddarahatti village?

2) Whether plaintiff further proves that he purchased the land bearing Sy.No.33/1A to the extent of 03 acres 10 guntas of Waddarahatti village?

3) Whether plaintiff further proves that he allowed the defendants to stay in the suit schedule plots on permissive possession?

4) Whether the plaintiff further proves that he is entitled for the relief of recovery of possession of suit schedule plots from the defendants?

5) What order?

7. The husband and power of attorney of the plaintiff

was examined as PW1 and two other witnesses were examined

as PWs.2 and 3, while the defendant No.1 was examined as

DW1 and he examined two other witnesses as Dws.2 and 3.

The plaintiff marked Exs.P1 to P17 and defendant No.1 marked

Exs.D1 to D9.

RFA No. 174 of 2007

8. Based on the oral and documentary evidence, the

trial Court decreed the suit in terms of the judgment and

decree dated 25.11.2006 holding that DW1 admitted in his

cross-examination that he sold 3 acres 10 guntas each in two

installments totally measuring 6 acre 20 guntas to the plaintiff.

It also noticed the voluntary statement of DW1 that he retained

120 x 40 feet in the land sold to the plaintiff. The trial Court

held that defendant No.1 had categorically admitted the sale of

the land in Sy.No.33/1A to the plaintiff. It also noticed that the

plaintiff had got the land converted for non-agricultural

purposes and formed layout of residential sites. It also noticed

that the certificate issued by the panchayat in respect of the

sites formed in the layout as well as assessment of the sites for

payment of tax. Defendant No.1 did not procure DWs.2 and 3

for cross-examination and therefore, their evidence was

eschewed. The trial Court held that except the self-serving

statement of the defendants that they had not sold the suit

property to the plaintiff and that they were occupying the suit

property in their own capacity as erstwhile owners, decreed the

suit and directed the defendants to deliver possession of the

RFA No. 174 of 2007

suit schedule properties. Being aggrieved by the said judgment

and decree, the present appeal is filed.

9. Sri Mallikarjun B.Hiremath, learned counsel for the

defendants submits that the plaintiff did not enter the witness

box, but it was her husband who entered the witness box and

he was not aware about the transaction between the parties.

He contended that the defendants had established a Darga in

the suit property and had obtained electricity to the

construction put up thereon. He submitted that the defendants

had not executed the sale deed conveying the land in

Sy.No.33/1A and the sale deed executed in favour of the

plaintiff was merely an instrument to secure the loan raised by

the plaintiff.

10. Per contra, learned counsel for the plaintiff

submitted that total extent of 6 acres 20 guntas was sold by

defendant No.1 and other family members in the year 1985.

However, the defendants who were permitted to reside in the

suit property have claimed after 20 years that they had

executed a sale deed for the purposes of securing hand loan.

He submitted that defendants have not furnished any details of

RFA No. 174 of 2007

the amount of hand loan raised from the plaintiff and when

they returned the same to the plaintiff. He submitted that the

plaintiff had formed a layout and had sold the suit in terms of

various sale deeds to various purchasers. Learned counsel

invited the attention of the Court to the evidence of DW1 where

he stated as follows:

"It is true to suggest that I sold 1 acre 10 guntas in favour of P.Raghavendra and P.Mahantesh. It is false to suggest that I sold 1 acre 10 guntas was sold to Sulete Meenakshi. I do not know if myself and others sold 1 acre 21 guntas in favour of Chekka Srinivas and his father. It is false to suggest that myself and others sold entire remaining land of 5 acres 14 guntas in favour of above 4 persons. The witness volunteers that he retained 120 x 40 feet in the land sold to plaintiff. There is no mention above this land retained by me in the sale deeds executed in favour of plaintiff."

11. He submits that this evidence was just enough to

disbelieve the contentions of the defendants.

12. In view of the aforesaid, the following question falls

for consideration of this Court.

"Whether the defendant had established his defence that he had conveyed the suit property as security

RFA No. 174 of 2007

for the loan raised from the plaintiff and whether defendant had established that they had reserved two sites for their own use and occupation?"

13. The evidence as extracted above shows in clear

terms that the defendants had acknowledged the fact that they

had sold the land in Sy.No.33/1A measuring 6 acre 20 guntas

to the plaintiff. They also did not dispute the fact that the

plaintiff had formed a layout of residential sites and had sold

various sites to various purchasers. Likewise, the defendant did

not dispute that the remaining land in Sy.No.33/1A measuring

5 acre 14 guntas was also sold by them. However, their

contention that they retained 120 x 40 feet was not

substantiated by acceptable evidence. In that view of the

matter, the point for consideration framed by this Court is

answered in the negative against the defendants and in favour