Smt Khursheed Begum vs Smt Syeda Begum
2023 Latest Caselaw 2123 Kant

                              1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 6TH DAY OF APRIL, 2023

                         BEFORE
            THE HON'BLE MRS. JUSTICE M G UMA

      REGULAR FIRST APPEAL NO.2121 OF 2017 (INJ)
BETWEEN:
1.    SMT. KHURSHEED BEGUM
      W/O. LATE ABDUL WAHAB
      AGED ABOUT 60 YEARS

2.    SRI MANSOOR AHMED
      S/O. LATE ABDUL WAHAB
      AGED ABOUT 45 YEARS

3.    SRI MASOOD AHMED
      S/O. LATE ABDUL WAHAB
      AGED ABOUT 42 YEARS

4.    SRI SAWOOD PASHA
      S/O. LATE ABDUL WAHAB
      AGED ABOUT 40 YEARS

5.    SRI MOHAMMED FAROOQ
      S/O. LATE ABDUL WAHAB
      AGED ABOUT 34 YEARS

6.    SRI MOHAMMED BILAL
      S/O. LATE ABDUL WAHAB
      AGED ABOUT 33 YEARS

7.    SMT. UMMEA HANNI
      D/O. LATE ABDUL WAHAB
      W/O. MOHAMMED TANVEER
      AGED ABOUT 29 YEARS
      ALL ARE RESIDING AT NO.101/2
      1ST MAIN ROAD, 5TH CROSS
      CHAMRAJPET, BANGALORE - 560 018.
                                             ... APPELLANTS
(BY SRI: SUNIL S. RAO, ADVOCATE FOR
   SRI: SHAIK ISMAIL ZABIULLA, ADVOCATE)
                                 2


AND:

1.     SMT. SYEDA BEGUM
       W/O. LATE ABDUL WAJEED
       AGED ABOUT 54 YEARS
       RESIIDNG AT NO.200
       BEHIND JOHNSON SCHOOL
       MANGAMMANAPALYA
       BANGALORE - 560 068.

2.     SMT. SHAMA PARVEEN
       D/O. LATE ABDUL WAJID
       W/O. ZAMEER AHMED
       AGED ABOUT 30 YEARS
       RESIIDNG AT NO.200
       BEHIND JOHNSON SCHOOL
       MANGAMMANAPALYA
       BANGALORE - 560 068.

3.     SMT. SHAMSIA
       D/O. LATE ABDUL WAJID
       W/O. SAIDQ PASHA
       AGED ABOUT 28 YEARS
       RESIDING AT NO.4
       NEAR HIMALAYA MEDICALS
       T.V. BUS STAND, NELAMANGALA
       BANGALORE DISTRICT.

4.     SRI MAHABOOB PASHA
       S/O. LATE ABDUL WAJID
       AGED ABOUT 27 YEARS
       RESIDING AT NO.200
       BEHIND JOHNSON SCHOOL
       MANGAMMANAPALYA
       BANGALORE - 560 068.

5.     SRI ELYAS PASHA
       S/O. LATE ABDUL WAJID
       AGED ABOUT 25 YEARS
       RESIDING AT NO.200
       BEHIND JOHNSON SCHOOL
       MANGAMMANAPALYA
       BANGALORE - 560 068.

6.     SMT. RASHIDA
       D/O. LATE ABDUL HALEEM
                              3


      W/O. ABDULLA
      AGED ABOUT 45 YEARS
      RESIDING AT NO.1, BDG LANE
      JOLLY MOHALLA
      MASJID ROAD, BANGALORE.

7.    SRI ABDULLA
      S/O. LATE SUNNAPPA
      AGED ABOUT 58 YEARS

8.    SMT. AYESHA
      D/O. ABDULLA
      W/O. AFSAR
      AGED ABOUT 30 YEARS
      NO.1, BDG LANE, JOLLY MOHALLA
      MASJID ROAD, BANGALORE.

9.    SRI IBAAD
      S/O. ABDULLA
      AGED ABOUT 26 YEARS
      RESIDING AT NO.1, BDG LANE
      JOLLY MOHALLA, MASJID ROAD
      BANGALORE.

10.   SMT. YASMIN
      D/O. ABDULLA
      W/O. AMJAD PASHA
      AGED ABOUT 28 YEARS
      RESIDING AT NO.38, PIPE LINE
      ANCHEPALYA, 1ST MAIN
      1ST CROSS, MYSORE ROAD
      BANGALORE.

11.   SRI IRFAN
      S/O. ABDULLA
      AGED ABOUT 24 YEARS
      RESIDING NO.1, BDG LANE
      JOLLY MOHALLA, MASJID ROAD
      BANGALORE.

12.   SMT. KULSUM
      D/O. ABDULLA, W/O. JAVID
      AGED ABOUT 22 YEARS
      RESIDING AT NO.12
      GANDHINAGAR MAIN ROAD
                                      4


         K.G. HALLI, A.C. POST
         BANGALORE - 560 045.
                                                 ... RESPONDENTS

(BY SMT: P.C. SUNITHA, ADVOCATE FOR R-1 TO R-12;
    SRI: VIDYASAGAR R., ADVOCATE FOR C/R-7)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 08.11.2017 PASSED IN OS
NO.1487/2013 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE SUIT
FOR PERMANENT INJUNCTION.

     THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.03.2023 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

The plaintiffs are impugning the judgment and decree

dated 08.11.2017 passed in OS No.1487 of 2013 on the file of

the learned XX Additional City Civil and Sessions Judge

(CCH.32), Bengaluru City (hereinafter referred to as 'the Trial

Court' for brevity), dismissing the suit for permanent

injunction.

2. For the sake of convenience, the parties are

referred to as per their rank and status before the Trial Court.

3. Brief facts of the case are that, plaintiff Nos.1 to 7

have filed the suit OS No.1487 of 2013 against defendant

Nos.1 to 12 for permanent injunction restraining them, their

men etc., from interfering with the peaceful possession and

enjoyment of schedule 'A' property. Schedule 'A' appended to

the plaint describes the piece and parcel of the land and the

building situated thereon bearing a portion of Municipal No.1,

New No.1/1, Beere Devara Gudi Lane, Jali Mohalla, Bengaluru

City, measuring 716 sq.ft. along with building measuring

about 500 sq.ft. with the boundaries mentioned therein.

Schedule 'B' describes the piece and parcel of the land and

building in the very same Municipal No.1, measuring East to

West 9.9 feet and North to South 12.6 feet with building

measuring 100 sq.ft. with the boundaries mentioned therein.

4. It is contended by the plaintiffs that they are the

absolute owners in possession and enjoyment of plaint 'A'

schedule property. Initially, Abdul Wahab was the absolute

owner in possession of the property as the same was acquired

by him under the registered partition deed dated 11.09.1975

between Abdul Wahab and his two brothers i.e., Abdul

Haleem and Abdul Basith. It is contended that during the

lifetime of Abdul Wahab, he had sold a portion of the property

which had fallen to his share which was measuring 510 sq. ft.

in favour of one P C Veeraswamy and retained remaining

extent of land measuring 716 sq. ft. which is described as 'A'

schedule. The khata in respect of 'A' schedule property was

transferred in the name of Abdul Wahab and he was in

enjoyment of the same. He died intestate on 18.03.2003 and

after his death, his wife plaintiff No.1 and children plaintiff

Nos.2 to 7 have succeeded to the plaint 'A' schedule property

and they are enjoying the same as joint owners being in joint

possession of the same.

5. It is contended that under the partition deed,

Abdul Haleem was allotted with a portion of the property

which is described in 'B' schedule. The said Abdul Haleem died

intestate on 24.08.1984 leaving behind his wife and children

and they have succeeded to the schedule 'B' property. His

wife also died intestate on 04.11.1983. His son Abdul Wajid

died intestate leaving behind him his wife and children who

are all arrayed as defendants. It is stated that another son of

Abdul Haleem name Abdul Ghani died intestate. He was a

bachelor and issueless. Similarly, Smt.Sajida Begum the

daughter of Abdul Haleem also died leaving behind her

husband and children. All of them were arrayed as

defendants.

6. It is contended by the plaintiffs that to the

southern side of schedule 'A' and 'B' properties, there is a

road called Beeradevaragudi lane, 3rd cross. There is a wall

bifurcating the schedule 'A' property and dividing the plaintiffs

from schedule 'B' property belonging to the defendants. On

the northern side of the schedule 'A' property, there is a road

called Beeradevaragudi lane, 2nd cross. The plaintiffs who

were having access to 'A' schedule property from the 2nd

cross road, while the defendants were having access to 'B'

schedule from 3rd cross road. There is an open space within

schedule 'A' property situated on the northern side of 'B'

schedule property, which were demarcated with a wall.

7. The plaintiffs contended that during the last week

of January 2013, the defendants have demolished the

bifurcating wall on the southern side of 'A' schedule property

and made an attempt to trespass over the schedule 'A'

property. The high handed acts of the defendants were

resisted by the plaintiffs. Therefore, it is stated that the

cause of action for the suit arose from the date of deed of

partition and also when the defendants tried to trespass over

the schedule 'A' property and hence, prayed for grant of

permanent injunction restraining the defendants from

interfering with the peaceful possession and enjoyment of

schedule 'A' property by the plaintiffs.

8. Defendant Nos.6 to 12 have filed the written

statement contending that the suit is not maintainable and

the same is liable to be dismissed. The relationship between

the parties is admitted. The fact that there is a partition

between Abdul Wahab, Abdul Haleem and Abdul Basith on

11.09.1975 is also admitted. However, it is contended that

Abdul Haleem got the property measuring East to West 9.9

sq.ft and North to South 12.6 sq.ft. with house bearing No.1

in Beeradevaragudi lane and he died on 24.08.1984. It is also

contended that the description of 'B' schedule in the suit is

incorrect. There is no such property that is in existence and

only to mislead the Court, a wrong description is shown in the

plaint. The schedule 'B' property showing in the plaint is an

imaginary property and there is no such property in existence.

It is also contended that there is no bifurcating wall between

'A' and 'B' schedule properties. The contention of the

plaintiffs that the defendants have attempted to trespass over

'A' schedule property by demolishing the wall is also denied.

9. The contention of the plaintiffs that the entry to

'A' schedule is from the northern side of the property and

entry to the 'B' schedule is from the southern side is denied.

It is contended that pursuant to the deed of partition entered

into between the sons of Abdul Latheef Saheb in the year

1975, the sharers were enjoying the schedule properties that

were fallen to their share. Schedule 'B' property under the

registered partition deed was allotted to the share of Abdul

Haleem, the father of defendant No.6. The value of the

property that was allotted to the share of Abdul Wahab was

much more. The passage that was leading to

Beeradevaragudi lane, 3rd cross was not mentioned so and

the plaintiffs taking advantage of the said defect in the

partition deed are trying to claim the said portion of the

property, which is in fact a passage leading to 3rd cross, now

mentioned as 2nd cross of Beeradevaragudi lane in the

plaint. It is contended that there is no access to the property

that is allotted to the share of Abdul Haleem to 3rd cross lane.

At no point of time, either during the life time of Abdul

Haleem or after his death, his successors had access to their

premises from 4th cross, Beeradevaragudi lane, but they

always used the passage measuring 3.6 x 32 feet to reach the

3rd cross lane.

10. The defendants also contended that even though

there is no reference to the passage in the partition deed

effected between Abdul Wahab and his brothers, the

defendants are using the said passage continuously since

1975 without interference and they have acquired title by

adverse possession over the passage leading to 2nd cross

lane from the premises in occupation of defendant Nos.6 and

7. Therefore, the defendants prayed for dismissal of the suit.

11. On the basis of these pleadings, the Trial Court

framed the following issues for consideration:

"1. Whether the plaintiffs prove their lawful possession over the suit schedule A property as on the date of the suit?

2. Whether the plaintiffs prove the alleged interference of the defendants?

3. Whether the plaintiffs are entitled for the relief of permanent injunction?

4. What order or decree?"

12. The plaintiffs examined PW1 and got marked

Exs.P1 to P7 in support of their contention. The defendants

examined DWs.1 and 2 and got marked Exs.D1 to D20 in

support of their defence. The Trial Court after taking into

consideration all these materials on record, answered issue

Nos.1 to 3 in the Negative and dismissed the suit of the

plaintiffs.

13. Being aggrieved by the same, the plaintiffs have

preferred this appeal.

14. Heard Sri Sunil S Rao, learned counsel for Sri

Shaik Ismail Zabiulla, learned counsel for the appellants, Smt

P C Sunitha, learned counsel for respondent Nos.1 to 12 and

Sri R Vidyasagar, learned counsel for caveator-respondent

No.7. Perused the materials including the Trial Court records.

15. Learned counsel for the appellants contended that

the registered partition deed dated 11.09.1975 marked as

Ex.P6 and the sketch appended to it marked as Ex.P7 are the

admitted documents. The very same documents are not as

per Exs.P1 and 5. Under these documents, the three sons of

late Abdul Latheef Saheb partitioned the properties. Schedule

'A' in Ex.P1 or Ex.P6 refers to the property that was allotted to

the share of Abdul Wahab, the father of plaintiff Nos.2 to 7

and the husband of plaintiff No.1. The second schedule

mentioned in the partition deed is allotted to the share of

Abdul Haleem, under whom defendant Nos.5 and 6 are

claiming. The description of the property in schedule 'A' and

'B' in the partition deed makes it clear that the land on the

western and northern portion of 'B' schedule was allotted to

the share of Abdul Wahab. There is no reference to any

passage kept for common enjoyment of the parties to the

partition deed. The sketch appended to the partition deed

marked as Ex.P5 or P7 makes the situation very clear as the

entire portion shaded in yellow colour was allotted to the

share of Abdul Wahab, whereas, the portion shaded with blue

colour was allotted to the share of Abdul Haleem. There is

absolutely no dilemma or inconsistency in these documents in

identifying the portion of the land allotted to the share of

Abdul Wahab and Abdul Haleem. The parties to the partition

deed, in particular Abdul Haleem or the defendants have

never raised any objection to the recitals found in the

partition deed which is dated 11.09.1975. Moreover, in these

documents the boundaries of the properties allotted to each of

the sharers is specifically mentioned while describing the

property that is allotted to Abdul Haleem and that the western

and northern boundary is shown as portion allotted to Abdul

Wahab.

16. Learned counsel further submitted that on the

south of the property allotted to the share of Abdul Haleem,

there is a road mentioned as Beeradevaragudi lane, 3rd cross.

Under such circumstances, the contention of the defendants

that there was a passage leading from their property to reach

the road on the northern side referred to as Beeradevaragudi

lane, 4th cross or 2nd cross, cannot be accepted.

17. Learned counsel further submitted that there was

absolutely no reason as to why the property falling on the

northern side of 'B' schedule was referred as open space in all

the documents and not mentioned as passage. The contention

of the defendants that a mistake had crept in, while drafting

the partition deed in mentioning the passage as open space

was never probablised. The Trial Court has not considered

the oral and documentary evidence placed before it and

arrived at a wrong conclusion.

18. Learned counsel further submitted that the Court

Commissioner was appointed who visited the spot, surveyed

the land and submitted his report along with the sketch.

However, at the instance of the defendants, the open space is

referred to as passage in the Commissioner's sketch. There is

no other basis for the Commissioner to mention the said

portion as passage. It will not create any right in favour of

the defendants. He further submitted that the defendants

have claimed adverse possession over the open space

situated on the northern side of the property. But they have

not proved such adverse possession or animus decidendi to

claim the right over the property. When the defendants deny

the right of the plaintiffs over the said piece of land, they

could not have claimed adverse possession. In spite of that,

the Trial Court proceeded to dismiss the suit by answering

issue Nos.1 to 3 in the Negative.

19. Learned counsel further submitted that the Trial

Court discussed only about the measurements of the property

as shown in the partition deed with reference to the properties

that is already sold to P C Veeraswamy under the registered

sale deed dated 25.10.1996 to form an opinion that Abdul

Wahab had retained only 397.38 sq.ft. of land. But as per the

plaint schedule, the plaintiffs claimed 716 sq.ft. and therefore,

the suit came to be dismissed. If the partition deed and the

sketch appended to it are taken into consideration, there was

absolutely no reason to exclude the open space that was

specifically allotted to the share of Abdul Wahab. The Trial

Court committed an error in excluding the said piece of land

and forming an opinion that it is a passage, is perverse and

therefore, the impugned judgment and decree deserves to be

set aside. Accordingly, he prays for allowing the appeal by

setting aside the impugned judgment and decree passed by

the Trial Court, in the interest of justice.

20. Per contra, learned counsel for the respondents

submitted that the passage is leading from schedule 'B'

property till Beeradevaragudi lane, 4th cross. Unfortunately,

this passage was referred to in the partition deed and the

sketch as open space. The plaintiffs are trying to take

advantage of this mistake. There is no road on the southern

side of schedule 'B' property and therefore, the defendants

have to reach the road referred to in the partition deed and

the sketch of Beeradevaragudi lane, 4th cross by saying the

open space falling on the north of schedule 'B' property. The

defendants have perfected their title by easement of

prescription and by necessity. The boundaries mentioned in

Exs.P6 and 7 is also a mistake with reference to the open

space. PW1 categorically admitted the existence of passage

in the property.

21. Learned counsel further submitted that even

according to the partition deed, the land that was allotted to

the share of Abdul Wahab is described with specific

measurements i.e., on the East 36.3 feet, West 50.6 feet,

North 31 feet and South 11.6 feet. Therefore, as rightly held

by the Trial Court, the land that was allotted to the share of

Abdul Wahab was only 907 sq. ft., out of which, admittedly,

an area measuring 510 sq.ft. was sold in favour of P C

Veeraswamy. Under such circumstances, only 397.38 sq.ft.

of land remains for the plaintiffs. The Trial Court considered

the oral and documentary evidence placed before it in a

proper perspective and dismissed the suit of the plaintiffs.

There are no reason to interfere with the impugned judgment

and decree passed by the Trial Court. Hence, he prays for

dismissal of the appeal with costs.

22. In view of the rival contentions urged by learned

counsel for both the parties, the point that would arise for my

consideration is:

"Whether the impugned judgment and decree passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"

My answer to the above point is in the 'Affirmative' for

the following:

REASONS

23. Exs.P1 and P5 which are similar to Exs.P6 and P7

are the registered partition deed and the sketch appended to

it. These documents are the admitted documents. However,

learned counsel for the respondents would contend that by

mistake the passage that is lying on the northern side of 'B'

schedule is referred to as open space. For better appreciation

of the contention of the parties, the property that was allotted

to the share of Abdul Haleem with its boundaries is mentioned

as under:

"All that piece and parcel of the land and the building situated there on end bearing Municipal No.1, Beera Devara Gudi Lane, Jai Mohalla, Bangalore City, bounded on the East by property allotted to Third Party, Sri Abdul Basith Saheb, West by portion of the property allotted to Sri Abdul Wahab, North by property allotted to the First Party, Sri Abdul Wahab and South by Beere Devara Gudi Lane, 3rd Cross measuring East to West 9' 9" and North to South 12' 6" MARKED BLUE. Value: Rs.5,000/-.00"

24. If the sketch appended to the partition deed is

taken into consideration, while referring to the description of

the property that was allotted to the share of Abdul Haleem, it

is relevant to refer the western and northern boundaries as

the same is mentioned as the portion of the property allotted

to Abdul Wahab. If in fact, the open space was meant to be

used as passage to access the land situated on the northern

side of the entire property, the northern boundary of the

property allotted to Abdul Haleem could not have been

mentioned as the property allotted to the first party Abdul

Wahab. On the other hand, this would have been described

either as open space or as passage as contended by the

defendants.

25. Moreover, para Nos.1 to 3 of the partition deed

refers to the property that was allotted to each of the sharers

and stated that schedule 'A' was allotted to the share of Abdul

Wahab and marked in yellow colour in the sketch annexed to

the partition deed. The property that was allotted to the

share of Abdul Haleem is described in 'B' schedule and

marked in blue colour in the sketch. Similarly, the property

that was allotted to the share of Abdul Basith is described in

schedule 'C' and marked in red colour in the sketch. The

sketch that is appended to the partition deed discloses that

even the open space is marked in yellow colour.

26. If the contention of the learned counsel for the

respondents is to be accepted, there was absolutely no reason

as to why the said portion was shaded in yellow colour, if in

fact, this open space was meant to be used as passage.

Definitely, there would have been a reference to such a right

of the parties in the partition deed. Moreover, on the south of

schedule 'B', there is reference to Beeradevaragudi Lane, 3rd

cross. Meaning thereby, there lies a road on the southern side

of the property that is allotted to the share of Abdul Haleem.

27. The contention of the learned counsel for the

respondents that the same is not a road, but is was a

conservancy lane cannot be accepted, as it is categorically

stated that it is Beeradevaragudi Lane, 3rd cross. Under such

circumstances, the contention of the learned counsel for the

respondents that they were using the open space as passage

to reach the road on the northern side described as

Beeradevaragudi Lane, 4th cross, cannot be accepted. There

is absolutely no reason as to why the conservancy lane is

described as Beeradevaragudi Lane, 3rd cross and why the

passage was described as open space and why even the open

space was shaded with yellow colour as the property that was

allotted to the share of Abdul Wahab.

28. The oral evidence led by both the parties disclose

that they rely on the deed of partition and the sketch

appended to it. Even if the oral evidence is taken into

consideration to appreciate the documents that are relied on

by the parties, the contention taken by the defendants is

never probablised. As per the partition deed and the sketch,

the entire property is measuring on the North 31 feet, East

47.9 ft, South 11.6 + 9.9 + 9.9 feet and on the West 50.6

feet. A portion measuring 9.9 feet on North and South and

12.3 feet and 12.6 feet on the Eastern and Western side was

allotted to the share of Abdul Haleem. Similarly, property

measuring 9.9 feet on North and South and 11.6 feet and

12.3 feet on the Eastern and Western side was allotted to the

share of Abdul Basith. The remaining extent that is on the

North 31 feet, South 11.6 feet, East 36.3 feet and West 50.6

feet is shaded in yellow colour and allotted to the share of

Abdul Wahab. It is pertinent to note that this area includes

the open space and it is not specifically or by necessary

implication excluded from the portion of the land that was

allotted to the share of Abdul Wahab. If these measurements

are taken into consideration, the contention of the learned

counsel for the respondents that Abdul Wahab was allotted

only an extent of 907 sq.ft. of land cannot be accepted.

29. The Trial Court in its judgment and decree came

to the conclusion that these measurements constitute

approximately 907 sq.ft. and if 510 sq.ft. of land sold in

favour of Veeraswamy is to be excluded, the property remains

with the plaintiffs would be only 397.78 sq.ft. and not 716

sq.ft. as claimed by the plaintiffs. There is absolutely no basis

for the Trial Court to form such an opinion. If the

measurements of the land referred to in the partition deed are

taken into consideration, the land that was allotted to the

share of Abdul Wahab would be on East - 35.6 + 12.3 feet,

West - 50.6 feet, North - 31 feet and South - 11.6 feet + 19.8

feet. Admittedly, a portion of the land measuring 510 sq.ft on

the eastern side was sold by Abdul Wahab in favour of P C

Veeraswamy. Under such circumstances, the remaining

extent of the land with Abdul Wahab would be little more than

1000 sq.ft. i.e., exactly 1015.68 sq.ft. i.e., [(35.6 + 11.6 +

50.6/2) x (31 + 11.6 + 9.9 + 9.9/2) - 510 sq.ft.]

30. It is also pertinent to note that Ex.P4 is the khata

extract issued by BBMP which is dated 23.01.2013. It

pertains to the land owned by Abdul Wahab and the sital area

remained after alienating 510 sq.ft. of land in favour of

Veeraswamy is mentioned as 716 sq.ft. This is the land

claimed by the plaintiffs described in schedule 'A' of the plaint.

There is absolutely no reason to reject this document and the

area of the land mentioned therein.

31. The Court Commissioner was appointed to

measure the property and to report about the topography of

the land in question. It is pertinent to note that in the sketch

only the land that was allotted to the share of Abdul Haleem is

marked in red colour. The open space referred to in the

partition deed and sketch referred to by the Commissioner as

passage is shown in blue colour and the Court Commissioner

has mentioned that as per the memo of instructions, the

same was referred to as passage. Therefore, much

importance cannot be attached to the sketch and the report

submitted by the Court Commissioner as he has followed the

memo of instruction submitted on behalf of the defendants to

survey and mark only the land referred to by the defendants.

32. It is pertinent to note that the remaining land in

possession of the plaintiffs was never surveyed nor marked in

the sketch. There is no reference to the measurement of the

land that was allotted to the share of Abdul Wahab. When

the parties are claiming right under the registered partition

deed and the sketch annexed to the same marked as Exs.P1,

5, 6 and 7, there is absolutely no reason to ignore the specific

recitals and the boundaries mentioned therein to accept the

contention of the defendants. When there is no explanation

as to why the portion of the land allotted to the share of Abdul

Wahab was described in detail which includes the open space,

why the entire portion including the open space was shaded in

the yellow colour was allotted to the share of Abdul Wahab

and why the northern boundary to the land that was allotted

to the share of Abdul Haleem shown as the land allotted to

Abdul Wahab and not as either open space or the passage,

the said document could be ignored or it could be accepted

that by mistake the passage was referred to as open space.

33. In the light of the discussions held above, I have

considered the impugned judgment and decree passed by the

Trial Court. The Trial Court has blindly accepted the

contention of the defendants that the properties that was

allotted to the share of Abdul Wahab was only measuring 907

sq.ft. and if the land measuring 510 sq.ft. was sold in favour

of Veeraswamy is taken away, only an extent of 397.78 sq.ft.

remains with the plaintiffs. There is absolutely no other

reasons assigned by the Trial Court to reject the claim of the

plaintiffs. There is no reference either to the partition deed or

to the sketch appended to it to consider the rival contention of

the parties, except saying that the portion marked in yellow

colour has been allotted to Abdul Wahab. There is no reason

as to why the open space which is also marked in yellow

colour was excluded from the land that was allotted to share

of Abdul Wahab. Therefore, I am of the opinion that the

impugned judgment and decree passed by the Trial Court is

perverse and calls for interference by this Court. Hence, I

answer the above point in Affirmative and proceed to pass the

following:

ORDER

(i) The appeal is allowed with costs.

(ii) The judgment and decree dated 08.11.2017

passed in OS No.1487 of 2013 on the file of the learned XX

Additional City Civil and Sessions Judge (CCH.32), Bengaluru

City, is hereby set aside.

(iii) In the result, the suit of the plaintiffs is decreed

with costs. The defendants, their men, agents, servants or

any person or persons claiming through or under the

defendants are restrained from interfering with the peaceful

possession and enjoyment of the schedule 'A' property by the

plaintiffs.

Draw the decree accordingly.

Registry is directed to send back the Trial Court records

along with copy of this judgment and decree.

Sd/-

JUDGE

*bgn/-