Abdulrajak S/O Rajesab Nadaf vs Gafarsab S/O Mohammedhussain ...
2023 Latest Caselaw 5208 Kant

                                                     -1-
                                                             NC: 2023:KHC-D:8276
                                                                RSA No. 5564 of 2010




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 3RD DAY OF AUGUST, 2023

                                                    BEFORE
                           THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                               REGULAR SECOND APPEAL NO. 5564 OF 2010
                      BETWEEN:
                            ABDULRAJAK S/O RAJESAB NADAF
                            AGED ABOUT 40 YEARS,
                            OCC: COOLIE,
                            R/O. SAVANUR-580008.
                                                                        ...APPELLANT
                      (BY SRI. MAHESH WODEYAR, ADVOCATE)
                      AND:
                      1.    GAFARSAB
                            S/O MOHAMMEDHUSSAIN NADAF
                            AGE: MAJOR, OCC: COOLIE,
                      2.    CHAMANSAB
                            S/O MOHAMMEDHUSSAIN NADAF
                            AGE: MAJOR, OCC: COOLIE,
                      3.    DILSHADBI
                            W/O MOHAMMEDHUSSAIN NADAF
                            AGE: MAJOR, OCC: HOUSEHOLD WORK,
         Digitally    4.    AMINABI W/O HASSANSAB NADAF
         signed by

GIRIJA A
         GIRIJA A
         BYAHATTI           AGE: MAJOR, OCC: HOUSEHOLD WORK,
BYAHATTI Date:
         2023.08.08
         16:28:06 -
         0700
                            ALL ARE R/O. SAVANUR,
                            DIST: HAVERI-580008.
                                                                     ...RESPONDENTS

                      (BY SRI. G.K.HIREGOUDAR, ADVOCATE FOR R3;
                      R1- HELD SUFFICIENT;
                      R2 AND R4- NOTICE SERVED)

                           THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE ORDER
                      AND DECREE DTD: 15.02.2010 PASSED IN R.A.NO.35/2005 ON THE
                      FILE OF THE PRL.CIVIL JUDGE(SR.DN) HAVERI, ALLOWING THE
                      APPEAL, FILED AGAINST THE JUDGMENT DTD:22.01.2005 AND THE
                      DECREE PASSED IN O.S.NO.100/2003 ON THE FILE OF THE CIVIL
                      JUDGE(JR.DN) SAVANUR, DECREEING THE SUIT FILED FOR
                      DECLARATION, MANDATORY AND PERMANENT INJUNCTION.
                                 -2-
                                        NC: 2023:KHC-D:8276
                                             RSA No. 5564 of 2010




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal is filed challenging the divergent finding

recorded by the first Appellate Court in R.A.No.35/2005 on

the file of the Principal Senior Civil Judge, Haveri. In

terms of the said judgment and decree, the Principal

Senior Civil Judge, Haveri, in exercise of jurisdiction under

Section 96 of the Code of Civil Procedure, has allowed the

appeal and set aside the judgment and decree passed by

the Civil Judge (Jr.Dn.), Savanur in O.S.No.100/2003.

2. The suit filed by the plaintiff is one for

injunction in respect of the property which is described as

under:

DESCRIPTION OF THE SUIT PROPERTY That the residential house, front yard and backyard bearing Savanur Town Municipal Council Property No.23 of Ward No.IV Block No.VII situating within the limits of TMC Savanur, bounded by:

To the East : Property of Abdulkhadar Nadaf

NC: 2023:KHC-D:8276 RSA No. 5564 of 2010

To the West : Property of Defendants To the North : Property of Khanjade To the South : Road.

3. As could be noticed from the description, the

measurement of the suit property is not provided.

Nevertheless, the trial Court has decreed the suit mainly

relying on Ex.P1 - Extract of house property register. The

house property register extract produced at Ex.P1 also

does not disclose the North-South and East-West

dimension of the property.

4. Aggrieved by the aforementioned judgment and

decree, the defendants preferred R.A.No.35/2005. The

appeal was allowed by the First Appellate Court on the

premise that the extent of the property is not properly

mentioned in the plaint. The First Appellate Court has also

made reference to the cross-examination of PW1 and has

given a finding that the plaintiff's possession in respect of

the suit schedule property is doubtful, since the plaintiff

has not mentioned as to from which date he has been in

possession of the suit property. Accordingly, the First

NC: 2023:KHC-D:8276 RSA No. 5564 of 2010

Appellate Court allowed the appeal and consequently

dismissed the suit.

5. This appeal was admitted vide order dated

17.06.2014 to answer the following substantial question of

law:

"Whether the First Appellate Court has committed a serious error in allowing the appeal and dismissing the suit filed for permanent injunction by ignoring material evidence placed on record more particularly, the judgment and decree passed in O.S.No.6/1996 filed by the donor of the suit property and thus, the judgment of the First Appellate Court has become perverse and illegal?"

6. Sri. Mahesh Wodeyar, learned counsel

appearing for the appellant submits that, the possession of

the plaintiff is very much established and there is no

dispute relating to the identify of the property and the

First Appellate Court is not justified in reversing the finding

given by the trial Court. He would also submit that the

plaintiff has acquired right over the property based on the

NC: 2023:KHC-D:8276 RSA No. 5564 of 2010

oral gift deed executed by Hussenmiya Nadaf. To

substantiate his contention that Hussenmiya Nadaf had

right over the property, he would refer to Exs.P2 and P3.

Ex.P2 is the copy of judgment in O.S.No.6/1996, on the

file of the Munsiff, Savanur and Ex.P3 is the certified copy

of the decree passed in O.S.No.6/1996, referred to above.

7. From the aforementioned documents, it is

apparent that the decree passed in respect of the property

bearing No.23 measuring 15 feet East-West and 153 feet

North-South. In addition, boundaries of all four sides is

mentioned. Though these Exs.P2 and P3, judgment and

decree in O.S.No.6/1996 would lead to the inference that

Hussenmiya Nadaf was in possession of the property and

decree for injunction is passed against the present

defendants. There is nothing on record to show that the

property is transferred from Hussenmiya Nadaf to the

plaintiff. The plaint averments is also silent in this regard.

Though PW1 in the cross-examination has stated that, he

has produced the gift deed alleged to have been executed

by Hussenmiya Nadaf, the same is not produced.

NC: 2023:KHC-D:8276 RSA No. 5564 of 2010

Learned counsel Sri. Mahesh Wodeyar submits that the

parties being Mohammedans, the oral gift is very much

recognized amongst the Mohammedans and as such, the

appellant did not produce the gift deed.

8. Exs.P2 and P3, judgment and decree passed in

O.S.No.6/1996, in clear terms would indicate that one

Hussenmiya Nadaf was the person in possession of the

property referred to in the said decree. Whether this

property is transferred to the present plaintiff or not is the

point for consideration.

9. It is not the case of the defendants that they

are claiming right over the property under Hussenmiya

Nadaf. This being the position, this Court is of the view

that, instead of dismissing the appeal on the technicality

that the document relating to transfer of the property from

Hussenmiya Nadaf to the plaintiff is not produced before

the Court or on the premise that the extent of the

property is not properly mentioned, this Court in the

interest of justice deem it appropriate to remand the

matter to the trial Court by providing an opportunity to the

NC: 2023:KHC-D:8276 RSA No. 5564 of 2010

parties to lead evidence in support of their case. It is also

made clear that, plaintiff/appellant is permitted to amend

the plaint by providing correct description of the property

and also to make reference to the alleged gift deed in his

favour by Hussenmiya Nadaf. If the plaint is amended,

the defendant shall be permitted to file additional written

statement.

With these observations, the appeal is allowed in

part. The judgment and decree dated 15.02.2010 passed

by the Principal Civil Judge (Sr.Dn.), Haveri, in R.A.

No.35/2005 is set aside. The matter is remanded to the

trial Court for fresh consideration in accordance with law.

Sd/-

JUDGE

gab