Karnataka High Court
Smt.Chandbee W/O Khasimsab Jamadar vs Baliram S/O Kheeru Jadhav on 13 December, 2023
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NC: 2023:KHC-K:9188
RSA No. 7261 of 2010
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7261 OF 2010 (DEC/INJ)
BETWEEN:
1. SMT. CHANDBEE W/O KHASIMSAB JAMADAR
DIED BY LR'S.
1(a) SMT. GHUDUMA W/O KHASIMSAB SHAIK
AGE: 60 YEARS, OCC: AGRICULTURE
R/O: VILLAGE PATTAN,
TQ. AND DIST: KALABURAGI.
1(b) SMT. SHAHEDA W/O SULEMAN MUJAWAR,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: NEAR LAXMI MANDIR
SANJAY GANDHI NAGAR,
SHAHA BAZAR KALABURAGI.
1(c) SMT. SALEEMA W/O MAHABOOB SHEIK,
Digitally signed
by SWETA AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
KULKARNI R/O: NEAR LAXMI MANDIR
Location: HIGH
COURT OF SANJAY GANDHI NAGAR,
KARNATAKA SHAHA BAZAR KALABURAGI.
2. FAKRUDDIN S/O KHASIMSAB JAMADAR
AGE: 40 YEARS,
3. RAFEEQUE S/O KHASIMSAB JAMADAR,
AGE: 30 YEARS,
ALL R/O: VILLAGE GOBBURWADI
TQ. AFZALPUR,
DIST: GULBARGA-585107.
...APPELLANTS
(BY SRI SACHIN M MAHAJAN, ADVOCATE)
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RSA No. 7261 of 2010
AND:
1. BALIRAM S/O KHEERU JADHAV,
AGE: 29 YEARS,
R/O: GOBBURWADI THANDA,
TQ. AFZALPUR,
DIST: GULBARGA-585107.
2. KHAJASAB S/O LATE NOORSAB JAMADAR
SINCE DECEASED BY LR'S.
2(a) FAKHRUDDDIN S/O KHAJASAB JAMADAR,
AGE: 50 YEARS,
R/O: CHIRAG NAGAR LAL BATTI
GHATKOPAR, MUMBAI-40086.
2(b) HAMEED S/O KHAJASAB JAMADAR,
AGE: 40 YEARS,
R/O: CHIRAG NAGAR LAL BATTI
GHATKOPAR, MUMBAI-400086.
2(c) YUNUS S/O KHAJASAB JAMADAR,
AGE: 35 YEARS,
R/O: CHIRAG NAGAR LAL BATTI
GHATKOPAR, MUMBAI-400086.
2(d) TAHERA W/O KHAJASAB SHAIK
(D/O KHAJASAB JAMADAR)
AGE: 55 YEARS,
R/O: KHADI MACHINE KONHDWA-B,
NAGAR SEWAK OFFICE KATRAJ ROAD,
PUNE-411048.
2(e) SAYEEDA W/O ISMAILSAB ALANDKAR,
(D/O KHAJASAB JAMADAR) AGE: 37 YEARS,
R/O: KHADI MACHINE KONHDWA-B,
NAGAR SEWAK OFFICE KATRAJ ROAD,
PUNE-411048.
2(f) MUMTAZ D/O KHAJASAB JAMADAR
AGE: 35 YEARS,
R/O: KHADI MACHINE KONHDWA-B,
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NC: 2023:KHC-K:9188
RSA No. 7261 of 2010
NAGAR SEWAK OFFICE KATRAJ ROAD,
PUNE-411048.
2(g) BIBANBEE W/O KHAJASAB JAMADAR
AGE: 70 YEARS,
R/O: KHADI MACHINE KONHDWA-B,
NAGAR SEWAK OFFICE KATRAJ ROAD,
PUNE-411048.
3. HASANSAB S/O LATE NOORSAB JAMADAR
AGE: 60 YEARS, R/O: GOBBURWADI,
TQ. AFZALPUR DIST: GULBARGA-585107.
4. GANISAB S/O HASANSAB JAMADAR
AGE: 65 YEARS,
R/O : CHOONA BHATTI BHAGWAN NAGAR,
MARKET YARD SOLAPUR-413001.
5. SAIFANSAB S/O HASANSAB JAMADAR
AGE: 40 YEARS,
R/O : CHOONA BHATTI BHAGWAN NAGAR,
MARKET YARD SOLAPUR-413001.
6. SABERA W/O AHMED SAB KUNSI
(D/O HASANSAB JAMADAR)
AGE: 45 YEARS, R/O: ARIF COLONY
DABRABAD CROSS TOWER STATION
OPP: CHOR GUMBAZ
BEHIND RING ROAD KALABURAGI-585104.
...RESPONDENTS
(BY SRI VINAYAK APTE, ADV. FOR R1;
SRI RAMCHANDRA K. ADV. FOR R2(d);
APPEAL AGAINST R3 IS ABATED V/O DATED 18.07.2017;
NOTICE TO R2(a) TO R2(c), R2(e) TO R2(g) IS HELD
SUFFICIENT V/O DATED 08.12.2021;
NOTICE TO R4 TO R6 IS HELD SUFFICIENT V/O DATED
12.10.2023)
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RSA No. 7261 of 2010
THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED: 26.02.2010 PASSED BY THE FAST TRACK COURT-I AT
GULBARGA IN R.A. NO.86/2008 AND THEREBY CONFIRMED
THE JUDGMENT AND DECREE DATED 08.04.2008 PASSED BY
THE III ADDITIONAL CIVIL JUDGE(SD) AT GULBARGA IN O.S.
NO.183/2005.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant Nos.3 to 5 in O.S.No.183/2005 on the file of
the learned III Additional Civil Judge (Sr.Dn.) at Kalaburagi
(hereinafter referred to as the 'Trial Court' for brevity) are
impugning the judgment and decree dated 26.02.2010 passed
in R.A.No.86/2008 on the file of the Fast Track Court No.I at
Kalaburagi (hereinafter referred to as the 'First Appellate Court'
for brevity) allowing the appeal, setting aside the impugned
judgment and decree passed by the Trial Court and decreeing
the suit O.S.No.183/2005, declaring that the judgment in
O.S.No.60/1998 on the file of the I-Additional Civil Judge
(Sr.Dn.), Kalaburagi dated 14.01.2004 is illegal and
unenforceable against the plaintiff in respect of the suit
properties and restraining the defendants from interfering with
the peaceful possession and enjoyment of the same by the
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plaintiff and also declaring that the plaintiff is the owner in
possession of suit properties.
2. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
3. Brief facts of the case are that plaintiff filed the suit
O.S.No.183/2005 against defendant Nos.1 to 5 seeking
declaration that the plaintiff is the absolute owner in possession
of the suit properties, to declare that the judgment and decree
passed in O.S.No.60/1998 on the file of the I-Additional Civil
Judge, (Sr.Dn.), Kalaburagi dated 14.01.2004 is illegal and not
binding on the plaintiff and for permanent injunction restraining
the defendants from interfering with his peaceful possession
and enjoyment of the suit lands viz., (i) land measuring 0.30
guntas out of portion of land measuring 3.05 guntas towards
eastern side and (2) land measuring 0.30 guntas out of a
portion of land measuring 3.04 acres towards eastern side,
both in Sy.No.564/2 situated at Gobbur (B), Afzalpur taluk with
the boundaries mentioned therein (hereinafter referred to as
the 'suit properties' for brevity).
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4. It is contended that the plaintiff is the absolute
owner in possession of the suit properties as he purchased it
under two different sale deeds dated 02.02.1998 from
defendant Nos.1 and 2. His name was mutated in the revenue
records on the basis of the sale deed and he was in possession
and enjoyment of the same.
5. It is contended that the record of rights in respect
of the suit properties were standing in the name of defendant
Nos.1 and 2. He made enquiry and thereafter purchased the
same. Therefore, he is the bonafide purchaser of the suit
properties for value. Defendant Nos.3 to 5 have no right, title
or interest over the suit properties, they were never in
possession of the same. They started interfering with the
plaintiff's possession and enjoyment of the lands only during
April 2005. When he enquired in the revenue office, he came
to know that as per mutation order dated 28.06.2005 the
names of defendant Nos.3 to 5 was entered as per the decree
of declaration passed in O.S.No.60/1998 dated 14.01.2004 on
the file of the learned I-Additional Civil Judge (Sr.Dn.),
Kalaburagi. The plaintiff was kept in dark about such litigation.
So he felt that defendant Nos.1 to 5 colluding with one another
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with malafide intention, filed the collusive suit and got the
judgment in their favour. Defendant Nos.3 to 5 who are the
plaintiffs in O.S.No.60/1998 were knowing about the sale deed
executed by defendant Nos.1 and 2 in favour of the plaintiff
and behind the back of the plaintiff they got the decree in the
said suit. Hence, he prayed for the relief of declaration that the
plaintiff is the absolute owner in possession of the suit
properties, to declare that the judgment and decree in
O.S.No.60/1998 referred to above is not binding on the plaintiff
and for perpetual injunction against the defendants.
6. Defendant Nos.1 and 2 have filed their written
statement admitting the contentions taken by the plaintiff
regarding purchase of the suit properties from them under sale
deeds dated 02.02.1998. They contend that they are not
intending to interfere with the possession and enjoyment of the
suit properties. It is denied that defendant Nos.3 to 5 have
become absolute owners of the suit properties as per the
judgment and decree in O.S.No.60/1998. It is stated that
defendant Nos.1 and 2 have never interfered with the peaceful
possession and enjoyment of the suit properties by the plaintiff.
Hence, prayed for dismissal of the suit against them.
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7. Defendant Nos.3 to 5 filed the written statement
denying the contentions taken by the plaintiff. It is contended
that the suit was filed by the plaintiff in collusion with
defendant Nos.1 and 2. Defendant Nos.3 to 5 have filed the
suit for perpetual injunction and correction of record of rights in
respect of Sy.No.564/2 measuring 6.09 acres of Gobbur Wadi
village against defendant Nos.1 and 2 in O.S.No.60/1998 and
the said suit was came to be decreed vide judgment dated
14.01.2004. The plaintiff was aware of the said litigation and
he assisted defendant Nos.1 and 2 in contesting the suit.
Therefore, he is not entitled for any relief in the present suit.
The description of the property in the plaint is also denied. It is
further denied that the plaintiff is in physical possession and
enjoyment of the suit property.
8. It is contended that the husband of defendant No.3
and father of defendant Nos.4 and 5 by name Khasim Ali alias
Khasimsab had purchased the land bearing Sy.No.564/2
measuring 6.09 acres from Hanumanthraya under the sale
deed dated 29.07.1977. After death of said Khasim Ali alias
Khasimsab, these defendants being the legal heirs succeeded to
the property and they are in actual possession and enjoyment
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of the same. Accordingly, they got the decree in
O.S.No.60/1998. It is defendant Nos.3 to 5 who are cultivating
the land and plaintiff has no manner of right, title or interest.
Therefore, they prayed for dismissal of the suit.
9. On the basis of these pleadings, the Trial Court
framed the following issues:
1) Whether the plaintiff proves that he purchased the
suit properties under registered sale deeds dated
02.02.1998 as such he is the owner in possession
and enjoyment of the suit properties as alleged?
2) Whether the plaintiff further proves that the
defendants are interfering in his possession and
enjoyment of the suit properties?
3) Whether the plaintiff further proves that the
judgment and decree in O.S. No.60/1998 dated
14.01.2004 passed by learned I Addl. Civil Judge
(Sr.Dn.) Gulbarga is not binding on him as alleged?
4) Whether the description of the suit properties is
incorrect?
5) Whether the plaintiff is entitled for the reliefs
claimed?
6) What order or decree?
10. Plaintiff examined PWs-1 to 3 and got marked
Exs.P1 to P14 in support of his contentions. Defendants
examined DWs-1 to 5 and got marked Exs.D1 to D13 in support
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of their defence. The Trial Court, after taking into consideration
all these materials on record, answer issue Nos.1 to 3 and 5 in
the negative and issue No.4 in the affirmative and dismissed
the suit of the plaintiff with costs.
11. Being aggrieved by the same, the plaintiff preferred
R.A.No.86/2008. The First Appellate Court, on re-appreciation
of the materials on record, allowed the appeal, set aside the
impugned judgment and decree passed by the Trial Court and
decreed the suit of the plaintiff as prayed for. Being aggrieved
by the same, defendant Nos.3 to 5 are before this Court.
12. Heard Sri Sachin M. Mahajan, learned counsel for
the appellants, Sri Vinayak Apte, learned counsel for
respondent No.1 and Sri Ramchandra K., learned counsel for
respondent No.2(d).
13. Learned counsel for the appellants contended that
one Noorsab S/o Imamsab was the owner of 6.09 acres of land
in Sy.No.564/2 of Gabburwadi Village. He sold it in favour of
one Hanumanthraya on 06.04.1971 as per Ex.D1.
Subsequently, Khasim Ali alias Khasimsab purchased the same
property from Hanumanthraya under the sale deed dated
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29.07.1977 as per Ex.D2. Defendant Nos.4 and 5 are the
children of said Khasim Ali alias Khasimsab, while defendant
No.3 is his wife. Therefore, after death of Khasim Ali,
defendant Nos.3 to 5 have succeeded to the suit properties by
succession. The record of rights also stood in their name.
However, defendant Nos.1 and 2 started interfering with the
possession and enjoyment of defendant Nos.3 to 5 and
therefore they have filed the suit O.S.No.60/1998. Defendant
Nos.1 and 2 have filed the written statement taking untenable
contentions. The suit was came to be decreed vide judgment
dated 14.01.2004. The said judgment is also binding on the
plaintiff who is said to have purchased the suit properties from
defendant Nos.1 and 2 under two different sale deeds Exs.P9
and P10 and they are not having any right whatsoever. It is
defendant Nos.3 to 5 who are in possession and enjoyment of
the property. The plaintiff was never put in possession. The
plaintiff had not made any enquiry regarding title of defendant
Nos.1 and 2. Therefore, he cannot be considered as bonafide
purchaser for value. Under such circumstances, the plaintiff is
not entitled for any relief as prayed for. Accordingly, he prays
for allowing the appeal by setting aside the impugned judgment
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and decree passed by the First Appellate Court and to dismiss
the suit of the plaintiff.
14. Per contra, learned counsel for the respondent -
plaintiff, opposing the appeal, submitted that Exs.D1 and D2 -
the sale deeds were never acted upon. The revenue records as
per Exs.D3 to D6 stood in the name of Khasimsab, Khajasab,
Hasansab and Saifan Sab. These documents disclose that since
1963-64 till the year 1988 the properties were standing in their
joint names. As per Ex.D-7 the record of rights for the year
1988-89 to 1992-93 the properties were mutated in the name
of defendant Nos.1 and 2 on the basis of the oral partition.
Exs.D8 and D10 also support the said partition and allotting of
the suit property in favour of defendant Nos.1 and 2. These
revenue records make it clear that the suit properties were
fallen to the share of defendant Nos.1 and 2 and they were in
possession of the same. Defendant Nos.1 and 2 have sold the
suit properties in favour of the plaintiff under the sale deeds
Exs.P9 and P10 which are dated 02.02.1998 and the plaintiff
was put in possession of the same. Since then, the plaintiff is
in possession and enjoyment of the property.
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15. Learned counsel further submitted that when the
sale deed was executed on 02.02.1998 by defendant Nos.1 and
2 in favour of the plaintiff, defendant Nos.3 to 5, in collusion
with defendant Nos.1 and 2, filed the suit O.S.No.60/1998 on
10.02.1998 and got the decree on 14.01.2004 behind the back
of the plaintiff. Therefore, the said decree is not binding on the
plaintiff. The plaintiff is bonafide purchaser for value and hence
he is entitled for the decree. The First Appellate Court
considered all these aspects of the matter and decreed the suit
of the plaintiff as prayed for. The collusion between the
defendants is only to defraud the plaintiff and to usurp the
property. Hence, he prays for dismissing the appeal with costs.
16. This Court, vide order dated 02.08.2010 framed the
following substantial question of law:
"Whether the First Appellate Court was justified in
setting aside the transaction of the appellant, though it
is prior to the transaction of that of plaintiff?"
My answer to the above substantial question of law would
be in the 'Affirmative' for the following:
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REASONS
17. The admitted facts of the case are that Noorsab S/o
Imamsab was the father of defendant Nos.1, 2 and Khasim Ali
(husband of defendant No.3) and grandfather of defendant
Nos.4 and 5. He was owning Sy.No.564/2 totally measuring
6.09 acres. It is the contention of defendant Nos.3 to 5 that
Noorsab executed the sale deed dated 06.04.1971 and sold the
entire extent of 6.09 acres of Sy.No.564/2 in favour of one
Hanumanthraya. The sale deed is produced as per Ex.D1. It is
their further contention that the said Hanumanthraya in turn
sold the very same property in favour of Khasim Ali alias
Khasimsab, i.e., the son of Noorsab, husband of defendant
No.3 and father of defendant Nos.4 and 5. The sale deed is
produced as per Ex.D2. Even though as per Ex.D1 Noorsab
sold the property in favour of Hanumanthraya on 06.04.1971,
there was no mutation of the name of Hanumnathraya in any of
the revenue records. Similarly, when Hanumanthraya sold the
very same property in favour of Khasim Ali alias Khasimsab,
there was no change in the revenue records nor the name of
Khasimali was came to be entered on the basis of the said sale
deed. Ex.D3 is the revenue record for the year 1963-64 in
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respect of Sy.No.564/2 standing in the name of Noor Imam
Wadi who is referred to as Noorsab. Ex.D4 is a similar record
of rights for the year 1973-74 till 1977-78 and in column No.9
the name of Noor Imam continues to be the person in
possession of the property. Ex.D5 is also the record of rights
for the year 1977-78 where there is reference to
M.E.No.137/1982-83 and the names of Khasim Ali, Khaja Sab
(defendant No.1), Hasan Sab (defendant No.2) and Saifan Sab
were came to be mutated after the death of Noorsab. The said
entry carried forward in Ex.D6 which is also the record of rights
for the year 1983-84 till 1987-88. Ex.D7 is the record of rights
for the year 1988-89 till 1992-93 where the names of
Khasimali, Khajasab, Hasansab and Saifan Sab were rounded
off and the names of Khaja Sab (defendant No.1) and Hasan
Sab (defendant No.2) were mutated in respect of 3.05 acres
and 3.04 acres in Sy.No.564/2 on the basis of partition No.159
dated 12.02.1992. The RTC also refers to the partition dated
01.12.1989 which was reported and mutation was effected on
12.02.1992.
18. Ex.D8 is the mutation extract from mutation
register in respect of M.E.No.137/82-83 which was referred to
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in the record of rights. As per this mutation extract, after the
death of Noor Imam Wadi, the property devolved on his four
sons i.e., Khasim Ali, Khaja Sab, Hasan Sab and Saifan Sab.
One of the sons - Khasim Ali submitted an application and on
the basis of the said application notice was issued to the
concerned to mutate the names of the children as legal
representatives. Khasimali submitted the application to mutate
the revenue records in the names of all the four sons of Noor
Imam Wadi, who is none other than the husband of defendant
No.3 and father of defendant Nos.4 and 5.
19. Ex.D.9 is the mutation entry on the basis of the
partition. According to which, the joint pattadars are Kasimali,
Khazasab, Hasan Sab, Saiful Sab, who are the sons of Noorsab.
It is stated that Kasimali and Saiful Sab are already dead. The
legal representatives of Kasimali and two other sons of Noorsab
that is Kazasab and Hassan Sab entered into partition and
submitted an application to enter their names in the revenue
records, notice was issued on 25.08.1989 and on enquiry, 3.05
acres of land to Sy.No.564/2 was entered in the name of
defendant No.4 since his father was no more. Hassan Sab-
defendant No.2 succeeded to 3.04 acres and Khazasab also
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succeeded to 3.04 acres. Therefore, it is clear that Fakruddin
S/o Khasimali i.e., defendant No.4 was allotted 3.05 acres and
Kazasab i.e., defendant No.1 and Hasan sab i.e., defendat No.2
were allotted with remaining 3.04 acres each. Accordingly, their
names were mutated as per mutation entry.
20. Ex.D.10 is again mutation register extract where
there is reference to partition between Kazasab-defendant No.1
and Fakruddin i.e., defendant No.4. Accordingly, in the said
partition, 3.05 acres of land in Sy.No.564/2 was allotted to the
share of kazasab-defendant No.1 and an application along with
partition deed was submitted to the office of Deputy Tahasildar,
Athani, Afzalpur taluk. Accordingly, 3.05 acres in Sy.No.564/2
was ordered to be mutated in the name of defendant No.1.
21. The above discussion discloses that even though,
there was sale deed dated 06.04.1971 as per Ex.D.1 and sale
deed dated 29.07.1977 as per Ex.D.2, in none of the revenue
record, reference to any of the records and names of purchaser
was never mutated at any point of time.
22. Exs.D.1 and 2 were not referred to in any other
document and therefore, it is to be held that these sale deeds
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were not acted upon nor they have seen the light of the day till
filing of the suit O.S.No.60/1998.
23. Defendant Nos.3 to 5 have filed OS No.60/1998
against defendant Nos.1 and 2 for declaration of their title and
permanent injunction and also for rectification of the record of
rights on 10.02.1998. Defendant Nos.1 and 2 have filed
written statement in the said suit. They never stated that
property in question was sold by them under the sale deeds.
But the fact remains that as per registered sale deeds dated
02.02.1998, the schedule property was sold in favour of the
plaintiff. The sale deeds are marked at Exs.P.9 and 10. Even
though the sale deeds are dated 02.02.1998, and the suit
O.S.No.60/1998 was came to be filed on 10.02.1998,
defendant Nos.1 and 2 have filed the written statement in the
said suit without disclosing about the sale deeds. Admittedly,
defendant Nos.1 and 2 have never contested the suit and the
suit was came to be decreed as per judgment and decree dated
14.01.2004. Immediately, thereafter, names of defendant
Nos.3 to 5 came to be entered in the record of rights on the
basis of decree in O.S.No.60/1998, but not on the basis of sale
deed Ex.D.2.
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24. It is the contention of the plaintiff that after
decreeing the suit O.S.No.60/1998, defendant Nos.3 to 5
started to interfere with the possession and enjoyment of the
plaintiff and the revenue records were mutated in their names.
Immediately, the plaintiff challenged the said revenue entry by
preferring an appeal before Assistant Commissioner. The order
of Assistant Commissioner as per Ex.P1 dated 03.01.2006
allowed the appeal and restored the names of plaintiffs in the
revenue record by deleting the name of defendant Nos.3 to 5.
It is stated that till today the name of the plaintiff finds place in
the revenue records.
25. Defendant Nos.1 and 2 in the present case have
field the written statement admitting selling of the suit
properties in favour of plaintiff under sale deed dated
02.02.1998. They have not given any explanation as to why
they have not raised such contention when they filed written
statement in O.S.No.68/1998. Defendant Nos.3 to 5 have filed
written statement contending that they are the owners of the
property on the basis of the decree passed in O.S.60/1998. But
strangely, they do not relate their ownership to Ex.D.2.
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26. Learned counsel for the appellant contended that
there is a clear admission on the part of the plaintiff during
cross examination that the schedule properties are compact
blocks, which means that there was no mutation or bifurcation
of the land. The evidence of P.W.1 referred to by the learned
counsel reads as under.
"F ¸ÀªÉð £ÀA 564:2 gÀ ¥ÀÆwð ºÉÆ® FUÀ®Æ MAzÉÃ
ºÁ¹UÉ DVzÉ C£ÀÄߪÀÅzÀÄ ¸Àj".
27. According to the learned counsel for the appellants
"MAzÉà ºÁ¹UÉ" refers to 'compact block', but according to the
learned counsel for the respondent, it means to be of 'even or
same level'. There is no further cross-examination of P.W.1 on
this point. Under such circumstances, a stray sentence found in
the cross examination of P.W.1 cannot be considered as an
admission to hold that property is in compact block and there
was no mutation of the suit property or bifurcation of suit
property, as contended by the plaintiff.
28. The discussion held above discloses that the
conduct of defendant Nos.1 and 2 is very suspicious. The
conduct of defendant Nos.3 to 5 also assumes importance as
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they never relied on Ex.D.2 at any point of time till filing of suit
O.S.No.60/1998 on 10.02.1998. It is pertinent to note that
sale deeds Exs.P.9 and 10 were executed by defendant Nos.1
and 2 in favour of plaintiff on 02.02.1998 and within a week
after execution of the registered sale deeds i.e., Ex.P9 and 10,
defendant Nos.3 to 5 for the first time referred to Exs.D.1 and
2 to seek the declaration of their title. But defendants Nos.1
and 2 have never referred to the sale deeds even though they
filed written statement.
29. Though the record of rights and the mutation
register extract referred to above specifically refers to the
application submitted by Kasimmali, who is none other than
husband of defendant No.2 and father of defendant Nos.4 and
5 asserting about the partition in the family, there is absolutely
no explanation by defendant Nos.3 to 5 about the same. The
only defence taken by defendant Nos.3 to 5 regarding those
entries either in the record of rights or in the mutation register
extract referring to the application submitted by kasimali is
mere deny. Under such circumstances, the contention of the
plaintiff that defendants No.s 1 to 5 have colluded with one
another in claiming the property inspite of execution of sale
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deed Exs.P9 and 10 assumes importance. When there are
series of revenue entries since from the year 1963-64 till the
year 1998, without referring to Exs.D.1 and 2, but on the other
hand, asserting the rights of all the sons of Noor Sab after his
death, referring to partition in the family and allotting specific
extent of lands in the names of defendant Nos.1 and 2, they
executing Ex.P.9 and 10 in respect of the schedule properties,
falsifies the contention of defendant Nos.3 to 5 that they are
the absolute owners in respect of the schedule properties either
on the basis of sale deed Ex.D.2 executed in favour of Kasimali
or on the basis of the judgment and decree passed in OS
No.60/1998 which is an uncontested suit.
30. It is the specific contention of the plaintiff that on
the basis of Exs.P.9 and 10 dated 02.02.1998, he was put in
possession of the same and he is enjoying the property as
absolute owner. There is absolutely no reason to disbelieve
version of the plaintiff as he is successful in probabalising his
contention. Defendants even though contested the suit
seriously, are not successful in probabalising their defence. The
conduct of defendant Nos.1 to 5 is suspicious throughout from
the beginning and it cannot be concluded by saying defendant
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Nos.3 to 5 were owner of schedule property either under
Ex.D.2 or under decree passed in O.S.62/1998 since there is no
explanation for the revenue entries and the revenue records
since from 1963-64 as could be seen from Ex.D.3 and there is
continuity in the such revenue entries till Ex.D7 i.e., till 1992-
93 and also there is reference to Exs.D8 and 9, where names of
Kasimali mentioned as the applicant to mutate the names of
the legal representatives and thereafter the names of
defendant Nos.1 and 2 in respect of schedule property, I am of
the opinion that the plaintiff is successful in proving his
contention acquiring title over the schedule properties under
the registered sale deed which is never challenged by the
defendants till today.
31. It is also pertinent to note that the defendant Nos.3
to 5 have not sought for counter claim in respect of the said
registered sale deed even while filing written statement. The
contention of learned counsel for the defendant Nos.3 to 5 that
since the plaintiffs filed the suit seeking declaration of title,
they are not required to seek any relief in respect of said the
registered sale deed cannot be accepted. Therefore, I am of the
opinion that plaintiff is entitled for relief as claimed.
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NC: 2023:KHC-K:9188
32. I have gone through the impugned judgment and
decree passed by the Trial Court. The Trial Court has assigned
flimsy reasons to dismiss the suit of the plaintiff. However, the
First Appellate Court after taking into consideration all the
materials that are placed before the Court, arrived at right
conclusion, it allowed the appeal and decreed the suit of the
plaintiff. I do not find any reason to interfere with the same.
Hence, I answer the above substantial question of law in the
'Affirmative' and proceed to pass the following:
ORDER
i. The appeal is dismissed with costs.
ii. The judgment and decree dated 26.02.2010
passed in R.A.No.86/2008 on the file of the
learned Fast Track Court No.I at Kalaburagi is
hereby confirmed.
Registry to send back the Trial Court and the First
Appellate Court records along with copies of this judgment and
decree.
Sd/-
JUDGE
SWK/BH
CT-VD
