Karnataka High Court
Galeppa S/O Dodda Erappa vs Smt Guduma Bi W/O Rahamath Sab on 20 July, 2023
Bench: Anil B Katti
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RSA No. 5281 of 2008
Connected Cases: RSA No. 5282 of 2008
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 5281 OF 2008
C/W
REGULAR SECOND APPEAL NO. 5282 OF 2008
IN REGULAR SECOND APPEAL NO. 5281/2008
BETWEEN:
1. GALEPPA S/O LATE DODDA ERAPPA,
AGED 60 YEARS, OCC. AGRICULTURIST,
R/O BEHIND GALEMMA TEMPLE, OLD 15TH WARD,
DAM ROAD HOSPET.
2. SMT. SARAN BI W/O LATE K. SANAULLAH,
AGED 58 YEARS, OCC. HOUSEWIFE,
R/O NEAR MADINA MASJID,
Digitally
signed by
ANNAPURNA
27TH WARD HOSPET.
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL
DANDAGAL Date:
2023.07.21
12:47:28 -
3. K. FAZLULLAH S/O LATE H. K. ABDUL KHADER SAB,
0700 AGED 56 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
4. K. ATHAULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 54 YEARS, OCC. SCRAP MERCHANT,
R/O. NEAR THREE SHOPS CIRCLE, HOSPET.
5. K. JAKAULLAH S/O LATE H. K. ABDUL KHADER, SAB,
AGED 52 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
6. K. NOORULLAH S/O LATE H. K. ABDUL KHADER SAB,
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AGED 50 YEARS, OCC. SCRAP MERCHANT,
R/O J. P. NAGAR, BELLARY ROAD, HOSPET.
7. K. KHALEELULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 47 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
8. K. KHALEEMULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 56 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
...APPELLANTS
(BY SRI. RAVI S. HEGDE, ADV. AND
SRI. M. GURURAJ, ADV. FOR APPELLANT)
AND:
SMT. GUDUMA BI W/O RAHAMATH SAB,
AGED 43 YEARS,
R/O DOOR NO. 897-1, 18TH WARD,
S. R. NAGAR, HOSPET,
BELLARI DISTRICT. ...RESPONDENT
(BY SRI. MOHAMED BASHU. ADV. FOR C/R)
***
THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED:26/08/2008 PASSED IN
R.A.No.33/2007 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN),
HOSPET, PARTLY ALLOWING THE APPEAL AND FILED AGAINST THE
JUDGMENT AND DECREE DATED 19.02.2007 PASSED BY THE
ADDITIONAL CIVIL JUDGE (JR.DN.), HOSPET IN O.S.NO. 105/2005,
DISMISSING THE SUIT FILED FOR PERMANENT INJUNCTION.
IN REGULAR SECOND APPEAL NO. 5282/2008
BETWEEN:
1. GALEPPA S/O LATE DODDA ERAPPA,
AGED 60 YEARS, OCC. AGRICULTURIST,
R/O BEHIND GALEMMA TEMPLE, OLD 15TH WARD,
DAM ROAD HOSPET.
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2. SMT. SARAN BI W/O LATE K. SANAULLAH,
AGED 58 YEARS, OCC. HOUSEWIFE,
R/O NEAR MADINA MASJID,
27TH WARD HOSPET.
3. K. FAZLULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 56 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
4. K. ATHAULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 54 YEARS, OCC. SCRAP MERCHANT,
R/O. NEAR THREE SHOPS CIRCLE, HOSPET.
5. K. JAKAULLAH S/O LATE H. K. ABDUL KHADER, SAB,
AGED 52 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
6. K. NOORULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 50 YEARS, OCC. SCRAP MERCHANT,
R/O J. P. NAGAR, BELLARY ROAD, HOSPET.
7. K. KHALEELULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 47 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
8. K. KHALEEMULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 56 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
...APPELLANTS
(BY SRI. RAVI S. HEGDE, ADV. AND
SRI. M. GURURAJ, ADV. FOR APPELLANT)
AND:
1. SMT. GUDUMA BI W/O RAHAMATH SAB,
AGED 43 YEARS,
R/O DOOR NO. 8971, 18TH WARD,
S. R. NAGAR, HOSPET,
BELLARI DISTRICT.
2. SMT. AKHTAR BANU W/O RAHAMATH SAB,
AGED 40 YEARS, R/O DOOR NO. 897-1A,
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18TH WARD, S. R. NAGAR, HOSPET,
BELLARI DISTRICT.
3. CITY MUNICIPAL COUNCIL, HOSPET,
BY ITS COMMISSIONER, HOSPET.
4. PEERAN SAB S/O MEHABOOB SAB,
AGED 64 YEARS, BELDAR,
R/O D. NO. 897, 18TH WARD S. R. NAGAR,
HOSPET, BELLARI DISTRICT.
...RESPONDENTS
(BY SRI. MOHAMED BASHU. ADV. FOR C/R)
***
THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED:26/08/2008 PASSED IN
R.A.No.34/2007 BY THE LEARNED ADDITIONAL CIVIL JUDGE
(SR.DN), HOSPET, PARTLY ALLOWING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 19.02.2007 PASSED IN
O.S.NO.129/2005 BY THE LEARNED ADDITIONAL CIVIL JUDGE
(JR.DN.), HOSPET, DISMISSING THE SUIT FOR DECLARATION,
POSSESSION AND MANDATORY INJUNCTION.
THESE REGULAR SECOND APPEALS COMING ON FOR FURTHER
ARGUMENTS AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.03.2023, THIS DAY, THE COURT, DELIVERED
THE FOLLOWING:
JUDGMENT
Appellants/defendants in R.S.A.No.5281/2008 and
appellants/plaintiffs in R.S.A.No.5282/2008 feeling aggrieved
by judgment and decree of the first Appellate Court on the file
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of Addl. Civil Judge (Sr.Dn.), Hospete, in R.A.No.33/2007 and
R.A.No.34/2007 dated 26.08.2008 preferred these appeals.
2. The suit under O.S.No.105/2005 is filed by
Smt.Gudumabi against defendants for the relief of permanent
injunction. Whereas defendant Nos.1 and 2 in the said suit
filed comprehensive suit in O.S.No.129/2005 for the relief of
declaration of title, possession and mandatory injunction. The
evidence in both suits are recorded separately. In view of the
order of trial Court dated 30.06.2008, both the suits were
clubbed and common judgment came to be passed by the trial
Court. Similarly, the first Appellate Court in R.A.No.33/2007
arising out of O.S.No.105/2005 and R.A.No.34/2007 arising out
of O.S.No.129/2005 also passed common judgment.
Therefore, parties to both the appeals are referred with their
ranks as assigned in the trial Court in O.S.No.129/2005, since
the said suit being comprehensive suit, for the sake of
convenience.
3. The factual matrix leading to the case of defendant
Nos.1 and 2 who are plaintiffs in O.S.No.129/2005 can be
stated in nutshell to the effect that defendant No.1 - Habibulla
and father of defendant No.2 Dodda Irappa jointly purchased
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an extent of 4 acres 67 cents in Sy.No.182 of Hospet, under
registered sale deed dated 27.06.1988 from Smt. Mahalakshmi.
Thereafter, they effected division in the said property and
Sy.No.182/1 has fallen to the share of Dodda Irappa and
Sy.No.182/2 fallen to the share of Habibulla. There is a
Municipal road to the south of the suit property measuring 75
links (49.06 ft.) which belongs to defendant No.3-CMC, Hospet.
The sketch map is produced and schedule 'A' property bearing
Sy.No.182/2 has fallen to the share of Habibulla, schedule 'B'
property bearing Sy.No.182/1 fallen to the share of Dodda
Irappa and schedule 'C' property bearing Sy.No.181 road
belongs to CMC, Hospet. If the measurement of all these
schedule properties are put together then it measures North
South - 23 ft. and East-West 42.06 ft. In this area,
Smt.Gudumabi, Aktar Banu and Peeran Sab have encroached
and constructed semi permanent house structure. The major
portion of encroachment is in 'C' schedule property belongs to
CMC, Hospet, and portion of encroachment is covered in 'A' and
'B' schedule properties. The notice dated 27.04.2005 was
issued to remove the encroachment and deliver the vacant
possession of encroached area. However, no any action was
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taken to remove the encroachment. Therefore, suit came to be
filed for seeking the relief claimed in the said suit.
4. The defence of defendant Nos.1, 2 and 4, defendant
No.1 being plaintiff in O.S.No.105/2005 is that they have
constructed their houses on road and further alleged
encroachment in schedule 'A', 'B' and 'C' properties has been
specifically denied. It is their contention that they have
constructed the houses outside the boundaries of the suit
properties. They are claiming right over their houses on the
basis of registered gift deeds dated 08.06.2001 and 11.06.2001
from Rehamatsab. The defendant Nos.1 and 2 are the wives of
Rehamatsab. Therefore, prayed for dismissal of the suit.
5. On the other hand, Smt.Gudumabi sole plaintiff in
O.S.No.105/2005 filed suit against defendant Nos.1 and 2 who
are plaintiffs in O.S.No.129/2005 and another Syedsab for the
relief of permanent injunction. It is claimed that herself and
Aktar Banu acquired title over the property covered under
registered gift deeds dated 08.06.2001 and 11.06.2001
respectively executed by Rehamatsab. On obtaining necessary
permission from CMC, Hospet, constructed the house. The
defendant Nos.1 and 2 filed complaint against husband of
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plaintiff and her son in Town police station, Hospet, on
27.04.2005 and forced to sell her property. On concocted
documents they attempted to dispossess plaintiff and Aktar
Banu. Therefore, suit came to be filed seeking for the relief of
permanent injunction.
6. The defendant Nos.1 and 2 who are plaintiffs in
O.S.No.129/2005 in the written statement reiterated the same
contention as raised in the plaint in O.S.No.129/2005 and
sought for dismissal of the suit.
7. The trial Court framed necessary issues in both the
suits. Plaintiffs to prove their case in O.S.No.129/2005 relied
on the evidence of PW-1 and the documents at Ex.P.1 to
Ex.P.9. The defendants relied on the evidence of DWs-1 to 4
and the documents at Ex.D.1 to Ex.D.10. The plaintiff to prove
her case in O.S.No.105/2005 relied on the evidence of PWs-1
to 4 and the documents as per Ex.P.1 to Ex.P.22. Defendants
relied on the evidence of DW-1 and the documents at Ex.D.1 to
Ex.D.8. The trial Court after appreciation of evidence in both
the suits, dismissed O.S.No.129/2005 of defendant Nos.1 and 2
who are plaintiffs in the said suit and decreed the suit of the
defendant No.1 who is sole plaintiff in O.S.No.105/2005.
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8. Appellants/defendant Nos.1 and 2 in
O.S.No.105/2005 filed R.A.No.33/2007 and appellants/plaintiffs
in O.S.No.129/2005 filed R.A.No.34/2007 on the file of Addl.
Civil Judge (Sr.Dn.), Hospet. The first Appellate Court after re-
appreciation of evidence partly allowed the appeal in
R.A.No.33/2007 and modified the operative portion of
permanent injunction granted by trial Court in
O.S.No.105/2005 and ordered that the defendants are
restrained by way of injunction till the plaintiff is evicted from
the suit property under due process of law. The first Appellate
Court dismissed R.A.No.34/2007 and confirmed the judgment
and decree of trial Court in dismissing O.S.No.129/2005.
9. Appellants/defendants in R.S.A.No.5281/2008 and
appellants/plaintiffs in R.S.A.No.5282/2008 challenged the
judgment and decree of the first Appellate Court in modifying
the judgment and decree in O.S.No.105/2005 and dismissal of
O.S.No.129/2005 contending that the Courts below have not
properly appreciated the evidence on record and as a result,
recorded erroneous findings which cannot be legally sustained.
It appears that both the Courts below got confused about
identity and location of encroached portion and misread the
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evidence on record. Therefore, the findings recorded on the
issue of title, possession and encroachment by both Courts
below cannot be legally sustained. The application was filed to
furnish the updated documents of sketch and revenue records,
but endorsement was given that no documents were available.
Now, the appellants obtained documents like Akarband, Form
No.10, mutation and FMB sketch and the same are produced as
additional evidence with necessary application. The said
documents will clearly establish the location and identity of
schedule 'A, 'B' and 'C' properties shown in the sketch map.
The Courts below have concurrently held encroachment made
by defendants 1, 2 and 4 with regard to schedule 'A', 'B' and 'C'
properties in affirmative and therefore, there was no
justification for dismissal of O.S.No.129/2005. Therefore,
prayed for allowing both the appeals and to set aside the
judgment and decree of both the Courts below. Consequently,
to dismiss O.S.No.105/2005 and to decree O.S.No.129/2005.
10. In response to the notice of appeal, the respondents
in respective appeals appeared through counsel.
11. This Court by order dated 13.09.2012 admitted the
appeal to consider the following substantial question of law:
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"Whether the Courts below, having
recorded a positive finding that the plaint 'C'
schedule property in O.S.No.129/2005 is a public
road and the defendants have put up illegal
structure encroaching upon the said public road
are justified in not ordering for removal of the
said encroachment?"
12. Heard the arguments of both sides.
13. On careful perusal of oral and documentary
evidence placed on record by parties to both the suits, it would
go to show that Habibulla and Dodda Irappa have jointly
purchased an extent of 4 acres 67 cents in Sy.No.182 of
Hospet, under registered sale deed dated 27.06.1988, as per
Ex.P.1, from its' erstwhile owner Smt.Mahalakshmi.
Thereafter, they got effected division in the extent of land
purchased by them Sy.No.182/1 measuring 2.57 cents has
fallen to the share of Dodda Irappa and Sy.No.182/2 measuring
2.10 cents fallen to the share of Habibulla. There is municipal
main road to the southern side of the suit property of 75 links
(49.6). The schedule 'A' property fallen to the share of
Habibulla, schedule 'B' property fallen to the share of Dodda
Irappa and schedule 'C' property belonging to CMC. The extent
of land covered under scheduled 'A' to 'C' put together would
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come to North-South 23 ft. East-West 42.6 ft. It is in this area
defendant Nos.1 and 2 who are plaintiffs in O.S.No.129/2005
claim that defendant Nos.1, 2 and 4 in the said suit have
encroached and constructed semi permanent house structure.
The defendant Nos.1, 2 and 4 though denied that they have
encroached any area of the plaintiffs, but do not dispute the
title of Habibulla and Dodda Irappa acquired under registered
sale deed dated 27.06.1988.
14. The Courts below have concurrently held that
defendant Nos.1, 2 and 4 in O.S.No.129/2005 have encroached
portion of schedule 'A' to 'C' properties. The said finding has
not been challenged by defendant Nos.1, 2 and 4. It appears
that they are satisfied of even granting modified relief of
permanent injunction till they are evicted under due process of
law. The evidence on record would also demonstrate that
defendant Nos.1 and 2 are claiming their right over the house
in which they are residing is on the basis of registered gift deed
dated 08.06.2001 and 11.06.2001, Ex.D.1 and Ex.D.2
respectively said to have been executed by their husband
Rehamatsab. They have not produced any documents to show
that the donor who has gifted the property under Ex.D.1 and
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Ex.D.2 was having any valid title to convey the same in favour
of defendant Nos.1 and 2. Therefore, it is evident that
defendant Nos.1 and 2 are in possession of the house in which
they are residing without there being any title. Hence, only the
relief of injunction is granted in O.S.No.105/2005 filed by
Smt.Gudumabi.
15. The Courts below have recorded finding that
identity and location of the encroached area in the extent of
land purchased by Habibulla and Dodda Irappa has not been
established by plaintiffs in O.S.No.129/2005, therefore the
relief of declaration, mandatory injunction and possession has
been declined. Indisputably, Dodda Irappa and Habibulla are
not in possession of the extent of land fallen to their share after
division i.e., 2.57 cents and 2.10 cents respectively, since there
were alienations in the extent of land possessed by them.
There is no evidence on record to show the remaining extent of
land in possession of Dodda Irappa and Habibulla after
alienations. Similarly, there is also no any record to show the
division effected after alienation by Dodda Irappa and Habibulla
and extent of property remained with them after such
alienation. On these findings recorded by both the Courts
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below relief sought in O.S.No.129/2005 came to be rejected
though they have proved the encroachment in scheduled 'A' to
'C' property by defendant Nos.1, 2 and 4 of the said suit.
16. In order to ascertain the exact location and
identification of property, Taluka Surveyor was appointed as
Court Commissioner. The Court Commissioner has submitted
the report with sketch showing the encroachment which almost
tallies with the rough sketch produced by plaintiffs in
O.S.No.129/2005 as per Ex.P.7. The Courts below have also
accepted the sketch map produced by the Court Commissioner
and the sketch map produced by plaintiffs Ex.P.1 and held that
encroachment is proved.
17. Learned counsel for appellants has submitted that
an application was filed to furnish the records regarding
mutation entry pertaining to Sy.No.182/4 and the endorsement
was given that there are no such mutation entries by Tahsildar
Office, Hospet, dated 28.09.2006. It is because of this precise
reason application was filed for appointment of Court
Commissioner to ascertain the land. The Court Commissioner
with due notice to parties conducted the survey and submitted
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report along with sketch showing the encroachment of
defendants.
18. In order to further clarify the position with regard to
identity and location of the property filed an application in IA
No.4 in R.A.No.34/2007 seeking permission to produce
documents as additional evidence. The respondents have filed
objections to the said application. The said application was
heard along with the main appeal and IA No.4 came to be
dismissed without appreciating the factual aspect of the matter.
The documents sought to be produced would certainly throw
light with regard to identity and location of the property and
they were secured by appellants after disposal of the suits. The
documents should have been taken on record and opportunity
should have been given to lead required evidence for proving
the said documents. In the present appeal also in
R.S.No.5282/2008, application under Order XLI Rule 27 read
with Section 151 of CPC was filed seeking production of
documents as additional evidence. The respondents have also
filed objections to the said application. The question is as to
whether the above referred documents are the material
documents which would be required to be taken on record to
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effectively adjudicate the rights of parties involved in the suits
or not is to be decided. The documents that are sought to be
produced along with IA No.4 are Sl.Nos.1, 4 and 5 are the
certified copy of the sale deeds with respect to Sy.No.182/2 to
the extent of 17.5 cents, Sy.No.181/1 to the extent of 50 cents
and Sy.No.182/1 to the extent of 22 cents. The document at
Sl.No.6 is the certified copy of relinquishment deed. The
document at Sl.No.7 is certified copy of mutation pertaining to
Sy.No.182/1 and 182/3 and 182/4 reflecting the alienations in
Form No.10. These documents are the material documents
which would be sufficient to determine the remaining area in
possession of plaintiffs in O.S.No.129/2005. The said
documents sought to be produced are all public documents
without which the extent of encroachment in Schedule 'A' and
'B' properties cannot be decided.
19. Indisputably, Dodda Irappa and Habibulla are not in
possession of the extent of land fallen to their share after
division, since there are various alienations. The extent of land
that remains after alienation and the accepted fact that
defendant Nos.1, 2 and 4 have encroached on suit schedule 'A'
to 'C' properties, the extent of encroachment atleast in the
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portion belonging to Dodda Irappa and Habibulla is required to
be ascertained. When the title of defendant Nos.1 and 2 who
are plaintiffs in O.S.No.129/2005 is accepted and there is
admitted encroachment, it is open for them to enforce their
right to seek possession of encroached portion atleast in
schedule 'A' and 'B' properties, even if the 3rd defendant - CMC,
Hospet, is not interested for removing the encroachment in
schedule 'C' property.
20. Learned counsel for appellants relied on the
judgment of Hon'ble Apex Court in WADI VS. AMILAL AND
OTHERS reported in (ILR 2003 KAR 4637) wherein it has
been observed and held that:
"Additional evidence in appeal - In admitting
additional evidence in appeal under clause (b),
vigilance or negligence of party irrelevant. Document
in question throwing light on germane issue.
Appellate Court must have allowed such document as
additional evidence because judgment without
admitting such document would be defective and not
effective."
In view of the principles enunciated in this decision by
Hon'ble Apex Court when the documents are found to be
essential for proper adjudication of the lis between the parties,
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then such documents will have to be allowed in terms of Order
XLI Rule 27(b) of CPC, vigilance or negligence of party becomes
irrelevant. In view of the reasons recorded above, it has been
observed and held that the documents sought to be produced
are just and necessary to determine the remaining extent of
land after alienation by Dodda Irappa and Habibulla and the
encroachment in schedule 'A' and 'B' properties. Therefore, the
first Appellate Court was not justified in rejecting IA No.4.
21. The appellants in R.S.A.No.5282/2008 filed
application under Order XLI Rule 27 read with Section 151 of
CPC seeking production of documents as additional evidence.
The copy of the application was given to respondents and they
filed objections. The documents sought to be produced at
Sl.Nos.1 and 2 may not be very relevant, since the same
pertains to the registered partition between appellant Nos.2 to
8 and deceased Habibulla. The case of partition and the
sharers being in possession was not pleaded by plaintiffs in
O.S.No.129/2005. The remaining documents at Sl.Nos.3 to 13
are again public documents evidencing the alienations effected
in Sy.Nos.182/1 and 182/2 after division between Dodda
Irappa and Habibulla. If they are allowed to be produced then
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the exact location and identity of remaining area in possession
of Dodda Irappa and Habibulla can be determined with
reference to the sketch map Ex.P.7 and the sketch of Court
Commissioner. The question now is as to whether the
documents can be allowed to be produced in the second
appeal. In this context, it is useful to refer to the judgment of
Hon'ble Apex Court in UNION OF INDIA VS.K.V.LAKSHMAN
AND OTHERS reported in [(2016) 13 SCC 124] wherein it
has been observed and held that:
"Order XLI Rule 27 CPC is a provision which
enables the party to file additional evidence at the
first and second appellate stage. If the party to
appeal is able to satisfy the appellate Court that
there is justifiable reason for not filing such evidence
at the trial stage and that the additional evidence is
relevant and material for deciding the rights of the
parties which are the subject matter of the lis, the
Court should allow the party to file such additional
evidence. After all, the Court has to do substantial
justice to the parties. Merely because the Court
allowed one party to file additional evidence in
appeal would not by itself mean that the Court has
also decided the entire case in its favour and
accepted such evidence. Indeed, once the additional
evidence is allowed to be taken on record, the
appellate Court is under obligation to give
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opportunity to the other side to file additional
evidence by way of rebuttal."
In view of the principles enunciated in this decision, if the
additional evidence sought to be produced is found relevant
and material for deciding the rights of the parties which are the
subject matter of the lis, the Court should allow the party to file
such additional evidence.
22. In the present case, the title of plaintiffs in
O.S.No.129/2005 by virtue of registered sale deed dated
27.06.1988 purchased from Smt.Mahalakshmi. Subsequently,
the said property was divided between Dodda Irappa and
Habibulla and Sy.No.182/1 measuring 2.57 cents fallen to the
share of Dodda Irappa and Sy.No.182/2 to the extent of 2.10
cents has fallen to the share of Habibulla is not in dispute. The
evidence on record would also demonstrate that defendant
Nos.1, 2 and 4 in O.S.No.129/2005 have encroached portion of
schedule 'A' to 'C' properties is held to be proved by both the
Courts below. Indisputably, Dodda Irappa and Habibulla are
not in possession of the extent after division and there are
various alienations. Therefore, the remaining portion of Dodda
Irappa and Habibulla after such alienation, further the extent of
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encroachment in schedule 'A' and 'B' properties is required to
be determined, so as to consider the relief sought by the
plaintiffs in the said suit. It is open for the defendants in the
said suits to place rebuttal evidence. Therefore, the order of
the first Appellate Court in rejecting IA No.4 filed in
R.A.No.34/2007 cannot be legally sustained and the same
needs to be interfered with. The documents sought to be
produced by the appellants in R.S.A.No.5282/2008 are relevant
and material documents to decide the lis between the parties.
Therefore, the matter is required to be remanded to the first
Appellate Court for recording necessary evidence on the
documents which are allowed to be produced and to decide the
appeal on merits. Consequently, proceed to pass the following:
ORDER
The appeal filed by appellants/defendants in
R.S.A.No.5281/2008 and the appeal filed by
appellants/plaintiffs in R.S.A.No.5282/2008 are hereby allowed.
The judgment and decree of the first Appellate Court on
the file of Addl. Civil Judge (Sr.Dn.), Hospete, in
R.A.No.33/2007 and R.A.No.34/2007 dated 26.08.2008 is set
aside.
- 22 -
RSA No. 5281 of 2008
Connected Cases: RSA No. 5282 of 2008
The matter is remanded to the first Appellate Court for
recording necessary evidence on the documents now allowed to
be produced and decide both appeals on merits, as
expeditiously as possible, since the suits are of the year 2005.
The parties to the suits who are represented through their
learned counsel are directed to appear before the first Appellate
Court on 17.08.2023.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
