Karnataka High Court
Abu Sayeed S/O Moha. Hussaini ... vs Gulam Nabi @ Lalmiyan Kirmani ... on 19 June, 2023
Bench: N.S.Sanjay Gowda
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RSA No. 2655 of 2006
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
RSA NO. 2655 OF 2006 (DEC/INJ)
BETWEEN:
ABUSAYEED S/O MOHD. HUSSAINI ZUNAIDI
SINCED DECEASED BY L.Rs
1 SYEDA FATIMA SULTAN SAHEBA BEE
W/O ABU SAYEED
AGED ABOUT 50 YEARS, OCC: HOUSEHOLD
R/O SHAIK ROZA, KALABURAGI
DISTRICT KALABURAGI-585101.
2. SYED MOHAMMED HUSSAINI @ FARHAN
S/O ABUSAYEED
Digitally signed by AGED ABOUT 25 YEARS,
RAMESH
MATHAPATI OCC: MEDICAL PRACTITIONER
Location: HIGH
COURT OF R/O SHAIK ROZA KALABURAGI,
KARNATAKA DISTRICT KALABURAGI-585101
...APPELLANTS
(BY SRI. R S. SIDHAPURKAR, ADVOCATE)
AND:
GULAM NABI @ LALMIYAN KIRMANI
SINCE DEAD BY LRS
1. TAHERA BEGUM W/O GULAM NABI
AGED ABOUT: 60 YEARS, OCC: HOUSEHOLD
R/O SHAIK ROZA KALABURAGI
DISTRICT KALABURAGI-585101.
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RSA No. 2655 of 2006
2. MOHD SAIDUDDIN S/O GULAM NABI
SINCE DECEASED BY HIS LRS.
2(A) KHAJABEE W/O LATE MOHD. SAIDUDDIN (WIFE)
AGED ABOUT 55 YEARS, OCC: HOUSE HOLD
2(B) MOHD. NIZAMUDDIN KIRMANI
S/O LATE MOHD. SAIDUDDIN
AGED ABOUT 35 YEARS,
OCC: CABLE OPERATOR,
2(C) MOHD. NASIR KIRMANI
S/O LATE MOHD. SAIDUDDIN,
AGED ABOUT 34 YEARS,
OCC: CABLE OPERATOR,
2(D) MOHD. ZHEER KIRAMANI
S/O LATE MOHD. SAIDUDDIN
AGED ABOUT 33 YEARS,
OCC: CABLE OPERATOR,
ALL ARE R/O ALAND ROAD CHECK POST,
KALABURAGI, DIST: KALABURAGI-585104.
3. JALAL AHMED S/O GULAM NABI
AGED ABOUT 38 YEARS
OCC: PUNCTURE SHOP,
SINCE DECEASED BY LR'S
R3(A) SAFIA BEGUM W/O JALALUDDIN KIRAMANI
AGED ABOUT YEARS,
OCC: HOUSEHOLD.
R3(B) HAMEED S/O JALAUDDIN KIRMANI
AGED ABOUT YEARS,
OCC: BUSINESS
R3(C) ALAUDDIN S/O JALALUDDIN KIRMANI
AGED ABOUT YEARS OCC: BUSINESS
R3(D) TAJUDDIN S/O JALALUDDIN KIRMANI
AGED ABOUT YEARS, OCC: BUSINESS
R3(E) SHEHZAAZ BEGUM D/O JALALUDDIN KIRMANI
AGED ABOUT YEARS, OCC: HOUSEHOLD
R3(F) ASIFA D/O JALALUDDIN KIRMANI
AGED ABOUT YEARS, OCC: HOUSEHOLD
R3(G) GUDDI D/O JALALUDDIN KIRMANI
AGED ABOUT YEARS OCC: HOUSEHOLD
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ALL ARE R/O OPP: ASHIRWAD KALYAN MANTAP,
NEAR ALAND CHECK POST
BESIDE ARAVIND COMPLEX,
ALAND ROAD KALABURAGI.
4. HISAMUDDIN S/O GULAM NABI
AGED ABOUT 36 YEARS
OCC: PUNCTURE SHOP,
5. SHAHER BANU W/O NOT KNOWN
D/O GULAM NABI
AGED ABOUT 35 YEARS,
OCC: HOUSE HOLD.
6. AISHA W/O ABBAS TAILOR
D/O GULAM NABI
AGED ABOUT 34 YEARS
OCC: TAILOR,
7. HUR BANU W/O NOT KNOWN
D/O GULAM NABI
AGED ABOUT 32 YEARS
OCC: HOUSEHOLD
8. BIBI D/O GULAM NABI
AGED ABOUT 30 YEARS
OCC: HOUSEHOLD
9. SAMEENA PARVEEN D/O ABU SAYEED
AGE: 22 YEARS OCC: HOUSEHOLD.
ALL RESIDING AT SHAIK ROZA,
KALABURAGI-585101.
(AMENDED AS PER ORDER DATED 22.08.2022)
...RESPONDENTS
(NOTICE TO R2(A), R2(B), R2(C) R2(D) AND R9 SERVED; R1,
R3(A) TO R3 (G) AND R4 TO R7 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED-26.6.2006
PASSED IN R.A.NO.223/2004 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III, GULBARGA, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED-14.1.2000 PASSED IN OS.NO.493/1989 ON THE
FILE OF THE IST ADDL.CIVIL JUDGE (JR.DN.) AND JMFC,
GULBARGA.
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RSA No. 2655 of 2006
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The plaintiff is in second appeal.
2. The plaintiff sought for declaration that he was the
owner, Inamdar and Pattedar in possession of land bearing
Sy.No.107 measuring 10 acres 22 guntas in Shaik Roza of
Gulbarga. A decree of perpetual injunction was also sought
for.
3. It was the case of the plaintiff that he was the
Inamdar of the suit property and his younger brother's
name had been entered in the record of rights and both of
them were in joint possession. It was stated that out of
the said lands, some portion was un-cultivable and was
falling within the city corporation limits. He stated that
defendant had approached him to give him a bit of land
out of the suit property free of cost, but since this was
refused by the plaintiff, he had turned hostile and started
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to encroach upon his property. In the light of this, the
plaintiff was constrained to file the suit.
4. By way of an amendment, the plaintiff contended
that he and his brother had entered into a family
settlement whereby the suit land had been allotted to him
and the land bearing Sy.No.16, had been allotted to his
brother. It was stated that this land which has been
allotted to his brother was the land which had been
granted him by the Land Reforms Tribunal and hence he
was the absolute owner in possession of the suit property.
5. The defendant contested the suit by filing the written
statement. It was the case of the defendant that the suit
property was not the property of the plaintiff and it had
been granted to his brother under the Land Reforms Act
and he therefore had no right to claim any interest over
this land. It was contended that he had acquired land
measuring 106+124/2 x 70+60/2 from the Sajjada Saheb
and Inamdar for the purpose of constructing a house in
the year 1953 under a Qibala and he had also constructed
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his residential house and this property was assigned
Municipal No.9-616/2. It was stated that the latrine of the
house was located in the open space and this open space
was not a part and parcel of Sy.No.107. It was stated that
he was in possession continuously over the open space
abutting the boundary wall and was also paying Municipal
taxes and therefore the suit was liable to be dismissed. A
plea of adverse possession was also raised.
6. The Trial Court after framing issues and after
conducting the trial, came to the conclusion that the
plaintiff had proved that he was the owner of the suit land
in lawful possession of it and it also held that the
defendant had proved that he had acquired a plot of land
and constructed a house and the open plot obtained by
him under the Qibala was not a part and parcel of
Sy.No.107. The Trial Court accordingly decreed the suit
and held that the plaintiff was the owner of Sy.No.107
measuring 10 acres 22 guntas, but this declaration was
excluding the disputed portion which had been shown in
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the plaint sketch. The prayer for injunction was also
rejected.
7. In appeal, the Appellate Court concurred with the
findings of the Trial Court and it proceeded to dismiss the
appeal. Being aggrieved by these concurrent judgments,
the present second appeal has been preferred.
8. This second appeal has been admitted to consider
the following substantial questions of law:
(a) "Whether in the facts and circumstance of
the case, the Courts below were justified
in referring the relief of injunction having
regard to the contents of Exs.P2 to P4?"
(b) Whether in the facts and circumstance of
the case the Courts below were justified in
holding that the disputed areas based only
on Ex.D2 ignoring Ex.P4?
9. As stated above, it was the case of the plaintiff that
he was the owner of land bearing Sy.No.107/1 measuring
10 acres 22 guntas and according to his plea, a portion of
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this was sought to encroached upon by the defendant
which necessitated the filing of the suit.
10. On the contrary, it was the case of the defendant
that he was allotted a plot of land by the Sajjada Saheb
and Inamdar in the year 1953 and he had also constructed
a house on this plot. It was his specific case that the
remaining land abutting his house on the Southern side
was a part of the property allotted to him and the said
open plot was not the part and parcel of Sy.No.107.
11. The Trial Court in order to ascertain the factual
possession had appointed a Commissioner and the
Commissioner had visited the spot and had also prepared
a sketch as per Ex.P3. In the report, the Commissioner
had stated that there was a wall within the Sy.No.107/1
and he also indicated the measurement of the house and
suit open space of the defendant in the sketch and stated
that as per the demarcation of Sy.No.107/1, the wall was
within the boundary limits of Sy.No.107/1.
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12. Along with the report, a sketch was also produced
indicating the location of Sy.No.107/1 and the wall that
was situated in it. This sketch also demarcated the
possession of the house which was existing in the village
site and the portion indicated in blue colour measuring
about 10 guntas which was pertaining to a village site was
in possession of the older of Sy.No.107/1 of Shaik Roza
village.
13. Both the Trial Court as well as Appellate Court have
noticed that the entire portion indicated in blue colour and
also the existence of the house that was shown in the
sketch were both lying outside the boundary of
Sy.No.107/1. The Courts, therefore have refused to grant
any order in respect of this particular portion of the land,
but have however declared the title of the plaintiff in
respect of 107/1.
14. As also noticed above, it was the specific defence of
the defendant that his house and the property granted to
him under the Qibala was not a part of Sy.No.107. The
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plaintiff will be entitled to a decree in respect of the
property in possession of the defendant, only if the same
was situated within the boundary limits of Sy.No.107. If
the house and the open space abutting the house was
situated outside Sy.No.107/1, obviously the plaintiff will
not be entitled to any relief and the defendant would also
not be liable to establish his title over this property vis-à-
vis the plaintiff. Since both the Courts have concurrently
recorded a finding of fact that the house of the defendant
and the open space abutting his house was situated
outside Sy.No.107/1, both the Courts were justified in
refusing the decree of injunction. The first substantial
question of law is therefore accordingly answered in favour
of the defendant.
15. As far as the second question of law as to whether
the defendant established that he was the owner of the
disputed area based on Ex.D2 and by ignoring Ex.P4 is
concerned, as already stated above, the necessity of the
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defendant establishing his title would arise only if his
property was a portion of Sy.No.107.
16. Since it is held by both the Courts as a matter of fact
that the house and the open space abutting the house of
defendant was situated outside the Sy.No.107, the second
substantial question of law would not really arise for
consideration.
17. Consequently, there is no merit in the second appeal
and the second appeal is accordingly dismissed.
Sd/-
JUDGE
MSR
