Karnataka High Court
Dr Noorahamed Ashrif vs Smt Halimabee on 27 June, 2023
Bench: Anil B Katti
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RSA No. 5194 of 2008
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
RSA NO. 5194 OF 2008
BETWEEN:
DR. NOORAHAMED ASHRIF S/O LATE PEERASAB
AGE: 62 YEARS, OCC: UNANI DOCTOR,
R/O KAKER STREET, 1ST WARD, CHITTAWADIGI,
HOSPET OF BELLARI DISTRICT.
...APPELLANT
(BY SRI. B.S. SANGATI, ADV.)
AND:
1 . SMT. HALIMABEE W/O SAYED ISASAB
Digitally signed REPRESENTED BY HER G. P. A. HOLDER
by SAMREEN
SAMREEN AYUB SAYYED ISASAB S/O LATE MALIKSAB
AYUB DESHNUR
DESHNUR Date:
R/O KAKER STREET, 1ST WARD, CHITTAWADIGI,
2023.06.28
16:17:59 -0700 HOSPET OF BELLARI DISTRICT.
2 . SMT. KASHIMBEE W/O SAYYED ALI SAB
AGE: MAJOR
R/O KAKER STREET, 1ST WARD, CHITTAWADIGI,
HOSPET OF BELLARI DISTRICT.
3 . BASHA SAB,
AGE: MAJOR, OCC: K.S.R.T.C. DRIVER,
R/O KAKER STREET, 1ST WARD, CHITTAWADIGI,
HOSPET OF BELLARI DISTRICT.
4 . SMT. JAINABEE W/O SAYED HYDER
AGE: MAJOR,
R/O KAKER STREET, 1ST WARD, CHITTAWADIGI,
HOSPET OF BELLARI DISTRICT.
...RESPONDENTS
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RSA No. 5194 of 2008
(BY SRI. V.M. BADIGER AND G.R. TURAMARI, ADVS. FOR R1
R2, R3, R4 NOTICE SERVED)
***
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT AND DECREE DATED
18-08-2008 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE
(SR. DN.) HOSPET IN REGULAR APPEAL NO. 10/2008 AND TO
RESTORE AND CONFIRMING THE JUDGEMENT AND DECREE PASSED
BY THE ADDITIONAL CIVIL JUDGE, (JR. DN.) HOSPET IN O.S NO.
269/2006 DATED 03-11-2007 BY ALLOWING THIS APPEAL.
THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER
ARGUMENTS AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 23.03.2023, THIS DAY, THE COURT, DELIVERED
THE FOLLOWING:
JUDGMENT
Appellant/plaintiff feeling aggrieved judgment of the first
Appellate Court on the file of Prl. Civil Judge (Sr.Dn.) and JMFC,
Hospet, in R.A.No.10/2008 dated 18.08.2008 preferred this
appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff
can be stated in nutshell to the effect that plaintiff is owner of
plaint schedule property having purchased from the erstwhile
Smt.Asha Bee for Rs.11,000/- under registered sale deed dated
29.03.2006. The plaintiff is in actual physical possession and
RSA No. 5194 of 2008
enjoyment of the suit property since the time of its purchase.
The vendor of plaintiff Smt. Asha Bee acquired title over the
suit property through registered gift deed dated 27.06.1966
(wrongly mentioned in the plaint as 27.06.2006) from her
mother Smt.Peerma Bee. The name of Smt.Peerma Bee was
earlier appearing in the records and thereafter the name of
plaintiff's vendor Smt. Asha Bee came to be recorded in the
records of suit property. Thereafter, in view of the registered
sale deed dated 29.03.2006, the name of plaintiff is entered in
the records. The defendant Nos.1 to 4 have no right, title and
interest over the suit property and they own houses and open
space towards East, North and southern side of suit schedule
property. They are interfering in peaceful possession and
enjoyment of the suit schedule property and threatening
plaintiff to dispossess from suit property. Therefore, plaintiff
was constrained to file the suit on hand for the reliefs claimed
in the suit.
4. In response to suit summons, defendant Nos.1 and
4 have appeared through counsel, defendant Nos.2 and 3
remained exparte. The defendant No.1 filed written statement
contending that originally suit schedule property is part and
parcel of door No.259, assessment No.271 (New) which is in
RSA No. 5194 of 2008
possession and enjoyment of Malik Sab. On his death, the
defendant and her husband, brother-in-law, mother-in-law
succeeded to the said property. The defendants are in
possession of entire property measuring 75 ft. X 45 ft. which
includes the suit property. The defendant No.1 and her
ancestors are in long standing possession and enjoying the
same without interference of anybody. The 1st defendant filed
suit in O.S.No.26/2005 on the file of Prl. Civil Judge (Jr.Dn.)
Hospet, in respect of western portion of the suit property to the
extent of 75 ft. X 45 ft. and the 1st defendant has obtained
temporary injunction. The plaintiff during the pendency of the
said suit purchased the suit property from third party who is
unconnected to the suit property. The suit property is not an
open space but there is constructed old house. The plaintiff by
mis-describing the suit property filed the present suit.
5. On the basis of pleadings of both the parties, the
trial Court has framed necessary issues. The plaintiff to prove
his case relied on the evidence of PWs-1 and 2 and documents
Ex.P.1 to Ex.P.12. The defendants relied on the evidence of
DWs-1 and 2 and documents Ex.D.1 to Ex.D.7. The trial Court
after appreciation of evidence decreed the suit of plaintiff for
the relief claimed in the suit.
RSA No. 5194 of 2008
6. The defendants challenged the said judgment and
decree before the first Appellate Court on the file of Prl. Civil
Judge (Sr.Dn.) and JMFC, Hospet, in R.A.No.10/2008. The first
Appellate Court after re-appreciation of evidence allowed the
appeal by setting aside the judgment and decree of trial Court,
as a result dismissed the suit of plaintiff.
7. Appellant/plaintiff challenging the divergent finding
recorded by the first Appellate Court contended that the title
and possession of plaintiff over the suit property has been
established by evidence on record and the first Appellate Court
was not justified in reversing the finding of trial Court on the
premises that plaintiff failed to establish possession over the
suit property. The documents of plaintiff Ex.P.7 to Ex.P.9 and
Ex.D.4 mortgage deed relied by the defendants with reference
to the boundaries shown therein would establish the fact that
the plaintiff acquired valid title and in possession of the suit
property. The observation and finding of first Appellate Court
that suit without title is not maintainable. The approach and
appreciation of oral and documentary evidence by first
Appellate Court is contrary to law and evidence on record.
Therefore, prayed for allowing the appeal and to set aside the
RSA No. 5194 of 2008
judgment and decree of first Appellate Court. Consequently, to
restore the judgment and decree of trial Court.
8. In response to notice of appeal, the respondent
No.1 appeared through counsel. Respondents 2 to 4 though
served remained unrepresented.
9. This Court by order dated 26.08.2011 has framed
the following substantial question of law for consideration:
i) Whether the lower Appellate Court is
justified in setting aside the judgment and decree
passed by Court below without taking into
consideration Exs.P.7, 8 and also Ex.P.9, the sale
deed dated 29.03.2006?
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary
evidence placed on record by the parties to the suit, it would
got to show that plaintiff is claiming title and possession over
the suit property by virtue of registered sale deed dated
29.03.2006. The vendor of plaintiff Smt.Asha Bee acquired title
by virtue of registered gift deed dated 27.06.1966 from her
mother Smt.Peerma Bee. The name of Smt.Peerma Bee and
plaintiff's vendor was appearing in the records. On purchase of
RSA No. 5194 of 2008
the suit property by plaintiff under registered sale deed dated
29.03.2006 the name of plaintiff is recorded in the records of
the suit property. Thus, the plaintiff is in actual physical
possession and enjoyment of the suit property. The defendant
Nos.1 to 4 who are the neighbouring property holders started
to cause unnecessary interference in peaceful possession and
enjoyment of the suit property. On the other hand, the
defendants have questioned valid title of plaintiff's vendor over
the suit property and as such, no any valid conveyance was
made in favour of the plaintiff by virtue of alleged registered
sale deed dated 29.03.2006. The defendants have also denied
the actual physical possession and enjoyment of suit property
claimed by plaintiff since the date from its purchase. The entire
extent of property measuring 75 ft. X 45 ft. is in possession of
defendant No.1 and she has obtained temporary injunction
against defendants in O.S.No.26/2005 which includes the suit
property. The plaintiff during pendency of the said suit
purchased the suit property from third party who has no any
valid title over the suit property.
12. The trial Court for the reasons recorded in
paragraphs 8 (a) to 8 (g) on appreciation of oral and
documentary evidence more particularly with reference to
RSA No. 5194 of 2008
Ex.P.7 to Ex.P.12 and Ex.D.4 held that plaintiff has established
valid title and possession over suit property and decreed the
suit of plaintiff for the relief claimed in the suit.
13. The first Appellate Court for the reasons recorded in
paragraph 18 of its judgment held that the vendor of plaintiff
has not acted upon the gift deed dated 27.06.1966 made by
her mother, since the name of vendor of plaintiff is registered
in the property extract only in the year 1986. The plaintiff has
not examined the vendor and the tenant of the property
Smt.Galemma to prove his possession over the suit property.
The entries in the property register is not supported by tax paid
receipts to prove the possession of plaintiff over the suit
property. Plaintiff himself is not sure about the boundaries in
which he purchased suit property. Plaintiff and his vendor were
aware about pendency of O.S.No.26/2005 which is inclusive of
the suit property. When the title of plaintiff over suit property
is in serious dispute, the suit of plaintiff simplicitor for
permanent injunction without seeking the relief of declaration
cannot be maintained. On these findings recorded, the first
Appellate Court reversed the judgment and decree of trial
Court.
RSA No. 5194 of 2008
14. Learned counsel for appellant/plaintiff argued that
the mother of plaintiff's vendor Smt.Peerma Bee acquired title
over the suit property by virtue of registered gift deed dated
03.06.1957 Ex.P.7. Thereafter, Smt.Peerma Bee, mother of
plaintiff's vendor executed registered gift deed dated
27.06.1966 Ex.P.8 in faovur of her daughter Smt.Asha Bee.
The name of Smt.Peerma Bee by virtue of gift deed Ex.P.7 was
appearing in the records of the suit property, thereafter the
name of plaintiff's vendor came to be entered by virtue of
registered gift deed dated 27.06.1966 Ex.P.8. Thereafter, by
virtue of the registered sale deed dated 29.03.2006 the name
of plaintiff is being recorded in the records of suit property
Ex.P.10 to Ex.P.12. The said title deeds by way of registered
gift deed Ex.P.7 in favour of Smt.Peerma Bee and Ex.P.8 in
favour of Smt.Asha Bee, further consequent entries of their
names in the records has never been challenged by the
defendants. Therefore, the first Appellate Court was not
justified in holding that no valid title was conveyed to plaintiff
by virtue of the registered sale deed dated 29.03.2006 Ex.P.9
and consequent entries recorded in the name of plaintiff
evidenced under Ex.P.10 to Ex.P.12.
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RSA No. 5194 of 2008
15. Per contra, learned counsel for respondent No.1 has
vehemently argued that plaintiff has mis-described the suit
property by showing it as open space as against the existence
of old mud house. The first defendant filed O.S.No.26/2005
and obtained temporary injunction to the entire extent of 75 ft.
X 45 ft. to the western side and during pendency of said suit,
plaintiff has purchased the suit property from third person who
has no any valid title over the suit property. As such, the
plaintiff never acquired any valid title or possession over the
suit property. The gift deed dated 27.06.1966 Ex.P.8 was
never acted by the vendor of plaintiff, since her name was
entered in the records in the year 1986. Therefore, the vendor
of plaintiff was neither having any valid title nor possession
over the suit property.
16. On careful perusal of the records, it would go to
show that the mother of plaintiff's vendor Smt.Peerma Bee
acquired title over the suit property by virtue of registered gift
deed dated 03.06.1957-EX.P.7. Thereafter, Smt.Peerma Bee
executed registered gift deed dated 27.06.1966-Ex.P.8. The
name of plaintiff's vendor and her mother were appearing in
the records pursuant to registered gift deed Ex.P.7 and Ex.P.8
as per khata extracts Ex.P.10 to Ex.P.12. The defendants have
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RSA No. 5194 of 2008
not challenged Ex.P.7, Ex.P.8 and the consequent entries in the
records Ex.P.10 to Ex.P.12. The plaintiff has purchased the suit
property from his vendor Smt.Asha Bee under the registered
sale deed dated 29.03.2006 Ex.P.9. The khata extracts as per
Ex.P.10 to Ex.P.12 would to show that after deleting the name
of plaintiff's vendor, name of plaintiff is being recorded in the
records of the suit property.
17. It is the contention of defendants that originally suit
schedule property is part and parcel of door No.259,
assessment No.271 (New) which was in possession and
enjoyment of Malik Sab and after his death, the defendants
have succeeded to the said property to the extent of 75 ft. X 45
ft. The 1st defendant filed O.S.No.26/2005 on the file of Prl.
Civil Judge (Jr.Dn.), Hospet, and obtained temporary injunction
to the entire extent which includes the suit property. The
burden of proving the said fact that the suit property is
inclusive of the entire extent of land measuring 75 ft. X 45 ft.
on which defendant No.1 has obtained injunction in
O.S.No.26/2005 is on defendant No.1.
18. It is in the evidence of DW-1 that Syed Fateh Sab
was having two sons by names Malik Sab and Hasan Sab. The
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RSA No. 5194 of 2008
said Malik Sab is the father of defendant No.1. Malik Sab has
three names by name Hyder Sab, Hamir Sab and DW-1. Hamir
Sab is no more. On the death of Malik Sab, they have not got
partitioned the suit property. DW-1 admits Smt.Peerma Bee
was having only a daughter by name Smt.Asha Bee. However,
DW-1 pleads his ignorance on the registered gift deed Ex.P.7
and Ex.P.8 and the sale deed in favour of plaintiff Ex.P.9 and
consequent entries in the khata extracts Ex.P.10 to Ex.P.12,
but does not specifically deny the same. DW-1 is the Power of
Attorney Holder of his wife Smt.Halima Bee. The defendant
No.1 and another filed O.S.No.26/2005 on the file of Prl. Civil
Judge (Jr.Dn.), Hospet, and obtained exparte temporary
injunction. The sketch map of defendant No.1 is produced at
Ex.D.7. In the said hand sketch map the suit property and the
remaining property of Malik Sab is shown towards the western
side by mentioning the division.
19. The document at Ex.P.7 would go to show that
Malik Sab S/o Syed Feteh Sab gifted the house property
bearing door No.122 (Old No.58), 1st Ward, Chittawadagi,
measuring East-West 8 and half molas and North-South 12
molas in favour of Smt.Peerma Bee w/o Hasan Sab. The said
Hasan Sab is none else than the brother of Malik Sab.
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RSA No. 5194 of 2008
Thereafter, Smt.Peerma Bee has gifted the said property to her
daughter Smt.Asha Bee under Ex.P.8. The vendor of plaintiff
Smt.Asha Bee sold the very same property to the plaintiff
under the registered sale deed dated 29.03.2006 Ex.P.9. The
description of the boundaries shown in all three documents
Ex.P.7 to Ex.P.9 is one and the same. In pursuance of Ex.P.7
and Ex.P.8, the name of Smt.Peerma Bee and vendor of
plaintiff, Smt.Asha Bee was recorded in the records of suit
property, further on purchase of the said property the name of
plaintiff is appearing in the khata records Ex.P.10 to Ex.P.12.
The documents at Ex.P.7 to Ex.P.12 has never been challenged
by the defendants at any point of time. DW-1 who is the son of
Malik Sab cannot claim ignorance of registered gift deed
executed by his father in favour of Smt.Peerma Bee, who is the
wife of younger brother of Malik Sab. The defendants have
never disputed that Malik Sab was the original owner of the suit
property. Therefore, it is evident that Malik Sab was having
every right to bequeath portion of his property in favour of
anybody.
20. The defendant No.1 relied on the mortgage deed
dated 13.09.1965 Ex.D.4 said to have been executed by Malik
Sab in favour of one Daval Bee with respect to property bearing
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RSA No. 5194 of 2008
door No.78 measuring East West 50 mola and North South 30
mola. The said extent in the form of feet 75 ft. X 45 ft. is
inclusive of the suit property. The boundaries shown in Ex.D.4
and Ex.P.7 would go to show that to the West of Ex.D.4 there is
a property of Smt.Peerma Bee. It is not the case of defendant
No.1 that Smt.Peerma Bee had possessed house property
towards the Western side of entire property bearing present
door No.259. The rough sketch relied by defendants Ex.D.7
would go to show that to the Western side of the property road
is shown. Therefore, it is evident that the property comprised
under Ex.D.4 mortgage deed is not the entire property bearing
present door No.259. Other than the claim of defendants that
suit property is inclusive of entire extent of land measuring
75 ft. X 45 ft. virtually there is no acceptable evidence to prove
the said fact. Therefore, the claim of defendants that the suit
property is inclusive of entire extent of 75 ft. X 45 ft. shown in
door No.259 assessment No.271 (New) cannot be accepted in
view of the above referred evidence on record.
21. The another contention of defendants that plaintiff
has purchased the suit property during the pendency of
O.S.No.26/2005 from the third party who has not title over the
suit property. In view of the above recorded reasonings, it has
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RSA No. 5194 of 2008
been held that the vendor of plaintiff acquired valid title by
virtue of registered gift deed Ex.P.9 from her mother.
Therefore, the said contention of defendants that plaintiff did
not acquire title and possession over the suit property cannot
be accepted.
22. The defendants have also contended that plaintiff
by suppressing the existence of old building by wrongly
describing as open space got created the records. The building
appearing in the photographs at Ex.D.1 and Ex.D.2 there is
dilapidated house which is not fit for human habitation. The
first defendant do not claim that she is residing in the said
house along with other heirs of Malik Sab. The property can be
easily identified and non-showing of dilapidated house
appearing in the photographs Ex.D.1 and Ex.D.2 cannot be a
ground to hold that plaintiff did not acquire any valid title and
possession over the suit property by virtue of Ex.P.9 and
consequent entries in the khata records Ex.P.10 to Ex.P.12.
The defendants are claiming that the suit property is inclusive
of the entire extent of land measuring 75 ft. X 45 ft. and
obtains injunction order in O.S.No.26/2005 without plaintiff
being party to the said suit can be termed as sufficient
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RSA No. 5194 of 2008
interference in peaceful possession and enjoyment of suit
property by plaintiff.
23. The trial Court has rightly appreciated the material
evidence placed on record and was justified in decreeing the
suit of plaintiff as prayed in the suit. However, the first
Appellate Court was not justified in reversing the judgment and
decree of trial Court on the premises that plaintiff has not
examined her vendor and the tenant Smt.Galemma and not
producing tax paid receipts by plaintiffs to establish possession
of plaintiff over the suit property cannot be legally sustained. If
at all tax is not paid by the plaintiff with respect to the suit
property, it is open for the concerned authority to recover the
same and the said fact cannot be the basis to disprove the
possession of plaintiff over the suit property. The defendants
have not challenged the title of plaintiff's vendor and plaintiff by
virtue of Ex.P.8 and Ex.P.9, further failed to prove that the suit
property is inclusive of entire extent of 75 ft. X 45 ft.
Therefore, non-examination of plaintiff's vendor and tenant
Smt.Galemma cannot be valid ground to discredit the evidence
of PWs-1 and 2 and the documents at Ex.P.7 to Ex.P.12.
Therefore, the finding of first Appellate Court in ignorance of
Ex.P.7 to Ex.P.12 cannot be legally sustained. Consequently,
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RSA No. 5194 of 2008
the substantial question of law is answered in affirmative and
proceed to pass the following:
ORDER
Appeal filed by appellant/plaintiff is hereby allowed.
The judgment of first Appellate Court on the file of Prl.
Civil Judge (Sr.Dn.) and JMFC, Hospet, in R.A.NO.10/2008
dated 18.08.2008 is hereby set aside.
The judgment and decree of trial Court dated 03.11.2007
in O.S.No.269/2006 on the file of Addl. Civil Judge (Jr.Dn.) and
JMFC, Hospet, is ordered to be restored.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
