Karnataka High Court

Smt Kulsumbi vs Smt Mehaboobi on 24 May, 2023

Bench: K.S.Hemalekha

                                                    -1-
                                                               RSA No.2027/2007




                                   IN THE HIGH COURT OF KARNATAKA,

                                            DHARWAD BENCH

                                 DATED THIS THE 24TH DAY OF MAY, 2023

                                                 BEFORE

                                THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

                                 REGULAR SECOND APPEAL NO.2027/2007

                        BETWEEN:

                        SMT. KULSUMBI
                        W/O. ANWAR BAIG YARAGATTI,
                        AGED ABOUT 48 YEARS,
                        OCC: TEACHER,
                        R/O: MADIHAL,
                        DHARWAD - 580 008.
                                                                   ... APPELLANT

                        (BY SRI GODE NAGARAJ, ADVOCATE)

                        AND:

                        1.     SMT. MEHABOOBI
           Digitally


YASHAVANT
           signed by
           YASHAVANT
           NARAYANKAR
                               W/O. SYED IBRAHIM DAFEDAR,
NARAYANKAR Date:
           2023.05.26
           12:01:42
                               AGED ABOUT 65 YEARS,
           +0530
                               OCC:HOUSEHOLD,
                               R/O. BARA IMAM GALLI,
                               DHARWAD - 580 001.
                               SINCE DECEASED BY HER LR's.

                        1(a) SAYED NASEEM
                             S/O. LATE SYED IBRAHIM DAFEDAR,
                             AGED ABOUT 50 YEARS,

                        1(b) SYED IKBAL
                             S/O. LATE SYED IBRAHIM DAFEDAR,
                             AGED ABOUT 45 YEARS,
                             -2-
                                         RSA No.2027/2007




1(c) RAZIYA BEGUM
     D/O. LATE SYED IBRAHIM DAFEDAR,
     AGED ABOUT 40 YEARS,

1(d) AMEENA BEGUM
     D/O. LATE SYED IBRAHIM DAFEDAR,
     AGED ABOUT 38 YEARS,

1(e) FAMIDA BEGUM
     D/O. LATE SYED IBRAHIM DAFEDAR,
     AGED ABOUT 36 YEARS,

1(f)   SHAHIDA BEGUM
       D/O. LATE SYED IBRAHIM DAFEDAR,
       AGED ABOUT 34 YEARS,

       ALL ARE R/O. HEBBALLI AGASI
       BARA IMAM GALLI,
       DHARWAD - 580 006.

                                          ... RESPONDENTS
(BY SRI J.S. SHETTY, ADVOCATE AND
    SRI M.M. MALAGI, ADVOCATE FOR C/RESPONDENT IN
    CP. NO.608/2007)

       THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 21.04.2007
PASSED IN RA.NO.43/2003 ON THE FILE OF THE I ADDL.CIVIL
JUDGE (SR.DN.) AND CJM., DHARWAD, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DT.
17.12.2002 PASSED IN OS.NO.240/1996 ON THE FILE OF THE I
ADDL. CIVIL JUDGE (JR.DN.) AND JMFC., DHARWAD.


       THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGEMENT ON 05.04.2023, COMING FOR PRONOUNCEMENT
OF JUDGEMENT, THIS DAY, THIS COURT, PRONOUNCED THE
FOLLOWING:
                                   -3-
                                                RSA No.2027/2007




                          JUDGEMENT

The unsuccessful defendant is assailing the judgment

and decree dated 21.04.2007 in RA No.43/2003 on the file

of I Addl. Civil Judge (Sr.Dn.) & CJM, Dharwad, reversing

the judgment and decree dated 17.12.2002 in

O.S.No.240/1996 on the file of I Addl. Civil Judge (Jr.Dn.)

& JMFC, Dharwad.

2. This Court, while admitting the appeal on

29.03.2011, has framed the following substantial question

of law:

"Whether the learned Judge of the lower appellate Court is right in law in first examining the merits of appeal and deciding to allow the appeal and thereafter taking up an application for condoning the delay in preferring the appeal as unless delay is condoned in the first instance, there is no appeal in the eye of law and therefore tentative decision to allow the appeal even before the appeal was valid in law and for reversing the Judgment and decree of trial court can be said to be a Judgment sustainable in law?"

RSA No.2027/2007

3. Learned counsel sought to frame additional

substantial question of law by filing an application which

reads as under:

"Whether the appellate Court is justified in decreeing the suit O.S.240/1996 when the suit is not maintainable without seeking for declaration and for possession?"

4. This Court has framed the following additional

substantial question of law on 05.04.2023:

"Whether the suit of the plaintiff is maintainable without seeking for declaration and for possession?"

5. Learned counsel for the appellants and learned

counsel for the respondents have been heard on the

substantial questions of law stated supra.

6. The brief facts of the case are that the plaintiff

filed the suit for declaration to declare that the sale deed

executed by Abdul Khadar son of Dastagirsab Byalihal is

not binding on the suit property and the plaintiff and for

permanent injunction restraining the defendant from

constructing any structure or building in the suit property.

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The suit property is an open site bearing CTS No.133 of

Madihal, Dharwad measuring 100 sq.yds. According to the

plaintiff, suit schedule property originally belonged to one

Hatelma and on her death, by way of succession by her

grand-sons namely, Munafsab son of Sultansab Bijapur,

Imamsab son of Dadabhai Bijapur and Dastagirsab son of

Meeransab Bijapur and they are also called as Naikwadi.

The plaintiff claims to be the daughter of Imamsab

Dadabhai Bijapur and after the death of Imamsab and

Dastagirsab, Munafsab gave waradi to enter the name in

the revenue records and at that time, it was known to the

plaintiff that the names of one Aminabi wife of Dastagirsab

Bijapur, Mehboobsab and Abdul Khadar and N.Jilani was

entered in the revenue records as the legal heirs of the

deceased Dastagirsab Meeransab Bijapur. According to

the plaintiff, the said names were entered without any

right and they are not the wife and sons of the deceased

Dastagirsab Meeransab Bijapur and that the deceased

Dastagir M.Bijapur had wife by name Rukhiya who died

issueless on 16.04.1948 and it is stated that the Munafsab

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got deleted the names of Imamsab and Dastagirsab

without the knowledge of the plaintiff and the plaintiff on

coming to know about the illegal entries filed an

application to enter her name as the legal heir of deceased

Imamsab. It is further stated that one Abdul Khadar

Dastagirsab Byalihal @ Bijapur, who is not the legal heir of

Dastagir Meeransab Bijapur, got entered his name as a

legal heir in collusion with the muthavalli in the year 1993

wherein the name of Munafsab was subsequently deleted

on his death. It is stated that the sale deed has been

executed in the name of defendant in the first week of May

1996 and he started to put up construction without having

any valid right over the suit schedule property. The cause

of action arose when the plaintiff came to know about the

illegal entry and the creation of the sale deed in favour of

the defendant and when the defendant started to put up

construction over the suit schedule property.

7. Pursuant to the issuance of summons, the

defendant appeared and filed written statement inter alia

RSA No.2027/2007

contending that the plaintiff has not sought for the relief of

declaration that she is the absolute owner of the suit

schedule property. According to the defendant, on due

enquiry, has purchased the suit schedule property from its

real owner and he is a bona fide purchaser for a valuable

consideration. It is also contended that the suit of the

plaintiff is barred by limitation.

8. The trial Court, on the basis of the pleadings,

and documents produced on record, framed issues and

later, as per the direction of the first appellate Court on

remand, the issues were reframed as under:

ISSUES

1. Whether the plaintiff proves that the suit property was belonged to Smt.Hatelma and her grand sons stated at para No.6 of the plaint succeeded to same as heirs after her death ?

2. Whether the plaintiff proves that she is daughter of Imamsab s/o.Dadamiya Bijapur Naikwadi and entitled for entire suit property ?

3. Whether the plaintiff proves that Abdul Khadar s/o.Dastagirsab Byalihal @ Bijapur the vendor of

RSA No.2027/2007

defendant has no right or title over the suit property?

4. Whether the plaintiff proves that suit is maintainable without impleading other heirs and also the vendor of defendant as parties to the suit?

5. Whether the defendant proves that her vendor had valid title and right to alienate suit property in her favour?

6. Whether the plaintiff proves that the sale deed executed by Abdul Khadar s/o.Dastigirsab Byalihal @ Bijapur in favour of defendant is not binding upon her ?

9. In order to substantiate the claim, plaintiff

examined herself as PW.1 and two more witnesses as

PWs.2 and 3 and after remand, the plaintiff examined

three more witnesses as PWs.4 to 6 and marked

documents at Exs.P-1 to P-16. The defendant examined

himself as DW.1 and witness as DW.2 and got marked

document at Ex.D-1.

RSA No.2027/2007

10. The trial Court, on the basis of the pleadings,

oral and documentary evidence on record, held that the

plaintiff has proved that the suit schedule property belongs

to one Hatelma and on her death, her legal

representatives succeeded to the suit schedule property,

that the plaintiff is the daughter of Imamsab Dadamiyan

Bijapur, that the vendor of the defendant by name Abdul

Khader son of Dastagirsab Bylihal @ Bijapur had no right

over the suit schedule property and the vendor of

defendant had no valid title to alienate the suit schedule

property in favour of the defendant, however, dismissed

the suit of the plaintiff while answering issue Nos.6 and 7

holding that the suit of the plaintiff is not maintainable

without seeking for the relief of declaration of plaintiff's

title and for cancellation of the sale deed executed in

favour of the defendant.

11. Aggrieved by the findings on issue Nos.6 and 7,

the plaintiff preferred regular appeal before the first

appellate Court. The first appellate Court on re-

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RSA No.2027/2007

appreciation of the material on record set aside the

findings on issue Nos.6 and 7 and declared that the sale

deed executed by Abdul Khader Dastagirsab Bylihal is not

binding on the plaintiff and consequently, restrained the

defendants by way of permanent injunction not to

construct any structure or building in the suit schedule

properties as the defendant has no right, title or interest

over the suit schedule property.

12. Aggrieved by the reversal of the judgment and

decree of the trial Court on issue Nos.6 and 7, the present

appeal by the defendant.

13. Learned counsel for the appellant - defendant

would contend that the suit of the plaintiff without seeking

for declaration and possession is not maintainable and the

judgment of the first appellate Court in reversing the

judgment of the trial Court needs to be set aside. Learned

counsel would contend that the first appellate Court while

deciding the appeal ought to have considered the delay in

preferring the appeal before hearing the appeal on merits

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RSA No.2027/2007

and the allowing of the application for condonation of

delay at the time of final hearing is not sustainable.

According to the learned counsel, no appeal is

maintainable without condoning the delay in filing the

appeal. In support of his contention, learned counsel relied

upon the judgment of the Co-ordinate Bench of this Court

in the case of Sadashiv S/o. Balagauda Patil vs.

Rajeshwari [RSA.No.100498/2014 disposed on

22.092015] (Sadashiv) and Shri. Baddeppa vs. Shri.

hanmukhappa [MSA.No.100119/2019 disposed on

10.08.2021] (Baddeppa).

14. Per contra, learned counsel for the respondent

- plaintiff while justifying the judgment of the first

appellate Court would contend that the plea regarding

delay not being considered before hearing the appeal on

merits is not available to the appellant and she cannot be

termed as an aggrieved person, more so, because the

delay was condoned on hearing both the sides and the

judgment of the first appellate Court was passed on

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RSA No.2027/2007

considering the entire evidence and material available on

record. Learned counsel would contend that the appellant

has not come to the Court saying that the appellant was

not afforded an opportunity of hearing before allowing the

application and the methodology adopted by the appellant

is technical and hence unsustainable. Learned counsel

would contend that the order sheet of the first appellate

Court evidences that on the submission made by the

appellant that I.A.No.1 to condone the delay of 13 days in

preferring the appeal was directed to be listed along with

the main appeal and thus the appellant cannot now

contend that the delay application could not have been

heard along with the main appeal. Learned counsel would

further contend that the second line of argument by the

appellant that the suit of the appellant without seeking for

declaration is not maintainable is unacceptable as the

plaintiff is not executant to the sale deed and in the

absence of the same, the plaintiff need not seek for

declaration that the sale deed executed by Abdul Khadar

in favour of the appellant herein is null and void. Stating

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RSA No.2027/2007

this ground, learned counsel would contend that the

substantial question of law needs to be answered in favour

of the appellant.

15. This Court has carefully considered the rival

contentions urged by the learned counsel on both sides

and perused the entire material on record.

16. The first line of argument of learned counsel for

the appellant is that, the application seeking for

condonation of delay and the appeal on merits cannot be

simultaneously heard as the application has to be

considered in the first instance and the first appellate

Court fell in error in not considering the application for

condoning the delay in the first instance and as such, the

order of the first appellate Court needs to be set aside.

19. There is absolutely no quarrel to the settled

position of law that the application seeking condonation of

delay has to be decided at the first instance and not after

hearing the appeal on merits. In this regard, it is relevant

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RSA No.2027/2007

to consider the order sheet of the first appellate Court and

to note that at the time of preferring the appeal before the

first appellate Court, the appellant along with the appeal

had filed an application I.A.No.1 for condonation of delay

of 13 days in preferring the appeal under Section 5 of the

Limitation Act.

21. On several occasions, the matter was listed for

hearing on the said application. On 05.06.2006, on the

submission by the counsel for the appellant herein stating

that he has no objection to hear the I.A. for condoning the

delay along with the main, I.A. was directed to be taken

up along with the main appeal and the said order reads as

under:

"Shri A.N.B.files vakalat for resp - with no objejection. Counsel for appellant submitted that the IA be heard with main appeal, counsel for resp has no objection for that. Hence, IA will be heard with main appeal. Call for LCR.

8.11.06."

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RSA No.2027/2007

20. In light of the submission made, the application

was directed to be listed along with the main appeal and

on the same day, the matter was heard, I.A.No.1 was

allowed and the delay of 13 days in preferring the appeal

was condoned and the appeal was heard on merits.

21. The appellant, though vehemently contended

that the first appellate Court was not justified in examining

the merits of the appeal and proceeded to allow the appeal

and thereafter, allowed the application for condonation of

delay and the delay must be condoned at the earliest

stage. This contention though is a settled proposition of

law that without condoning the delay, there is no appeal in

the eye of law, however, it is relevant to note that the

appellant has not pointed out any prejudice or lack of

opportunity if the appeal was heard along with the delay

application (I.A.1). The most relevant fact to state is that,

the application for condonation of delay was heard along

with the main appeal on the specific submission made by

the learned counsel for the appellant.

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RSA No.2027/2007

22. Refusing to condone the delay can result in the

meritorious matter being thrown out at the threshold and

the cause of justice is being defeated. Against this, if the

delay is condoned, at the most what can happen is, the

matter has to be decided on merits after hearing the

parties and that is the intention of the legislature by

conferring the power to condone the delay by adverting

Section 51 of the Indian Limitation Act, 1963. In order to

enable the Court to do substantial justice to the parties by

disposing of the matter on merits. In the present case, it

is not the contention of the appellant that no sufficient

opportunity was granted to the appellant resulting in

violation of principles of natural justice. On the contrary,

the material would reveal that the application for

condoning the delay of 13 days was considered after

hearing the parties in the appeal and the same was

condoned and there is no requirement in law for

adjourning the hearing of the appeal on merits on a

subsequent date. The first appellate Court, on the very

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RSA No.2027/2007

day, has condoned the delay and heard the matter on

merits and on the submission made by the appellant that

the application has to be heard along with the main and

thus, at this stage, the appellant cannot contend, that the

procedure adopted by the appellate Court in arriving at the

conclusion and condoning the delay on the face of it is

illegal and the technical objection raised by the appellant

is not sustainable to defeat the cause of substantial

justice. The judgments relied by the learned counsel for

the appellant in the cases of Sadashiv and Baddeppa

stated supra were with regard to the application seeking to

condone the delay filed by the appellant before the first

appellate Court was rejected and the Co-ordinate Bench

of this Court held that the application to condone the delay

has to be considered taking into consideration "sufficient

cause" implied by the legislature is adequately elastic to

enable the Courts to apply the law in a meaningful manner

and the Courts should not be hyper-technical in

condoning the delay. The judgments relied upon by the

learned counsel for the appellant are not applicable to the

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RSA No.2027/2007

facts and circumstances of the present case, since the

settled position of law that there is no bar to the

application for condoning the delay and hearing of the

appeal on merits cannot be considered on the same day.

Accordingly, the first substantial question of law is

answered against the appellant.

16. The plaintiff filed suit for declaration and

permanent injunction to declare that the sale deed

executed by one Abdul Kadhar is not binding on the

plaintiff. In the plaint it is averred that the plaintiff is the

daughter of one Imam Dadamiyan Bijapur, who is one of

the successors of the suit schedule property. On the other

hand, the defendant - appellant contended that the

plaintiff is no way concerned with the suit schedule

property and cannot claim right over the suit schedule

property without seeking for declaration. The trial Court

held that the suit of the plaintiff is not maintainable

without seeking for a prayer for declaration of plaintiff's

title and for cancellation of the sale deed executed by one

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RSA No.2027/2007

Abdul Khadar in favour of defendant - appellant, however

held that the plaintiff has proved that the suit schedule

property belonged to one Hatelma and was succeeded by

her grand-sons including the father of the plaintiff i.e.,

Imamsab son of Dadabhai Bijapur. It was also held that

the plaintiff has proved that she is the daughter of the said

Imamsab son of Dadamiyan Bijapur and entitled for the

entire suit schedule property.

17. The trial Court further held that the plaintiff

proved, that Abdul Khadar had no right or title over the

suit schedule property and as such, had no right to

alienate the suit schedule property in favour of the

defendant. However, the trial Court, while holding issue

Nos.1 to 5 in favour of the plaintiff, has held that the suit

of the plaintiff is not maintainable in the absence of prayer

seeking declaration regarding the sale deed, the finding of

issue Nos.1 to 5 in favour of the plaintiff stood

unchallenged by the defendant and has reached finality.

The appeal before the first appellate Court was preferred

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RSA No.2027/2007

by the plaintiff insofar as holding that the suit was not

maintainable on issue Nos.6 and 7 before the first

appellate Court. No appeal was preferred by the appellant

and the findings and reasoning of the trial Court holding

that the plaintiff is the daughter of Imamsab, that Abdul

Khadar had no right, title or interest over the suit schedule

property to alienate the suit property in favour of the

defendant and that the plaintiff is the daughter of

Imamsab Dadamiyan and thus, held in favour of the

plaintiff and the appeal has reached finality. Thus, the

undisputed fact remains that the suit schedule property

belongs to the family of the plaintiff and the vendor of the

defendant had no right to alienate the suit schedule

property. Thus, the question regarding title of the suit

schedule property in favour of the plaintiff need not be

answered in the present second appeal and the only

question that needs to be considered by this Court is with

regard to, "whether the suit of the plaintiff is maintainable

without seeking for declaration", which is the second

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substantial question of law framed by this Court at the

time of hearing of the appeal.

23. The contention of the appellant that the suit of

the plaintiff is not maintainable without seeking necessary

declaration is unsustainable in light of the judgment of the

Apex Court in the case of Suhrid Singh @ Sardool Singh

vs. Randhir Singh & others [AIR 2010 SC 2807], wherein

it is held as under:

"Leave granted. The appellant filed a suit (Case No. 381 of 2007) on the file of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarised below:

(i) for a declaration that two houses and certain agricultural lands purchased by his father, S. Rajinder Singh were coparcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof;

(ii) for a declaration that the will dated 14- 7-1985 with the codicil dated 17-8-1988 made in favour of the third defendant, and gift deed dated 10-9-2003 made in favour

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of the fourth defendant were void and non est "qua the coparcenary";

(iii) for a declaration that the sale deeds dated 20-4-2001, 24-4-2001 and 6-7-2001 executed by his father, S. Rajinder Singh in favour of the first defendant and sale deed dated 27-9-2003 executed by the alleged power-of-attorney holder of S. Rajinder Singh in favour of the second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the "coparcenary", as they were not for legal necessity or for benefit of the family; and

(iv) for consequential injunctions restraining Defendants 1 to 4 from alienating the suit properties.

6. The second proviso to Section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under sub-clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under sub-clause (e) thereof.

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7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non- executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not

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only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."

24. A similar view is taken by the Division Bench

of this Court in the case of Ganapati Santaram Bhosale

Vs. Ramachandra Subbarao Kulkarni [ILR 1985 KAR

1115], wherein it has been held as under:

"19. The second contention that the suit should have failed for lack of specific relief in regard to the setting aside of the sales is also devoid of merit. It is now well settled that in a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties which, fall to his share:"

25. The Division Bench of this Court, in

RFA.No.23/2002 connected with RFA No.1012/2001 at

para Nos.13.5 and 13.6 considering the judgments of

Suhrid Singh and Ganapati Santaram Bhosale, has

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held that the plaintiffs who are not parties to the alienation

to seek a declaration that the alienations are not binding

upon them or their alleged share in the properties and

they need not seek for cancellation of the sale deed, in

light of the proposition of law as stated supra in the

judgments referred above, the substantial question of law