Karnataka High Court
Shaik Mahaboob Sab vs Shaik Mahaboob Sab on 7 September, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:32445
RSA No. 299 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.299 OF 2020 (DEC/INJ)
BETWEEN:
SHAIKH MAHABOOB SAB
S/O ZINDA HUSSAIN SAB
DEAD BY HIS LEGAL HEIRS,
1. ZULEKHA BEE
W/O. LATE SHAIK MAHABOOB SAB
AGED ABOUT 75 YEARS,
R/O. KAREKATTE VILLAGE,
CHANNAGIRI TALUK-577213,
DAVANAGERE DISTRICT.
2. SYED MANSOOR
S/O SYED NOOR SAB,
AGED ABOUT 61 YEARS,
Digitally signed
by SHARANYA T 3. SYED MANZOOR
Location: HIGH S/O SYED MANSOOR
COURT OF
KARNATAKA AGED ABOUT 28 YEARS,
4. SYED ARIF
S/O SYED MANSOOR
AGED ABOUT 28 YEARS,
5. SANIYA KOUSER
D/O SYED MANSOOR
AGED ABOUT 23 YEARS,
6. NAGMA BANU
D/O SYED MANSOOR
AGED ABOUT 23 YEARS,
-2-
NC: 2023:KHC:32445
RSA No. 299 of 2020
APPELLANTS 2 TO 6 ARE
RESIDENTS OF NUGGEHALLI VILLAGE,
CHANNAGIRI TALUK-577213,
DAVANAGERE DISTRICT.
7. AYUB ALI
S/O LATE SHAIK MAHABOOB SAB
AGED ABOUT 52 YEARS,
8. KHILAFATH ALI
S/O LATE SHAIK MAHABOOB SAB
AGED ABOUT 45 YEARS,
9. SHIREEN BANU
W/O AKBAL ALI
AGED ABOUT 43 YEARS,
10. IRSHAD ALI
S/O LATE SHAIK MAHABOOB SAB
AGED ABOUT 30 YEARS,
11. NASREEN BANU
W/O. M B FAROOQ,
AGED ABOUT 30 YEARS,
APPELLANTS 7 TO 11 ARE
RESIDENTS OF KAREKATTE VILLAGE,
CHANNAGIRI TALUK-577213,
DAVANAGERE DISTRICT.
...APPELLANTS
(BY SRI S.V.PRAKASH.,ADVOCATE)
AND:
1. SHAIK MAHABOOB SAB
S/O. ABDUL RAZAK SAB,
AGED ABOUT 73 YEARS,
R/O KAREKATTE VILLAGE,
CHANNAGIRI TALUK-577213,
DAVANAGERE DISTRICT.
-3-
NC: 2023:KHC:32445
RSA No. 299 of 2020
2. SYED BURHAN
S/O SYED NOOR SAB,
RESIDENT OF NUGGEHALLI VILLAGE,
CHANNAGIRI TALUK-577213,
DAVANAGERE DISTRICT.
...RESPONDENTS
(BY SRI A.CHANDRACHUD, ADVOCATE FOR C/R1 &
SRI MARULASIDDAPPA BARKI, ADVOCATE FOR C/R1)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.08.2019 PASSED IN
R.A.NO.27/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, AT CHANNAGIRI DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 08.02.2019
PASSED IN OS No.220/2010 ON THE FILE OF THE PRL. CIVIL
JUDGE AND JMFC., AT CHANNAGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission.
I have heard the learned counsel for the appellants.
2. The factual matrix of the case of the plaintiff before
the Trial Court that he is the owner in possession of suit
schedule property and defendant is interfering with the
possession of the property and hence sought for the relief of
declaration and for injunction. The defendant who appeared
before the Trial Court filed the written statement contending
that there was a sale agreement dated 13.9.1983 and the
plaintiff had agreed to sell the property for a sum of Rs.7,000/-
NC: 2023:KHC:32445
RSA No. 299 of 2020
and delivered the possession by receiving the entire sale
consideration and hence the Trial Court taking into note of the
pleadings of the plaintiff as well as defendant held the issues
and allowed the parties to lead evidence.
3. Plaintiff examined himself as PW1 and got marked
documents Exs.P1 to P4. On the other hand defendant
No.D1(c) examined as DW1 and other witnesses examined as
DW2 to DW8 and got marked 9 documents as Exs.D1 to D9(b).
The Trial Court having considered both oral and documentary
evidence comes to the conclusion that plaintiff is the owner of
the suit schedule property and he is in possession of the suit
schedule property and defendants fails to prove the agreement
and possession was delivered in their favour, since they kept
quiet for a period of 30 years for filing of the suit even though
there was an agreement of sale of the year 1983 and
disbelieved the case of the defendants and dismissed the suit.
Being aggrieved by the judgment and decree of the Trial Court,
an appeal is filed and the First Appellate Court having
considered the grounds urged in the appeal formulated the
points, whether the Trial Court committed an error in coming to
the conclusion about the plaintiff being in possession of the suit
NC: 2023:KHC:32445
RSA No. 299 of 2020
schedule property and thereby granting the relief of declaration
that he is the owner of suit schedule property, whether it
requires interference.
4. The First Appellate Court also on re-appreciation of
the material available on record comes to the conclusion that
the Trial Court has not committed any error. It is the claim of
the defendants that sale agreement was executed in the year
1983, but not taken any steps either to get the sale deed or to
make any development in the property and hence disbelieved
the case of the defendants and also taken note of questions put
to PW1 and the evidence of PW1 and categorically denied the
signature, receipt of Rs.7,000/- as sale consideration and also
taken note that according to the defendants they have made
the payment of Rs.7,000/- as sale consideration and even not
issued the notice and only defence is that plaintiff being his
cousin brother, he had faith in him and he gave time to him
and asked several times, but the plaintiff had went on
postponing the execution of registered sale deed and having
taken note of the said facts into consideration, the First
Appellate Court also did not accept the case of the defendants
and comes to the conclusion that the plaintiff being in
NC: 2023:KHC:32445
RSA No. 299 of 2020
possession of the suit schedule property since he had
purchased the property in the year 1972-73 and all the revenue
records are standing in the name of the plaintiff and nothing
found that possession was delivered in favour of the
appellants/defendants herein and dismissed the appeal.
5. Now the counsel appearing for the appellants
vehemently contended that both the Courts have committed an
error in granting the relief of declaration and possession in
favour of the plaintiff and First Appellate Court also committed
an error in exercising the power under Section 96 of CPC and
ought to have appreciated the entire evidence on record and
also not exercised the appellate power in appreciating both
question of facts and question of law and hence requires to
admit and frame any substantive question of law.
6. The counsel would vehemently contend that this
Court has to frame substantive question of law that judgment
and decree of the First Appellate Court is not in conformity with
Order 41 Rule 31 of CPC and also both the Courts committed
an error with regard to the defendants having possession of the
property, but erroneously comes to the conclusion that the
NC: 2023:KHC:32445
RSA No. 299 of 2020
plaintiff is in possession of the property and possession was
delivered under agreement dated 13.9.1983 and hence, this
Court has to frame the substantive question of law.
7. The counsel who appears to the
Caveator/respondent No.1- plaintiff would vehemently contend
that the Trial Court considered both oral and documentary
evidence and also in paragraph No.16 of the Trial Court with
regard to the delivery of possession is concerned, taken note
that in the sale agreement no such possession is delivered
and it should be in writing as it is mandate under Section 53(A)
of the Transfer of Property Act and the same should be in
writing and the same is not found.
8. Having heard the appellants counsel and also the
counsel appearing for the Caveator/respondent No.1 and taking
into note of the very grounds urged in the second appeal, the
main contention is that the First Appellate Court not considered
the proviso of Order 41 Rule 31 of CPC in appreciating both oral
and documentary evidence. Having perused the material
available on record particularly the order passed by the Trial
Court in answering issue No.3 since the defendants took the
NC: 2023:KHC:32445
RSA No. 299 of 2020
specific defence that there was an agreement and also
possession has been delivered and Court taken note of the
answer elicited from the mouth of PW1 observed that, mere
identification of signature is not sufficient to prove the
document and also observation is made that the attesting
witnesses should have to speak about the contents of the
documents and also taken note of the description mentioned in
the alleged sale agreement is not tally with the boundaries of
sale deed under which the plaintiff has purchased the property
in the year 1972-73 and the boundaries mentioned in the
alleged sale agreement differs from the original sale deed
boundary of 1972-73 and Appellate Court also having
considered the material available on record, on re-appreciation
in paragraph No.16 taken note of the alleged agreement of the
year 1983 and thereafter to prove the fact that he has been in
possession, no document is placed before the Court. However,
the appellants counsel would submit that subsequent to
purchase of the property they have developed the arecanut
garden and in order to substantiate the said contention, no
document is also placed before the Trial Court and Trial Court
while granting the relief of declaration taken note of all the
NC: 2023:KHC:32445
RSA No. 299 of 2020
documents which have been produced by the plaintiff, i.e.
Ex.P1- sale deed under which the property was purchased and
all the revenue records standing in the name of plaintiff only
and though the defendants have examined total 8 witnesses
and document of certified copy of order sheet in
O.S.No.28/2011 and certified copy of the sale agreement dated
13.09.1983 and Mahazar, RTC, Tax paid receipts, have also
been produced. But in order to prove the factum that
possession was delivered under the agreement of sale also not
proved by placing any material except the oral evidence of
witnesses who have been examined on behalf of the
defendants. When such being the case, when the sale deed as
well as all the revenue records are standing in the name of the
plaintiff and the Court has to take note of while granting the
relief of declaration and injunction, considered the material on
record particularly the documents stands in the name of the
plaintiff and also all the revenue records on the date of filing of
the suit also standing in the name of the plaintiff and hence
granted the relief of declaration and injunction. I do not find
any error committed by the Trial Court as well as the First
Appellate Court in appreciating the material and hence, I do not
- 10 -
NC: 2023:KHC:32445
RSA No. 299 of 2020
find any ground to admit the appeal and to frame any
substantive question of law.
9. In view of the discussions made above, I pass the
following:
ORDER
Second appeal is dismissed.
Sd/-
JUDGE
AP
