Karnataka High Court
Hanumanthraya And Ors vs Mohd.Ismail And Ors on 1 August, 2024
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RFA No. 200067 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 200067 OF 2020 (DEC/INJ)
BETWEEN:
1. HANUMANTHRAYA
S/O LATE VENKANNA SUBEDAR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: HASANAPPUR, TQ: & DIST: KALABURAGI-
585325.
2. DEVANGOUDA
S/O LATE HANUMANTHRAYA GOWDA MALIPATIL
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: CHANNAPATNA,
TQ: SHORAPUR, DIST: YADGIR-585224.
Digitally signed
by RENUKA 3. SMT. SUMITRABAI D/O LATE VENKANNA SUBEDAR
Location: HIGH (W/O MANOHAR NAIK),
COURT OF AGE: 60 YEARS, OCC: HOUSEHOLD,
KARNATAKA R/O: KALAMMA TEMPLE, SHORAPUR,
DIST: YADAGIR-585224.
4. SMT. PUSHAMMA D/O LATE VENKANNA SUBEDAR
(W/O MUDDURANGAPPA NAIK),
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: CHAWDESHWAR HALLI, TQ: SHAHAPUR,
DIST: YADAGIR-585224.
...APPELLANTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
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RFA No. 200067 of 2020
AND:
1. MOHD. ISMAIL
S/O SHAMSHUDDIN JAGIRDAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: LAXMI CHOWK, JEWARGI,
DIST: KALABURAGI-585310.
2. SITARAM S/O TIPPANNA SUBEDAR
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: H.NO. 5-713, FEROZABAD,
TQ: & DIST: KALABURAGI-585308.
3. PARVATI W/O LATE BASWARAJ SUBEDAR
AGE: 60 YEARS,
R/O: H.NO: 71/3/A5/15, UDAY NAGAR,
OLD JEWARGI ROAD, P & T QUARTERS,
S.B.I. COLONY, KALABURAGI-585102.
4. PADMAVATI PATIL W/O ANAND PATIL
AGE: 34 YEARS,
R/O: H.NO: 71/3/A5/15, UDAY NAGAR,
OLD JEWARGI ROAD, P & T QUARTERS,
S.B.I. COLONY, KALABURAGI-585102.
5. SHARDA NAIK W/O VASUDEV NAIK
AGE: 34 YEARS,
R/O: H.NO: 71/3/A5/15, UDAY NAGAR,
OLD JEWARGI ROAD, P & T QUARTERS,
S.B.I. COLONY, KALABURAGI-585102.
6. JYOTI W/O SIDDARAJ SUBEDAR
AGE: 32 YEARS,
R/O: H.NO: 71/3/A5/15, UDAY NAGAR,
OLD JEWARGI ROAD, P & T QUARTERS,
S.B.I. COLONY, KALABURAGI-585102.
7. RAJESHWARI W/O VINAYAK PATIL
AGE: 30 YEARS,
R/O: H.NO: 71/3/A5/15, UDAY NAGAR,
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RFA No. 200067 of 2020
OLD JEWARGI ROAD, P & T QUARTERS,
S.B.I. COLONY, KALABURAGI-585102.
...RESPONDENTS
(BY SRI AJAY KUMAR A.K., ADVOCATE FOR R1 AND R2;
SRI V.K. NAYAK, ADVOCATE FOR R3 TO R7)
THIS RFA IS FILED UNDER ORDER XLI RULE 1 CPC R/W
SECTION 96 CPC, PRAYING TO ALLOW THE APPEAL WITH
COSTS BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 08/01/2020 PASSED BY THE LEARNED III ADDITIONAL
SENIOR CIVIL JUDGE COURT, KALABURAGI, IN
O.S.NO.187/2014 AND DECREE DATED THE SUIT OF THE
PLAINTIFFS/ APPELLANTS BE DECREED THE SUIT OF THE
PLAINTIFFS/APPELLANTS BE DECREED WITH COSTS AS
PRAYED FOR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH
HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
This appeal is by the plaintiffs whose suit for
declaration and injunction is dismissed. The prayer in the
said suit is that the registered sale deed dated 15.02.2011
bearing document No.12217/2010-11 in respect of the suit
land bearing Survey No.290/A (Survey No.280/1)
measuring 03 acres 31 guntas) executed by defendant
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No.2 in favour of defendant No.1 is null and void and not
binding upon the rights of the plaintiffs and consequential
relief of injunction.
2. The description of the suit property provided is
as under:
"Land bearing Sy. No.280/A, measuring 02 acres 20
guntas (Sy. No.280/1) measuring 03 acres 31
guntas) situated at village Ferozabad, Ta. & Dist.
Gulbarga having the following boundaries:-
East : Land Sy. No.279;
West : State High Way Road;
North : Land Sy. No.286;
South : Land Sy. No.279.
3. The grievance of the plaintiffs/appellants is that
the property described as the suit schedule property is the
property belonging to the plaintiffs and the plaintiffs are in
actual possession and enjoyment of the said property.
The plaintiffs claim that they have acquired the property
which their ancestors inherited. The plaintiffs claim that
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property is allotted to their share in the oral partition of
1993.
4. The registered sale deed dated 15.02.2011
referred to above which is sought to be declared as null
and void is the sale deed executed by defendant No.2 in
favour of defendant No.1. Defendant No.2 claims that his
father had purchased the property under registered sale
deed dated 24.04.1981. In the said sale deed the western
side of the property purchased by father of defendant No.2
is shown to be bounded by the property of Tippanna
Subedar. The plaintiffs allege that the defendant No.2
who has sold the property to defendant No.1, at the most
could have transferred what his father claims to have
acquired under the sale deed of 24.04.1981 and not any
other property. It is the grievance of the plaintiffs that
defendant No.2 in the guise of selling the property under
the sale deed dated 15.02.2011 has sold the plaintiffs
property by showing the wrong description in the sale
deed. In the context of the above mentioned facts, the
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plaintiffs have filed the suit, seeking a relief that the sale
deed dated 15.02.2011 does not bind the interest of the
plaintiffs and the same is null and void. The plaintiffs have
also sought consequential relief of injunction.
5. The defendants have contested the case. The
vendor/defendant No.2 has led evidence, but
purchaser/defendant No.1 has not led evidence. The
defendants contend that the property which is purchased
by defendant No.1 was the property in actual possession
of his vendor/defendant No.2 and correct description is
shown in the sale deed dated 15.02.2011 executed in
favour of the defendant No.1.
6. It is relevant to note that survey No.280 before
its sub-division as 280C and 280D measured 14 acres 22
guntas. Revenue records reveal that Survey No.280 is
subdivided as 280C measuring 7 acre 11 guntas including
5 guntas Kharab. Sy. No.280D is measuring 7 acres 11
guntas as can be noticed from the RTC.
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7. The parties have led evidence before the trial
Court. The suit is dismissed primarily on the ground that
the plaintiffs have not produced the title deeds in respect
of the suit property and they have not provided any
documents relating to allotment of shares as claimed by
the plaintiffs. The trial Court has also concluded that the
oral partition has not taken place. In addition, the trial
Court has also held that unless the plaintiffs challenge the
sale deed dated 24.04.1981, the plaintiffs are not entitled
to any relief.
8. Learned counsel appearing for the appellants
would contend that the trial Court misdirected itself by
observing that the suit is not maintainable unless the sale
deed dated 24.04.1981 is questioned by the plaintiffs.
9. It is the contention that the sale deed dated
24.04.1981 is the basis for the plaintiffs to contend that
the sale deed dated 15.02.2011 is contrary to the sale
deed dated 24.04.1981. Based on the sale deed dated
15.02.2011 defendant No.1 has not acquired any right
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over the property, as the sale deed dated 24.04.1981
based on which the father of defendant No.2 claimed right
is different from the property mentioned in the sale deed
dated 15.02.2011. Thus he would contend that there is no
need for the plaintiffs to question the sale deed
24.04.1981 and the sale deed dated 24.04.1981 being an
admitted document the trial Court ought to have seen
whether defendant No.1 has acquired a valid title from his
vendor who has acquired title under the sale deed dated
24.04.1981.
10. It is his further contention that defendant No.2
would not have sold the property other than what is sold
under the sale deed dated 24.04.1981. Thus, defendant
No.1 cannot claim right over the suit property under the
sale deed dated 15.02.2011.
11. It is brought to the notice of this Court that
defendants No.3 to 7 came on record contending that they
too have interest in the property bearing survey No.280/2,
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measuring 3 acres 39 guntas which was acquired for
national highway.
12. The trial Court has given a finding that the
Survey No.280/2 is not a suit property and accordingly
directed the defendants No.3 to 7 to work out their
remedy in accordance with law to claim the compensation.
13. Learned counsel appearing for the defendants
No.1 and 2 would contend that the suit is not maintainable
as the plaintiffs have not sought any declaration of title
and injunction in respect of their property whereas they
have sought declaration that the sale deed executed by
defendant No.2 in favour of defendant No.1 as null and
void. The plaintiffs have no locus standi to question the
sale deed executed by defendant No.2 in favour of
defendant No.1. It is also his contention that the plaintiffs
have not produced any documents to establish the title
and possession over the property which is said to have
been allotted to their share.
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14. This Court has considered the contentions
raised at the bar.
The following point arises for consideration:
i) "Whether the trial Court is justified in
dismissing the suit of the plaintiffs by holding
that the sale deed of the year 1981 is not
questioned and the suit is not maintainable on
this ground."
ii) "Whether the trial Court is justified in holding
that the plaintiffs have not produced any
documents to establish the title over the
property."
15. It is pertinent to note that in the instant case
the property which is described in the plaint is the
property which is described in the sale deed dated
15.02.2011. The plaintiffs are not parties to the said sale
deed. This is the sale deed executed by defendant No.2 in
favor of defendant No.1. The plaintiffs have not seriously
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disputed the sale deed dated 24.04.1981 which is
executed in the name of father of defendant No.2. In the
said sale deed, the western boundary of the property
purchased is shown as Tippanna Subedar's property.
However, in the sale deed dated 15.02.2011 the said
boundary is not shown on the western side, on the other
hand, the western boundary is shown as State highway.
Thus the plaintiffs contend that this sale deed is invalid
and the defendants are trying to claim right over the
property belonging to the plaintiffs. It is also relevant to
note that the defendants have not taken a stand that the
boundaries shown in the sale deed dated 24.04.1981 is
incorrect. If father of defendant No.2 had purchased the
property under registered sale deed dated 24.04.1981,
which is bounded on the west by the property of Tippanna
Subedar, then defendant No.2 cannot claim right over the
property which is not covered under the sale deed dated
24.04.1981. Nevertheless, defendant No.1 can claim right
over the property covered under the sale deed dated
24.04.1981. Then, the plaintiffs cannot seek a declaration
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that the sale deed in favour of defendant No.1 is null and
void if the father of defendant No.2 has purchased the
property under a valid deed. However, the plaintiffs not
being party to the sale deed dated 15.02.2011 can
certainly take a stand that the said sale deed does not
bind them if the said sale deed purports to convey the
property in possession of the plaintiffs.
16. It is noticed in this case that the real
controversy between the parties is not considered by the
trial Court. Even the plaintiffs have not properly described
the suit schedule property and have not prayed for the
declaration of their title if any over any portion of Survey
No.280 or its subdivision. This Court is of the view the
prayer being defective and focus of the parties not being
on the real controversy, the judgment in this case will not
resolve the controversy.
17. This being the position, this Court is of the view
that the remedy for the parties is to file an appropriate
suit by impleading all the parties who have right, title and
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interest in Survey No.280 and its sub-divisions and in the
said suit the plaintiffs may have to seek appropriate relief
of declaration of title, and/or fixation of boundary of the
property as per their title and possession, if established. If
such suit is filed, the defendant No.1 the purchaser is also
entitled to seek fixation of boundary of the property which
the father of defendant No.2 claims to have purchased
under the sale deed dated 24.04.1981. It is also made
clear that the defendant No.1 is also at liberty to file
appropriate suit, if advised.
18. With these observations the judgment and
decree of the trial Court are set-aside. It is made clear
that this Court has not expressed any opinion on the title
of the plaintiffs or the title of the defendants. Hence, the
following:-
ORDER
i) Appeal is allowed-in-part.
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ii) The impugned judgment and decree in O.S.
No.187/2014 passed by the III Additional
Senior Civil Judge, Kalburagi, are set-aside.
iii) Suit of the plaintiffs is dismissed.
iv) Liberty is reserved to the plaintiffs to file a
comprehensive suit as indicated in paragraph
No.17 or as provided in law.
v) All contentions of the parties are kept open.
vi) The time spent in prosecuting the suit and this
appeal shall not be counted for computing the
period of limitation.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS
CT:PK
