Karnataka High Court
Hajee Sab vs Kashappa And Anr on 6 August, 2024
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RFA No. 200162 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 200162 OF 2018 (DEC/INJ)
BETWEEN:
HAJEE SAB S/O SYED SAB BOMMANALLI,
AGE: 59 YEARS,
OCC: AGRICULTURE AND EMPLOYEE IN RCF,
ADITYA NAGAR, MALKHED ROAD,
R/O. BHIM NAGAR HUDA(B) VILLAGE,
TQ. SEDAM, DIST. KALABURAGI.
...APPELLANT
(BY SRI G. G. CHAGASHETTI, AND
SMT. REKHA PATIL, ADVOCATES)
AND:
Digitally signed 1. KASHAPPA S/O BHIMRAO MADIVAL,
by RENUKA AGE: 48 YEARS, OCC: AGRICULTURE,
Location: HIGH
COURT OF 2. SHIVANAND S/O BHIMRAO MADIVAL,
KARNATAKA
AGE: 43 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O. AARYA BOMMANALLI VILLAGE,
TQ. SEDAM, DIST. KALABURAGI-585102.
...RESPONDENTS
(R1 AND R2 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, ALLOW
THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED:27.03.2018 PASSED IN OS.NO.25/2015 ON THE FILE
OF THE SENIOR CIVIL JUDGE, AT SEDAM, AND
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RFA No. 200162 of 2018
CONSEQUENTLY ALLOW THE SUIT FILED BY THE
PLAINTIFF/APPELLANT BEFORE THE TRIAL COURT.
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)
1. The suit is for declaration and for injunction in
respect of Survey No.23/2 (New) (23/1 old), measuring 13
acres 18 guntas in Taranalli village, Taluk Sedam, District,
Kalaburagi is dismissed. The description of the suit
property produced by the plaintiff is as under:-
"Land Sy.No.23/2 (New), 23/1 (Old), measuring
13 acres, 18 guntas with land R.A. of Rs.36-38 Ps,
situated at Tarnalli, Tq: Sedam, Dist: Kalaburagi having
following boundaries.
East : Land Sy.No.24 of Sangameshwar.
West : Land Sy.No.23/1 of defendants.
North : River Kagina.
South : Land Sy.No.22 of Gundappa."
2. As can be seen from the description, the plaintiff
claims that his property is the western portion of Survey No.23
and according to him it is now re-numbered as 23/2. Earlier it
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was numbered as 23/1 and according to the plaintiff the
eastern portion in Survey No.23 belongs to defendants.
3. The plaintiff claims that the property originally
belonged to his grand-father and after demise of the father, he
inherited the property. The suit is filed on the premise that the
defendants are interfering with the peaceful possession and
enjoyment of the suit property.
4. The defendants appeared before the Court. The
defendants did not dispute the fact that they own property
bearing Survey No.23/1. The defendants disputed the title of
the plaintiff and also interference. The defendants also
admitted the fact that their property bearing Survey No.23/1
lies to the eastern side of Survey No.23/2.
5. In the cross-examination, a suggestion was put by
the counsel for the defendants to the PW1 suggesting that the
plaintiff is not in possession of 13 acres 18 guntas. It is also
suggested by the counsel for the defendants that the
defendants are not interfering the plaintiff to the extent of 9
acres and odd guntas in Survey No.23/2. The plaintiff, to the
said question in cross-examination has stated that the
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defendants have grabbed the 4 acres of land from the plaintiff.
Because of this admission, the trial Court has dismissed the suit
in its entirety. The trial Court concluded that since the plaintiff
is not in possession of 4 acres the plaintiff is not entitled to the
relief of declaration of title and injunction. The trial Court did
not adjudicate whether the plaintiff has got title over 13 acres
and 18 guntas in Survey No.23/1.
The following point arises for consideration;
Whether the trial Court is justified in holding that
the plaintiff is not entitled to relief of declaration and
injunction on the premise that the plaintiff is not in
possession of 4 acres of land out of 13 acres, 18
guntas in the suit property.
6. It is relevant to note that before the trial Court the
RTC pertaining to the suit schedule property was produced.
The RTC for the year 2015-16 for Survey No.23/2 would reveal
that the plaintiff is the owner and in possession of 13 Acres 18
guntas which also includes 15 guntas Kharab land. This RTC is
based on M.R. No.04/11 & 2012 based on sub-division. The
RTC for the year 1983 would reveal the name of the plaintiff for
13 acres and 18 guntas in respect of Survey No.23/1. It
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appears that the Survey No.23/1 is re-numbered as 23/2 based
on M.R. No.4/11 & 12. Ex. P5 would also reveal that name of
the plaintiff is entered in the property records in the year 1983.
These documents are not in dispute. The defendants though
have taken a defence that the plaintiff did not inherit the
property from his grand-father, the defence is not
substantiated. However, the claim of the plaintiff is
substantiated.
7. This being the position, this Court is of the view
that the plaintiff is able to establish that he is the owner to the
extent of 9 acres 13 guntas in Survey No.23/2.
8. As far as the admission of the plaintiff that the
defendants have encroached 4 acres is concerned, the
admission is not a conclusive admission to hold that the
defendants are in possession of the 4 acres of land belonging to
the plaintiff. In a written statement the defendants have not
taken a stand that they are in possession of 4 acres of land.
The record of right which has got a presumptive value would
clearly indicate that the plaintiff's name is found in column No.9
pertaining to ownership and column No.12 pertaining to
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possession. These aspects are not considered by the trial
Court. The trial Court erroneously proceeded with the
assumption that the suit for declaration of title and injunction is
not maintainable when the plaintiff is not in possession. Even
according to the suggestion made by the counsel for the
defendants, the plaintiff is in possession of 9 acres of land. The
defendants asserted possession to the extent of 4 acres without
there being a specific plea in the written statement that they
are in possession. Thus the finding of the trial Court that the
plaintiff is not entitled to the relief of declaration of title and
injunction is untenable.
9. Accordingly, the impugned judgment and decree
dated 27.03.2018 passed in O.S. No.25/2015 by the Senior
Civil Judge, Sedam are set-aside.
10. The suit of the plaintiff in O.S. No.25/2015 on the
file of the Senior Civil Judge, Sedam is decreed. The plaintiff is
declared as the owner and in possession of the suit property
and the defendants and anybody claiming under the defendants
are restrained by way of permanent injunction from interfering
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with the plaintiff's peaceful possession and enjoyment of the
suit property.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS
CT:PK
