Karnataka High Court
Zubeda Begum Dead By Her Lrs vs City Municipal Council on 8 August, 2024
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RSA No. 445 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.445 OF 2010
(DEC/INJ)
BETWEEN:
1. ZUBEDA BEGUM
DEAD BY HER LRS
1(a) SMT ZABEEDA BEGUM
AGED 72 YEARS,
D/O MAZIDKHAN,
1(b) SMT SHAMMENNEEMARA
AGED 67 YEARS, D/O MAZIDKHAN
BOTH ARE RESIDING AT
WILSON GARDEN EXTENSION
Digitally BANGALORE CITY - 560027
signed by R
DEEPA
PRESENTLY R/A D.NO.1661
Location:
HIGH COURT SULTAN BAZAAR, MULBAGAL TALUK
OF KOLAR DISTRICT - 563131
KARNATAKA ...APPELLANTS
(BY SRI. RAVINDRANATHA K., ADVOCATE)
AND:
1. CITY MUNICIPAL COUNCIL
SHIMOGA MUNICIPALITY
BY ITS COMMISSIONER
SHIMOGA - 577201
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RSA No. 445 of 2010
2. H MANJAPPA
SINCE DECEASED REP. BY LRS.
2(a) SMT. LAKSHMI
W/O LATE SRI. H. MANJAPPA
AGED ABOUT 53 YEARS
2(b) SRI. MANJUNATH
S/O LATE SRI. H. MANJAPPA
MAJOR IN AGE
BOTH ARE R/A SRI. RAGHAVENDRA COFFEE BAR
VIDYA NAGAR, B.H.ROAD
SHIVMOGA - 577203
3. SRI RAMDAS
AGED 67 YEARS,
S/O PANDURANGAPPA
R/A SRI. RAGHAVENDRA COFFEE BAR
VIDYA NAGAR, B.H.ROAD
SHIVMOGA - 577203
...RESPONDENTS
(BY SRI. G S BALAGANGADHAR, ADVOCATE FOR C/R1;
V/O DATED 18.01.2019 , APPEAL AGAINST R2 ABATED;
V/O DATED 07.01.2016, NOTICE TO R3 IS HELD SUFFICIENT)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGMENT & DECREE DTD. 30.10.2009 PASSED IN
R.A.NO.45/2005 ON THE FILE THE ADDL. DISTRICT JUDGE,
SHIMOGA, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DTD 20.09.1997 PASSED IN
O.S.NO.588/1989 IN THE FILE OF THE I ADDL. CIVIL JUDGE
(JR.DN), SHIMOGA.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 445 of 2010
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 30.10.2009,
passed in R.A.No.45/2005 by the learned Addl. District
Judge at Shimoga, setting aside the judgment and decree
dated 20.09.1997, passed in O.S.No.588/1989 by the I
Addl. Civil Judge (Jr.Dn.), Shimoga.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court. The
appellant are plaintiffs No.2 & 3, the plaintiff No.1 died
during the pendency of the appeal before the first
Appellate Court leaving behind plaintiffs No.2 and 3 as her
legal representatives; respondent No.1 is defendant No.1;
respondent No.2 is defendant No.2 and since respondent
No.2 is dead, his legal representatives are brought on
record; and respondent No.3 is defendant No.3.
3. The brief facts leading rise to filing of this
appeal are as under:
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Plaintiff filed a suit for declaration, mandatory
injunction and mesne profits. It is the case of the
plaintiffs that plaintiff No.1 is the wife of one B.A.Majid
Khan and plaintiffs 2 and 3 are his daughters through
plaintiff No.1 and the said Majid Khan purchased the suit
schedule property on 28.11.1924 from one Md. Abbasab @
Abbakhan and subsequently put up a country tiled-cum-
zinc sheet house and the same was looked after by
B.S.Mahamood, nearest relative of Majid Khan who died
on 02.01.1965, and after his death, the plaintiffs
continued to reside in Bangalore and once in a year or
two, they used to come and collect the rent. One
Akbarsab who was the tenant, taking advantage of
plaintiffs' absence at Shimoga, constructed a concrete
building. It is contended that, defendant No.1 had no
right to issue construction permission in favour of
Akbarsab. It is further contended that, the suit schedule
property measures 52 feet North-South, 104 feet East-
West. Out of this, defendant No.1 encroached 27 feet
North-South and 22 feet on the other side, the balance
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land is in possession of the plaintiffs as it is a vacant land.
The plaintiffs issued legal notice to demolish the premises
and to handover the portion of property to the plaintiffs,
but defendant No.1 did not reply to the notice. Hence
cause of action arose for the plaintiffs to file the suit for
declaration, possession and mandatory injunction.
4. Defendant No.1 filed written statement denying
the averments made in the plaint and it is contended that
the suit schedule property is part and parcel of R.S.Nos.12
and 13 of Urgadur Village having acquired the same in
accordance with law by defendant No.1 and defendant
No.1 is in possession of the property since 1954. Plaintiffs
have no right, title or interest over the suit schedule
property and on these grounds sought for dismissal of the
suit.
5. Defendant No.2 filed written statement denying
the averments made in the plaint and it is contended that,
defendant No.2 is in possession of the property as a
tenant under defendant No.1 and defendant No.2 is paying
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rent to defendant No.1 and defendant No.2 has filed a suit
in O.S.No.346/1979 against defendant No.1. The said suit
is pending and hence prayed to dismiss the suit.
6. The Trial Court, on the basis of the above said
pleadings, framed the following issues and additional
issues:
(1) Whether the plaintiffs prove that they are
the owners of the suit schedule property
including amended suit property?
(2) Whether the plaintiffs further prove that the
first defendant has unauthorisedly and
illegally put up maliges encroaching their
property?
(3) Whether the plaintiffs prove their
possession of the suit schedule property
within 12 years from the date of suit?
(4) Whether the plaintiffs had issued a notice
to the first defendant prior to the suit?
(5) Whether the first defendant proves that the
suit property is a part and parcel of
S.Nos.12 and 13 of Urgadoor village and
the same was acquired in accordance with
law?
(6) Whether the first defendant proves that the
suit schedule property was in its possession
eversince 1954, including amended suit
property?
Or
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Alternatively the first defendant proves that
it perfected its title to the suit schedule
property by adverse possession as alleged
in the written statement, including
amended suit property?
(7) Whether the first defendant proves that the
plaintiffs are estopped from questioning its
right in the suit schedule property?
(8) Whether the first defendant proves that the
present suit is barred by the principles of
res-judicata?
(9) To what reliefs, if any, the parties are
entitled?
(10) Addl. Issue: Whether the plaintiff proves
that khaneshumari numbers mentioned in
the schedule belong to the suit schedule
property?
(11) Addl. Issue: Whether the plaintiffs' prove
that they are the legal heirs of B.A.Majid
Khan as stated in para-2 of the plaint?
7. In order to prove the case of the plaintiffs, the
plaintiffs examined three witnesses as PW-1 to PW-3 and
got marked 22 documents as Exs.P1 to P22. In rebuttal,
defendants examined two witnesses as DW-1 & DW-2 and
got marked 6 documents as Exs.D1 to D6. The trial Court
after assessing the oral and documentary evidence of the
parties, answered issue Nos.1 to 4 and additional issue
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No.10 and 11 in the affirmative; issue Nos.5 to 8 in
negative; and issue No.9 as per the final order. The trial
Court decreed the suit of the plaintiffs with costs. It is
declared that the plaintiffs are the owners of the suit
schedule property being the legal heirs of deceased Majid
Khan and directed defendant No.1 to demolish the super-
structure put up on the suit schedule property and to
handover the vacant possession of the same to the
plaintiffs within 2 months from the date of the order,
failing which the plaintiffs are at liberty to get the same
done by a Court Commissioner, which may be appointed
by the Court, at the cost of defendant No.1.
8. The defendant No.1 aggrieved by the judgment
and decree passed in the above said suit, filed an appeal
in R.A.No.45/2005 on the file of learned Principal District
Judge, Shimoga. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
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(1) Whether the plaintiffs have proved that
they are the owners in possession and
enjoyment of the suit property as on the
date of the suit?
(2) Whether the plaintiffs have proved that the
defendant Municipality has trespassed into
the suit property by forcibly evicting the
tenants of the plaintiff and demolished the
whole structure existed therein and
constructed a new structure over the suit
property, as alleged?
(3) Whether the plaintiffs are entitled to the
reliefs sought for?
(4) What decree or order?
9. The First Appellate Court, after hearing the
learned counsel for the parties and on re-assessing the
oral and documentary evidence, answered point Nos.1 to 3
in negative; and point No.4 as per the final order and
consequently allowed the appeal filed by the defendant
No.1, setting aside the judgment and decree passed by
the trial Court. The plaintiffs, aggrieved by the judgment
and decree passed by the first Appellate Court in the
aforesaid appeal, have filed this regular second appeal.
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10. The appeal was admitted on 11.02.2011. This
Court reframed the substantial questions of law on
02.08.2024, as under:
1. Whether the appellants prove that first
Appellate Court has not properly
appreciated the evidence on record and
committed an error in passing the
impugned judgment?
2. Whether the appellants prove that the
judgment passed by the first Appellate
Court is not in conformity under Order XLI
Rule 31 of CPC?
11. Heard learned counsel for the parties.
12. Learned counsel for the plaintiffs submits that
plaintiffs have examined three witnesses and marked
documents and defendants have also examined two
witnesses and marked documents, but the first Appellate
Court being the final fact-finding Court, has not re-
appreciated the evidence available on record. He submits
that the impugned judgment passed by the first Appellate
Court is contrary to Order XLI Rule 31 of CPC. Hence he
submits that the appeal may be allowed and matter be
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remitted to the first Appellate Court to reconsider the
same and pass appropriate orders.
13. Per contra, learned counsel for the defendants
supports the impugned judgment and prayed to dismiss
the appeal.
14. Perused the records and considered the
submissions of learned counsel for the parties.
15. SUBSTANTIAL QUESTIONS OF LAW NO.1 & 2: To
avoid repetition of facts, these two questions are taken to
together for common discussion as they are interlinked
with each other.
16. Plaintiffs in order to substantiate their case
examined three witnesses and produced documents at
Ex.P1 to P22. Plaintiffs contended that the suit schedule
property was purchased by one Majid Khan under
registered sale deed dated 28.11.1924 from its previous
owner one Md. Abbasab @ Abbakhan and it was open site
and said Majid Khan during his lifetime has put up a
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country tiled-cum-zinc sheet house and same was looked
after by his nearest relative Mahamood. After the demise
of Majid Khan on 02.01.1965, plaintiffs started residing at
Bangalore. Further, plaintiffs also produced records to
establish that Majid Khan had purchased suit schedule
property from Md. Abbasab and further the plaintiffs also
examined two witnesses as PW-2 and PW-3 who have
deposed that the plaintiffs are the owners of the suit
schedule property and the defendants have no right, title
or interest over the suit schedule property.
17. Further, defendants examined two witnesses as
DW-1 and DW-2 and got marked Ex.D1 to D6. The trial
Court considering the oral and documentary evidence, held
that the plaintiffs are the owners of the suit schedule
property and directed defendant No.1 to demolish the
superstructure. Defendants in order to prove that the said
property was acquired under the gazette notification as
per Ex.D4. From the perusal of the judgment passed by
the trial Court, the trial Court has not referred to Ex.D3 in
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regard to the land acquired by the Government under
Ex.D4, without taking into consideration Ex.D3 and D4,
has passed the judgment and decree. The defendant No.1
aggrieved by the judgment and decree passed by the trial
Court, preferred an appeal and the first Appellate Court
framed points for consideration.
18. From the perusal of the entire judgment of the
first Appellate Court, the first Appellate Court has not
referred the evidence of PW-1 to PW-3 and DW-1 & DW-2.
The first Appellate Court being the final fact-finding Court,
is required to reassess the oral and documentary
evidence. In the instant case, the first Appellate Court has
not assigned any reasons for non-consideration of the
evidence on behalf of the parties. Without considering the
evidence of the parties, has proceeded to allow the appeal
and set aside the impugned judgment passed by the trial
Court. Hence I answer the substantial questions of law in
affirmative holding that the judgment passed by the first
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Appellate Court is not in conformity with Order XLI Rule 31
of CPC.
19. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is allowed.
The judgment dated 30.10.2009, passed
in R.A.No.45/2005 by the Addl. District Judge
at Shimoga, is set aside. The appeal is
restored. The first Appellate Court is directed
to reconsider the appeal and pass judgment in
accordance with law.
As the appeal is of the year 2005, the first
Appellate Court is requested to dispose of the
appeal as expeditiously as possible.
Parties are directed to appear before the
first Appellate Court on 23.09.2024, without
waiting any further notice. All the contents of
the parties are kept open.
Registry is directed to transmit the
records to the first Appellate Court, forthwith.
SD/-
(ASHOK S. KINAGI)
JUDGE
RD
