Karnataka High Court
Hanumantha vs The State Of Karnataka on 6 February, 2024
-1-
NC: 2024:KHC-D:2584-DB
RFA No. 100514 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.100514 OF 2019 (DEC/INJ)
BETWEEN:
1. HANUMANTHA (WARIMARUTHESHWAR)
DEVASTHAN COMMITTEE,
BY ITS PRESIDENT SRI. MUDAKAPPA,
S/O. GADIGEPPA VADAWADAGI,
AGE: 66 YEARS, OCC: WEAVER,
R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
2. HANUMANTHA (WARIMARUTHESHWAR)
DEVASTHAN COMMITTEE,
BY ITS HONORARY SECRETARY,
SRI.NAGAPPA S/O. MALLAPPA BAGEWADI,
AGE: 69 YEARS, OCC: SERVICE/HON.SECRETARY,
R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
MOHANKUMAR
B SHELAR
3. BASALINGAPPA S/O. BASAPPA INDI
Digitally signed by
MOHANKUMAR B AGE: 72 YEARS, OCC: BUSINESS,
SHELAR
Date: 2024.02.22
16:02:21 +0530
R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
4. HUTCHAPPA S/O. SHIVAPPA WADAVADAGI
AGE: 79 YEARS, OCC: BUSINESS,
R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
5. HEMANTH S/O. SHANKARAPPA MADABALE
AGE: 56 YEARS, OCC: WEAVER,
R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
6. VENKANNA S/O. GOVINDAPPA MAGINAHALLI
-2-
NC: 2024:KHC-D:2584-DB
RFA No. 100514 of 2019
AGE: 81 YEARS, OCC: SOCIAL WORKER,
R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
7. RAMANNA S/O. AMEENAPPA GORBAL
AGE: 64 YEARS, OCC: OWNER OF
PAN-BEEDI SHOP, R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
8. YAMNUAPPA S/O. MUKUNDAPPA MUNAVALLI
AGE: 76 YEARS, OCC: WEAVER,
R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
9. BASALINGAPPA S/O. SHIDDAPPA BHAPRI
AGE: 78 YEARS, OCC: WEAVER,
R/O. KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
...APPELLANTS
(BY SRI.SHRIHARSH A.NEELOPANT, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS DEPUTY COMMISSIONER,
BAGALKOTE-587101.
2. THE TAHASHILDAR
TAHASHILDAR COMPOUND,
TQ: HUNGUND-587118, DIST: BAGALKOTE.
3. THE WAKF BOARD
REPRESENTED BY ITS CHAIRMAN,
# 26, BESIDES "HOTEL CHANDRIKA"
CUNNINGHAM ROAD, VASANT NAGAR,
BENGALURU-560001.
4. THE DISTRICT WAKF BOARD OFFICE
BY ITS CHIEF OFFICER, OLD COURT PREMISES,
I.E. "SHAKTI TALKIES" ROAD,BAGALKOTE.
5. THE ANJUMAN E-ISLAM
A WAKF DULY REGISTERED
REP. BY ITS HEAD SRI. NABISAB TAHASHILDAR,
R/O: KAMATAGI-587120,
-3-
NC: 2024:KHC-D:2584-DB
RFA No. 100514 of 2019
TQ: HUNGUND, DIST: BAGALKOTE.
6. AJJAPPA, S/O. RAMACHANDRAPPA KADLIMATTI,
AGE: 59 YEARS,OCC: WEAVER,
R/O: KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
7. RAVI S/O. BASANINGAPPA INDI
AGE: 50 YEARS, OCC: BUSINESS,
R/O: KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
8. VINOD
S/O. CHANNABASAPPA WADAWADAGI,
AGE: 32 YEARS, OCC: SOCIAL WORKER,
R/O: KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
9. MUTTAPPA S/O. HONNAPPA KUMAR
AGE: 42 YEARS, OCC: KLIN OWNER,
R/O: KAMATAGI -587120,
TQ: HUNGUND, DIST: BAGALKOTE.
10. MAHESH S/O. SHANKARAPPA ACHANUR
AGE: 42 YEARS, OCC: WEAVER,
R/O. WARD NO.4, KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
11. SRINIVAS S/O. CHINNAPPA SANDARKI
AGE: 46 YEARS, OCC: WEAVER,
R/O: WARD NO.4, KAMATAGI-587120,
TQ: HUNGUND, DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI. ASHOK T.KATTIMANI, ADDL. GOVT.ADV. FOR R1 AND R2;
SRI. D.L.LADKHAN, ADVOCATE FOR R4;
SRI. B.MUHAMMED ALI, ADVOCATE FOR R3;
SRI. GIRISH A.YADAWAD, ADVOCATE FOR R5;
SRI. L.M.KURAHATTI, ADVOCATE FOR R6 TO R11)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 13.09.2019 PASSED IN
O.S.NO.65/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, HUNAGUND, DISMISSING THE
SUIT FILED FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION.
-4-
NC: 2024:KHC-D:2584-DB
RFA No. 100514 of 2019
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant challenging the
order dated 13.09.2019 on the Preliminary/Additional
Issue No.1 passed in O.S. No.65/2015 by the learned
Senior Civil Judge and JMFC, Hunagund.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court.
3. The appellants are the plaintiffs and the
respondents are the defendants.
4. The plaintiffs filed a suit for declaration that
they are not bound by the judgment and decree passed in
O.S. No.212/1989 confirmed in RA No.139/1994 and RSA
No.852/1995 and also to declare that the plaintiffs are in
actual physical possession with respect to the suit
schedule "ABCD" property and other portions denoted by
letters "ABEFG", "IJKL" are unaffected till the defendants
adopt due process and in the alternative, the plaintiffs are
NC: 2024:KHC-D:2584-DB
in actual possession of the suit property for more than 30
years without any obstruction and acquired title by way of
adverse possession and sought for permanent injunction.
5. It is the case of the plaintiffs that the land
bearing Sy.No.No.111 totally measures 28 acres 17 guntas
and the said land is a gomal land, out of which, plaintiff
Nos.1 and 3, Devasthana, have been in physical
possession to an extent of 8 acres. The area denoted by
"ABCD" is plaintiff No.1-Devasthana whereas the area
identified by letters "AEFGB" is Basaveshwara temple,
Idaga groud (maidan) is shown as letters "GHIB". There
lies a passage which connects all these Devasthana and
idaga maidan to the public road. Plaintiff Nos.1 and 3 are
the Devasthana which are in existence from centuries.
Plaintiff No.3 undertook the construction of a compound
wall, at that time, defendant Nos.3 to 5, who asserted
their exclusive right over the suit schedule properties,
contended that the suit passage is exclusively meant for
their ingress and outgress to Idaga maidan and burial
NC: 2024:KHC-D:2584-DB
ground and the land bearing Sy.Nos.111/A and 111/B
measuring 20 acre 17 guntas belongs to the defendant-
Board and there is a decree in their favour. The plaintiff
came to know about the suit only O.S. No.212/1989, R.A.
No.139/1994 and RSA No.852/1995 and found that
defendant Nos.3 to 5 have obtained the judgment in O.S.
No.212/1989 behind the back of the plaintiffs and by
virtue of the said decree, the plaintiffs' right is infringed.
Hence, cause of action arouses for the plaintiffs to file a
suit.
6. Defendant No.5 filed written statement
contending that the suit filed by the plaintiffs is not
maintainable and denied the averments made in the plaint
and contended that the suit filed by the plaintiffs is not
maintainable under Section 85 of the Wakf Act, 1995 and
prayed to dismiss the suit.
7. The trial Court on the basis of the pleadings of
the parties framed the following issues and additional
issue.
NC: 2024:KHC-D:2584-DB
ISSUES
1. Whether the plaintiffs prove that they are in contineous,
peaceful and uninteruppted possession over the suit
property for more than 50 years and perfected title over
the suit property by way of adverse possession?
2. Whether the plaintiffs prove that themselves, defendant
no.3 to 5 and general public have been using the 'IJKL'
road as described in the hand sketch annexed to plaint,
for so many decades, as right of easement by way of
prescription?
3. Whether the plaintiffs prove that defendant no. 3 to 5
made attempt to cause interference in to the suit property
and obstructed the enjoyment of IJKL road?
4. Whether the plaintiffs are entitled to the relief sought for ?
5. What order or decree ?
ADDITIONAL ISSUE FRAMED ON 04-12-2017.
1. Whether the defendant no.5 proves that this court does
not have jurisdiction to try the suit, by virtue of Sec.85 of
Wakf Act?"
The Trial Court treated Additional Issue as Preliminary
Issue and after hearing the learned counsel for the parties,
answered the Additional Issue in the affirmative holding
that the Court has no jurisdiction to decide the dispute
relating to Wakf property and consequently dismissed the
NC: 2024:KHC-D:2584-DB
suit and reserved liberty to the plaintiffs to approach the
competent forum.
8. The plaintiffs, aggrieved by the order on the
Preliminary Issue, filed this appeal.
9. Heard the learned counsel for the plaintiffs and
also the learned counsel for the defendants.
10. The learned counsel for the plaintiffs submits
that defendant No.4 filed an application under Order VII
Rule 11 of CPC for rejection of the plaint on the ground
that the Court has no jurisdiction to entertain the suit filed
by the plaintiffs on the ground that the Court has no
jurisdiction as per Section 85 of the Wakf Act and he
submitted that the said application came to be rejected
by the trial Court vide order dated 08.11.2016. He submits
that, when the Court has already held that the suit filed
by the plaintiffs is maintainable, hence, the question of
treating the Additional Issue as a Preliminary Issue would
not arise. He submitted that the trial Court has committed
NC: 2024:KHC-D:2584-DB
an error in answering Additional Issue in the affirmative
without considering the order passed on I.A. No.II. He
also submit that the order passed on the Additional Issue
is hit by the principles of res judicata. Hence, on these
grounds, he prays to allow the appeal.
11. Per contra, learned counsel for the defendants
supports the impugned order and submits that the suit
property is the Wakf property. Hence, the suit filed by the
plaintiff is not maintainable under Section 85 of the Wakf
Act and he submits that the trial Court was justified in
answering Additional Issue in the affirmative. Hence, on
these grounds prays to dismiss the appeal.
12. Perused the records. Considering the
submissions of the learned counsel for the parties, the
points that arise for our consideration are:
i) Whether the plaintiffs prove that the trial Court
has committed an error in passing the
impugned order without considering the order
passed on I.A.II?
- 10 -
NC: 2024:KHC-D:2584-DB
ii) What order or decree?"
13. Point No.(i): It is not in dispute that the
plaintiffs filed a suit for declaration of ownership and also
against the judgment and decree passed in the suit.
Further, the plaintiffs claim that they are the owners of
portion of land bearing Sy.No.111 and they are in
possession of the suit schedule property. It is further
contended that the defendants, behind the back of the
plaintiffs obtained a collusive decree and the said collusive
decree is not binding on the plaintiffs. The said fact has
been denied by the defendants by filing written statement.
Later on, defendant No.4 filed an application i.e., I.A.II for
rejection of the plaint on the ground that the suit is hit by
Section 85 of the Wakf Act. The said application was
opposed by the plaintiffs by filing objections. The trial
Court, after hearing the parties, rejected the application
vide order dated 08.11.2016 wherein the trial Court at
para 10 held that, "on careful perusal of the material
placed on record, the relief to which this suit is filed is
- 11 -
NC: 2024:KHC-D:2584-DB
altogether different from matters as contemplated under
Section 85 of the Wakf Act. The property and relief
claimed in this case does not come within the purview of
Section 85 of Wakf Act. Therefore, considering the facts
and circumstances of the case, it is of the considered
opinion of the Court that defendant No.4 has not made out
any ground that the suit is hit by Section 85 of the Wakf
Act" and consequently rejected the said application vide
order dated 08.11.2016. After rejection of the said
application, the trial Court framed issues on 31.05.2017
and Additional Issue on 04.12.2017 and treated the
Additional Issue as preliminary issue. The trial Court
without considering the order passed on I.A.II has held
that the suit filed by the plaintiffs is not maintainable
under Section 85 of the Wakf Act. The trial Court has
already recorded a finding by the order dated 08.11.2016
on I.A.II holding that the relief claimed by the plaintiffs
does not come within the purview of Section 85 of Wakf
Act. The trial Court without considering the order passed
on I.A.II, has proceeded to pass orders on Additional
- 12 -
NC: 2024:KHC-D:2584-DB
Issue in the affirmative holding that the Court has no
jurisdiction to decide the dispute relating to Wakf property
and consequently dismissed the suit.
14. When the trial Court has already recorded a
finding that the claim made by the plaintiffs does not fall
within the purview of Section 85 of the Wakf Act, the said
order was not challenged by the defendants. The said
order has attained finality. Hence, there was no necessity
for the trial Court to frame Additional Issue on
04.12.2017. The trial Court has committed an error in
answer the Additional Issue framed on 04.12.2017 in the
affirmative without considering the order on I.A.II.
Accordingly, the impugned order passed by the trial Court
is arbitrary and erroneous and the same is hit by the
principles of res judicta.
15. Hence, in view of the above discussion, we
answer Point No.(i) in the affirmative. Accordingly, we
proceed to pass the following:
- 13 -
NC: 2024:KHC-D:2584-DB
ORDER
The appeal is allowed. The impugned order dated
13.09.2019 passed in O.S.No.65/2015 by the learned
Senior Civil Judge and JMFC, Hunagund is set aside. The
suit is restored. The trial Court is directed to proceed with
the suit on other issues and pass judgment in accordance
with law. As a consequence, I.A.1/2019 for stay stands
disposed of, as it would not survive for consideration.
The parties are directed to appear before the trial
Court on 18.03.2024 without waiting any further notice.
All the contentions of the parties are kept open.
The Registry is directed to transmit the trial Court
records forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
kmv
Ct: vh
