Karnataka High Court
Abdul Qayum S/O Late Abdul Salam And Anr vs Mohad Maqbool S/O Multani on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 RSA.No.7263/2012.
C.W.RSA.NO.200101/2014
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.7263 OF 2012 (DEC/INJ)
C.W.
REGULAR SECOND APPEAL NO.200101 OF 2014(DEC/INJ)
IN RSA.NO.7263.2012
BETWEEN
1. ABDUL QAYYUM S/O LATE ABDUL SALAM,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O VILLAGE ZAMISTHANPUR,
TQ. & DIST. BIDAR-585401.
2. MAQBOOL AHMED S/O LATE ABDUL SALAM,
AGE: 64 YEARS,
OCC: PRIVATE SERVICE AND AGRICULTURE,
R/O VILLAGE ZAMISTHANPUR,
TQ. & DIST. BIDAR-585401
...APPELLANTS
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)
AND
1. MOHAMMED MAQBOOL S/O MULTANI,
SINCE DECEASED BY LRS,
1A. MOHAMMED SABEE AHMED,
2 RSA.No.7263/2012.
C.W.RSA.NO.200101/2014
S/O LATE MAQBOOL AHMED,
AGED ABOUT 37 YEARS, OCC: AGRICULTURE,
R/O SHAHA GUNJ, NEAR DELUXE BAR,
BIDAR.
1B. MOHAMMED ZHABEE AHMED
S/O LATE MAQBOOL AHMED,
AGED ABOUT 35 YEARS, OCC: AGRICULTURE,
R/O SHAHA GUNJ, NEAR DELUXE BAR,
BIDAR.
1C. MOHAMMED WASI AHMED
S/O LATE MAQBOOL AHMED,
AGED ABOUT 42 YEARS, OCC: AGRICULTURE,
R/O BIDAR.
1D. RESHMA BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 38 YEARS, OCC: HOUSE HOLD,
R/O SHAHA GUNJ, NEAR DELUXE BAR,
BIDAR.
1E. MALAN BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 31 YEARS, OCC: HOUSE HOLD,
R/O KUSMI GALLI, BIDAR.
1F. NASREEN BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 29 YEARS, OCC: HOUSE HOLD,
R/O HOKARNA VILLAGE,
TQ. AND DIST. BIDAR.
1G. TAHSEEN BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 25 YEARS, OCC: HOUSE HOLD,
R/O VILLAGE CHIDRI,
TQ. AND DIST. BIDAR.
1H. ARIFA BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 24 YEARS, OCC: HOUSEHOLD,
R/O SHAHA GUNJ, NEAR ASHRA MEDICALS,
BIDAR.
3 RSA.No.7263/2012.
C.W.RSA.NO.200101/2014
1I. SANAWAR BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 23 YEARS, OCC: HOUSE HOLD,
R/O HAMINAPUR, BIDAR.
...RESPONDENTS
(BY SRI JWALA KUMAR, ADVOCATE APPEARED FOR
SRI S.S. SARADAGI, ADVOCATE FOR R1(A) TO R1(I))
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO ALLOWED
AND THE REGULAR APPEAL ALLOWED BY THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE BIDAR IN R.A.NO.38/2011
DATED 04.08.2012 MAY KINDLY BE SET ASIDE AND REGULAR
CROSS APPEAL IN R.A.NO.20/2012 DATED.04.08.2012 MAY BE
ALLOWED. ANY OTHER RELIEF WHICH IS LEGALLY AND
EQUITABLY ENTITLED BY THE PLAINTIFFS MAY ALSO BE
GRANTED.
IN RSA.NO.200101.2014
BETWEEN
1. ABDUL QAYYUM S/O LATE ABDUL SALAM
AGE: 60 YEARS, OCC: AGRICULTURE,
2. MAQBOOL AHMED S/O LATE ABDUL SALAM
AGE: 64 YEARS, OCC: PRIVATE SERVICE AND AGRICULTURE,
BOTH R/O ARE ZAMISTANPUR,
TQ. & DIST. BIDAR-585401
...APPELLANTS
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)
AND
1. MOHAMMED MAQBOOL S/O MULTANI
SINCE DECEASED BY LRS,
4 RSA.No.7263/2012.
C.W.RSA.NO.200101/2014
1A. MOHAMMED SABEE AHMED
S/O LATE MAQBOOL AHMED,
AGED ABOUT 37 YEARS, OCC: AGRICULTURE,
R/O SHAHA GUNJ, NEAR DELUXE BAR,
BIDAR.
1B. MOHAMMED ZHABEE AHMED
S/O LATE MAQBOOL AHMED,
AGED ABOUT 35 YEARS, OCC: AGRICULTURE,
R/O SHAHA GUNJ, NEAR DELUXE BAR,
BIDAR.
1C. MOHAMMED WASI AHMED
S/O LATE MAQBOOL AHMED,
AGED ABOUT 42 YEARS, OCC: AGRICULTURE,
R/O BIDAR.
1D. RESHMA BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 38 YEARS, OCC: HOUSE HOLD,
R/O SHAHA GUNJ, NEAR DELUXE BAR,
BIDAR.
1E. MALAN BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 31 YEARS, OCC: HOUSE HOLD,
R/O KUSMI GALLI, BIDAR.
1F. NASREEN BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 29 YEARS, OCC: HOUSE HOLD,
R/O HOKARNA VILLAGE,
TQ. AND DIST. BIDAR.
1G. TAHSEEN BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 25 YEARS, OCC: HOUSE HOLD,
R/O VILLAGE CHIDRI,
TQ. AND DIST. BIDAR.
1H. ARIFA BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 24 YEARS, OCC: HOUSEHOLD,
R/O SHAHA GUNJ, NEAR ASHRA MEDICALS,
BIDAR.
5 RSA.No.7263/2012.
C.W.RSA.NO.200101/2014
1I. SANAWAR BEGUM D/O LATE MAQBOOL AHMED
AGED ABOUT 23 YEARS, OCC: HOUSE HOLD,
R/O HAMINAPUR, BIDAR.
...RESPONDENTS
(BY SRI JWALA KUMAR, ADVOCATE APPEARED FOR
SRI S.S. SARADAGI, ADVOCATE FOR R1(A) TO R1(I))
THIS RSA FILED U/S 100 OF CPC, PRAYING TO CALL FOR THE
RECORDS, ALLOW THE APPEAL AND SET-ASIDE THE JUDGMENT
AND DECREE DATED:4-8-2012 PASSED IN R.A.NO.38/2011 BY
LEARNED ADDITIONAL DISTRICT AND SESSION JUDGE, BIDAR,
REVERSING THE JUDGMENT AND DECREE PASSED IN O.S.NO.195
OF 2006 BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE,
BIDAR, DATED: 2-07-2011 AND DECREE THE SUIT WITH COSTS
THROUGHOUT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.02.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGEMENT
These appeals are filed under Section 100 of CPC
challenging the judgment and decree passed in OS
No.195/2006 on the file of Addl. Senior Civil Judge Bidar and
judgment and decree passed in RA No.38/2011 and 20/2012
on the file of Addl. District judge Bidar vide judgment dated
04.08.2012.
2. For the sake of convenience parties herein are
referred with their original rankings before the Trial Court.
3. The brief factual matrix leading to the case are as
under.
4. The plaintiffs have filed a suit in OS No.195/2006
before the Addl. Senior Civil Judge Bidar, seeking the
declaration of title and consequential relief of injunction
against the defendants over the suit schedule property
bearing in Sy.No.6/O measuring 4 acres 17 guntas situated
in village Zamistanpur, Bidar taluk. It is asserted that
plaintiff No.2 is residing in Dubai and father of the plaintiff by
the name of Abdul Salam was the owner of the suit land and
he died in 1984. It is asseted that the plaintiffs succeeded
the suit schedule property and became joint owners and their
names were mutated in revenue records. It is urged that the
defendant is interfering in lawful possession of plaintiff over
the suit land and the one Habib used to graze his cattles in
the suit land, with the permission of the plaintiffs. The
defendant has nothing to do with the suit schedule property
and the defendant illegally got his name mutated to the said
land during 1989, behind the back of the plaintiffs and the
said entries are required to be rectified. Hence, he filed a
suit for declaration of their title and injunction.
5. The defendant has appeared and filed his written
statement, denying the plaint averments. The defendants
asserts that the suit land never owned by the plaintiff nor
they are in the possession and the suit land was owned by
Abdul Khader, the brother of the defendant and since 1972
he is in possession and enjoyment of the suit schedule
property. He asserted he is also owner of Sy.No.6/E and his
name is appearing in RFR along with one Sheik chand. It is
asserted that the father of the defendants Mohammed
Multani purchased Sy.No. 5 measuring 3 acres 28 guntas,
Sy.No.6 measuring 4 acres 17-3/8 guntas i.e., suit land,
Sy.No.7 measuring 4 acres 6 guntas and other Sy.No.8
measuring 3 acres 12 ½ guntas from one Sardarmiyan and
Babajani, sons of Moulanasab through registered sale deed
for valid consideration. It is asserted that the father of the
defendant was in possession of the suit land from the date of
the purchase till his death and later on settlement took place
in the year 1989 and the defendant has been allotted the
Sy.No.6 to the extent of 8 acres 34 guntas. He has also
asserted that the father of the plaintiffs had only 3 acres 12
guntas in Sy.No.8. According to him, Sy.No.8 is given to the
father of the plaintiffs and disputed the title of plaintiff over
the suit schedule property. Hence, he has sought for
dismissal of the suit.
6. On the bases of these pleadings learned Senior
Civil Judge has framed 7 issues and 2 additional issues as
under:
1. Whether the plaintiff proves that suit property
Sy.No.6/O belonged to his father Abdul Salam?
2. Whether the plaintiff proves that after the
death of his father during f1984, plaintiff and
his brother Mohd. Maqbook Ahmed became
owners of suit property?
3. Whether the plaintiff proves that the defendant
has bot his name entered in the ROR behind
back of plaintiffs?
4. Whether the plaintiff proves that the
description of suit schedule property is correct?
5. Whether the defendant proves that suit land
belonging to Abdul Quader S/o Md.Multanisab?
6. Whether the plaintiffs are entitled to the reliefs
sought for?
7. What order or decree?
Additional Issues:
1. Whether cause of action pleaded survives for
plaintiff No.2 also in this case?
2. Whether defendant proves that, sut was
allotted to his father in the family
arrangements?
7. The plaintiff was examined as PW-1 and 2
witnesses were examined as PW-2 and 3 and Ex.P-1 to 14
were marked. However, the defendant was partly examined
as DW-1, subsequently did not turn up. After hearing the
arguments and after appreciating the oral and documentary
evidence learned Senior Civil Judge has answered issues
Nos.1,2 and 6 in partly affirmative, issues Nos.3, 4 and
additional issues No.1 were answered in the affirmative,
issue Nos.5 and additional issue Nos.2 were answered in
negative. Ultimately he decreed the suit of the plaintiff
partly. However, he has rejected the prayer of the plaintiffs
that they are the absolute owners of the suit schedule
property, but granted injunction in favour of the plaintiffs
against the defendant.
8. Being aggrieved by this judgment and decree of
granting injunction, the defendant has filed RA No.38/2011
challenging the judgment and decree and plaintiffs have filed
cross appeal, challenging the rejection of the relief of
declaration, which is registered in RA No.20/2012 before the
Additional District Judge Bidar. Learned District Judge after
hearing the arguments and after re appreciating the oral and
documentary evidence as allowed the appeal filed by the
defendants in RA No.38/2011 and the judgment and decree
passed in granting the injunction in OS No.195/2006 was set
aside and the suit came to be dismissed in totality, while RA
No.20/2012 filed by the appellant herein was dismissed.
Being aggrieved by these judgments, two appeals were filed
by the plaintiffs in RSA No.7263/2012 and RSA
No.200101/2014. Since, both these appeals are rising out of
same judgment and decree on OS No.195/2006, they are
heard together and common judgment is being passed.
9. Heard the arguments advanced by the learned
counsel for the appellants and learned counsel for the
respondent and perused the records.
10. The learned counsel for the appellant/plaintiff
would contend that the suit schedule property is his
ancestors property and taking disadvantage of the similarity
of the name, sale deed was executed. He would also
contend that the defendant has set up the defense of
purchase and the Trial Court has held that the possession of
the plaintiffs over the suit land is proved and the defendant
has failed to establish his title and DW-1 did not further
examine himself. He would also contend that PW-1 was not
cross examined and later on he did not turn up, but PW-2
was given evidence. Hence, he would contend that both the
Courts have committed an error in dismissing the suit and
sought for allowing the appeal by decreeing the suit of the
plaintiff in entirety.
11. Per contra, learned counsel for the respondent/
defendant contends that the plaintiffs have approached the
Court seeking relief of declaration of their title and they have
not produced any title deeds to prove their title over the suit
schedule property or title of their father. He would also
assert that revenue records are not the documents of title.
Hence, he would contend that merely because the defendant
has not proved his title, it cannot be presumed that the
plaintiffs have succeeded in proving their title and sought for
dismissal of the appeal.
12. This Court by Order dated 28.11.2016 framed
following substantial questions of law.
I. Whether the lower appellate Court though has
adverted to the documents available on record to
come to the conclusion that the plaintiff who had
approached the Court had not produced
appropriate documents to satisfy the court with
regard to the title, was justified in the conclusion
to upset the finding of the Trial Court with regard
to possession and in that regard whether the
appreciation of the evidence of PWs.1 to 3 was
appropriately done?
II. Whether in that light the observation of the lower
appellate court with reference to a sale deed of the
year 1962 though not being an exhibited
document was justified?
13. The main dispute between the parties is regarding
the title and possession of the property. It is also evident
that the dispute is also regarding the entries made in the
revenue records. Further the situation, location and
identification as well as description of the suit schedule
property is not consistent on the part of the plaintiffs.
Though the plaintiffs asserted specific boundaries of the suit
land, they have not produced material documents to show in
which part of Sy.No.6, the suit land is situated. Undisputedly,
Sy.No.6 is having large extent of land and when the division
was affected in Sy.No.6 is not at all forthcoming. The
plaintiffs are claiming the title on the bases on inheritance.
As rightly observed by the appellant Court, the claim is on
the basis of inheritance as in the case of Hindu law, but
admittedly the parties are governed under Mohammadan
law. There is no concept of joint family or coparcenary
family under Mohammadan law and the parties will be
tenants in common. The plaintiffs nowhere asserted as to
how many brothers and sisters were there to their father and
the simply claim their title over the suit schedule property by
way of inheritance. The plaintiffs have not produced any
documents to prove the source of title over the suit schedule
property. The simple source is that the suit schedule
property was owned by their father and it is inherited by
them. But, how their father acquired the suit property is not
at all specifically asserted by the plaintiffs. Since, the
plaintiffs have approached the Court, the burden is on the
plaintiffs to prove that they are the owners of the suit
schedule property and they cannot take any advantage of
the weakness of the defendant. Admittedly the revenue
entries are not documents of title as held in the decision
reported in STATE OF HIMACHAL PRADESH VS KESHAV
RAM reported in ILR 1998 KAR 1.
14. It is the contention of the defendants that their
father Multani Sab has purchased the suit schedule property
along with other properties and both the Courts have
considered the original sale deed of 1962, found in the file,
though it was not tendered in evidence by the defendant.
However, the learned Senior Civil Judge has considered that
the Multani Sab was the father of the plaintiffs, but
admittedly plaintiffs father was Abdul Salaam and the
defendant's father was Multani Sab. There was no need for
both the Courts to consider the sale deed registered in the
year 1962, which was not tendered in evidence by the
defendant. Both the Courts have appreciated this aspect, but
the Trial Court has erroneously observed that the Multani
Sab was the father of the plaintiff, but in fact he was father
of the defendant. In the event, the sale deed was executed
in the name of the father of the defendant. Ultimately the
burden is on the plaintiff to prove their title over the suit
schedule property. But to prove that they have not produced
any title deeds.
15. The plaintiffs are relying on the entries in their
name for some period pertaining to the suit schedule
property. But there is no evidence to show that the entries
in the name of the plaintiffs are lawfully effected.
Subsequently, the said entries were set aside and the entries
were made in the name of the defendant.
16. The learned Trial Court Judge has on the basis of
the entries in revenue records came to the conclusion that
the plaintiffs are in possession of the suit schedule property.
But, the said analogy was not applied to the case of the
defendant as subsequently name of the defendant was
mutated to the suit land. The plaintiff No.1 has got
examined as PW-1, but did not face any cross examination.
So, his evidence has no relevance here. According to PW-2,
the said property came to him from his father, which was
earlier in the name of Miran Sab. However, there is no
evidence to show that the father of the plaintiffs acquired the
suit land from his forefathers. The plaintiffs have not
produced any documents to substantiate this aspect.
However, he has set up a new case regarding purchase of
the suit land and he admits that he was not present when
the land was purchased, as he was in Saudi Arabia. The
evidence of PW-1 is inconsistent to the case of the plaintiffs
itself. PW-2 claims to have purchased the land in Sy.No.6
measuring 4 acres 17 guntas. But, the case of the plaintiffs
is not of purchase, but of inheritance. No records are
produced by the plaintiffs to show that the suit schedule
property was purchased. Even no document is produced to
show that the property was earlier in the name of their
grandfather Miran Sab.
17. The cross examination of PW-2 completely
exposes the claim of the plaintiffs, as entirely different
boundaries pertaining to the suit land were started, as
compared to the boundaries referred in the plaint. As such
the situation, location and description of the suit schedule
property itself is suspicious and the plaintiffs are not aware,
where exactly the suit schedule property is situated.
However, it is all along alleged by the plaintiffs that one
Habib was using the said land for grazing his cattle. Though
he is alive, he was not examined by the plaintiffs. The
plaintiffs have placed reliance on the evidence of the PW-3,
but in view of the evidence of PW-2 itself the evidence of
PW-3 becomes irrelevant. However, PW-3 is not capable of
disclosing the entire extent of Sy.No.6 and he specifically
asserts that Habib is not taking care of the suit schedule
property and admits that the plaintiffs are residing in Saudi
Arab. In that event, there is no evidence on behalf of
plaintiffs, as to who is cultivating the suit land. The evidence
of PW-2 and 3 is inconsistent and contrary.
18. The plaintiffs are claiming the title at one breath
by way of sale and in another breath by way of inheritance.
They have to set up their title either way and they are not
certain regarding the location of the suit schedule property.
Material evidence Habib was not examined on behalf of the
plaintiffs and admittedly revenue entries are not document of
title. The plaintiffs have failed to prove their title as well as
lawful possession of the suit schedule property. Admittedly,
plaintiffs are claiming the title, so initial burden is on the
plaintiffs to prove that they have acquired title over the suit
schedule property and they cannot take advantage of the
weakness of the defendant. The plaintiffs must succeed or
fall on their own footings. In the instant case, the evidence
lead by the plaintiffs itself is inconsistent and contrary, and
they are not even aware of the exact location of the suit
schedule property.
19. Learned Senior Civil Judge though properly
appreciated regarding title of the suit schedule property in
this regard, but erroneously granted relief of injunction.
Learned Addl. District Judge has rightly considered the
documents in detail and when the plaintiffs are not able to
locate the suit schedule property, question of their
possession over the property does not arise at all. When the
title itself is not established, the question of granting relief of
injunction does not arise at all. Both the Courts have
appreciated the oral and documentary evidence regarding
the title and the learned Addl. District Judge rightly and
properly appreciated the oral and documentary evidence
regarding the possession and rightly allowed the appeal filed
by the defendant and rejected the claim of the plaintiffs. No
illegality and perversity is found in the judgment passed by
the learned Addl. District Judge. The Appellate Court has
rightly held that the plaintiffs, who had approached the Court
had not produced appropriate documents to satisfy regarding
the title and justified in upsetting the finding of the Trial
Court with regard to the possession by proper appreciation of
evidence. Hence, the substantial question No.1 is answered
in affirmative. Though the Appellate Court has made
observations regarding reference of sale deed of the year
1962, though not acceptable, but the same is also co
nsidered by the Trial Court. Hence, the said finding cannot
be said to be erroneous and accordingly substantial question
No.2 is also answered in favour of the defendants.
20. Hence both of these appeals being devoid of any
merits, do not survive for consideration and need to be
dismissed. Accordingly, I pass the following orders:
ORDER
I. Both the appeals, RSA Nos.7263/2012 and
200101/2014 stand dismissed.
II. Considering the relationship between parties,
there is no order as to costs.
Sd/-
JUDGE
NJ
