Karnataka High Court
Smt. Shantabai W/O Bhimasha And Ors vs Kulsum Bee W/O Mohd Hussain And Ors on 14 February, 2024
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RSA No. 7142 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.7142 OF 2013 (DEC)
BETWEEN:
1. SMT. SHANTABAI
W/O BHIMASHA,
AGE: 63 YEARS,
OCC: AGRI. & HOUSEHOLD,
R/O: BATAGERA,
TQ. BASAVAKALYAN,
DIST: BIDAR-585 401.
2. SIDRAM
S/O BHIMASHA,
OCC: AGRICULTURE,
R/O: BATAGERA,
TQ. BASAVAKALYAN,
DIST: BIDAR-585 401.
Digitally
signed by
LUCYGRACE 3. TUKARAM
Location: S/O BHIMASHA,
HIGH
COURT OF AGE: 46 YEARS,
KARNATAKA OCC: AGRICULTURE,
R/O: BATAGERA,
TQ: BASAVAKALYAN,
DIST: 585 401.
4. NAMDEV S/O BHIMASHA,
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O: BATAGERA,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
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RSA No. 7142 of 2013
5. DATTATRAYA
S/O BHIMASHA,
AGE: 44 YEARS,
OCC: AGRICULTURE,
R/O: BATAGERA,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
...APPELLANTS
(BY SRI. VINAYAK APTE, ADVOCATE)
AND:
KULSUM BEE
W/O MOHD. HUSSAIN
DIED THROUGH LRS
1. MOINUDDIN
S/O MOHD. HUSSAIN,
AGE: 58 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O: KOHINOOR-PAHAD,
TQ. BASAVAKALYAN,
DIST: BIDAR-585 401.
2. MOHD. RAFIQ
S/O MOHD. HUSSAIN,
AGE: 48 YEARS,
OCC: AGRICULTURE & AUTO DRIVER,
R/O: KOHINOOR-PAHAD,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
3. KHAMARUNISSA BEGUM
D/O MOHD. HUSSAIN,
W/O ABDUL GAFOOR,
AGE: 53 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O KOHINOOR-PAHAD,
TQ: BASAVAKALYAN, DIST: BIDAR-585 401.
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RSA No. 7142 of 2013
4. VITHAL S/O LAXMAN,
AGE: 46 YEARS,
OCC: PRIVATE SERVICE,
R/O: ALAND,
DIST: GULBARGA-585 302.
OSMAN S/O KHASIMSAB
DIED THROUGH HIS LRS.
5. AYSHA BEE W/O MOHD. OSMAN,
AGE: 73 YEARS,
OCC: HOUSEHOLD,
R/O: KOHINOOR-PAHAD,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
6. MOHD. IQBAL AHMED
S/O MOHD. OSMAN,
AGE: 46 YEARS,
OCC:BUSINESS,
R/O: KOHINOOR-PAHAD,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
7. MEHABOOB
S/O MOHD. OSMAN,
AGE: 47 YEARS,
OCC: BUSINESS,
R/O: KOHINOOR-PAHAD,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
8. KHASIM S/O MOHD. OSMAN,
AGE: 38 YEARS,
OCC: BUSINESS,
R/O: KOHINOOR-PAHAD,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
9. RUKASANA W/O SIRAJ BITTI,
AGE: 44 YEARS,
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RSA No. 7142 of 2013
OCC: HOUSEHOLD,
R/O: KOHINOOR-PAHAD,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
10. TAHERA BEE W/O MOINUDDILN,
AGE: 44 YEARS,
OCC: HOUSEHOLD,
R/O: KOHINOOR-PAHAD,
TQ: BASAVAKALYAN-585 401.
11. RAM RAO
S/O MANIK RAO PATWARI,
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O: BATAGERA, TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
...RESPONDENTS
(V/O DATED 07.07.2023, APPEAL AGAINST R-1 ABATED;
SRI. MEER MOHAMMED ALI, ADVOCATE FOR R-2 AND R-3;
V/O DATED 07.07.2023, NOTICE TO R-4 IS HELD AS
UNNECESSARY;
R-5 TO R-11 SERVED, BUT UN-REPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGEMENT AND DECREE DATED 24.01.2013 PASSED IN R.A.
NO.256/2010 BY THE FAST TRACK COURT, BASAVAKALYAN,
CONFIRMING THE JUDGMENT AND DECREE DATED 09.11.2006
PASSED IN O.S.NO.12/2001 BY THE CIVIL JUDGE & JMFC,
BASAVAKALYAN, IN SO FAR AS THE RELIEF OF DECLARATION
OF OWNERSHIP AND DIRECTION TO DELIVER THE
POSSESSION IS CONCERNED.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7142 of 2013
JUDGMENT
This appeal is filed by the defendant No.1 and 3 to 6,
challenging the Judgment and Decree dated 24.01.2013 in
R.A.No.256/2010 on the file of Fast Track Court at
Basavakalyana, Bidar District, allowing the appeal in part,
set aside the Judgment and Decree dated 09.11.2006 in
O.S.No.12/2001 on the file of Civil Judge (Jr. Dn.) and
JMFC, Basavakalyana, decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The plaint averments are that, the Mohd.
Hussain - father of plaintiff Nos.2 to 4 and husband of the
plaintiff No.1, Khasim Sab - father of defendant No.8 and
Ismail Sab - brother of Khasim Sab had total extent of 27
acres 3 guntas in Sy. No.23/A and B and thereafter same
was renumbered as Sy. Nos.23/1 and 23/2. It is further
stated that, land bearing Sy. No.23/2 was totally
measuring 15 acres 15 guntas and survey No.23/1
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measuring 11 acres 28 guntas. Mohd. Hussain and Mohd.
Osman (son of Khasim Sab) have sold an extent of 10
acres 10 guntas in Sy. No.23/2 in favour of Lakshman -
father of defendant No.7 as per registered sale deed dated
29.10.1969. It is the grievance of the plaintiffs that the
boundaries of the property has been wrongly shown. It is
further stated that Madarsab has sold 11 acres 28 guntas
in Sy. No.23/1 in favour of defendant No.2 as per
registered sale deed dated 14.04.1969. Since Sy. No.23/1
and Sy.No.23/2 are situate adjoining to each other, after
the sale as mentioned above, the remaining land to an
extent of 5 acres 5 guntas, which is the subject matter of
the suit, belonging to Mohd. Hussain, which is situate in
between the land was sold to defendant No.2 and
defendant No.7 and as such, the plaintiffs have filed suit in
O.S. No.12/2001 before the Trial Court seeking relief of
declaration, possession with consequential relief of mesne
profits.
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4. After service of notice, defendant Nos.1 to 7
and 9 entered appearance and filed written statement.
During the pendency of the suit, defendant No.8 died and
his legal representatives were brought on record and they
have remained absent and accordingly, placed ex-parte.
Defendant No.8 did not prefer to file written statement. It
is the specific case of defendant Nos.1 to 7 and 9 that the
description of the property shown in the suit land is
incorrect and as such denied the possession of suit land by
Mohd. Hussain after execution of the sale deed dated
29.10.1969. It is further stated that Lakshman - father of
defendant No.7 was owner in possession of entire extent
of land measuring 15 acres 15 guntas in Sy. No.23/2 and
therefore, contended that the relief sought for by the
plaintiffs cannot be accepted.
5. On the basis of the rival pleadings, the Trial
Court has framed issues for its consideration.
6. In order to establish their case, plaintiffs have
examined five witnesses as PW.1 to PW.5 and got marked
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15 documents as Exs.P1 to P15. On the other hand,
defendants have examined six witnesses as DW.1 to DW.6
and produced twenty documents as Exs.D1 to D20.
7. The Trial Court, after considering the material
on record, by its Judgment and Decree dated 09.11.2006
decreed the suit of the plaintiffs. Feeling aggrieved by the
same, defendant Nos.1 and 3 to 6 have preferred Regular
Appeal in R.A.No.256/2010 before the First Appellate
Court. The said appeal was resisted by the plaintiffs.
8. The First Appellate Court after
re-appreciating the facts on record, by its Judgment and
Decree dated 24.01.2013, allowed the appeal-in- part
declaring that, the plaintiffs are the owners in possession
of the suit schedule property, however, set aside the
Judgment and Decree of the Trial Court on mesne profits.
Feeling aggrieved by the same, defendant Nos.1 and 3 to
6 have preferred this Regular Second Appeal under
Section 100 of CPC.
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9. This Court, by order dated 06.02.2024,
formulated the following substantial questions of law for
consideration:
1. Whether both the Courts below were
justified in granting declaration of title
in favour of the plaintiffs based on the
sale deeds at Exs.P7, P8 as well as
Exs.D1 and D2?
2. Whether both the Courts below were
justified in granting declaration of title
without considering the boundaries
mentioned in the sale deeds at Exs.P7,
P8 as well as Exs.D1 and D2?
10. I have heard Sri Vinayak Apte, learned counsel
appearing for the appellants and Sri Meer Mohammed Ali,
learned counsel appearing for respondent Nos.2 and 3.
11. Sri Vinayak Apte, learned counsel appearing for
the appellants argued that, the boundaries shall prevail
over the extent and area mentioned in the sale deed and
therefore, he contended that, even the entire extent of Sy.
No.23/2 was sold, the said aspect has not been considered
by the Courts below. He further contended that, though
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the plaintiffs have not shown the correct boundaries in the
suit property, in the absence of the same, grant of
declaratory relief in favour of the plaintiffs is not correct
and accordingly, sought for interference of this Court.
12. Per contra, Sri. Meer Mohammed Ali, learned
counsel appearing for respondent Nos.2 and 3 argued
that, both the Courts below have properly appreciated the
material on record and accordingly submitted that no
interference is called for in this appeal.
13. Having heard the learned counsel appearing for
the parties, it is not in dispute that the father of plaintiff
Nos.2 to 4 - Mohammed Hussain, father of defendant No.8
- Khasim Sab and brother of Khasim Sab - Ismail Sab had
total extent of 27 acres 3 guntas in Sy.No.23/1 and 23/2.
Perusal of the sale deeds would indicate that, sale deed
dated 14.04.1969 registered on 29.10.1969 discloses the
fact that the land bearing Sy.No.23/2, after excluding 11
acres 28 guntas in Sy.No.23/1 was sold in favour of the
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father of defendant No.7 - Laxman by the father of
plaintiffs.
14. Having taken note of the findings recorded by
both Courts below, the only question to be answered is
with regard to the fact that the boundaries mentioned in
the sale deeds have to be prevailed over the actual extent
of land mentioned in the sale deeds, as the grievance of
the plaintiffs is with regard to the question relating to
boundaries. In this regard, it is relevant to cite the
judgment of Hon'ble Supreme Court in the case of
Subhaga and others vs. Shobha and others reported
in (2006) 5 SCC 466, wherein it is held that, where there
is discrepancy relating to measurement in the construction
of the deeds, the boundaries shall prevail. In that view of
the matter, I am of the view that, both the Courts below
have not applied their mind insofar as boundaries
mentioned in the registered sale deeds said to have been
produced by the parties at Exs.P7, P8, D1 and D2.
Accordingly, it is a fit case to remand the matter to the
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Trial Court for fresh consideration. Hence, the substantial
questions of law framed above favours the defendants.
15. In the result, I pass the following:
ORDER
i. Appeal is allowed.
ii. Judgment and decree dated 24.01.2013 in R.A.
No.256/2010 on the file of Fast Track Court at
Basavakalyan, Dist. Bidar and judgment and
decree dated 09.11.2006 in O.S. No.12/2001
on the file of Civil Judge (Jr.Dn.) & JMFC at
Basavakalyan are set aside.
iii. The matter is remanded to the Trial Court for
fresh consideration in the light of the
observation made above and to decide the lis
between the parties based on the boundaries as
mentioned in the sale deeds to determine the
actual extent of land held by the plaintiffs and
to decree the suit for declaratory relief without
being influenced by the impugned judgment
and decree passed by the Courts below.
iv. All the contentions of the parties are kept open.
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v. Since the parties are represented through their
learned counsels, in order to avoid further delay
in the matter, parties are directed to appear
before the Trial Court on 21.03.2024 at
11.00 a.m.
vi. As the suit is of the year 2001, the Trial Court
is directed to expedite the hearing and
complete the entire proceedings within one
year from the date of appearance of the
parties.
Sd/-
JUDGE
LG
