Karnataka High Court
Smt. Khairunnisa vs P Mohammed Iqbal on 28 February, 2024
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RSA No. 311 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 311 OF 2013 (INJ)
BETWEEN:
1. SMT. KHAIRUNNISA
SINCE DECEASED REP BY LR'S
1(a) HASHMATHUNNSSA
AGED ABOUT 67 YEARS
D/O KHAIRUNNISA
1(b) MAMUNNISSA
AGED ABOUT 64 YEARS
D/O KHAIRUNNISA
1(c) NISAR AHMED
AGED ABOUT 63 YEARS
S/O KHAIRUNNISSA
1(d) ANSAR AHMED
AGED ABOUT 61 YEARS
Digitally signed
by R DEEPA S/O KHAIRUNNISA
Location: HIGH
COURT OF
KARNATAKA 1(e) SAIFULLA
AGED ABOUT 59 YEARS
S/O KHAIRUNNISA
1(f) MAZHARULLA
AGED ABOUT 55 YEARS
S/O KHAIRUNNISA
1(g) NWSRATH JAHAN
AGED ABOUT 53 YEARS
D/O KHAIRUNNSA
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RSA No. 311 of 2013
1(h) MAHEEBULLA
S/O KHAIRUNNISSA
AGED ABOUT 45 YEARS
1(i) RAFIULLA
AGED ABOUT 40 YEARS
S/O KHAIRUNNISA
ALL ARE RESDING AT KUMSI ROAD
HARANAHALLI, SHIVAMOGGA TALUK.
...APPELLANTS
(BY SRI.R.VIJAYA KUMAR.,ADVOCATE)
AND:
P MOHAMMED IQBAL
AGED ABOUT 57 YEARS
S/O LATE P I HAMEED SAB
R/AT HARNAHALLI
SHIVAMOGGA TALUK & DISTRICT.
...RESPONDENT
(BY SRI.ABDUL RAZAK., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DATED: 12.12.2012
PASSED IN R.A.NO.51/2011 ON THE FILE OF PRL. SENIOR
CIVIL JUDGE AND CJM, SHIMOGA, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DTD
18.03.2009 PASSED IN OS.NO.160/2005 ON THE FILE OF II-
ADDL. CIVIL JUDGE (JR.DN.) AND JMFC, SHIMOGA.TRAIL
COURT DISMISSED THE SUIT.APPELLATE COURT ALLOWED
THE APPEAL SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 311 of 2013
JUDGMENT
1. This second appeal is filed by the appellant
challenging the judgment and decree dated 12.12.2012,
passed in R.A.No.51/2011 by the Prl. Senior Civil Judge,
Shimoga, setting aside the judgment and decree dated
18.03.2009 passed in O.S.No.160/2005 by the II Addl.
Civil Judge (Jr.Dn.) & JMFC, Shimoga.
2. For the sake of convenience, parties are referred to
as per their ranking before the trial Court. The appellants
herein are the legal representatives of the defendant and
respondent herein is the plaintiff.
3. The brief facts leading rise to filing of this appeal are
as under:
Plaintiff filed a suit for permanent injunction
restraining the defendant from interfering with his peaceful
possession and enjoyment of the suit schedule property. It
is the case of the plaintiff that he is the owner in
possession of the suit schedule property, which was
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allotted to the share of his father under a partition deed
16.05.1969 effected between his father and his 5 brothers
i.e., uncles of the plaintiff. In the said partition, western
side residential house of the suit schedule property had
fallen to the share of the plaintiff's father, Sri.P.Abdul
Hameed Sab and eastern side remaining portion had fallen
to the share of his uncle, Sri.P.Abdul Sattar Sab. Since
then, the plaintiff along with his father and other family
members are in possession and enjoyment of the suit
schedule property. The plaintiff's uncle and his sons are
residing in Shimoga and hence, the eastern and western
portion of the property are in enjoyment of his father. It is
further contended that Sri.P.Abdul Sattar Sab and his two
sons have entered into an agreement dated 20.08.1996,
agreeing to sell the suit schedule property in favour of the
plaintiff and his brother for consideration of Rs.81,000/-
and accordingly received advance amount of Rs.48,000/-
and handed over the possession. The plaintiff further
contended that on both eastern and western sides of the
suit property, he has left set back of three feet each and
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on the eastern side, the set back portion is being used by
the plaintiff and other members of his family as passage to
reach the backyard of the suit schedule property. The
defendant has taken up a new construction work on the
southern side of her property and attempting to put up a
shopping malige by encroaching upon the property of the
plaintiff on the western side. It is further stated that if the
defendant is allowed to construct, it will block the passage
as well as the air and light to the building of the plaintiff.
Hence, the plaintiff requested the defendant not to make
any construction in the passage. The defendant did not
give any heed to the request made by the plaintiff. Hence,
cause of action arouses for the plaintiff to file the suit for
permanent injunction.
4. Defendant filed written statement denying the
averments made in the plaint and contended that she has
got a residential house and backyard. The same was
inherited by her husband Late P. Abdul Mazeed.
Sri.P.Abdul Mazeed inherited the said property from his
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father Sri.Chaman Sab, who had purchased the said
property under a registered sale deed in the year 1927.
The defendant has produced the rough sketch map along
with written statement which clearly shows the location
and real picture at the spot. As per the sketch, 'ABCD'
schedule property inherited through late husband of the
defendant i.e., Abdul Mazeed, in which 'ABCD' shown in
the rough sketch appended to the written statement
consisted two residential houses, one RCC Malige, one
shed and one backyard, in which two coconut growing
trees and one arecanut tree and other fruit yielding trees
are there. To the southern side of the defendant's
property, there exists zinc sheet and country tiled roofed
residential house and same is shown as 'IJKH', which is
abutting to the common wall as 'DJM' as mentioned in the
sketch. It is contended that there is no passage or oni in
between the house of defendant and Mangalore tiled
house to the western side of the defendant's property. All
the properties are attached to each other. It is further
contended that suit filed by the plaintiff for bare injunction
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is not maintainable without seeking the relief of
declaration of easementary rights. Hence, on these
grounds, he prayed for dismissal of the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether the plaintiff proves that he is in
peaceful possession and enjoyment of the suit
schedule property, as on the date of the filing of
the suit?
2. Whether the plaintiff proves the interference
caused by the defendant as alleged in the
plaint?
3. Whether the plaintiff is entitled for the relief of
perpetual injunction as prayed for in this suit?
4. What order or decree?
6. In order to prove the case of the plaintiff, the plaintiff
examined himself as PW-1 and got examined two
witnesses as PW-2 & PW-3 and got marked 10 documents
as Exs.P1 to P10. In rebuttal, the Power of Attorney
holder of defendant was examined as DW-1 and got
marked 11 documents as Exs.D1 to D11. The Trial Court
after assessing the oral and documentary evidence of the
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parties, answered issue Nos.1 to 3 in the negative and
issue No.4 as per the final order and consequently,
dismissed the suit.
7. The plaintiff aggrieved by the judgment and decree
dated 18.03.2009 passed in O.S.No.160/2005, preferred
an appeal in R.A.No.51/2011 before the Prl. Senior Civil
Judge, Shimoga. The First Appellate Court, after hearing
the arguments of the learned counsel for the parties has
framed the following points for consideration:
1. Whether the appellant proves that the
judgment and decree passed by the Trial
Court in O.S.No.160/2005 dated
18.03.2009 is impugned one and
interference by this court is required?
2. What order?
8. The First Appellate Court, on re-assessing the oral
and documentary evidence, answered point No.1 in the
affirmative and point No.2 as per final order and
consequently allowed the appeal filed by the plaintiff and
set aside the judgment and decree passed by the trial
Court in O.S.No.160/2005 and decreed the suit of the
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plaintiff with costs and restrained the defendant from
putting up construction in the suit schedule property by
encroaching the passage. The defendant, aggrieved by the
judgment and decree passed by the First Appellate Court
in R.A.No.51/2011, has filed this second appeal.
9. This court admitted the appeal on 30.07.2021 to
consider the following substantial question of law :
1. Whether the findings recorded by the Trial
Court on Issue No.1 in O.S.No.160/2005 is
just and proper?
2. Whether the findings recorded by the First
Appellate Court with regard to possession
as per the impugned judgment and decree
is justified?
10. Heard learned counsel for the parties.
11. Learned counsel for the appellant-defendant submits
that the First Appellate Court has committed an error in
passing the impugned judgment. He submits that the First
Appellate Court has recorded a finding in favour of the
defendant. However, the First Appellate Court has allowed
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the appeal only on the ground that the defendant is
making an attempt to put up a construction of toilet. Only
on the said ground, the First Appellate Court has allowed
the appeal. He also submits that the plaintiff has failed to
establish the identity of the suit property and also the
measurement. He further submits that the First Appellate
Court has recorded a finding in paragraph-16 of the
impugned judgment against the plaintiff, but still, the First
Appellate Court proceeded to pass the judgment in favour
of the plaintiff. He further submits that in a suit filed for
bare injunction, the court is required to consider the
possession of the plaintiff as on the date of filing the suit
and also interference. Admittedly, in the instant case, both
the courts below have recorded a finding of fact against
the plaintiff holding that the plaintiff is not in possession of
the suit schedule property. He further submits that the
plaintiff is claiming easementary right in a suit for bare
injunction. He submits that a suit for bare injunction
without seeking for the relief of declaration of
easementary rights, the suit for bare injunction is not
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maintainable. The said aspect was not examined by the
First Appellate Court. The First Appellate Court has
committed an error in passing the impugned judgment.
Hence, the impugned judgment is arbitrary, perverse and
same is liable to be set aside. On these grounds, he prays
to allow the appeal.
12. Learned counsel for the respondent-plaintiff submits
that the plaintiff is in possession of the suit schedule
property under a partition deed dated 16.05.1969 and also
on an agreement to sell dated 20.08.1996 and the
defendant is making an attempt to construct/encroach
upon the property of the plaintiff. He submits that there
are three windows in the wall of the plaintiff's house
wherein the plaintiff gets air and light from the said
windows. If the defendant is allowed to construct a
building adjacent to the said wall, the plaintiff will be
deprived of light and air to his building. Hence, he submits
that the First Appellate Court was justified in passing the
impugned judgment. The impugned judgment passed by
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the First Appellate Court is just and proper and it does not
call for any interference. On these grounds, he prays for
dismissal of the appeal.
13. Perused the records and considered the submissions
of the learned counsel for the parties.
14. SUBSTANTIAL QUESTION OF LAW NO.1: It is the case
of the plaintiff that he is the absolute owner in possession
and enjoyment of the suit schedule property under a
registered partition deed dated 16.05.1969, which was
effected between the father of the plaintiff and his five
brothers. In the said partition, a residential house
measuring exactly half of the total measurement of the
suit schedule property on the western side had fallen to
the share of the plaintiff's father, namely, Sri.P.Abdul
Hameed Sab and eastern side measuring half of the extent
had fallen to the share of the Sri.P.Abdul Sattar Sab. Since
from the date of partition, the plaintiff along with his
father and other family members were in enjoyment of the
suit schedule property. It is the further case of the plaintiff
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that the plaintiff's uncle, namely, Sri.P.Abdul Sattar Sab
along with his son have agreed to sell portion of the
property for valuable consideration and executed an
agreement to sell dated 20.08.1996. In part performance
of the contract, P.Abdul Sattar Sab and his two sons have
delivered the possession of the property. In terms of the
agreement to sell dated 20.08.1996, the plaintiff paid
advance amount of Rs.48,000/- and it was agreed that
remaining balance consideration amount to be paid at the
time of the registration. The plaintiff is in possession of the
western and eastern sides of the property.
15. The plaintiff in support of his case, examined himself
as PW-1 and reiterated the plaint averments in his
examination-in-chief. In support, he has produced 10
documents. Ex.P-1 is the Assessment register extract,
Ex.P-2 is the Tax paid receipt, Ex.P-3 is the copy of
requisition addressed to Grama Panchayath, Ex.P-4 is the
photo and negative, Ex.P-5 is the police endorsement,
Ex.P-6 is the copy of the complaint wherein the plaintiff
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has lodged complaint against the defendant alleging that
the defendant is making construction in the suit schedule
property without obtaining sanction plan from the
competent authority, Ex.P-7 is the certified copy of the
sale deed, Ex.P-8 is the Genealogy tree, Ex.P-9 is the
certified copy of the resolution, Ex.P-10 is the certified
copy of the original sale deed.
16. In the course of cross-examination of PW-1, it is
elicited that he is not aware about the measurement of the
property which was fallen to the share of Sri.P.Abdul
Sattar Sab and about the exact construction of the
building. He admits that though an agreement to sell was
executed by Abdul Sattar Sab and his sons in favour of
plaintiff, but they have not executed a registered sale
deed in favour of the plaintiff. He also admits that in Ex.P-
1, there is no recital of 'oni (passage)' towards the east.
He also admits Exs.D-1 and D-2, photographs and its
location. Further, the plaintiff in order to prove the
existence of passage in between the house of the plaintiff
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and defendant, examined one witness, Mr.Mohammed
Athaulla as PW-2, who is the cousin of the plaintiff. PW-2
has deposed about the existence of the passage between
the house of the plaintiff and defendant. During the course
of cross-examination, PW-2 admits that passage is not
forthcoming in Ex.P-1. The evidence of PW-2 does not
support the case of the plaintiff. Further, the plaintiff also
examined one witness, Mr.Shabbir Ahamad as PW-3. He
has deposed that he saw the residence of Mohammad
Iqbal and he has also deposed in the same line of PW-2
about the existence of passage and interference by
defendant. But in the cross-examination, he has deposed
that he is the cousin of plaintiff and admits that he has not
seen any documents pertaining to the existence of oni. He
admits that towards the west of the defendant's house,
there is a house of Abdul Sattar Sab and admits the
location of Ex.D-1. He has stated that there is no clear-cut
passage as alleged by the plaintiff and the passage is only
half portion. He also admits that nobody are moving
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between the suit schedule property and house of the
defendant.
17. In rebuttal, Mr.Ansar Ahammed, Special POA holder
of the defendant was examined as DW-1 and he has
reiterated the written statement averments in the
examination-in-chief and produced 11 documents. Ex.D-1
and 2 are the photographs and negatives, Ex.D-3 is the
Special POA wherein the defendant has authorized DW-1
to depose on behalf of her, Ex.D-4 is the rough sketch
map, Ex.D-5 is the original sale deed, Ex.D-6 is the tax
demand extract and Exs.D-7 to 11 are the tax paid
receipts.
18. From the perusal of the records produced by the
plaintiff, it clearly discloses that the plaintiff is the owner
of the suit schedule property as per Ex.P-7. Ex.P-7, it does
not make out any specific case in regard to the extent and
boundaries of the suit property. The plaintiff has not
produced any documents to prove the extent and
boundaries of the suit schedule property. It is the case of
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the plaintiff that there is a passage in between the suit
schedule property and property of the defendant. From the
perusal of the plaint schedule, it discloses that towards the
eastern side of the property of defendant, if at all, there is
a passage in between the suit schedule property and the
property of the defendant, the plaintiff could have shown
in the schedule towards eastern side of the suit schedule
property as oni/passage. The plaintiff has not shown as
oni/passage towards eastern side of the plaintiff's house in
the suit schedule. Thus, it is clear that there exists no
oni/passage in between the suit schedule property and the
property of the defendant as alleged by the plaintiff. It is
the case of the plaintiff that the said passage or oni
belongs to the plaintiff. In support of his contention, the
plaintiff has not produced any documents to establish that
oni/passage belongs to him.
19. The plaintiff in paragraph-4 of the plaint has claimed
that the plaintiff has got a right of easement. Though the
plaintiff has pleaded in paragraph-4 of the plaint, but the
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plaintiff has not sought for relief of declaration of
easementary right. Therefore, the Trial Court was justified
in recording a finding on issue No.1 that the plaintiff has
failed to prove that he is in possession and enjoyment of
the suit schedule property as on the date of the filing of
the suit. The said finding was arrived by the Trial Court on
the basis of the materials available on record. The finding
recorded by the Trial Court on issue No.1 is just and
proper.
20. In view of the above discussion, I answer the
substantial question of law No.1 in the affirmative holding
that the plaintiff has failed to prove that he is in
possession and enjoyment of the suit schedule property as
on the date of the filing of the suit.
21. SUBSTANTIAL QUESTION OF LAW NO.2: I have perused
the judgment passed by the First Appellate Court.
Paragraph-16 of the judgment of the First Appellate Court
reads as under:
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"16. In the present case on hand, the trial
court has not discussed properly about the
contentions of the parties. The Present case is
filed by the plaintiff for the relief of permanent
injunction restraining the defendants from the
constructing a new building on the eastern side
of the property by encroaching upon the suit
property. The suit schedule property is a
Mangalore tiled house measuring 24.7 ft. East-
West and 83.6 ft. North-South with
Khaneshumari No.628/B, bounded on East:
Defendant's property; West: P. Abdul Ameer
Jan's house property, North: P. Abdul Gani
Sab's house property and South: Hamahalli-
Kumsi Pete Road. The contention of the plaintiff
is that there is a partition between the father of
the plaintiff and his uncles. The plaintiff had
purchased the property of his uncle through
agreement dt.20-8-1996 for valuable
consideration. The plaintiff has left 3 ft. each on
eastern side and back portion, i.e., oni. The
plaintiff has claimed two reliefs at a time.
According to the plaintiff, he has left 3 ft.
passage oni and at the same time he claims
easementary right. In order to prove the
easementary right there should be dominant
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and servient heritage. In this case, if the
plaintiff wants to claim easementary right, he
ought to have accepted the title of defendant
over the schedule property and his need to use
passage or he is using the property since time
immemorial. The plaintiff says that he
purchased the property and he left 3 ft.
passage. If at all he is the owner of the
property and left the passage there is no need
for him to claim easementary right. In this
case, if at all he wants to claim easementary
right, he has to seek for declaratory relief to
declare that he is having easementary right
over the property of the defendant. In this
case, the plaintiff is not definite about the right
over the schedule property. In this case, the
photographs show that there is existence of the
passage. However, even the plaintiff and his
witnesses have admitted about the existence of
oni, but the measurement they admit is 3 x.30
ft. The house of the defendant is 20 ft. in
length. In this case, D.W.1, who is the GPA
holder has admitted that there is 3 ft. width in
between his house and the house of the
plaintiff. He has stated that they have made
arrangements for construction of the toilet in
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the backyard without any licence. He also
stated that he is not going to put up
construction upto the wall of the plaintiff."
22. From the perusal of paragaraph-16 of the impugned
judgment, the First Appellate Court has recorded that the
plaintiff has claimed two reliefs at a time. According to the
plaintiff, he has left 3 feet passage/oni and at the same
time, he claims easementary right. In order to prove the
easementary right, there should be dominant and servient
heritage. If the plaintiff wants to claim easementary right,
he ought to have accepted the title of the defendant over
the suit schedule property and his need to use the passage
or he is using the property since time immemorial. The
plaintiff has purchased the property and left 3 feet
passage. On the basis of the agreement to sell, the
plaintiff is claiming to be the owner of the property owned
by Abdul Sattar Sab. Merely on the basis of the agreement
to sell, the plaintiff will not acquire any right or title over
the property as per the proviso to Section 54 of the
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Transfer of Property Act. If at all the plaintiff wants to
claim easementary right, he has to seek for relief of
declaration to declare that he is having easementary right
over the property of the defendant. The suit is filed for
bare injunction. Mere filing of suit for bare injunction
without seeking for a relief of declaration, the suit is not
maintainable. The First Appellate Court passed the
impugned judgment on the basis of the oral and
documentary evidence that the defendant is making an
attempt to put up a construction of toilet. The First
Appellate Court has already recorded the finding that the
plaintiff is not in possession of the suit schedule property.
When the plaintiff is not in possession of the suit schedule
property, the First Appellate Court could not have passed
the impugned judgment. The impugned judgment passed
by the First Appellate Court is arbitrary, erroneous and
contrary to the records produced by the parties.
23. Thus, in view of the above discussion, I answer
substantial question of law No.2 in the negative.
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24. In view of the aforesaid facts and circumstances, I
proceed to pass the following:
ORDER
a) The appeal is allowed.
b) The judgment and decree dated
12.12.2012 passed by the Prl.Senior Civil
Judge, Shimoga in R.A.No.51/2011, is set
aside.
c) The judgment and decree dated
18.03.2009 passed in O.S.No.160/2005 by the
II Addl. Civil Judge (Jr.Dn.) & JMFC, Shimoga,
is restored.
d) No order as to costs.
Sd/-
JUDGE
DM
