Karnataka High Court
Farooq Ahamed And Ors vs The State Of Karnataka And Ors on 3 July, 2024
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RSA No. 200370 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200370 OF 2019
(DEC/INJ)
BETWEEN:
1. FAROOQ AHAMED
S/O MOHD. IBRAHIM SAB KADKU,
AGED: 63 YEARS,
OCC: AGRICULTURE BUSINESS.
2. MOHD. AKBAR SAB
S/O MAHD. IBRAHIM KADKU,
AGED : 61 YEARS, OCC: AGRICULTURE.
ALL ARE R/O. TIMMAPUR,
TQ: SHORAPUR,
Digitally signed
by SWETA DIST: YADGIRI-58532.
KULKARNI
Location: HIGH
COURT OF
KARNATAKA
...APPELLANTS
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH DEPUTY COMMISSIONER,
KALABURAGI.
2. THE SR. ASST. DIRECTOR
OF HORTICULTURE
Z.P. KALABURAGI.
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RSA No. 200370 of 2019
3. THE EXTENSION OFFICER,
INDUSTRIES & COMMERCE,
Z.P. KALABURAGI.
4. THE EXECUTIVE OFFICER (EO),
T.P SHORAPUR THROUGH HIM,
THE HARIJAN BOY'S & GENERAL
II HOSTEL, SHORAPUR.
5. THE ASST. DIRECTOR OF
SERICULTURE, JEWARGI,
DIST: KALABURAGI.
6. THE TAHASHILDAR SHORAPUR,
DIST: YADGIR.
7. THE CHIEF OFFICER,
TMC SHORAPUR ,
DIST: YADGIR.
8. ABU SHAM
S/O ABDUL SALEEM SAB KADKAR,
SINCE DECEASED BY LR'S.
a) JUKRUNNISA BEGUM
W/O LATE ABU SHAM,
AGE: 46 YEARS,
OCC: HOUSEHOLD AFFAIRS,
b) ATAUL KAREEM
S/O LATE ABU SHAM,
AGE: 26 YEARS, OCC: AGRICULTURE.
c) SHAHAJAD ATAUD
S/O LATE ABU SHAM,
AGE: 22 YEARS, OCC: AGRICULTURE.
d) MEHERUNNISA BEGUM
D/O LATE ABU SHAM,
AGE: 20 YEARS, OCC: HOUSE HOLD AFFAIRS.
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RSA No. 200370 of 2019
e) MAHEMOODA BEGUM
D/O LATE ABU SHAM,
AGE: 19 YEARS, OC: HOUSEHOLD AFFAIRS.
f) MOHAMMED DANISH
S/O LATE ABUSHAMA
AGE: 13 YEARS, MINOR.
g) ADIL AHEMED
S/O LATE ABUSHAMA,
AGE: 9 YEARS, MINORS,
BOTH MINORS U/G OF THEIR NATURAL MOTHER
JUKRUNNISA BEGUM
W/O LATE ABUSHAMA,
ALL ARE R/O. TIMMAPUR,
TQ. SHORAPUR, DIST: YADAGIRI.
...RESPONDENTS
(BY SRI RAJKUMAR A. KORWAR, HCGP FOR R1 TO R7)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
CALL FOR THE RECORDS AND SET-ASIDE THE JUDGMENT AND
DECREE DATED 15.12.2018 BY THE COURT ADDL. CIVIL JUDGE
AND JMFC AT SHORAPUR PASSED IN O.S. NO.70/2008
CONFIRMING THE DATED JUDGMENT AND DECREE DATED
11.09.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC
AT SHORAPUR IN R. A. NO.21/2019 AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200370 of 2019
JUDGMENT
Against the concurrent findings of facts recorded by
the Courts below, plaintiff Nos.1 and 2 are before this
Court in the regular second appeal.
2. Parties herein are referred to as per the rank
before the Trial Court for the sake of convenience.
3. Suit seeking for relief of declaration, possession
and mandatory injunction with the prayer to declare that
the plaintiffs are the owners and possessor of the lands
bearing Sy.No.11/A measuring 4 acres 1 gunta out of 5
acres 1 gunta, Sy.No.11/Aa measuring 2 acres out of 2
acres 20 guntas and Sy.No.11/E measuring 2 acres 6
guntas out of 2 acres 20 guntas situated at Hasanapur
village (hereinafter referred as "suit properties" for
short), for possession and for mandatory injunction
directing defendant Nos.1 to 7 to demolish the
constructions made thereon.
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4. On notice, defendants appeared and filed their
written statement, defendant Nos.6 and 7 filed separate
written statements, defendant Nos.1 to 5 adopted the
written statement filed by defendant No.6 by filing a
memo.
5. Defendant No.6 inter alia contended that the
Sericulture Department has constructed a chawki rearing
center of size 30 x 40 in the site measuring 100 x 100 in
land Sy. No.11/A situated at Hasanpur village being the
land gifted by one Sri Pradhanappa s/o Danappa vide gift
deed dated 06.09.1983. Defendant No.6 denied about
the Sericulture Department encroached upon the
plaintiff's land to the extent of 9 guntas in Sy. No.187/2
and about any encroachment in the suit property.
6. Defendant No.10 inter alia denied the
averments in the plaint. Subsequently, defendant Nos.8
to 10 was deleted based on the memo filed by the
plaintiff.
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7. The Trial Court on basis of the pleading framed
the following issues:
1. "Whether the plaintiffs prove that they are the
absolute owners of the suit schedule property?
2. Whether the plaintiffs further prove that the
defendants illegally encroached suit schedule
properties and put up construction?
3. Whether the suit is barred by time?
4. Whether the plaintiffs are entitled for the relief of
declaration and injunction?
5. What order or decree?"
8. In order to substantiate their claim, plaintiff
No.2 examined himself as PW1, got marked documents at
Ex.P1 to P9. On the other hand, defendants did not led
any evidence.
9. The Trial Court on the basis of pleading, oral
and documentary evidence held that:
1. The plaintiffs failed to prove that they are the
absolute owner of the suit properties.
2. That the plaintiffs failed to prove that the
defendants illegally encroached the suit
properties and put up construction,
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By the judgment and decree the Trial Court
dismissed the suit of the plaintiffs.
10. Aggrieved, the plaintiffs preferred appeal
before the First Appellate Court, the First Appellate Court
while re-appreciating and reconsidering the entire oral
and documentary evidence concurred with the judgment
and decree of the Trial Court. Aggrieved, the plaintiffs are
before this Court in the regular second appeal.
11. Heard Sri Liyaqat Gareed Ustad, learned
counsel for the appellants and Sri Rajkumar Korwar,
learned HCGP for respondent Nos.1 to 7 and perused the
judgment and decree of the Courts below.
12. Suit is for relief of declaration, recovery of
possession and mandatory injunction in respect of the suit
properties, the specific case of the plaintiffs is that there
is an encroachment made by the defendants by putting up
buildings, PW1 categorically admitted in his cross-
examination that the defendants have constructed
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compound wall for the buildings about 25 years back. The
burden was on the plaintiff to prove that he is the
absolute owner in possession of the suit property and
there is an illegal construction put up in the suit property.
Ex.P1 to Ex.P9 are the revenue records in respect of the
suit properties, which stands in the name of the plaintiffs.
13. The entry of the name of the plaintiffs in the
revenue records is not based on title deed, according to
the plaintiffs, the suit properties are inherited from his
father, in order to indicate that there was an inheritance
of the suit properties from his father no materials are
forthcoming, the documentary evidence produced by the
plaintiffs is in respect of entry made in his name. The
averments in the plaint and the evidence are silent as to
the acquisition of title to the suit properties by the
plaintiffs. Based on revenue records indicating the name
of the plaintiffs is not sufficient to entitle the plaintiffs for
declaration, as the revenue records does not confer any
right, title to the parties.
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14. The plaintiffs having not produced any title
documents to establish their right over the suit properties,
the plaintiffs are not entitled for declaration, the oral and
documentary evidence tendered by the plaintiffs even
does not establish that there was an encroachment in the
suit properties. When the plaintiffs have failed to prove
his declaration, the question of encroachment by the
defendants would not arise and merely because the
defendants have stated in their written statement that
they are in possession of certain portion of the suit
properties does not indicate that the plaintiffs are the
owners of the remaining portion as contended by the
plaintiffs.
15. The plaintiffs have failed to establish his title
over the suit properties and the alleged encroachment,
the Trial Court considering the oral and documentary
evidence has held that the plaintiffs have not produced
any title document to establish their title over the suit
properties.
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16. The First Appellate Court being the last fact
finding Court re-appreciated and reconsidered the entire
oral and documentary evidence and arrived at a
conclusion that the plaintiffs claim their ownership over
the suit properties on basis of inheritance but they have
not produced any documents to show that the father had
acquired the suit properties and before him his
grandfather, in the absence of the same, the plaintiffs are
not entitled for declaration and for mandatory injunction.
The defendants have constructed buildings over the suit
property since more than 25 years as admitted by P.W.1
himself. The plaintiff has kept silent and not asserted his
right, the cause of action shown in the plaint is 1997,
when illegal construction was made, according P.W.1
himself much prior, i.e., nearly 25 years. The recovery of
possession is also barred by limitation, the Trial Court and
the First Appellate Court dismissed the suit of the plaintiff
on the ground of limitation as well. The manner in which
the courts below have assessed the entire oral and
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documentary evidence, this Court is of the considered
view that the same does not warrant any interference, no
substantial question of law arises for consideration under
Section 100 CPC, accordingly, this Court pass the
following:
ORDER
I. The regular second appeal is hereby dismissed.
II. The judgment and decree of the Courts below
stands confirmed.
Sd/-
JUDGE
AT
