Karnataka High Court

Ameenuddin vs Hussainbee on 4 July, 2024

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                                                   NC: 2024:KHC-K:4609
                                                      RSA No. 200043 of 2019




                             IN THE HIGH COURT OF KARNATAKA
                                    KALABURAGI BENCH

                          DATED THIS THE 04TH DAY OF JULY, 2024

                                          BEFORE

                          THE HON'BLE Mrs JUSTICE K S HEMALEKHA

                       REGULAR SECOND APPEAL NO.200043 OF 2019
                                     (DEC/INJ)
                   BETWEEN:

                   AMEENUDDIN S/O LALSAB
                   AGED ABOUT 66 YEARS
                   OCC: SUPERVISOR IN SU-STORES
                   MALLAPPA SHAFT, HGM CO., LTD., HATTI
                   R/O. OPPOSITE TO OLD PANCHAYATH OFFICE,
                   HATTI VILLAGE, TQ:LINGASUGUR
                   DIST: RAICHUR-584101.
                                                                ...APPELLANT
                   (BY SRI A. M. NAGARAL, ADVOCATE)

                   AND:

                   HUSSAINBEE W/O RAJABAKSHI
                   AGED ABOUT 66 YEARS
Digitally signed
by SWETA           R/O. HATTI VILLAGE,
KULKARNI           TQ: LINGASUGUR
Location: HIGH     DIST: RAICHUR-584101.
COURT OF
KARNATAKA
                                                              ...RESPONDENT
                   (BY MISS. SUMAN SIDHAPURKAR, ADV. FOR
                       SRI R. S. SIDHAPURKAR, ADVOCATE)

                        THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
                   CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
                   DECREE DATED 2.11.2018 PASSED BY THE SENIOR CIVIL
                   JUDGE AND JMFC, AT LINGASUGUR, IN R.A. NO.13/2016 AND
                   CONFIRM THE JUDGMENT AND DECREE DATED 16.08.2016,
                   PASSED BYT EH ADDITIONAL CIVIL JUDGE, AT LINGASUGUR,
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                                    NC: 2024:KHC-K:4609
                                     RSA No. 200043 of 2019




IN O.S. NO.178/2009, BY ALLOWING THIS APPEAL AND
DISMISS THE SUIT OF THE PLAINTIFF AND ETC.
     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Assailing the correctness and legality of the judgment

and decree in RA No.13/2016 dated 02.11.2018 on the file

of the Senior Civil Judge and JMFC at Lingasugur,

reversing the judgment and decree dated 16.08.2016 in

O.S No.178/2009 on the file of the Addl. Civil Judge at

Lingasugur, the defendant is 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 for declaration to declare that the plaintiff

is the owner and possessor of the open plot bearing

panchayat No.4-23 (part of Old No.2-94) measuring 40 X

20 feet (herein after referred to as "suit property" for

short) situated at Hutti village, Lingasugur Taluk, District

Raichur and for injunction. The plaintiff also sought for

rectification of the entry in the revenue records, the claim

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of the plaintiff is that the suit property is the ancestral

property and she succeeded to the suit property after the

death of her husband Rajabhakshi.

4. It is stated that the common ancestor

Malaksab, was the owner and possessor of the open sites

bearing Nos.2-93 and 2-94 totally measuring 40 X 60 feet,

after his death, his four sons succeeded to the property

and the portion of the property bearing Nos.93 (4-19 and

4-20), was transferred in the name of Mehaboob Ali,

remaining property No.2-94 was divided between

Imamsab, Moulasab and Rajabhakshi, the sons of

Malakasab. It is stated that the property No.2-94 was

given new numbers as 4-21, 4-22 and 4-23, the husband

of the plaintiff was allotted 4-23. It is stated that the

defendant illegally got his name entered in the revenue

records, hence, the present suit.

5. On notice, the defendant appeared and filed his

written statement, inter alia, denying the plaint averments

contending that Moulasab and Imamsab were the owners

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in possession of the open plot No.3-21 measuring 40 X 30

feet about 30 years back and they sold the property to the

defendant by executing an unregistered sale deed on

19.11.1979. The defendant contended that he is in

possession of the suit property and his name appears in

the revenue records from past 30 years and sets up a plea

of adverse possession.

6. The Trial Court based on pleadings framed the

following issues.

1. "Whether the plaintiff proves that she is the owner in possession and enjoyment of the suit schedule property?

2. Whether the defendant proves that the suit open plot is measuring 40 feet East-West and 30 feet North- South?

3. Whether the defendant proves that he has been in peaceful open and continuous possession of the suit property for more than 12 years, since 19-11-1979 without any interruption by the true owners or anybody including plaintiff and as such he has perfected his title by adverse possession?

4. Whether defendant proves that the suit of the plaintiff is barred by limitation?

5. Whether the plaintiff is entitle to the relief of declaration, permanent injunction and rectification of records?

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6. What order or decree?"

7. In order to substantiate their claim, the plaintiff

examined herself as PW1, four witnesses as PW2 to PW5,

got marked documents at Ex.P1 to P5. On the other

hand, the defendant examined himself as DW1, one

witness as DW2, got marked documents at Ex.D1 to D4.

8. The Trial Court on the basis of pleadings, oral

and documentary evidence held that:

1. The plaintiff has failed to prove that she is the

owner in possession of the suit property.

2. The defendant failed to prove that the suit open

plot is measuring 40 feet East-West and 30 feet

North-South.

3. The defendant failed to prove his peaceful open

and continuous possession of the suit property

for more than 12 years since 19.11.1979.

By the judgment and decree, the Trial Court

dismissed the suit of the plaintiff.

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9. Aggrieved, the plaintiff preferred the appeal

before the First Appellate Court, the First Appellate, Court

while re-appreciating and reconsidering the entire oral and

documentary evidence, set aside the judgment and decree

of the Trial Court and decreed the suit of the plaintiff.

Aggrieved, the defendant is before this Court.

10. Heard Sri A. M. Nagaral, learned counsel for the

appellant and Ms. Suman Sidhapurkar, learned counsel for

Sri R. S. Sidhapurkar, learned counsel for the respondent.

11. Learned counsel for the appellant submits that

the plaintiff has not produced any documents to indicate

that the suit property was standing in her name or in the

name of her husband and the decreetal of the suit by the

first appellate Court for declaration is in the absence of

any title deed. The First Appellate Court has given an

erroneous finding, which, on the face of it, is

unsustainable. Learned counsel further submits that the

First Appellate Court committed an error in holding that

the defendant has not proved his title over the property by

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way of adverse possession and the judgment and decree

of the First Appellate Court suffer from perversity and

illegality warranting interference by this Court, and that

there arise substantial questions of law for consideration in

the present appeal.

12. Per contra, learned counsel for the respondent

justifies the judgment and decree of the First Appellate

Court and submits that the First Appellate Court has

rightly assessed the oral and documentary evidence and

arrived at a conclusion that the plaintiff is entitled for

declaration, she brings to the notice of this Court that

against the findings of the Trial Court on issue Nos.2 and

3, wherein, the Trial Court held that the defendant has

failed to prove that he has perfected his title by adverse

possession is not assailed by the defendant and the said

finding has attained finality.

13. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties

and perused the material on record.

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The family pedigree is as under:

14. Plaintiff is the wife of Rajabhakshi and

defendant claims under Moulasab, according to the

defendant, Moulasab executed an unregistered sale deed

in his favour on 19.11.1979. The plaintiff has approached

the Court seeking for declaration and injunction in respect

of the suit property, contending that suit property was

allotted to the share of her husband, originally the open

plot bearing Panchayat No.4-23 and non suit No.4-22 were

standing in the name of Lalbee, the daughter of deceased

Moulasab, plot No.4-24 stood in the name of Moulali, who

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is the son of the deceased Imamsab and brother of the

deceased husband of the plaintiff.

15. The evidence of PW4-Lalbee, daughter of

Moulasab-the brother of deceased husband of the plaintiff,

would indicate that the plaintiff is the owner and possessor

of plot No.4-23, the property being partitioned and the

property being allotted to the deceased husband have not

been disputed by the brothers of Rajabakshi.

16. PW5 is Moulali, who is the son of Imamsab-the

another brother of deceased husband of the plaintiff, he

also categorically stated about the division between the

brothers and the suit property being allotted to the

husband of the plaintiff Rajabakshi.

Nothing fruitful has come out in the cross-

examination of PW4 and PW5 to disbelieve the version of

the witnesses. On the other hand, the specific defence of

the defendant is that he has purchased the suit property

under an unregistered sale deed dated 19.11.1979 from

Moulasab and deceased Imamsab, according to the

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defendant, from date of purchase of the suit property, he

is in possession and he has perfected his title by way of

adverse possession.

17. The Trial Court, while answering issue No.3,

answered the said issue regarding the plea of adverse

possession against the defendant. The claim of the

defendant is on two counts, one under the unregistered

sale deed and also by taking a plea of adverse possession.

Under the unregistered sale deed he claims to be the

owner of the property and by taking a plea of adverse

possession, he admits the title of the plaintiff over the

property. The title and the plea of adverse possession are

contradictory to each other, in order to establish adverse

possession, the principles and essential ingredients that

are necessary are that:

(a) Possession must be open, clear, continuous and

hostile to the claim or possession of the other party.

(b) The essential ingredients must co-exist

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(i) nec vi i.e., adequate in continuity

(ii) nec clam l.e., adequate in publicity

(iii) nec precario adverse to a competitor, in

denial of title and knowledge, which means the adverse

possession is proved only when possession is peaceful,

open, continuous and hostile, and merely a long period of

possession, does not translate into a right of adverse

possession. Merely on the basis of denial of another's title

over the property for that would be violative of the basic

rights of the actual owner.

18. The Apex Court, in the case of Karnataka

Board of Wakf Vs. Government of India and others1,

has held that the principle of adverse possession is well

settled and the party claiming adverse possession must

prove that his possession is "nec vi, nec clam, nec

precario" i.e., peaceful, open and continuous. The

possession must be adequate in continuity, in publicity and

in the extent to show that their possession is adverse to

(2004) 10 SCC 779

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the true owner. It must start with a wrongful

dispossession of a right owner and be actual, visible,

exclusive, hostile and continued over the statutory period.

The defendant has set up their claim on basis of an

unregistered sale deed to claim title and also set up a plea

of adverse possession. The defendant did not state as to

when his possession becomes adverse to the knowledge of

the true owner, the claim of independent title and adverse

possession simultaneously on the same date cannot be

recognized and it would be taking a contradictory plea and

when a plea of adverse possession is projected, it is

inherent in the nature of it that someone else is the owner

of the property and thus, the pleas of title and adverse

possession are mutually inconsistent and the latter does

not begin to operate until the former in renounced.

19. The Apex in this regard has held in the case of

Narsamma and others Vs. A. Krishanappa (Dead)

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through Legal Representative2 at paragraph No.33 held

as under:

33. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."

(emphasis supplied)

20. The finding recorded by the Trial Court on issue

No.3 regarding the plea of adverse possession has been

un-assailed by the defendant. The First Appellate Court,

before whom the plaintiff had preferred the appeal against

the dismissal of suit for declaration, reassessed the entire

oral and documentary evidence and arrived at a conclusion

that the plaintiff is the absolute owner and possessor of

the suit property and restrained the defendant from

interfering into the peaceful possession of the plaintiff

perpetually, there is no perversity or illegality in the order

(2020) 15 SCC 218