Karnataka High Court

Safia Waheed W/O M.A. Waheed vs Shivasharanappa And Ors on 10 June, 2024

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                                                 NC: 2024:KHC-K:3734
                                                   RSA No. 200125 of 2020




                            IN THE HIGH COURT OF KARNATAKA
                                   KALABURAGI BENCH

                         DATED THIS THE 10TH DAY OF JUNE, 2024

                                        BEFORE

                        THE HON'BLE Mrs JUSTICE K S HEMALEKHA

                      REGULAR SECOND APPEAL NO.200125 OF 2020

                                       (DEC/INJ)

                 BETWEEN:

                 SAFIA WAHEED W/O M.A. WAHEED,
                 AGE: 65 YEARS,
                 OCC: HOUSEHOLD & PRIVATE SERVICE,
                 R/O: NEELAM NAGAR,
                 MULUND (EAST) MUMBAI-81,
                 AT PRESENT R/O: OLD JEWARGI ROAD,
                 KALABURAGI.

                                                             ...APPELLLANT
                 (BY SRI RAMCHANDRA K., ADVOCATE)

Digitally
                 AND:
signed by
SUMITRA
SHERIGAR         1.   SHIVASHARANAPPA,
Location: High        S/O MAHALINGAPPA MUKI,
Court of
Karnataka             AGE: 79 YEARS,
                      OCC: RETD. KSRTC EMPLOYEE,
                      R/O: KONDED GALLI, BRAMHAPUR,
                      KALABURAGI-585 103.

                 2.   SMT. SHAKUNTALABAI,
                      W/O HANAMANTHRAYA HAWANI,
                      AGE: 59 YEARS,
                      OCC: HOUSEHOLD,
                      R/O: KONDED GALLI, BRAMHAPUR,
                      KALABURAGI-585 103.
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                                     NC: 2024:KHC-K:3734
                                      RSA No. 200125 of 2020




3.    PRABHU GOUDA S/O MAHANTGOUDA PATIL,
      AGE: 44 YEARS, OCC: LEGAL PRACTITIONER,
      R/O: PLOT NO.1, GANESH NAGAR,
      OLD JEWARGI ROAD,
      KALABURAGI-585 103.


                                              ...RESPONDENTS
(BY SRI H. M. PATEL, ADV. FOR R3;
 NOTICE TO R1 AND R2-SERVED)

       THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO a)
CALL FOR RECORDS AND ALLOW THE REGULAR SECOND
APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
PASSED BY THE I ADDL. SENIOR CIVIL JUDGE KALABURAGI IN
R.A. NO.72/2017 DATED 21.10.2019 AND ALSO JUDGMENT
AND    DECREE   PASSED   BY    THE   II   ADDL.   CIVIL   JUDGE
KALABURAGI IN O.S. NO.643/2011 DATED 26.08.2017 AND
FURTHER THE APPELLANT HUMBLE PRAYS THAT THE HON'BLE
HIGH COURT BE PLEASED TO DECREE THE SUIT OF THE
PLAINTIFF WITH COST THROUGHOUT IN THE INTEREST OF
JUSTICE. b) THE APPELLANT FURTHER PRAYS THAT THE
MATTER MAY KINDLY BE REMANDED TO THE TRIAL COURT
WITH DIRECTION TO FRAME PROPER AND NECESSARY ISSUES
AND DISPOSE OF THE CASE ON MERITS. c) PASS ANY OTHER
ORDERS AS THE HON'BLE HIGH COURT DEEMS FIT UNDER THE
FACTS AND CIRCUMSTANCE OF THE CASE.


       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                       NC: 2024:KHC-K:3734
                                        RSA No. 200125 of 2020




                          JUDGMENT

The concurrent findings of fact has been assailed by

the plaintiff in the present second appeal, whereby, the

suit for relief of declaration and consequential relief of

permanent injunction was dismissed by the Courts below.

2. The parties herein are referred to as per the

ranking before the Trial Court for the sake of convenience.

3. Suit for relief of declaration that she was the

absolute owner in possession of suit schedule property

open Plot No.101 measuring 40 X 60 feets situated in land

Sy.No.84/1 of Jayalaxmi Nagar, Bramhapur, Jewargi Road,

Kalaburagi (herein after referred to as "suit property" for

short) and to declare that the sale deed executed by

defendant No.1 in favour of defendant No.2 dated

16.04.2002 is illegal and not binding on the plaintiff and to

declare that the sale deed executed defendant No.2 in

favour of defendant No.3 dated 14.03.2007 is illegal and

not binding on the plaintiff and for permanent injunction

NC: 2024:KHC-K:3734

restraining the defendants from interfere with peaceful

possession and enjoyment over the suit property.

4. The plaintiff contended that the suit property

has been allotted to plaintiff by society as per the

allotment certificate dated 29.04.1985 and plaintiff is in

possession and enjoyment of the suit property as absolute

owner from the date of allotment.

5. Pursuant to the suit summons issued by the

Trial Court, defendant No.1 appeared and filed written

statement interalia contending that the allotment

certificate stated by the plaintiff dated 29.04.1985 is illegal

and invalid document. The defendants contended that

defendant No.1 has executed the sale deed in favour of

defendant No.2 and defendant No.2 inturn has sold the

suit property in favour of defendant No.3 and defendant

No.3 is in possession of the suit property, that the suit of

the plaintiff seeking declaration is without any valid

document.

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6. The Trial Court on the basis of the pleadings

framed the following issues:

1. Whether the plaintiff proves that he is the absolute owner and in possession of the suit schedule property as on the date of filing the suit?

2. If so, whether the plaintiff proves that the society in which the suit schedule property has been allotted to the plaintiff is registered one?

3. Whether the plaintiff proves that the sale deed executed by the defendant No.1 in favour of the defendant No.2 and the defendant No.2 in turn to defendant No.3 is not valid in eyes of law and binding on plaintiff?

4. Whether the plaintiff proves that the defendant No.3 has no manner of right title and interest over the suit schedule property?

5. Whether the plaintiff proves the alleged interference by the defendant No.3?

6. Whether the Court fee paid by the plaintiff is correct and sufficient and in accordance with the provisions of Karnataka Court fees and Suit Valuation Act? (Treats as Preliminary issue Vide Order Dated:

03.10.2013)?

7. Whether the plaintiff is entitled for the relief of declaration to declare that he is the absolute owner of the suit schedule property?

8. Whether the plaintiff proves is entitled for the relief of perpetual Injunction?

9. If so, what order or decree?

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ADDITIONAL ISSUES:

1. "Whether the defendant No.3 proves that this Court has preliminary jurisdiction to try suit?"

7. In order to substantiate their claim the plaintiff

examined herself as PW1 and got marked document at

Ex.P1 to Ex.P7. 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

absolute owner in possession of the suit property

as on the date of the filing of the suit.

2. That the plaintiff has failed to prove that the suit

property has been allotted to the plaintiff by way

of any allotment.

8. By judgment and decree the Trial Court

dismissed the suit of the plaintiff for declaration and

injunction. Aggrieved the plaintiff preferred appeal before

the First Appellate Court.

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9. The First Appellate Court while re-appreciating

the entire oral and documentary evidence concurred with

judgment and decree of the Trial Court. Aggrieved the

plaintiff is before this Court.

10. Heard Sri Ramchandra K., learned counsel for

the appellant and Sri H. M. Patel, learned counsel for the

respondents.

11. Plaintiff's claim for declaration is on the ground

that the society has issued allotment certificate on

29.04.1985. Before the Trial Court, plaintiff examined

herself as PW1 and got marked documents at Ex.P1 to

Ex.P7, Ex.P1 is special power of attorney executed by PW1

to one A.P. Vijay, Ex.P2 and Ex.P3 are the certified copies

of Sale Deeds executed by defendant No.1 in favour of

defendant No.2 and defendant No.2 in favour defendant

No.3. Ex.P4 is the legal notice issued by the plaintiff and

Ex.P5 to Ex.P7 are the postal acknowledgement, other

than Ex.P1 to Ex.P7 no documents are placed by the

plaintiff to establish her right over the suit property.

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12. The grant of allotment by the society on

29.04.1985 as contended by the plaintiff based on which

the declaration is sought, the plaintiff has failed to produce

the title deed, when the plaintiff approaches the Court

seeking for declaration of title, which should be evidenced

by a title deed, which is registered, for the plaintiff to be

entitled for declaration.

13. On the other hand defendant examined himself

as DW1 and marked documents at Ex.D1 to Ex.D10.

Ex.D1 and Ex.D2 are the original Sale Deed, Es.D3 to

Ex.D8 are record of rights pertaining to the suit property

indicating the name of respondent No.1 as owner,

possessor and in cultivator column, Ex.D9 is the Nil

encumbrance certificate and Ex.D10 is the N.A order

passed by the Deputy commissioner. The burden was on

the plaintiff to prove her title over the suit property by

providing cogent, oral and documentary evidence. The

declaration relief under Section 34 of the Specific Relief

Act 1963 (herein after referred to as "the Act" for short),

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is in the nature of equitable relief for granting of an

already existing right which has been denied by the other

parties. Section 34 of the Act contemplates certain

conditions which are to be fulfilled by plaintiff. In order to

obtain the relief of declaration the plaintiff must establish

that:

1. The plaintiff was at the time of the suit entitled

to any legal character.

2. The defendant had denied or was interested in

denying the character or the title of the plaintiff.

3. The declaration asked for was a declaration that

the plaintiff was entitled to a legal character or to a right

to properties.

14. The Trial Court before whom evidence and

documents were marked rightly arrived at a conclusion

that plaintiff has failed to prove her ownership over the

suit property.

15. The First appellate Court being the last fact

finding Court while re-appreciating the entire oral and

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NC: 2024:KHC-K:3734

documentary evidence has rightly arrived at a conclusion

that in the absence of any title deed, more particularly the

grant of allotment in favour of the plaintiff, the Trial Court

was justified in the dismissing the suit. The manner in

which the Courts below have considered the entire oral

and documentary evidence, this Court of the considered

view that the same does not warrant any interference on

concurrent findings of fact under Section 100 of C.P.C.

Accordingly, this Court pass the following: