Karnataka High Court
Smt. Zubaida Kom Mr. Gayasuddin Sayyed vs Smt Naziya Kom Mahammad Irfan Akrami ... on 1 March, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:4752
RSA No. 100070 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 01ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100070 OF 2024 (INJ)
BETWEEN:
1. SMT. ZUBAIDA
KOM. MR. GAYASUDDIN SAYYED
AGED ABOUT 64 YEARS,
OCC. HOUSEHOLD WORK
R/O, KARGADDE,
2ND CROSS, BHATKAL-TQ.
UTTARAKANNADA DIST. 580013.
2. SRI. ZAHIRUDDIN AKARAMI
BIN. MAHAMMAD HASAN AKRAMI
AGED ABOUT 60 YEARS,
OCC. PRIVATE WORK
R/O, NAWAYATH COLONI,
TANZIM ROAD, BHATKAL-TQ,
UTTARAKANNADA-DIST. 580013
Digitally 3. SRI. ARIFA AKARAMI
signed by BIN. MAHAMMAD HASAN AKRAMI.
SUJATA AGED ABOUT 58 YEARS.
SUBHASH
OCC. PRIVATE WORK.
PAMMAR
R/O, NAWAYATH COLONI.
Location: TANZIM ROAD, BHATKAL-TQ,
HIGH UTTARAKANNADA-DIST. 580013.
COURT OF
KARNATAKA 4. SRI. IBRAHIM AKARAMI.
BIN. MAHAMMAD HASAN AKRAMI.
AGED ABOUT 56 YEARS.
OCC. PRIVATE WORK
R/O, NAWAYATH COLONI.
TANZIM ROAD, BHATKAL-TQ,
UTTARAKANNADA-DIST. 580013
5. SMT. ZAKIYA
KOM. SADIQ DAMDA ABU.
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NC: 2024:KHC-D:4752
RSA No. 100070 of 2024
AGED ABOUT 52 YEARS,
OCC. HOUSEHOLD WORK.
R/O, NAWAYATH COLONI,
TANZIM ROAD, BHATKAL-TQ,
UTTARAKANNADA-DIST. 580013
6. SRI. AMIN AKARAMI
BIN. MAHAMMAD HASAN AKRAMI.
AGED ABOUT 51 YEARS,
OCC. PRIVATE WORK
R/O, NAWAYATH COLONI,
TANZIM ROAD, BHATKAL-TQ,
UTTARAKANNADA-DIST. 580013
7. SMT. SHAHISTA AKRAMI
BIN. MAHAMMAD HASAN AKRAMI.
AGED ABOUT 51 YEARS.
OCC. PRIVATE WORK.
R/O, NAWAYATH COLONI,
TANZIM ROAD, BHATKAL-TQ,
UTTARAKANNADA-DIST. 580013.
8. SRI. TAMIZUDDIN AKRAMI.
BIN. MAHAMMAD HASAN AKRAMI.
AGED ABOUT 61 YEARS.
OCC. HOUSEHOLD WORK.
R/O. NAWAYATH COLONI,
TANZIM ROAD, BHATKAL-TQ,
UTTARAKANNADA-DIST. 580013
...APPELLANTS
(BY SRI H R GUNDAPPA, ADVOCATE)
AND:
SMT. NAZIYA
KOM. MAHAMMAD IRFAN AKRAMI,
SINCE DEAD BY HER LRS.
1. SHADAB ANJUM
S/O. MAHAMMED IRFAN AKRAMI.
AGED ABOUT 44 YEARS,
OCC. BUSINESS
R/O BANDUR ROAD, 3RD CROSS,
BHATKAL, BHATKAL TQ.,
UTTARAKANNADA DIST.580013
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NC: 2024:KHC-D:4752
RSA No. 100070 of 2024
2. SHAGUPA
S/O. MAHAMMED IRFAN AKRAMI
AGED ABOUT 43 YEARS,
OCC. BUSINESS
R/O: BANDAR ROAD, 3RD CROSS,
BHATKAL, BHATKAL TQ.,
UTTARAKANNADA DIST.580013
3. MAHAMMAD ASIF
S/O. MAHAMMED IRFAN AKRAMI.
AGED ABOUT 41 YEARS,
OCC. BUSINESS.
R/O BANDAR ROAD, 3RD CROSS,
BHATKAL. BHATKAL TQ.,
UTTARAKANNADA DIST.580013
4. SHEZAD AAMMAD.
S/O. MAHAMMED IRFAN AKRAMI.
AGED ABOUT 44 YEARS.
OCC. BUSINESS.
R/O. BANDUR ROAD, 3RD CROSS,
BHATKAL. BHATKAL TQ.
UTTARAKANNADA DIST.580013
...RESPONDENTS
(BY SRI.S.G.KADADAKATTI, ADVOCATE FOR C/R4)
THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE
COURT AT BHATKAL, IN R.A.NO.01/2022, DATED 02.11.2023 BY
SETTING ASIDE THE JUDGMENT AND DECREE PASSED BY THE TRIAL
COURT IN O.S.NO.127/2014 DATED 09.11.2021 AND TO DISMISS
THE SUIT OF PLAINTIFFS AND TO ALLOW THIS REGULAR SECOND
APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100070 of 2024
JUDGMENT
This regular second appeal is filed by the defendants
challenging the judgment and decree dated 02.11.2023,
passed in R.A.No.1/2022, by the Senior Civil Judge, Bhatkal
(first appellate Court), which reversed the judgment and
decree dated 09.11.2021, passed in O.S.No.127/2014, by
the Prl. Civil Judge and JMFC, Bhatkal (trial Court).
2. For the purpose of convenience, the ranking of
the parties is referred to as per their status before the trial
Court.
3. The plaintiffs filed suit for seeking possession by
directing the defendants to vacate the suit premises. It is the
case of the plaintiffs that husband of plaintiff No.1 purchased
the suit property and after his death, the name of plaintiff
No.1 was entered in the revenue records. Thus, the plaintiffs
are owners of property. Since mother-in-law and father-in-
law of the plaintiff No.1 who are parents of the husband of
plaintiff No.1 were old aged, plaintiff No.1 allowed the
defendants to look after the parents of her husband. But the
defendants continued the possession of the suit property and
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did not vacate the premises. Further more, the other
relatives of the defendants have also occupied the suit
schedule property as licencee and after the licence is
terminated, the defendants have not vacated the premises.
Therefore the plaintiffs are constrained to file suit for
possession.
4. It is the case of the defendants that the husband
of defendant No.1 purchased the property but in the name of
husband of plaintiff No.1. Therefore the defendants have also
right and share in the suit schedule property. Therefore, put
forth their claim that they are also co-owners of the suit
property.
5. The trial Court has dismissed the suit of the
plaintiffs accepting the contention of the defendants on the
reason that the plaintiffs have not proved their title and also
licence is not proved.
6. Challenging the same, the plaintiffs have
preferred appeal before the first appellate Court and the first
appellate Court reversed the judgment and decree passed by
the trial Court on the reason that the defendants have failed
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to prove that their father has purchased the property.
Further assigned reason that after the death of the husband
of plaintiff No.1 neither parents of defendants nor the
defendants have claimed their share over the suit schedule
property. Therefore, if at all the defendants are having any
right or title over the property, their remedy lies by filing
separate suit but not claiming in the suit filed by the
plaintiffs for possession. Therefore, on these reasons the first
appellate Court set aside the judgment and decree passed by
the trial Court and decreed the suit of the plaintiff and
directed the defendants to vacate the suit schedule property.
7. Upon considering the evidence appreciated by the
trial Court as well as the first appellate Court and the
reasons given, though the defendants have contended that,
their father by name Hasan Bapa Saheb had purchased the
property, but the name of husband of plaintiff No.1 is shown
as per evidence produced. In this regard, suggestion is made
to PW2 in the course of cross-examination but the said
suggestion by said Hasan Bapa Saheb advancing loan for
purchase of property of Rs.50,000/- and just because said
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Hasan Bapa Saheb has given a sum of Rs.50,000/- as loan,
that does not mean that the said Hasan Bapa Saheb had
contributed his entire earning for purchase of property in the
name of husband of plaintiff No.1. This is revealed in the
course of cross-examination and this is rightly upheld by the
first appellate Court. The trial Court has committed error in
observing that plaintiffs have not proved title and the
defendants have not disputed title of the plaintiffs over the
suit schedule property.
8. It is the case of the defendants that they are also
co-owners along with plaintiffs. When this being the fact,
calling the plaintiffs to prove title is not warranted when
defendants have contended that they are also co-owners;
their remedy lies somewhere else by filing another suit but
not in this suit. After the death of husband of plaintiff No.1,
Hasan Bapa Saheb and his wife (parents) might have very
well claimed their right over the suit schedule property and if
at all Hasan Bapa Saheb had purchased property in the
name of elder son who is husband of plaintiff No.1, the
defendants could have claimed their right as co-owners over
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the suit property but not claimed. Therefore, the first
appellate Court is correct in decreeing the suit as it is found
that the property is in the name of husband of plaintiff No.1.
Whatever may be the contention of the defendants claiming
the title that can be made by other suit or by filing counter
claim in the instant suit but not on the relief claimed by the
plaintiffs. The defendants have also not filed any counter
claim. Therefore, the First Appellate Court is correct in
decreeing the suit directing the defendants to vacate and
handover possession. Therefore, there are no substantial
questions of law involved to consider the appeal. Hence, the
appeal is liable to be dismissed.
9. If at all the defendants are having claim over the
suit property, they are at liberty to pursue their claim in
other suit as observed by the First Appellate Court in
paragraph 42 but not in this appeal. Accordingly, I proceed
to pass the following:
ORDER
Regular Second Appeal is dismissed.
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The judgment and decree passed in R.A.No.1/2022,
dated 02.11.2023, by the Senior Civil Judge, Bhatkal, is
confirmed.
Sd/-
JUDGE
MRK-para 1 to 6.
KGK-para 7 to end.
CT:ANB
