Karnataka High Court
Smt Honnura Bi vs Khaji Sab on 7 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:45143
RSA No. 233 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 233 OF 2014 (INJ)
BETWEEN:
SMT. HONNURA BI
W/O LATE HONNUR SAB,
AGED ABOUT 60 YEARS,
R/O SHANTHI NAGAR,
NEAR NAGAMMA TEMPLE,
SHIVAMOGGA DISTRICT 577 201
...APPELLANT
(BY SRI. SANDESH T B., ADVOCATE)
AND:
KHAJI SAB
S/O HUSSEIN SAB
AGED ABOUT 50 YEARS,
R/O SHANTHI NAGAR,
NEAR MARAMMA TEMPLE,
SHIVAMOGGA DISTRICT 577 201
Digitally signed ...RESPONDENT
by ANUSHA V (RESPONDENT SERVED)
Location: High
Court Of THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
Karnataka JUDGEMENT & DECREE DATED 10.10.2013 PASSED IN
R.A.NO.95/2013 ON THE FILE OF THE I ADDL. SENIOR CIVIL
JUDGE & CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 22.2.2013
PASSED IN OS.NO.69/1999 ON THE FILE OF THE PRL. CIVIL
JUDGE & JMFC., SHIVAMOGGA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 233 of 2014
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
This Regular Second Appeal is filed challenging judgment
and decree dated 10.10.2013, passed by I Additional Senior
Civil Judge and C.J.M., Shivamogga, in R.A.no.95/2013 and
judgment and decree dated 22.02.2013 passed by Principal
Civil Judge and J.M.F.C. Shivamogga, in O.S.no.69/1999.
2. Brief facts giving rise to filing of this appeal are as
follows:
As stated appellant was plaintiff in O.S.no.69/1999 filed
against respondents/defendants for permanent injunction
restraining them from interfering with plaintiff's possession
over suit schedule property. In plaint, Mangalore tiled house
totally measuring 30ft. X 50ft. out of which plaintiff was
residing in 15ft. X 20ft., bearing Municipal Khata no.540,
situated at Shanthinagar near Maramma Temple, Shimoga city
was stated as 'suit property'.
3. Suit claim was based on assertion that plaintiff was
absolute owner of suit property along with her late husband
Honnur Sab and had constructed Mangalore tiled house in said
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property by investing huge amount. Thereafter, she filed
application and concerned Mandal Panchayat had mutated
revenue records in her name. It was stated that without any
right, title or interest in suit property, defendants being sub-
tenants under one Sanaullakhan to whom plaintiff had leased
two portions of Mangalore tiled house belonging to her and
adjacent to suit property. It was further stated that, when said
Sanaullakhan defaulted in payment of rent and plaintiff was
intended to take action against him for recovery of rent and for
eviction, said Sanaullakhan having got clue about same had
handed over possession to defendants without knowledge and
permission of plaintiff. It was stated that defendants were
claiming to take advantage and disturbed peaceful possession
and enjoyment of plaintiff. Though complaint was lodged
against defendants before Police, same had not stopped
interference. This gave rise to cause of action for filing suit.
4. On service of suit summons, defendant no.1 filed
Written Statement generally denying plaint averment and
specifically stating that house in which defendant was residing
since many years was constructed by him unauthorisedly.
Formerly, land belonged to Bedarahosahalli Grama Panchayat
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at Ragigudda extension. Along with other unauthorised
occupants, defendant had occupied vacant site and put up a
small shed and filed application before said Grama Panchayat
for regularization. Subsequently, defendant no.1 had upgraded
house with two portions and let out one portion to
Sanaullakhan. Subsequently, Sanaullakhan had vacated said
portion. Thereafter, it was leased to defendant no.2.
Subsequently, even defendant no.2 also vacated house. It was
stated that defendant had taken electricity connection and filed
an application before CMC, Shimoga and consideration of his
application for regularization of unauthorised occupation was in
progress. It was also stated that plaintiff had filed
HRC.no.29/2000 against Sanaullakhan and Basheer Sab.
Therefore, suit was untenable and sought for dismissal of suit.
5. Based on pleadings trial Court, framed following
issues:
i. Whether plaintiff proves that she is the owner of
suit property, as on the date of suit?
ii. Whether plaintiff further proves that Sanaullakhan
is her tenant of the suit property, as contended in
the plaint?
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iii. Whether plaintiff further proves that defendants
are sub-tenants of Sanaullakhan, who is her
tenant, as contended in the plaint?
iv. Whether plaintiff further proves the alleged
interference by the defendants, as contended in
the plaint?
v. What Order or Decree?"
6. To substantiate her claim, plaintiff examined herself
and two others as PWs.1 to 3 and got marked Exs.P1 to
Ex.P37. In rebuttal, defendant no.1 and two others were
examined as DWs.1 to 3 and got marked Exs.D1 to Ex.D4.
7. On consideration, Trial Court answered issues no.2 to
3 are not surviving for consideration, issue no.4 in negative and
issue no.5 as per final order and modified issue no.1 in
negative and dismissed suit.
8. Aggrieved by dismissal of suit plaintiff filed
RA.No.95/2013 on several contentions.
9. Based on contentions urged, First Appellate Court
framed following points for consideration:
i) Whether the plaintiff proves her possession over
the suit schedule property as on the date of the
suit and interference by the defendants?
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ii) Whether the judgment and decree passed by
the lower court calls for interference by this court?
iii) What order?"
10. On re-assessment of oral and documentary
evidence, it answered points no.1 and 2 in negative and point
no.3 as per final order and dismissed appeal. Aggrieved thereby
this appeal is filed.
11. Sri Sandesh T. B, learned counsel for appellant
submitted, trial Court had failed to take note of voluminous
material produced by plaintiff to substantiate her claim. It had
considered only material placed by defendants while dismissing
suit. It was submitted, first appellate Court without proper
appreciation, dismissed appeal. It was submitted that
measurement of suit property stated in schedule as '30 X 50' ft.
Trial Court had referred to Ex.P.37 - Hakku pathra issued by
Slum Development Board wherein extent of house with
Municipal Khata no.540 was stated to be measuring
25ft. X 11.05ft. It had drawn adverse interference against
plaintiff for failing to produce Hakku patra granted to her. It
also referred to admission by PW.1 in cross examination that
site measuring 20ft. X 30ft. were granted to her.
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12. Based on same, it held that there was discrepancy
in description, of suit property dis-entitling plaintiff to relief of
injunction. It was submitted that both Courts had failed to
mould relief at least to extent shown in Ex.P.37 i.e., 25 ft. X
11.05 ft.
13. It was submitted in above circumstances following
substantial questions of law would arise for consideration
i) Whether the Lower Court is right and justified in
dismissing the suit for plaintiff/appellant?
ii) Whether the Lower Appellate Court is right and
justified in dismissing the plaintiff's appeal by
confirming the judgment and decree passed by the
Trial Court?
iii) Whether both the Courts below are right and
justified in dismissing the plaintiff's suit for
injunction and allowing the defendant's contention
only on the basis of the suit schedule property is
not proper and correct?"
14. Heard learned counsel for appellant and perused
impugned judgment and decree. Respondent served,
unrepresented.
15. From above, it is seen present appeal is by plaintiff
against concurrent findings. Plaintiff had filed suit for
permanent injunction in respect of 'suit property' showing its
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measurement as 30ft. X 50ft., in which plaintiff claimed to be
residing in house measuring 15 ft. X 20 ft. in Municipal Khata
no.540 situated at Shanthinagar near Maramma temple,
Shivamogga City. He sought to substantiate his claim to suit
property on basis of deposition in HRC.no.29/2000 marked as
Ex.P.1 to Ex.P.4, certified copy of house lease agreement
marked as Ex.P.5, property tax particulars and tax paid
challans marked as Ex.P.21 and Ex.P.22, Certified copy of order
and decree in HRC.no.29/2000 marked as Ex.P.29, tax demand
register extraction for the year 1996-1997 marked as Ex.P.31
and Site Hakku patra dated 31.10.2012 marked as Ex.P.37.
16. While passing impugned judgment and decree, trial
Court had taken note of deposition of plaintiff - PW1. It
referred to cross-examination of PW.3, who stated that plaintiff
and her husband had unauthorisedly occupied suit property and
constructed a house thereon. Thereafter it referred to material
placed by defendants. Referring to Exs.D1 to 4, it noted that
same were in respect of suit property. It observed that
measurement of suit property in plaint was given as
30ft. X 50ft. with Municipal khata no.540, whereas documents
produced especially, Ex.P.37 was in respect of property
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measuring 25 ft. X 11.05 ft. width. It also observed that
Ex.P.21, 32, and 36 were showing name of plaintiff in respect
of property measuring 20ft. X 30 ft. situated at Shantinagar
which did not tally with measurements of suit property in
schedule. Based on same, it held plaintiff had failed to establish
right in respect of suit property and dismissed suit.
17. In appeal first appellate Court re-appreciated entire
material. It noted, in plaint plaintiff had stated that she was
absolute owner of Mangaluru tiled house measuring 32ft. X 30
ft. with khata no.540, but in schedule measurement of site was
given as 30ft. X 50ft. with measurement 15ft. X 20ft., which
did not tally with each other.
18. First appellate Court also found that Ex.P.37 issued
by Karnataka Slum Development Board, it was stated that
possession was delivered to plaintiff on 31.10.2012 i.e. 13
years after filing of suit and therefore, plaintiff could not claim
to be in possession of suit property as on date of suit.
19. It observed that Ex.P.37, conferred right in respect
of only 25ft. X 11.05 ft. there was grave inconsistency insofar
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as measurement of suit property. On said ground, it dismissed
appeal.
20. Though ground about perversity of finding is urged,
it is seen that both Courts have after detailed consideration of
material on record come to proper conclusion that there was
grave inconsistency insofar as measurement of suit property. It
is also seen that plaintiff claims defendants were sub-tenants of
his tenant Sanaullakhan and took action by filing HRC
no.29/2000, but said petition filed by petitioner against
Sanaullakhan and Basheer Sab is dismissed. This would also go
against plaintiff's right over suit property. In view of above, I
do not find any substantial question of law arising for
consideration in this appeal.
Consequently, appeal is dismissed.
Sd/-
(RAVI V HOSMANI)
JUDGE
PHM/Psg*
CT:SNN
