Karnataka High Court
Mahammadhanif S/O. Akbarsab ... vs Hanansab S/O. Mardansab Doddmani on 8 November, 2024
-1-
NC: 2024:KHC-D:16339
CRP No. 100062 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO. 100062 OF 2015
BETWEEN:
MAHAMMADHANIF
S/O. AKBARSAB CHITTEWALE,
AGE ABOUT 60 YEARS,
OCC: AGRICULTURIST,
R/O: SHUKRAWARPETH,
SAVANUR, TQ: SAVANUR.
...PETITIONER
(BY SRI. VISHWANATH S. BICHAGATTI, ADVOCATE)
AND:
HASANSAB
S/O. MARDANSAB DODDMANI,
SINCE DECEASED BY HIS LR'S.,
Digitally signed
by V N
BADIGER
Location: HIGH
1. SALEEMABI
VN COURT OF
KARNATAKA
W/O HASANSAB DODDAMANI,
BADIGER DHARWAD
AGE ABOUT 60 YEARS,
BENCH
Date:
2024.11.16 OCC: HOUSEHOLD WORK,
10:41:50 +0530
R/O: ZUMMA BAZAR, SAVANUR,
TQ: SAVANUR.
2. ABDULKHADAR
S/O. HASANSAB DODDAMANI,
AGE ABOUT 45 YEARS, OCC: COOLIE,
R/O: ZUMMA BAZAR, SAVANUR,
TQ: SAVANUR.
HAJARATSAB
S/O. IMAMSAB TAMBAKAWALE,
SINCE DECEASED BY HIS LRS
-2-
NC: 2024:KHC-D:16339
CRP No. 100062 of 2015
[KHUTEJABI @ NANNIBU
W/O. HAJARASAB TAMBAKAWALE
SINCE DECEASED BY HIS LRS.,]
3. JAINULLA
S/O. HAJARATSAB TAMBAKAWALE,
AGE ABOUT 47 YEARS, OCC: BUSINESS
R/O: SHUKRAWARPETH,
SAVANUR, TQ: SAVANUR,
DIST: HAVERI.
4. SHAMASHUNSA
D/O. HAJARATSAB TAMBAKWALE,
AGE: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SHUKRAWARPETH,
SAVANUR, TQ: SAVANUR,
DIST: HAVERI.
5. KHAJA
S/O. HAJARATSAB TAMBAKWALE,
AGE: 39 YEARS, OCC: BUSINESS,
R/O: ZUMMA BAZAR,
SAVANUR, TQ: SAVANUR,
DIST: HAVERI.
6. IMAMHUSSAIN @ MUNNA
S/O. HAJARATSAB TAMBAKWALE,
AGE: 25 YEARS, OCC: BUSINESS,
R/O: ZUMMA BAZAR,
SAVANUR, TQ: SAVANUR,
DIST: HAVERI.
7. FATIMABI
W/O. IRSHAD KILLEDAR,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: NEW NAGAR (HOSANAGAR),
RANEBENNUR, DIST: HAVERI.
8. SHARFUNBI
W/O. MUSTAK CHOPDAR,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: LALSHA KATTA,
SAVANUR, DIST: HAVERI.
-3-
NC: 2024:KHC-D:16339
CRP No. 100062 of 2015
9. KHATUNBI @ MUNNI
W/O. MUSTAK RANEBENNUR,
AGE: 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BETOOTA BEETI, PANAJI,
STATE: GOA.
10. MANSHEERA
D/O. HAJARATSAB TAMBAKWALE,
AGE: 30 YEARS,
OCC: HOUSEHOLD WORK,
R/O: ZUMMA BAZAR,
SAVANUR, TQ: SAVANUR,
DIST: HAVERI.
11. AMEENABI
D/O. HAJARATSAB TAMBAKWALE,
AGE: 27 YEARS,
OCC: HOUSEHOLD WORK,
R/O: ZUMMA BAZAR,
SAVANUR, TQ: SAVANUR,
DIST: HAVERI.
12. ISMAILSAB
S/O. JAFARSAB MOMIN,
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O. ZUMMA BAZAR,
SAVANUR, TQ: SAVANUR,
DIST: HAVERI.
...RESPONDENTS
(BY SRI. MAHESH WODEYAR, ADVOCATE FOR R2, R6 AND R13;
R4 TO R12-TREATED AS LR'S., OF DECEASED R3;
R4, R5 AND R7-NOTICE HELD SUFFICIENT,
R8 AND R9-SERVED;
R10, R11 AND R12-NOTICE HELD SUFFICIENT)
THIS CRP IS FILED UNDER SEC.115 OF CPC, AGAINST THE
ORDER DATED: 16.07.2015 PASSED IN EXECUTION CASE NO.4/2010
ON THE FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, SAVANUR, THE EXECUTION PETITION FILED BY THE
DECREE HOLDER IS HEREBY DISMISSED.
THIS PETITION IS COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
-4-
NC: 2024:KHC-D:16339
CRP No. 100062 of 2015
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the orders passed in EP No.4/2010 dated
16.07.2015 passed by the Civil Judge and JMFC., Savanur,
the decree holder is before this Court. The petitioner herein
is the decree holder. He has filed OS No.82/1996 seeking
declaration and possession that came to be allowed on
23.07.2005. The defendant had carried the matter in appeal
by filing RA No.77/2005 which came to be dismissed by
judgment and decree dated 07.09.2009. Thereafter, the
decree holder had filed EP No.4/2010 which came to be
dismissed on 16.07.2015. The reasons given by the trial
Court for dismissing the execution petition is that the sale
deed produced by the decree holder clearly reveals that the
decree holder had taken the possession of the suit property
or property mentioned in the sale deed on the date of it's
execution itself. It means the decree holder had obtained the
possession of the property mentioned in the sale deed on the
date of its execution.
NC: 2024:KHC-D:16339
2. Ex.P9 further reveals that the property No.131,
Ward No.3 and Block No.2 is totally measuring East-West:51
feet and North-South-45 feet, in this extent, East west-10
feet and North South-12 feet was the tailed house. On
perusal of the petition averments, it is not disclosing the
measurement shown in the Ex.P.9. The Court observes that
the measurement mentioned in the petition is not at all
matching with the measurement mentioned in the sale deed
or in Ex.P9. PW.1 had admitted in the cross examination that
he had purchased East-West: 27 feet and North-South-31
feet in the property No.131, except to this extent he had not
purchased any extent of property. The version of the PW.1
has not corroborated with the documentary evidence. The
PW.1 further admitted that he had obtained the power of
attorney from the plaintiff in OS No.82/1996 by giving
assurance to recover the possession of the property and on
the same strength or on the same manner, he had appeared
in RA No.77/2005. The recitals of the Ex.P9 clearly goes to
show that the decree holder had obtained the possession of
the property mentioned in the sale deed on the date of its
NC: 2024:KHC-D:16339
execution and also the measurement mentioned in the
petition is not at all matching to the extent mentioned in the
sale deed (Ex.P9). Hence, the Court comes to the conclusion
that he had not come to the Court with clean hands. The
petition averments, recitals of the sale deed and version of
the PW.1 in the cross examination is not similar. It is
relevant to note that the original plaintiff in OS No.82/1996
has given an affidavit that he has not executed any sale
deed in favour of the present decree holder. The said
affidavit is marked as exhibit in this case. In overall,
consideration, it appears that the decree holder has failed to
prove the point No.1 inspite of adducing oral and
documentary evidence and accordingly, dismissed the
petition.
3. The learned counsel appearing for the petitioner-
decree holder submits that in RA No.77/2015, the petitioner
is substituted in the place of the plaintiff as he purchased the
suit property. He submits that in the recitals of the said sale
deed, if it is mentioned that the possession is given, that
cannot be a ground for the Court to come to the conclusion
NC: 2024:KHC-D:16339
that the decree holder has come to the Court with un-
cleaned hands. By the time he purchased the property during
the pendency of the IA, the suit is filed for declaration and
recovery of possession that itself shows that possession is
not with the original plaintiff who had sold the property to
the revision petitioner-decree holder, who is substituted with
the plaintiff in RA No.77/2005. When two Courts have
concurrently held that the plaintiff is entitled for declaration
and recovery of possession, the Executing Court had not
made any efforts to see that decree is executed in favour of
the decree holder and Court considers an affidavit filed by
the original plaintiff that he has not executed any sale deed
in favour of the decree holder.
4. Learned counsel further submits that if at all, sale
deed is not executed by him he has ways and means to
approach the Court and that cannot be considered by the
Court in the execution petition. He had relied on the
judgment of the Division Bench of this Court in the case of
Jayasheela Venu and Ors Vs. A.J.F.D'Souza and Ors.1
Arises of RFA No.1225/2011(DEC/INJ)
NC: 2024:KHC-D:16339
He relied on paragraph Nos.23, 24 and 25 which reads as
follows:-
"23 The ratio laid down by the Privy Council
in the case of The Palestine Kupat Am Bank Co-
Operative Society Limited .vs. Government of
Palestine and others [AIR (35) 1948 Privy
Council 207] is squarely applicable to the
present case on hand and the precedent laid
down therein would also bind this Court. The
ratio laid down by the Privy Council in the said
case has become locus classics and even after
lapse of seven decades of its pronouncement,
the principles laid down in the said judgment
still holds the field and the ratio laid down has
been followed by several High Courts in the
cases relating to conflict between boundaries
and measurements.
24. When there is ambiguity in regard to
measurement and the fact that the controversy
is in respect of a plot, we are of the view that
the principle that description by boundaries
would prevail over all other descriptions has to
be made applicable to the present case on hand.
The Survey sketch of Site No.22/9 which has
corresponding CTS No.327 also indicates that
northern boundary of suit schedule site No.22/9
extends till 20 ft. road. When sanctioned
layout as per Ex.P2 is compared with Ex.P7-
survey sketch of five CTS properties and also
individual sketch of site No.22/9 as per Ex.P8,
there is no ambiguity insofar as boundaries are
concerned.
25. The learned Judge has totally fallen in
error while examining the sale deed executed in
favour of plaintiffs. The learned Judge has
proceeded to hold that the sale consideration
of Rs.1,13,100/- was only towards the extent
measuring 77 ft x 98 ft. The learned Judge was
of the view that the plaintiffs have purchased
only an extent measuring 77 ft. towards north-
south and they cannot claim right and title over
NC: 2024:KHC-D:16339
the remaining extent of 10 ft. which is the
suit schedule 'B' property and the same is
undisputed. The learned Judge has further
drawn adverse inference against the plaintiffs
for having not sought for rectification of the
sale deed in their favour as per Ex.P4. The
learned Judge has also erred in recording a
finding that plaintiffs admits the measurements
shown in the approved layout plan as per Ex.P2
and also the measurements shown in the sale
deed. Probably, it is on this line of adjudication,
we find that the learned Judge has totally
misdirected himself by applying wrong
standards of probabilities."
Relying on the above judgment, he submits that the
Court has failed to exercise its jurisdiction vested in it and
failed to consider the application on the merits of it and the
same is liable to be set aside.
5. Learned counsel appearing for the respondent-
judgment debtor submits that the Court had rightly dismissed
the execution petition. He submits that the decree holder has
purchased the property from the original-plaintiff. He should
have impleaded the original plaintiff and for non-joinder of the
necessary party, on the first ground the execution petition is
rightly dismissed. He submits that when the boundary in the
sale deed and the version of the decree holder is not tallying,
the Court had exercised its discretion and as decree is not
- 10 -
NC: 2024:KHC-D:16339
executable had rightly dismissed the petition. Learned counsel
submits that this Court while exercising the jurisdiction under
Section 115 of Cr.P.C., if two views are possible on that ground
this Court cannot interfere with the order passed by the trial
Court and the Court cannot assume the role of the Appellate
Court. He had relied on the judgment of the Hon'ble Apex Court
in the case of Sri.D.Sasi Kumar Vs. Soundararajan2 relied
on paragraph No.8, which reads as follows:-
"8. At the outset it is to be taken note that the
civil revision petition before the High Court is not to
be considered as in the nature of an appeal. The
scope of consideration is only to take note as to
whether there is any perversity in the satisfaction
recorded by the original Court, namely, the Rent
Controller and in that light as to whether the
appellate authority under the statute has
considered the aspect in the background of the
evidence to arrive at the conclusion to its
satisfaction. The reappreciation of the evidence in
the civil revision petition to indicate that another
view is possible would not arise. To that extent, a
perusal of the impugned order indicates that the
High Court in fact has proceeded as if the entire
evidence required reappreciation by it. In that
background, what is necessary to be taken note at
this juncture is as to whether the Rent Controller
has considered the matter in its correct perspective
by satisfying himself of the bona fide claim, as
required under Section 10(3)(e) of the 1960 Act
and the hardship, if any, to the tenant as
contemplated under the proviso thereto."
(2019) 9 SCC 282
- 11 -
NC: 2024:KHC-D:16339
6. He has also relied on another judgment of Hon'ble
Apex Court in the case of Varadarajan Vs. Kanakavalli and
others3 relied on paragraph No.15, which reads as follows:-
" 15. In addition to the nature of proceedings to
implead the legal representative to execute the
decree, we find that none of the tests laid down in
Section 115 of the Code were satisfied by the High
Court so as to set aside the order passed by the
executing court. The High Court in exercise of
revision jurisdiction has interfered with the order
passed by the executing court as if it was acting as
the first court of appeal. An order passed by a
subordinate court can be interfered with only if it
exercises its jurisdiction, not vested in it by law or
has failed to exercise its jurisdiction so vested or
has acted in exercise of jurisdiction illegally or with
material irregularity. The mere fact that the High
Court had a different view on the same facts would
not confer jurisdiction to interfere with an order
passed by the executing court. Consequently, the
order passed by the High Court is set aside and that
of the executing court is restored. The appeal is
allowed."
Relying on the above judgments, learned counsel submits
that the Executing Court has passed an order exercising
jurisdiction vested in it and this Court exercising the jurisdiction
under Section 115 of Cr.P.C. cannot interfere with the well
considered order passed by the Executing Court.
(2020) 11 SCC 598
- 12 -
NC: 2024:KHC-D:16339
7. Having heard the learned counsel on either side,
perused the entire material on record.
8. The original plaintiff had field OS No.82/1996
seeking declaration and possession that came to be decreed on
23.07.2005. Thereafter, the decree holder had purchased the
property by way of registered sale deed. He was substituted in
the place of the plaintiff of RA No.77/2005. In that, appeal filed
by the defendant came to be dismissed on 07.09.2009. At any
point of time, the defendants/judgment debtors have not taken
any plea with regard to the discrepancies in suit schedule
property and that the measurements are not tallying and in
that regard no issue is also framed by the Courts. Two Courts
have concurrently held that the plaintiff/decree holder is
entitled for declaration and also for recovery of possession. The
Executing Court shall make all its endeavour to see that the
decree is made into a reality. In this case, the Court observes
that in the sale deed that is obtained by the decree holder
during the pendency of the RA contains that 'possession is
delivered' as such he has come to Court with un-cleaned hands.
When the suit itself is filed for declaration and recovery of
- 13 -
NC: 2024:KHC-D:16339
possession and the decree holder purchased the property
during the pendency of the suit, the Court cannot draw such an
inference that when already he is in possession of the property,
question of recovery of possession does not arise. When there
is judgment and decree in favour of the petitioner declaring his
right and for recovery of possession, the Executing Court
cannot go into these kind of issues and reject the petition. The
Courts have also considered the affidavit filed by the original
plaintiff that he has not executed the sale deed. Even that
aspect is also beyond the scope of jurisdiction of the Executing
Court. If the original plaintiff has not executed the sale deed, it
is for him to take appropriate steps and file an appropriate
application in that regard admittedly, no such efforts were
made by the original plaintiff. So, all those things are not
germane for consideration for the Executing Court while
deciding the application. The Executing Courts at all times shall
make an endeavour that the decree is executed in its true letter
and spirit. If there is any dispute with regard to identity of the
property, the Court can take appropriate steps.
9. Then coming to the submission of the learned
counsel for the respondents that this Court while exercising the
- 14 -
NC: 2024:KHC-D:16339
jurisdiction under Section 115 Cr.P.C., the scope of
consideration is only to see, if there is perversity in the
satisfaction recorded by the Executing Court and re-
appreciation of the evidence in the revision to indicate that
another view is possible would not arise as laid down by the
Hon'ble Apex Court in the case of Sasi kumar referred supra.
10. In the other judgment of Hon'ble Apex Court in the
Case of Varadarajan referred supra has observed that an
order passed by the subordinate Court can be interfered only if
it exercises its jurisdiction not vested in it by law or failed to
exercise jurisdiction or has opted to exercise the jurisdiction
legally or with material irregularity that is the broad scope of
Section 115 of Cr.P.C., where the powers of the High Court has
to be exercised. There is no dispute about settled law that is
powers of the High Court while exercising the revisional
jurisdiction. In this case, the Court had failed to exercise the
jurisdiction vested in it and also has gone into certain issues
which are not within the scope of the Executing Court. Under
these circumstances, this Court feels that this is a fit case to
exercise jurisdiction under Section 115 of Cr.P.C. Hence, the
Court is passing the following :
- 15 -
NC: 2024:KHC-D:16339
ORDER
1) Order passed in Ex. Case No.4/2010 dated
16.07.2015 by the Civil Judge and JMFC., Savanur is
set aside and the matter is remanded back to the
Executing Court.
2) Executing Court shall hear the petition afresh
and in that process, if any other steps are required to
be taken for identification of the property, the decree
holder is at liberty to file an appropriate application.
3) Executing Court shall hear and pass
appropriate orders in accordance with law within a
period of six months from the date of receipt of copy
of this order.
Sd/-
JUSTICE LALITHA KANNEGANTI
HMB
CT:BCK
