Karnataka High Court
Anjuman Islam Society vs Vinodamma W/O Naganagouda Patel on 16 October, 2024
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RSA No. 100688 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 100688 OF 2017 (DEC/INJ)
BETWEEN:
1. ANJUMAN ISLAM SOCIETY
RAMTHIRTH, TQ: HIREKERUR,
REPRESENTED BY ITS PRESIDENT
BASHASAB S/O ISMAILSAB SHIKARIPUR,
AGE: 75 YEARS, OCC. MASON,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
2. ISSAKASAB S/O. MADAR KHAN BADAGAI
AGE:57 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
Location: HIGH
COURT OF
3. AHAMDSAB S/O. IMAMSAB RATTIHALLI,
KARNATAKA
DHARWAD BENCH AGE: 54 YEARS,OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
4. AJHAM KHAN S/O. NAVAB KHAN BADAGI,
AGE: 46 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
5. MOULASAB S/O. AJEEJ SAB RATTIHALLI,
AGE: 61 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
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RSA No. 100688 of 2017
6. JAMALSAB S/O. NANNESAB JAMKHANE,
AGE: 76 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
7. BASEERSAB S/O. NANNESAB DURGAD,
AGE: 76 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
8. RAJAKASAB S/O. AJEJSAB RATTIHALLI,
AGE: 71 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
...APPELLANTS
(BY SRI. N P VIVEKMEHTA, ADVOCATE)
AND:
1. VINODAMMA W/O. NAGANAGOUDA PATEL,
AGE: 67 YEARS, OCC. HOUSEHOLD WORK,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
2. MEENAKSHI D/O. NAGANAGOUDA PATEL,
AGE: 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. RAMATHIRTH VILLAGE,
TQ. HIREKERUR, DIST. HAVERI-581111.
3. SUNEETHA W/O. NATRAJ
AGE: 32 YEARS, OCC. HOUSEHOLD WORK,
R/O. KHADARNAYAKANAHALLI,
TQ. HARIHAR, DIST. DAVANAGERE-577601.
4. BASANAGOUDA S/O. NAGANAGOUDA PATEL,
AGE: 53 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE, TQ. HIREKERUR,
DIST. HAVERI-581111.
5. RAMANAGOUDA S/O. NAGANAGOUDA PATEL,
AGE: 49 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE, TQ. HIREKERUR,
DIST. HAVERI-581111.
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RSA No. 100688 of 2017
6. GANGANAGOUDA S/O. NAGANAGOUDA PATEL,
AGE: 47 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE, TQ. HIREKERUR,
DIST. HAVERI-581111.
7. IRANAGOUDA S/O. NAGANAGOUDA PATEL,
AGE: 35 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE, TQ. HIREKERUR,
DIST. HAVERI-581111.
8. RAJANAGOUDA S/O. NAGANAGOUDA PATEL,
AGE: 32 YEARS, OCC: AGRICULTURIST,
R/O: RAMATHIRTH VILLAGE,
TQ: HIREKERUR,
DIST: HAVERI-581111.
9. SHANTANAGOUDA S/O. NAGANAGOUDA PATEL,
AGE: 30 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE, TQ. HIREKERUR,
DIST. HAVERI-581111.
10. NINGANAGOUDA S/O. NAGANAGOUDA PATEL,
AGE: 28 YEARS, OCC. AGRICULTURIST,
R/O. RAMATHIRTH VILLAGE, TQ. HIREKERUR,
DIST. HAVERI-581111.
...RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND & DECREE OF THE SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HIREKERUR
PASSED IN R.A.NO.45/2013 DATED:01.07.2017 AND THE
JUDGMENT AND DECREE OF THE COURT CIVIL JUDGE AND JMFC,
HIREKERUR DATED 25.07.2013 PASSED IN O.S. NO.136/2000
AND DECREE THE SUIT OF PLAINTS, GRANT ANY OTHER RELIEF
THE HONORABLE COURT DEEMS FIT IN FACT AND
CIRCUMSTANCE OF THE CASE INCLUDING COST THROUGH OUT
BY ALLOWING THIS 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. 100688 of 2017
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
Assailing the concurrent findings of facts recorded by
the Courts below, the plaintiffs are before this Court in
regular second appeal, whereby, the suit of the plaintiffs
seeking declaration and injunction came to be dismissed.
2. Parties herein are referred to as per their rank
before the trial Court for the sake of convenience.
3. Suit for declaration to declare that the area
mentioned as "EFGH" in the sketch in Sy.No.4 to the
extent of 1 acre is used as graveyard by the Muslim
community and to declare that the area mentioned as
"ABCD" in the said survey number which passes through
Sy.Nos.1, 2 and 3, the plaintiffs have acquired the right by
way of easement of necessity to carry the dead bodies for
the purpose of burial in "EFGH" area and also sought for
an injunction restraining the defendants from interfering
with the peaceful possession for the use of the said area
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as graveyard and use of the road for the purpose of taking
the dead bodies.
4. Suit is in the form of "representative suit" by
the Muslim Community of Ramathirth Village. The area
shown as "EFGH" area in the hand sketch is the suit
property. It is the contention of the plaintiffs that the suit
property was originally a pada land and the forefathers of
the defendants were doing work of Inam (Inamgiri) in the
said land. It is the case of that the plaintiffs are using
"EFGH" area as graveyard for the purpose of burial of the
dead bodies belonging to the Muslim Community with the
consent of the defendants and they are using the
graveyard since 60 to 70 years, further, they have
acquired the right of easement of necessity in "EFGH"
property. It is the case of the plaintiffs that Sy.No.4 is
totally measuring 5 acres 31 guntas and approximately 1
acre in the said Sy.No.4 the plaintiffs are using as a
graveyard and there are many tombs having been buried
from the plaintiffs' community. It is a case of the plaintiffs
that after using the land as burial ground, the plaintiffs are
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also using the land for offering prayers at the eve of
festivals and that the defendants had not at all obstructed
till filing of the suit for using the "EFGH" area as a
graveyard and "ABCD" area as a cart way for carrying
dead bodies to the graveyard. But now, the defendant
No.1 is obstructing the use of the said portion and hence
the suit.
5. On service of notice, the defendant No.2
appeared and filed written statement which was adopted
by the defendant Nos.1 and 3 to 6. The defendants
specifically denied that the plaintiffs were burying the dead
bodies of the Muslim Community and contended that in
fact the plaintiffs are burying the bodies near the hill
situated at Ramathirth Village towards the Eastern side
and there are many tombs. It is the specific case of the
defendants that the Sy.No.4 is originally the Patilki Inam
land re-granted in the name of the defendants and it is not
the graveyard. That Sy.No.4 is having a pot kharab land to
an extent of 5 guntas and there are tombs of the
forefathers of the defendants in the said area. It is
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specifically averred by the defendants that the plaintiffs
have not at all buried any bodies of their community in
Sy.No.4 as contended by the plaintiffs in their plaint. By
way of counterclaim, the defendants contended that they
have partitioned the suit property among their brothers
and that the plaintiffs have no manner of right or title over
the suit property. The counterclaim is to the extent that
the plaintiffs have not acquired any right of easement over
the suit property and the plaintiffs are trying to encroach
and dispossess the defendants from the suit property and
hence the injunction restraining the plaintiffs from
interfering with the peaceful possession and enjoyment of
the suit property.
6. The trial Court on the basis of the pleadings,
framed the following issues:
"1. Whether plaintiffs prove that, suit schedule
properties shown by letters "EFGH" measuring
1-acre is a graveyard pertains to Muslim
community?
2. Whether plaintiffs prove that, they acquired right
of easement by necessity over the cart-track in
the land bearing R.S.No.1 to 3 which is shown
by letters "ABCD" up to the land bearing
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R.S.No.4 for carrying dead bodies for
cremation?
3. Whether plaintiffs prove that, they are in lawful
possession of the suit schedule properties as on
the date of the suit?
4. Whether plaintiffs further prove obstruction by
defendants as alleged in para-10 of the plaint?
5. Whether plaintiffs are entitled for the relief of
declaration and consequential relief of injunction
as prayed for?
6. Whether counter claimants prove that, suit
schedule properties belongs to their ownership
exclusively?
7. Whether counter claimants prove that, they are
in lawful possession of the suit schedule
property as on the date of counter claim?
8. Whether counter claimant further proves that,
defendants of the counter claimant have been
threatening to dispossess them?
9. Whether counter claimants are entitled for the
relief of declaration and consequential relief of
injunction as prayed for?
10. Whether counter claimants are entitled for the
alternative relief of possession of the counter
claim property?
11. What order or decree?"
7. The trial Court on the basis of the pleadings,
oral and documentary evidence held that the plaintiffs
have failed to prove the suit schedule property shown at
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"EFGH" area measuring 1 acre is a graveyard and that the
plaintiffs have failed to prove that they have acquired the
right of easement by necessity over the cart road in land
bearing Sy.Nos.1, 2 and 3 shown in letters "ABCD" and the
plaintiffs failed to prove their lawful possession over the
suit property as on the date of the suit. The trial Court by
the judgment and decree dismissed the suit of the
plaintiffs as well as the counterclaim.
8. Aggrieved, the plaintiffs as well as the
defendants preferred appeals before the First Appellate
Court. The First Appellate Court while re-appreciating and
re-considering the entire oral and documentary evidence,
concurred with the judgment and decree of the trial Court
and dismissed the suit of the plaintiffs and also dismissed
the regular appeal preferred by the defendants against the
dismissal of counterclaim. The plaintiffs are aggrieved by
the dismissal of the suit which is confirmed in the regular
appeal and hence, the present regular second appeal.
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9. Heard learned counsel appearing for the
appellants and perused the judgment and decree of the
Courts below.
10. Section 34 of the Specific Relief Act, 1963
involves that; (i) any person entitled to any legal
character, or to any right as to any property, may institute
a suit against any person denying, or interested to deny,
his title to such character or right, and the Court may in its
discretion make therein a declaration that he is so entitled,
and the plaintiff may not in such case ask for any further
relief; (ii) The condition precedent to maintain a suit under
Section 34 of the Specific Relief Act, 1963 is that the
plaintiff at the time of the suit is entitled to any legal
character or any right to any property to that the
defendant has denied or interested in denying the
character or title of the character; (iii) the declaration
asked for is a declaration that the plaintiff is entitled to a
legal character or to a right of the property. There is a
dispute between the parties about the nature and
character in the property. In a suit for declaration of title,
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it is a settled law that the burden is heavily casted on the
plaintiff and the plaintiff is not supposed to depend upon
the weakness of the defendants, the onus to prove the
title in question is on the plaintiffs. The declaration sought
by the plaintiffs is to declare that the extent of land that is
the suit property is used as the graveyard by the Muslim
Community. The burden which was heavily casted on the
plaintiffs, in the absence of any material and sufficient
evidence to discharge the onus, the plaintiffs must be non-
suited. It is well settled law that the revenue entries are
not the documents of title without any title deeds. The
Apex Court in the case of STATE OF HIMACHAL PRADESH
vs. SHRI KESHAV RAM AND OTHERS reported in 1996
(11) SCC 257 held that the entries in the revenue papers
by no stretch of imagination can form the basis for
declaration of title in favour of the plaintiff. The Apex
Court further held that that even the entries in the record
of right carry evidentiary value, that itself would not
concur any title on the plaintiff on the suit land in
question.
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11. The specific case of the plaintiffs which is in the
form of "representative suit" is that an area of 1 acre in
Sy.No.4 is used as a graveyard since 60 to 70 years which
is marked as "EFGH" area and right of easement in "ABCD"
portion. Other than the mere averments in the plaint,
there is no corroborative evidence to indicate that the
plaintiffs' community was using the said area as a
graveyard. It is the own assertion of the plaintiffs that with
the consent of defendants they are using the portion of the
area for burying the dead bodies of their community. The
plaint is totally silent as the nature of right under which
the plaintiffs have acquired the right over the said
property. The Court Commissioner was appointed before
the trial Court, the Court Commissioner has reported that
there are tombs in the suit property. The defendants have
specifically taken the plea that their ancestors have been
buried in the said area. The report of the Court
Commissioner does not come to the aid of the plaintiffs to
contend that the plaintiffs' community has been burying
the dead bodies in the said area. The burden in the suit for
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declaration is heavily upon the plaintiffs to make out and
establish a clear case for granting a declaration in their
favour.
12. Though the learned counsel for the appellants
contends that there are revenue entries to confirm
plaintiffs' title, it is the settled proposition of law as stated
supra that the revenue entries do not confer any title, it
has evidentiary value to the extent of the presumption
under Section 133 of the Karnataka Land Reforms Act,
1961. The photos of the existence of tombs in the suit
property do not indicate that the plaintiffs were using the
said area for burying dead bodies of their community.
13. The trail Court and the First Appellate Court
have rightly dismissed the suit of the plaintiffs for
declaration in light of the plaintiffs having failed to
establish their right over the suit property. The manner in
which the Courts below have assessed the entire oral and
documentary evidence, this Court is of the considered view
that same does not warrant any interference under
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Section 100 CPC and there arises no substantial question
of law to be considered in the present appeal.
14. It is made clear that the present appeal is only
against the dismissal of the suit of the plaintiffs and this
Court has not considered the rejection of counterclaim by
the First Appellate Court and accordingly, this Court would
pass the following:
ORDER
(i) The regular second appeal is hereby
dismissed.
(ii) The judgments and decrees of the Courts
below stand confirmed insofar as the
dismissal of the suit of the plaintiffs is
concerned.
SD/-
(JUSTICE K.S.HEMALEKHA)
JUDGE
RH
