Karnataka High Court
Makbulsab S/O Ismailsab Naikwadi vs Noorahamadsab S/O Ismailsab Naikwadi on 22 October, 2024
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NC: 2024:KHC-D:15176
RSA No. 100709 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100709 OF 2017 (PAR)
BETWEEN:
MAKBULSAB S/O ISMAILSAB NAIKWADI
AGE: 70 YEARS, OCC: AGRICULTURE AND
BUSINESS, R/O: CHIKKERUR VILLAGE,
TQ: HIREKERUR-581111, DIST: HAVERI.
... APPELLANT
(BY SRI DINESH M. KULKARNI, ADVOCATE)
AND:
NOORAHAMADSAB S/O ISMAILSAB NAIKWADI
AGE: 68 YEARS, OCC: BUSINESS AND
AGRICULTURE, R/O: CHIKKERUR VILLAGE,
TQ: HIREKERUR-581111, DIST: HAVERI.
Digitally signed by ... RESPONDENT
VISHAL
NINGAPPA
PATTIHAL (BY SRI. AMIT ANANDHALLI, ADVOCATE APPEARED FOR
Location: HIGH
COURT OF
KARNATAKA SRI S.G.KADADAKATTI, ADVOCATE)
DHARWAD BENCH
THIS RSA FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGEMENT AND DECREE PASSED IN
R.A.NO.29/2015 DATED 08.08.2017 BY SENIOR CIVIL JUDGE
AND JMFC, HIREKERUR IN CONFIRMING THE JUDGMENT AND
DECREE IN O.S.NO.45/2013 DATED 09.03.2015 PASSED BY
PRINCIPAL CIVIL JUDGE AND JMFC, HIREKERUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:15176
RSA No. 100709 of 2017
ORAL JUDGMENT
1. Assailing the concurrent findings of facts
recorded by the Courts below, the defendant is before this
Court in this Regular Second Appeal.
2. Suit seeking for partition and separate
possession claiming half share in the suit schedule property
bearing R.S. No.176/1B measuring 2 acres 14 guntas (for
short "suit property"). The plaint avers that R.S. No.176/2
measuring 4 acres 29 guntas; out of which the four children
of Ismailsab got divided the suit property and accordingly
2 acres 14 guntas fell to the share of Najeersab and
Baseersab and 2 acres 14 guntas fell to the share of
Makhabulsab and Noorahammadsab. It is the case of the
plaintiff that the plaintiff and the defendant in the partition
effected were given half share and the defendant in order to
take the share of the plaintiff colluded with the revenue
entries, entered his name in the revenue records to the
entire extent of half share in suit property by ME No.6130.
NC: 2024:KHC-D:15176
3. On notice, the defendant appeared and filed his
written statement and contested the suit, contending that
the plaintiff has relinquished his share on 31.03.2001 by
taking Rs.75,000/- and after that he has given varadhi to
the revenue officials and accordingly, the name of the
plaintiff has been deleted and the name of the defendant
has been entered in the revenue records. The defendant
has set up a plea of adverse possession stating that he is in
possession of the suit property openly, continuously and
peacefully and perfected his title by way of adverse
possession from 31.03.2001 and the plaintiff has no
manner of right or interest over the suit property.
4. The trial Court on the basis of the pleadings
framed the following issues:
1) Whether the plaintiff proves that, himself and
the defendant are tenants in common of the
suit property and the suit property is liable for
partition?
2) Whether the plaintiff proves that, he has got
half share in the suit schedule property?
3) Whether the defendant proves that, plaintiff
has relinquished his share in favour of the
defendant by executing agreement of sale
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dated 31.3.2001 by receiving amount of
Rs.75,000/-?
4) Whether the defendant further proves that, he
is in possession of the suit property openly
continuously peaceably from 31.3.2001 and
perfected from 31.3.2001 and perfected his
title to the suit property by way of adverse
possession?
5) Whether the plaintiff is entitled for the relief of
partition and separate possession?
6) What order or decree?
5. In order to substantiate their claim, the plaintiff
examined himself as PW1 and another witness as PW2 and
got marked documents at Exs.P1 to P10. On the other
hand, defendant No.1 examined himself as DW1 and
examined two witnesses as DW2 and DW3 and got marked
documents at Exs.D1 to D9.
6. The trial Court on the basis of the pleadings, oral
and documentary evidence arrived at a conclusion that the
plaintiff has proved that the plaintiff and defendant are the
tenants in common and the suit property is liable for
partition. That the defendant failed to prove that the
plaintiff has relinquished his share in favour of the
NC: 2024:KHC-D:15176
defendant by executing an agreement of sale dated
31.03.2001 by receiving an amount of Rs.75,000/- and that
defendant failed to prove that he has perfected his title by
way of adverse possession over the suit property openly,
continuously and peacefully from 31.03.2001. The trial
Court by the judgment and decree decreed the suit of the
plaintiff and awarded half share in the suit property.
7. Aggrieved, the defendant preferred appeal before
the First Appellate Court. The First Appellate Court while
re-appreciating and reconsidering the entire oral and
documentary evidence concurred with the judgment and
decree of the trial Court. Aggrieved, the defendant is before
this Court in this Regular Second Appeal.
8. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondent and perused the materials available on record.
acres 14 guntas. The undisputed fact is that the propositus
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of the family is Ismailsab and his four children are
Najeersab, Baseersab, Makhabulsab & noorahammadsab.
After the demise of Ismailsab, his four children partitioned
the suit property on 06.11.1986 and accordingly R.S.
No.176/2 measuring 4 acres 29 guntas was divided as
2 acres 14 each; 2 acres 14 guntas was given to Najeersab
and Baseersab together and 2 acres 14 guntas was given to
Noorahammadsab and Mahabulsab together i.e., plaintiff
and defendant. The case of the plaintiff is that, the
defendant without any right has given a vardhi and entered
his name in the revenue records to the entire extent of half
share which was given in partition to plaintiff and
defendant.
10. The defence of the defendants is in two folds
firstly that the plaintiff has relinquished his right by
receiving cash of Rs.75,000/- from the defendant and the
plaintiff has executed an agreement of sale on 31.03.2001,
secondly, the defendants have perfected their title over the
suit property by way of adverse possession openly,
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continuously, peacefully from 23.05.2001. The claim for
adverse possession cannot be considered when a person
has entered possession pursuant to an agreement of sale,
both the claims are contrary to each other, under
agreement the defendant wants to claim that plaintiff has
relinquished his share by receiving the amount and he has
become the owner; on the other hand under the plea of
adverse possession he claims that he is in possession in
continuous, uninterrupted occupying the plaintiff's land
adversely for a period of time. The plea of title and adverse
possession cannot be taken simultaneously, in plea of title
there is no hostility whereas to constitute adverse
possession there must be assertion of hostile possession in
denial of title of the true owner. No materials are
forthcoming to show either there is an agreement and
neither the ingredients to establish the plea of adverse
possession by the defendant. The defendant fails on both
counts, the Courts below have rightly held that plaintiff is
entitled for half share in the suit property. The manner in
which the Courts below have assessed the entire oral and
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documentary evidence, this Court is of the considered view
that the same does not warrant any interference under
Section 100 CPC and there is no substantial question of law
arises for consideration and accordingly, this Court pass the
following:
ORDER
(i) The appeal is hereby dismissed.
(ii) The judgments and decrees of the Courts
below stand confirmed.
Sd/-
________________________
(JUSTICE K.S.HEMALEKHA)
VNP / CT:GSM
