Karnataka High Court
Sri Honnur Sab Since Deceased By His Lrs vs Sri Subansab on 25 February, 2025
1
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL No.2883 OF 2006
BETWEEN
SRI HONNUR SAB
SINCE DECEASED BY HIS LRS
1 . SMT AMINABI
W/O HONNURSAB SHAIKH
SINCE DECEASED BY HIS LRS
APPELLANTS NO.2 TO 5 AND 7 ARE
THE LEGAL HEIRS OF THE DECEAASED
APPELLANT NO.1- AMINABI
(AMENDED VIDE COURT
ORDER DATED 16.4.2024)
2. SMT KHUTIZABI
W/O PEERASAB BELAKERI
AGED ABOUT 45 YEARS,
OCC;HOSUEHOLD WORK,
R/O RANEBENNUR
HAVERI DISTRICT.
3. SHAMASHUNNISA
D/O HONNURSAB SHAIK
AGED ABOUT 44 YEARS,
OCC;HOUSEHOLD WORK,
R/O HARIHAR,
DAVANAGERE DISTRICT.
4. SMT JAIBUNNISA
W/O BUDNASAB KANAMANI
AGED ABOUT 38 YEARS,
2
OCC: HOUSEHOLD WORK,
R/O KUDUPALI
HIREKERUR TALUK.
5. SMT FATIMA
W/O PEERASAB NANDYAL
AGED ABOUT 36 YEARS,
OCC: SERVICE AND
HOUSEHOLD WORK,
R/O RANEBENNUR
HAVERI DISTRICT.
6. RAJESAHEB
S/O HONNURSAB SHAIK
SINCE DECEASED BY HIS LRs
6a. FATHIMA
W/O RAJESAB SHAIKH
AGED ABOUT 52 YEARS
OCC: HOUSE HOLD WORK
6b. TANVEER
S/O LATE RAJESAB SHAIKH
AGED ABOUT 34 YEARS
OCC: AUTO DRIVER AND MECHANIC
6c. SMT ANUSHA
D/O LATE RAJESAB SHAIKH
AGED ABOUT 32 YEARS
OCC: HOUSE HOLD WORK
6d. SRI MUNAFF
S/O LATE RAJESAB SHAIKH
AGED ABOUT 28 YEARS
OCC: MECHANIC
ALL RESIDENTS OF KULKARNI GALLI
RANEBENNUR, TQ: RANEBENNUR
DIST: HAVERI
(AMENDED VIDE COURT
ORDER DTD 16.4.2024)
7. SRI ABDUL REHMAN
3
S/O HONNURSAB SHAIKH
AGED ABOUT 34 YEARS,
OCC: MECHANIC,
R/O RANEBENNUR,
HAVERI DISTRICT.
...APPELLANTS
(BY SRI. G.I. GACHCHINAMATH, ADVOCATE FOR A2 TO A5 & A7)
AND
SRI SUBANSAB
S/O ABDUL GAFARSAB HARAPANAHALLI
AGED ABOUT 38 YEARS
OCC: BUSINESS
R/O RANEBENNUR,
HAVERI DISTRICT
...RESPONDENT
(BY SRI. N P VIVEKMEHTA, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT &
DECREE DT.29.3.2006 PASSED IN R.A.NO.30/2000 ON THE FILE OF THE
ADDL. CIVIL JUDGE (SR.DN), RANEBENNUR, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DT.31.3.2000
PASSED IN O.S.NO.191/2994 ON THE FILE OF THE ADDL. CIVIL JUDGE
(JR.DN) AND II ADDL. JMFC, RANEBENNUR AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.12.2024 COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
CAV JUDGMENT
The present Second Appeal is filed under Section 100 of
Code of Civil Procedure, 19081 by the plaintiffs challenging the
judgment and decree dated 29.03.2006 passed in R.A.
Hereinafter referred to as 'CPC'
No.30/2000 by the Addl. Civil Judge (Sr.Dn.), Ranebennur2 and
the judgment and decree dated 31.03.2000 passed in O.S
No.191/1994 by the Additional Civil Judge (Jr.Dn.) & II Additional
JMFC., Ranebennur, wherein the suit for declaration and
possession has been partly decreed by the trial Court ordering
that the plaintiffs are entitled for possession of the suit property
which has been set aside by the first Appellate court and the suit
of the plaintiff was dismissed.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Trial Court.
3. It is the case of the plaintiff that he purchased CTS
No.3322-C + 3371/A-3 measuring 13.94 sq.meters of Tennur
Village in Ranebennur Taluk vide registered Sale Deed dated
30.05.1990 (erroneously mentioned as 30.03.1990 in the
judgments in RA No.30/2000 and OS No.191/1994) for a total
sale consideration of ₹12,000/- from one Shabuddin Abdul
Sattarkhan, Smt. Kamarunnisha kom Shabuddin Roufkhanavar
and Akbar Khan S/o. Shabuddin Roufkhanavar. That after
Hereinafter referred to as the 'first appellate Court'
purchasing the suit property, he is in possession and enjoyment
as its owner.
4. It is the further case of the plaintiff that towards
northern side of the suit property, the plaintiff's son is running an
electronic shop in the name and style of Mamatha Electronics.
That in the Southern side of Mamatha Electronics, an open space
is existing measuring East-West 8 feet and North-South 9 feet,
wherein the defendant was running a stove repair shop in the said
open space. The property in possession of the defendant has been
described in the schedule to the plaint.
5. It is the further case of the plaintiff that the defendant
was running his business by obtaining licence from its previous
owner and the previous owner of the plaintiff asked the defendant
to vacate and handover possession of the property to the
plaintiff. That the defendant requested to continue for some more
time and accordingly the previous owner of the plaintiff permitted
the defendant to run the business as a licencee. That the plaintiff
has constructed a building in the suit property in the year 1994
and towards northern side of the suit property, he intended to
construct a staircase. But the defendant obstructed to construct
the staircase. Hence, the plaintiff filed a suit in O.S. No.47/1994
against the defendant for injunction. That in the said suit, the
defendant entered appeared and denied the ownership of the
plaintiff as also violated the oral agreement of licence. Hence, the
plaintiff got issued a legal notice through his counsel on
23.08.1994 and demanded the defendant to vacate the suit
property within 15 days and handover possession to the plaintiff.
That the defendant tried to trespass into the suit property.
Hence, the defendant having not complied with the demands
made in the legal notice, the plaintiff filed the suit for declaration
and possession. It is relevant to note that Honnursab, the original
plaintiff filed OS No.191/1994. Subsequently, after his death, his
legal representatives have come on record and have prosecuted
the proceedings before the Trial Court, the first Appellate Court
and this Court.
6. The defendant entered appearance before the trial
Court through his counsel and filed his written statement. The
defendant denied the boundaries of the suit property and also
contended that the plaintiff has not furnished the correct
boundaries. Further, the defendant denied that the plaintiff is in
possession of the suit property. The defendant has in detail
denied the case of the plaintiff.
7. It is the specific contention of the defendant that his
ancestors were running the stove repair business in the suit
property for more than 50 years. That the defendant is in
possession of the property as a tenant under Smt.Janabbi and he
also paid taxes to the municipality. That the defendant is not the
licensor of the plaintiff. Further, it is contended that upon receipt
of the legal notice dated 23.8.1994, the defendant gave a suitable
reply. It is further contended by the defendant that he is in actual
possession and enjoyment of the suit property for more than 50
years and he is in possession of the property peacefully without
any interruption and to the knowledge of the plaintiff and he has
perfected his title to the suit property by way of adverse
possession and he had become the owner of the suit property.
Hence, the defendant sought for dismissal of the suit.
8. Consequent to the pleadings of the parties, the Trial
Court framed the following issues:
1. "Does the plaintiff proves that he has purchased
the suit property described in the schedule from
one Shabuddinsab Abdul Sattar Khan
Roufkhanavar and others, for Rs.12,000/- on
30.3.90?
2. Does the plaintiff further proves that towards the
southern side of the suit property, plaintiff is
running Mamata Electronics, Radio shop and
which was running by the plaintiffs' son?
3. Does the plaintiff further proves that towards the
southern of the Mamata Electronics there is a
open space measuring 8 ft. x 9 ft. East-West and
North South 9 ft. and in which the defendant is
running the business of welding and stove repair?
4. Does the plaintiff proves that the defendant is
running the welding and stove repair business
under the licencee from the original owners of the
suit property and the plaintiff has also allowed
the defendant to use the said property on a leave
and licensee basis?
5. Does the plaintiff proves that he has terminated
the licence of the defendant over the suit
property?
6. Does the defendant proves that he is in
possession of the suit property as a tenant under
one Smt. Jainabbi and the said Jainabbi was
previous owner of the suit property?
7. Does the defendant proves that he is in
possession of the suit property peacefully without
interruption and to the knowledge of everybody
and thereby he is perfected his title of the suit
property by way of adverse possession and he
has become owner of the suit property?
8. What relief or Order?"
Issue nos.2 and 3 (deleted as per order dated 15.3.2000
passed in IA. VIII)
9. The plaintiff No.1(a) examined herself as PW.1 and the
vendor of the plaintiff was examined as PW.2. Exs.P1 to P7 have
been marked in evidence. The defendant examined himself as
DW.1 and another witness as DW.2. Exs.D1 to D56 have been
marked in evidence. The Trial Court by its judgment and decree
dated 31.03.2000 partly decreed the suit and passed the following
order:
Suit of the plaintiff is hereby partly decreed.
Further ordered that the plaintiff entitled for
possession of the suit schedule property i.e., CTS
No.3322-C and 3371-A/3 from the defendant under
the facts and circumstances of the case. Parties to
bear their own costs.
10. Being aggrieved, the defendant preferred RA
No.30/2000. The plaintiff entered appearance in the said appeal
and contested the same. The first appellate Court framed the
following points for consideration:
1. "Whether trial Court committed error in
holding that plaintiff is the owner of suit
property?
2. Whether trial Court committed error in
holding that defendant is the licensee
under plaintiff?
3. Whether trial Court committed error in
holding that defendant has not perfected
his title to the suit property by adverse
possession?
4. Whether judgment and decree of the
trial Court is not sustainable under law
and on facts?
5. What order or decree?"
11. The first appellate Court by its judgment and decree
dated 29.03.2006 allowed the appeal, set aside the judgment and
decree of the Trial Court and dismissed the suit. Being aggrieved,
the present second appeal is filed.
12. This Court by order dated 30.5.2024 admitted the
appeal and framed the following substantial question of law:
'Whether the property acquired by the
plaintiff by way of a registered sale deed dated
30.03.1990 (Ex.P7) would include the property
being occupied by the defendant i.e., open space
bearing east-west 8 feet, north-south 9 ft in CTS
No.3322-C + 3371-A in Ranebennur taluk of
Ranebennur City?'
13. I.A.1/2024 has been filed by the appellants under Order
XLI Rule 27 r/w Section 151 of CPC to permit the appellants to
produce four documents. The documents sought to be produced
are the extract of Property Register Card and Sale Deed in respect
of the property No.3322C1+3371A/4. A copy of e-swattu and the
extract of the Property Register Card of property bearing
No.3322C1+3371A/3 are also produced along with the
application. It is deposed in the affidavit accompanying the
application that the documents sought to be produced along with
the application would reflect that the property measuring 13.94
sq.mts., belongs to the plaintiff and the neighbouring property
also measures 13.94 sq.mts., which belongs to the neighbouring
owner and there is no property which the respondent claims to be
that of the vendors of the plaintiff under whom he claims to be a
tenant which measures 8x9 sq.mtrs. Hence, it is contended that
the said documents are necessary for adjudication of the question
that arise for consideration in the present appeal.
14. The respondent has filed objections to IA No.1/2024,
inter alia, contending that the appellants are trying to make out a
new case and there are many contradictions in the statements
made by the appellants. It is further contended that no grounds
have been made out for allowing the said application. That the
said application is made only to confuse the factual matrix. Hence,
the respondent seeks for dismissal of the application.
15. Learned counsel for the appellants/plaintiff Sri Gurudev
Gachchinamath assailing the judgment and decree passed by the
first appellate Court submits that the defendant was a tenant and
he is not a rival claimant to the title of the property. That the
plaintiff had purchased the suit property vide registered Sale Deed
dated 30.5.1990. That there was no other property of the vendors
that was required to be sold. It is further contended that one of
the vendors of the plaintiff was examined as PW.2, has also
supported the case of the plaintiff. Hence, the judgment and
decree passed by the Trial Court is just and proper and the
judgment and decree passed by the first appellate Court is liable
to be set aside.
16. In support of IA No.1/2024 filed in this appeal, it is
submitted that the documents produced along with the application
are necessary for adjudication of the question that arises for
consideration in the present appeal, which indicates that the
entire property of the vendors has been purchased and the
property documents of the neighbouring property have also been
produced.
17. Per contra, learned counsel for the
respondent/defendant Sri.Vivek Mehta contends that PW.2 has
categorically admitted that the suit property and the property
purchased by the plaintiff are different. He further contends that
there are various inconsistencies in the case of the plaintiff
especially with regard to the boundaries and measurements of the
property purchased by him as also with regard to the boundaries
of the neighbouring properties. It is further contended that if the
measurements of the boundaries are noticed, the suit property in
respect of which the relief of declaration and possession is sought
has not been adequately described. It is further contended that
the vendors of the plaintiff have sold their property by excluding
the property that is in occupation of the defendant. Opposing
IA.1/2024 it is contended on behalf of the respondent that new
documents are sought to be produced which are not required to
adjudicate the issue that arises for consideration and a reading of
the said documents would only demonstrate further contradictions
in the case of the appellants/plaintiff.
18. In addition to the substantial question of law framed by
this Court on 30.05.2024, another question that is required to be
considered in the present appeal is:
'Whether the appellants have made out grounds to
allow IA.1/2024 ?'
19. The submissions of both the learned counsels have
been considered and the material on record has been perused
including the records of the Trial Court and First Appellate Court.
20. Before considering the case of the parties, it is relevant
to notice the findings of both the Courts. The Trial Court while
considering issue Nos.1, 4 and 5 in the affirmative has recorded
the following findings:
i. The plaintiff purchased the suit property on
30.5.1990 for a sale consideration of `12,000/-
from one Shabuddin Abdul Sattarkhan and
another as per Ex.P7;
ii. Plaintiff in order to prove the Sale Deed,
examined PW.2, the vendors of the plaintiff and
his signature is marked as Ex.P7(a);
iii. Suit schedule property bearing CTS No.3322-C
and 3371-A/3 measure 13.94 sq.mts. On the
southern side of the said property, he is running
Mamatha Electricals. The remaining portion i.e.,
east to west 8x8 feet of the suit property, the
boundaries are, east - road, west - National
Welding Works, north - remaining portion of the
plaintiff's property i.e., Mamatha Electricals and
south - government road. The defendant is
running business in the said portion of the suit
property i.e., stove repair shop as licencee from
the vendor of the plaintiffs;
iv. It is contended that the property of the
defendant is given separate number i.e., CTS
No.3322/C and 3371-A/4 and the defendant and
the defendant's father name is entered in the
CTS records pertaining to the suit property;
v. The municipality gave CTS No.486. DW.2
admitted that the defendant is in possession and
enjoyment of the suit property, but DW.2 has
not disclosed whether the defendant is tenant or
licencee. The evidence of DW.2 is not helpful to
the defendant;
vi. The defendant has taken a contention that
property bearing CTS No.3322-C and 3371-A/4
belongs to Jainabbi. But defendant has not
produced single iota (of document) to show that
the said property belongs to Jainabbi;
vii. Further defendant has not produced single iota
(of document) to show that he is in possession
and enjoyment of the suit property bearing CTS
No.3322-C + 3371-A/4;
viii. Further the defendant has produced municipal
records and also tax paid receipts. However,
the said documents are not documents of title.
The entries in revenue records can by no stretch
of imagination form basis of declaration of title;
ix. The defendant has not produced any single
iota (of evidence) to show that he is in
possession of the suit property as tenant;
x. DW.2 has not deposed anything regarding
defendant is a tenant under Jainabbi;
xi. The defendant contended that one Jainabbi is
absolute owner of the suit property. The said
Jainabbi is the mother of PW.2, the vendor of
the plaintiffs. PW.2 is the sole legal heir of
deceased Jainabbi. After death of Jainabbi,
PW.2 inherited the property of Jainabbi as legal
heir;
xii. The plaintiffs have proved the defendant as
licencee and further, the plaintiffs renewed the
said licence on the request of the defendant;
xiii. PW.2 clearly corroborates the evidence of
PW.1;
xiv. I come to the conclusion that the defendant is
licencee and licence can be revoked by the
plaintiffs as per Ex.P3 - notice;
xv. The plaintiffs are in possession and enjoyment
of the suit schedule property as owners.
Further, the defendant is in possession of the
suit property as licencee;
20.1. The Trial Court while answering issue Nos.6 and 7 in
the negative, recorded the following findings:
i. The defendant contended that his father and
he is in possession of the suit property as tenant
under Jainabbi. Further, the defendant
contended that he has acquired the title by way
of adverse possession. But defendant has not
proved when he denied the ownership of the
property and also he is in hostile possession of
the suit schedule property. The defendant has
not produced the property extract of property
bearing No.3322-C + 3371-A/4. Non production
of the documents pertaining to the said
property, adverse inference is drawn against the
defendant;
ii. The defendant is running business in the suit
schedule property in the shed. Hence, the
defendant has not acquired adverse possession
of the suit property;
iii. The defendant failed to prove his defence
that he is a tenant under Jainabbi and he has
also acquired title to the suit property by way of
adverse possession;
iv. The plaintiffs proved that the defendant is in
possession and enjoyment of the suit property
as a licencee;
v. The possession of the defendant is permissive
possession of the suit property. Hence, the
defendant has not acquired adverse possession
of the suit property.
21. The First Appellate Court while considering point Nos.1
and 2 framed by it, has recorded the following findings:
i. The suit property is not the subject matter of sale
deed under which the plaintiff is claiming title to the
suit property. The description of the suit property in
Ex.P.7 is shown as consisting of a commercial stall
bearing CTS No.3322/C + 3371A/3 totally measuring
13.94 Sq.meters. Thus, the property which was
purchased by the plaintiff under Ex.P.7 is a
Commercial Stall. Ex.P.7 does not disclose that there
is an open space measuring 8 X 9 feet on the
southern side of the said stall. The description of the
suit property also does not disclose that the suit
property purchased under Ex.P.7 is consisting of a
stall as well as an open space.
ii. Thus the contention of the plaintiff that an open
space measuring 8 feet East-West and 9 feet North-
south situated towards southern side of a stall
purchased by them under Ex.P.7 is the part of the
property purchased by them is not supported by the
sale deed Ex.P.7.
iii. PW.2 has categorically admitted that the suit
property is entirely a different property than the
property sold by him in favour of the plaintiff. That
the property in possession of the defendant wherein
he is carrying out stove repair work and the property
sold by him in favour of the plaintiff are entirely
different property. That the father of the defendant
used to pay municipal tax in respect of the suit
property.
iv. All the admissions of PW.2 goes to prove that the
suit property is not part and parcel of the property
sold by him in favour of the plaintiff under Ex.P.7.
v. In the cross-examination of DW.1 it is elicited that
the defendant is in possession of the suit property
for the last 40 - 50 years and it bears CTS
No.3371/A/4.
vi. From the cross-examination of DW.1 it becomes
clear that that the suit property admittedly was of
the ownership of Jainabi. It is not the case of the
plaintiff that Jainabi also joined along with other
vendors while executing Ex.P.7. The plaintiff has not
purchased the property from Jainabi.
vii. When Jainabi was the owner of the suit property
as admitted by PW.2 in his cross-examination and
suggested by plaintiff's counsel in the cross-
examination of DW.1, the plaintiff cannot acquire
any title to the suit property under Ex.P.7.
viii. The suit property was not the subject matter of
the sale deed under Ex.P.7 as rightly argued by
learned counsel for the defendant.
ix. From the evidence of DW.1 and DW.2 it becomes
clear that the defendant has been in possession of
the suit property for the last 40 to 50 years.
x. Therefore, the contention of the plaintiff that while
purchasing the property bearing CTS No.3322/C +
3371/A/3 they took possession of the suit property
and later gave it to the defendant on licence on his
request proved to be false.
xi. The plaintiff cannot acquire title to the suit
property merely by mentioning wrong boundaries in
the sale deed. When the vendor of the plaintiff had
no title to the suit property, they could not have
conferred title on the plaintiff.
xii. There is sufficient documentary evidence on
record to show that the suit property was of the
ownership of Jainabi i.e., tax paid receipts marked at
Ex.D.1 to Ex.D.6 and extracts of municipal tax
assessment register marked at Ex.D.14 t Ex.D.17.
xiii. The vendor of the plaintiff himself admitted that
Jainabi was the owner of the property and it is also
suggested in the cross-examination of DW.1 that
Jainabi was the owner of the suit property.
xiv. Absolutely, there is no cogent and reliable
evidence on record to prove that the suit property is
part of the property purchased under Ex.P.7.
Absolutely, there is no evidence on record to prove
that the suit property was given to defendant by
plaintiff on license.
xv. The defendant has adduced evidence to rebut the
contention of the plaintiff and successfully proved by
adducing cogent and reliable evidence that the suit
property was in his possession for the last 40 to 50
years .
xvi. The plaintiff has failed to prove that he is the
owner of the suit property. Therefore, question of he
giving the suit property to the defendant on licence
does not arise.
xvii. The finding of the Trial Court is not based on
the material evidence on record. The Trial Court
came to a wrong conclusion because the Lower Court
placed burden on the defendant to prove the
defence. The Lower Court ought to have held that
the burden is on the plaintiff to prove the ownership
and also to prove that the suit property was given on
licence to the defendant.
21.1. The First Appellate Court while considering point No.3
has affirmed the finding of the Trial Court that the defendant has
failed to prove that he has perfected the title to the suit property
by adverse possession.
22. Admittedly, the original deceased plaintiff purchased the
property bearing CTS No.3322-C + 3371/A-3 measuring 13.94
sq.meters of Tennur Village in Ranebennur Taluk vide registered
Sale Deed dated 30.05.1990 (Ex.P7) for a total sale consideration
of `12,000/- from his vendors i.e., Shabuddin Abdul Sattarkhan,
Smt. Kamarunnisha kom Shabuddin Roufkhanavar and Akbar
Khan S/o. Shabuddin Roufkhanavar. It is the case of the plaintiff
that the suit property is a part of the property purchased by the
plaintiff vide registered Sale Deed 30.05.1990 (Ex.P7).
23. At this juncture, it is relevant to notice the property
purchased vide the Sale Deed dated 30.05.1990 (Ex.P7), which is
described in the said document as follows:
zsÁgÀªÁqÀ r. gÁuɨɣÀÆßgÀÄ vÁ®ÆèPÀ, ¸À¨ï gÀf¸ÁÖçgïªÀgÀ ªÀ.
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£ÀA§gï 3322¹+3371 J/3. F £ÀA§gï ¥ÀÆgÁ ¬ÄgÀÄvÀÛzÉ. ¬ÄzÀgÀ C¼ÀvÉ 13-
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zÀQëtPÉÌ :- ¸ÀgÀPÁj eÁUÀ
24. The suit property as described in the schedule to the
plaint is described as under:
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zÁªÁzÁ¹Û ªÀtð£É:-
gÁuɨɣÀÆßgï vÁ®ÆPÀ gÁuɨɣÀÆßgï ±ÀºÀgÀzÀ ¹ n J¸ï £ÀA: 3322¹+3371J-3
«¹ÛÛÃtð 13-94 ¸ÉÌ÷é «Äà ¸ÀvÁÛ ¥ÀæPÁgÀ J, EzÀgÀ ¥ÉÊQ zÀQët ¨sÁUÀzÀ RįÁè eÁUÉ EzÀgÀ
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GvÀÛgÀPÉÌ :- EzÉà D¹ÛÃAiÀÄ ªÁ¢AiÀÄ PÀ§eÁzÀ°ègÀĪÀ ªÀĪÀÄvÁ J¯ÉPÁÖç¤Pïì ªÀĽUÉ
zÀQëtPÉÌ :- ¸ÀPÁðj eÁUÉ ªÀ gÀ¸ÉÛ.
F ZÀPÀ̧A¢ ªÀÄzsÀåzÀ°ègÀĪÀzÀÄ zÁªÁzÁ¹Û EgÀÄvÀÛzÉ.
25. The defendant is claiming to be in occupation of the
suit property as a tenant under Smt. Jainabi.
26. The plaintiff/s, in order to prove their case has
examined the plaintiff No.1(a) as PW.1 and the vendor No.1 of the
original deceased plaintiff as PW.2.
27. PW.2 in his examination-in-chief has admitted the
Sale Deed dated 30.05.1990 (Ex.P7). His signature, as well as the
signature of his wife and son have been marked as Ex.P7 (a) to
(c). He has further deposed that himself, his wife and son sold
the entire property owned by them to the plaintiff vide Ex.P7.
However, in the cross examination of PW.2 he states that he does
not know the property number and dimension sold by him. He
states that boundaries of the property sold by him was East by
Road, West by his property, North by his sister's property and
South by defendant's property. He admits in the cross
examination that the defendant and his father have been in
possession of the property under their occupation for more than
40 to 50 years. He states that the property sold by him and the
property in the occupation of the defendant are
different/separate; that the property sold by him and the suit
property do not have any connection with one another; that the
defendant has been paying Municipal Tax in respect of the
property under his occupation; that the property bearing CTS
No.3371/A-4 belongs to Smt. Jainabi who is the mother of PW.2.
28. The appellants have produced document Nos.1 and 2
along with IA.No.1/2024 i.e., the extract of the Property Register
Card and Sale Deed dated 19.9.2003 in respect of property
bearing CTS No.3322C1+3371A/4, which is allegedly located on
the southern boundary of the property purchased by the plaintiff
under Ex.P7. Document No.1 i.e., Property Register Card does
not reflect the boundaries of the said property. The boundaries
mentioned in the said Sale Deed dated 19.9.2003 are as under:
¥ÀƪÀðPÉÌ:- PÀÄgÀħUÉÃj gÀ¸ÉÛ
¥À²ÑªÀÄPÉÌ :_ ºÁ¸ÀA© PÉÆÃA PÀjêÀiSÁ£À gÀªÀÇ¥sÀSÁ£À EªÀgÀ ªÀÄ£É
GvÀÛgÀPÉÌ :- ªÀÄ»§Æ§SÁ£À gÀªÀÇ¥sÀSÁ£ÀªÀgÀ ªÀĽUÉ
zÀQëtPÉÌ :- gÁeÁ¸Á§ ±ÉÃR EªÀgÀ D¹Û
29. The appellants have also produced as document Nos.3
and 4 along with IA.No.1/2024 i.e., the e-swattu and extract of
Property Register Card of property bearing CTS
No.3322C1+3371A/3. Document No.3 discloses the boundaries as
north by Ashok Mylar's property, east by road, west by other's
property and south by Harapanahalli's property. There are no
boundaries mentioned in document No.4. The appellants have not
explained the difference in the boundaries of the property
purchased under Ex.P7 and document No.3 produced along with
the application.
30. In the affidavit filed in support of IA.No.1/2024 it is
deposed by appellant No.7 that the Sale Deed which is executed
in their favour reflects property bearing CTS number 3322C +
3371A/4 to the southern side. However, the said statement is
erroneous inasmuch as the southern boundary in the Sale Deed
dated 30.5.1990 (Ex.P7) is shown as Government land. It is
further deposed in the affidavit accompanying IA.No.1/2024 that
property bearing No.3322C + 3371A/4 measures 13.94 sq.mts.,
and the property purchased under the Sale Deed dated 30.5.1990
(Ex.P7) which bears CTC No.3322C +3371A/3 also measures
13.94 sq.mts., and hence there is no property which the
respondent claims to be of Jainabi under whom he claims to be
the tenant. That the documents sought to be produced along with
the application are public documents and there is no property
measuring 8 x 9 sq.ft. It is further deposed in the affidavit
accompanying the application that the documents produced along
with the application would clarify the contentions of the parties.
31. It is relevant to note that the application is filed under
Order XL1 Rule 27 of the CPC, wherein a party is entitled to
produce additional evidence at the appellate stage only if it is
demonstrated that the said documents could not be produced
earlier or that the applicant was prevented by sufficient cause
from producing the said documents, and that the documents are
necessary for adjudication of the matter in dispute.
32. It is relevant to note here that in the affidavit filed in
support of the application, the deponent has not deposed as to
why the said documents could not be produced either before the
Trial Court or the First Appellate Court. The appellants have
further stated that the documents produced along with the
application will clarify the contentions of the parties. However, the
appellants have miserably failed in demonstrating as to how and
in what manner the said documents are necessary for the purpose
of adjudication of the matter in dispute between the parties. On
the contrary, there is justification in the submission made by the
learned counsel for the respondents that a perusal of the
documents produced along with the application only creates
further contradictions in the case of the plaintiff/s.
33. It is pertinent to note here that the appellants/plaintiff
were required to demonstrate that the suit property was part of
the property purchased by them vide Sale Deed dated 30.5.1990
(Ex.P7). In the schedule to the plaint, the property has been
described as open space measuring north to south 8 feet and east
to west 9 feet on the southern side of property bearing CTS
number 3322C + 3371A/3 which measures 13.94 sq.mts. The
boundaries of the suit schedule property have also been
mentioned as has been noticed above. However, if the suit
property north to south 8 feet and east to west 9 feet is situated
on the southern side of the property purchased under Ex.P7, the
northern boundary of the suit property and Ex.P7 property would
not be the same. However, in the description given by the
plaintiffs, the northern boundary of both the properties is shown
as road. Further, there is no description in the Sale Deed dated
30.5.1990 (Ex.P7) that there is any open space measuring 8 feet
and 9 feet as per the description given in the suit schedule.
34. It is the consistent case of the defendant that he was
a tenant under Jainabi. Although vendor No.1 of the original
deceased plaintiff (PW.2) has stated that he is the son of Jainabi,
it is not the case of the plaintiffs that the property conveyed under
Ex.P7 was inherited by his vendors from Jainabi. The same has
also not been deposed by PW.2 in his testimony.
35. Further, the testimony of PW.2 in no manner supports
the case of the plaintiff inasmuch as PW.2 has not given the
details of the property and the dimensions sold by him vide Sale
Deed (Ex.P7). Further, PW.2 has also admitted that the property
sold by him and the property in occupation of the defendant, i.e.,
suit property are different/separate. PW.2 does not, in
clear/categorical terms, state that the suit property is part of the
property conveyed under the Sale Deed (Ex.P7).
36. The plaintiffs, apart from producing the Sale Deed
dated 30.5.1990 as Ex.P7 and examining PW.2, have not in any
manner demonstrated by adducing any oral or documentary
evidence that the suit property forms part of the property
purchased vide the Sale Deed (Ex.P7).
37. The appellants have failed to demonstrate that the
documents produced along with IA.No.1/2024 are required to be
taken on record. Hence, the question framed for consideration at
para 18 hereinabove as to whether the application in
IA.No.1/2024 is liable to be allowed is answered in the negative.
38. It is forthcoming that the Trial Court without
considering as to whether the plaintiffs have adduced any
evidence (either oral or documentary) to prove their case, has
merely noticed that the defendant has not produced any evidence
to show that he is in possession of the suit property as a tenant.
The First Appellate Court has rightly re-appreciated the oral and
documentary evidence on record, noticed that the plaintiff has not
produced any material to prove their case, and accordingly
recorded a finding in that regard as has been noticed above.
39. The appellants have miserably failed to demonstrate
that the suit property is part of the property purchased by them
vide the Sale Deed dated 30.5.1990 (Ex.P7). The appellants have
further failed in demonstrating that the finding of the First
Appellate Court is in any erroneous and liable to be interfered
with.
40. The substantial questions of law framed in the above
appeal is answered in the negative.
41. Accordingly, the following:
ORDER
i. IA.No.1/2024 is rejected;
ii. The above appeal is dismissed;
iii. The judgment and decree dated 29.03.2006 passed in
R.A.No.30/2000 by the Addl. Civil Judge (Sr.Dn.),
Ranebennur, is affirmed.
Sd/-
(C.M. POONACHA)
JUDGE
Bs/nd/-
