Karnataka High Court
Smt Hussain Bi vs Fakru Sab on 4 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 2737 of 2007
C/W RSA No. 2741 of 2007
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO. 2737 OF 2007 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 2741 OF 2007 (DEC/INJ)
IN RSA NO.2737/2007:
BETWEEN:
1. SMT HUSSAIN BI,
SINCE DEAD BY HER LRs
1(a) SRI HUSSAIN KHAN,
S/O LATE KHALENDER SAB,
AGED ABOUT 70 YEARS
1(b) SMT. HALEEMA,
D/O LATE KHALENDER SAB,
AGED ABOUT 65 YEARS,
Digitally signed
by RAMESH 1(c) SMT. FATHIMA,
MATHAPATI
D/O LATE KHALENDER SAB,
Location: HIGH
COURT OF AGED ABOUT 62 YEARS,
KARNATAKA
ALL ARE R/A AKKIRAMPURA VILLAGE,
HOLLAVANAHALLI HOBLI,
KORATAGERE TALUK,
TUMKUR DIST 572 101.
...APPELLANTS
[BY SRI K.N. NITISH, ADVOCATE FOR SRI K.V.NARASIMHAN ADV.,]
AND:
1. KASIM KHAN,
S/O BUDEN SAB, AGED 84 YEARS,
2. FAKRU SAB,
SINCE DEAD BY HIS LRs
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2(a) PYARIMA,
W/O FAKRU SAB
AGED 70 YEARS
2(b) RIYAZULLA,
S/O FAKRU SAB,
AGED 40 YEARS,
R/A AKKIRAMPURA VILLAGE,
HOLLAVANAHALLI HOBLI,
KORTGERE TALUK,
TUMKUR DISTRICT - 572 101.
2(c) MUBARAK,
S/O FAKRU SAB, AGED 36 YEARS
2(d) PHROZ
S/O FAKRU SAB,
AGED 35 YEARS
RESPONDENT NO.2(a), (c) & (d)
ARE R/A ANTHARASANAHALLI VILLAGE,
KASABA HOBLI, TUMKUR TALUK,
TUMKUR DISTRICT 572 101.
3. PYARIMA,
W/O FAKRU SAB,
AGED ABOUT 74 YEARS,
4. RIYAZULLA,
S/O FAKRU SAB,
AGED 44 YEARS,
5. PHYROZ
SINCE DEAD BY HIS LRs
5(a) SMT. MUNNA,
W/O PHYROZ, MAJOR,
5(b) SATTAR KHAN,
S/O PHYROZ, AGED 26 YEARS,
5(c) SADIQ KHAN,
S/O PHYROZ,
AGED ABOUT 25 YEARS,
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RSA No. 2737 of 2007
C/W RSA No. 2741 of 2007
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5(d) NAGMA,
D/O PHYROZ,
AGED ABOUT 23 YEARS,
5(e) RUKSANA,
D/O PHYROZ, AGED ABOUT 22 YEARS,
6. MUBARAK
S/O FAKRU SAB, AGED ABOUT 40 YEARS
ALL ARE R/AT ANTHARASANAHALLI VILLAGE,
KASABA HOBLI, TUMKUR TALUK,
TUMKUR DISTRICT 572 101.
7. SRI AMIR KHAN,
S/O LATE KHALENDER SAB,
AGED ABOUT 60 YEARS,
R/A AKKIRAMAPURA VILLAGE,
HOLAVANAHALLI HOBLI,
KORATAGERE TALUK,
TUMKUR DISTRICT.
...RESPONDENTS
[(BY SRI G.S. BALAGANGADHAR, ADVOCATE FOR R2 (a-d), R3 & R6;
V/O DATED 28.05.2013 NOTICE TO R4 IS HELD SUFFICIENT;
V/O DATED 20.04.2023 NOTICE TO R5 (a-e) & R7 ARE H/S]
THIS RSA NO.2737/2007 IS FILED U/S. 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 14.2.07 PASSED IN R.A.NO
212/04 (OLD R.A. NO.91/97) ON THE FILE OF THE II ADDL.
DISTRICT JUDGE, TUMKUR, ALLOWING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 19.9.07 PASSED IN OS 20/89
ON THE FILE OF THE CIVIL JUDGE (JR.DN), & JMFC., KORATGERE.
IN RSA No.2741/2007:
BETWEEN:
1. SMT HUSSAIN BI,
SINCE DEAD BY HER LRs
1(a) SRI HUSSAIN KHAN,
S/O LATE KHALENDER SAB,
AGED ABOUT 70 YEARS
1(b) SMT. HALEEMA,
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RSA No. 2737 of 2007
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D/O LATE KHALENDER SAB,
AGED ABOUT 65 YEARS,
1(c) SMT. FATHIMA,
D/O LATE KHALENDER SAB,
AGED ABOUT 62 YEARS,
ALL ARE R/A AKKIRAMPURA VILLAGE,
HOLLAVANAHALLI HOBLI,
KORATAGERE TALUK,
TUMKUR DIST 572 101.
...APPELLANTS
[BY SRI K.N. NITISH, ADVOCATE FOR SRI K.V.NARASIMHAN ADV.,]
AND:
1. FAKRU SAB,
SINCE DEAD BY HIS LRs
1(a) PYARIMA,
W/O FAKRU SAB
AGED 70 YEARS
1(b) RIYAZULLA,
S/O FAKRU SAB,
AGED 40 YEARS,
R/A AKKIRAMPURA VILLAGE,
HOLLAVANAHALLI HOBLI,
KORTGERE TALUK,
TUMKUR DISTRICT - 572 101.
1(c) MUBARAK,
S/O FAKRU SAB, AGED 36 YEARS
1(d) PHROZ
S/O FAKRU SAB,
AGED 35 YEARS
RESPONDENT NO.1(a), (c) & (d)
ARE R/A ANTHARASANAHALLI VILLAGE,
KASABA HOBLI, TUMKUR TALUK,
TUMKUR DISTRICT 572 101.
2. PYARIMA,
W/O FAKRU SAB,
AGED ABOUT 74 YEARS,
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RSA No. 2737 of 2007
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3. PHYROZ
SINCE DEAD BY HIS LRs
3(a) SMT. MUNNA,
W/O PHYROZ, MAJOR,
3(b) SATTAR KHAN,
S/O PHYROZ, AGED 26 YEARS,
3(c) SADIQ KHAN,
S/O PHYROZ,
AGED ABOUT 25 YEARS,
3(d) NAGMA,
D/O PHYROZ,
AGED ABOUT 23 YEARS,
3(e) RUKSANA,
D/O PHYROZ, AGED ABOUT 22 YEARS,
4. RIYAZULLA,
S/O FAKRU SAB,
AGED 44 YEARS,
5. MUBARAK
S/O FAKRU SAB,
AGED ABOUT 40 YEARS
6. KHASIM KHAN,
S/O BUDEN SAB,
AGED ABOUT 84 YEARS,
ALL ARE R/AT ANTHARASANAHALLI
VILLAGE, KASABA HOBLI,
TUMKUR TALUK,
TUMKUR DISTRICT 572 101.
7. SRI AMIR KHAN,
S/O LATE KHALENDER SAB,
AGED ABOUT 60 YEARS,
R/A AKKIRAMAPURA VILLAGE,
HOLAVANAHALLI HOBLI,
KORATAGERE TALUK, TUMKUR DISTRICT.
...RESPONDENTS
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RSA No. 2737 of 2007
C/W RSA No. 2741 of 2007
HC-KAR
[(BY SRI G.S. BALAGANGADHAR, ADVOCATE FOR R1 (a-d) & R5;
R2 & R6 ARE SERVED, BUT UNREPRESENTED;
V/O DATED 28.05.2013 NOTICE TO R4 IS HELD SUFFICIENT;
V/O DATED 20.04.2023 NOTICE TO R3 (a-e) & R7 ARE H/S]
THIS RSA NO.2737/2007 IS FILED U/S. 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 14.2.07 PASSED IN R.A.NO
464/04 (OLD R.A. NO.86/97) ON THE FILE OF THE II ADDL.
DISTRICT JUDGE, TUMKUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 19.9.07 PASSED IN OS
20/89 ON THE FILE OF THE CIVIL JUDGE (JR.DN), & JMFC.,
KORATAGERE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.04.2025, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging common judgment and decree dated
14.02.2007 passed by II Addl. District Judge, Tumakuru, in RA
no.212/2004 and RA no.464/2004, these appeals are filed. As
they are on common facts and grounds, reference would also
be common.
2. Brief facts as stated are, appellant was plaintiff in
OS no.20/1989 (Old no.201/1981) filed for declaration that
plaintiff was absolute owner in possession and enjoyment of
property bearing Sy.no.69/1, measuring 3 Acres 10 guntas,
situated at Akkiramapura village, Holavanahalli Hobli,
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Koratagere Taluk (referred to as 'suit property') and for
permanent injunction restraining defendants from interfering
with her peaceful possession and enjoyment of suit property.
3. In plaint, it was stated, plaintiff succeeded to suit
property belonging to her husband - Kalandersab, after his
death. It was stated, defendants without any manner of right or
possession over suit property, began interfering with her
possession and enjoyment of same. Hence, suit was filed.
4. On appearance, defendants filed written statement
denying plaint averments. They denied plaintiff was owner of
suit property. They contended, suit property was exclusive
property of defendant no.1, which he got in family division.
Therefore, plaintiff did not have any right. It was stated
defendant no.1 having half share, while Khasim Khan
(defendant no.6) and Hussain Khan @ Sabu Sab had 1/4th
share in bore-well and exclusive ownership in IP-Set bearing
no.A.R.P.153, whereas, defendant no.6 and Hussain Khan had
half share in IP Set bearing no.A.R.P.48. And except 17 guntas
belonging to defendant no.6, defendant no.1 was owner of
remaining extent in Sy.no.69. It was specifically contended,
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description as well as boundaries of suit property was incorrect.
It was stated plaintiff and her children viz., Hussain Khan and
Hameed were enjoying property bearing Sy.no.51 of
Akkiramapura village as owner. Therefore, plaintiff's claim was
without basis and sought dismissal of suit.
5. Said averments were denied by plaintiff in his
rejoinder statement.
6. Based on pleadings, trial Court framed following:
ISSUES
1. Whether the plaintiff proves that the suit
property belonged to her husband and after his
death she is the owner of the same?
2. Is plaintiff in lawful possession of the suit
property?
3. Is plaintiff entitled to the reliefs sought?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendant no.1 proves that the
suit property belongs to him exclusively and
that he has got the same in the family
division?
2. Whether the first defendant further proves that
he is having half share in he well in Sy.No.69?
3. Whether the first defendant further proves that
one Khasim Khan is having 0-17 guntas of land
in suit Sy.No.?
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4. Whether the first defendant proves that the
boundaries given to the suit property are
wrong?
7. In trial, SPA holder of plaintiff and two others
deposed as PWs.1 to 3 and got marked Exhibits P1 to P15. In
rebuttal, defendants no.1, 6 and five others deposed as DWs.1
to 7 and got marked Exhibits D1 to D43.
8. On consideration, trial Court answered issues no.1,
additional issues no.1 to 4 in negative, issue no.2 in
affirmative, issue no.3 as per final order and issue no.4 by
dismissing suit insofar as relief of declaration and decreed suit
for permanent injunction restraining defendants etc. from
interfering with peaceful possession and enjoyment of suit
property.
9. Aggrieved, defendant no.6 filed RA no.212/2004,
while defendants no.1, 2 and 4 filed RA no.464/2004 on various
grounds. based on same, first appellate Court framed following:
Points:
1. Whether the trial Court has erred in decreeing
the plaintiff's suit partly without any cost?
2. Whether the cross-objection of R1 filed U/O 41
R.22 CPC is sustainable?
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3. What order?
10. On consideration, first appellate Court answered
point no.1 in affirmative, point no.2 in negative and point no.3
by allowed appeals and dismissed suit in entirety. Aggrieved
thereby, plaintiff filed this appeal.
11. Sri KN Nitish, learned counsel appearing for
Sri KV Narasimhan, learned counsel for plaintiff submitted this
was plaintiff's appeal against divergent findings in suit for
declaration and permanent injunction. It was submitted
originally suit property belonged to Mariyanna, Rudrappa and
Bhadrappa, who executed Ex.D4 - mortgage deed dated
13.01.1934 in favour of Virupanna and Mariyappa. In turn, said
property was further mortgaged under Ex.P2 on 30.05.1948 in
favour of plaintiff's husband with delivery of possession on
same day. Thus, plaintiff's husband was in possession and after
his death, plaintiff continued in possession. It was submitted, to
establish title and possession, plaintiff produced Ex.P15 - patta
book of suit property; Ex.P5 - Index of Land noting mortgage;
Ex.P3 - Khata extract bore name of plaintiff's husband. It was
submitted, current revenue records showed plaintiff as
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khatedar/owner of suit property on death of her husband. And
Exs.P3 and P4 - RoRs, Khata Extracts etc. showed possession of
plaintiff's husband earlier. Hence plaintiff was in possession of
suit property.
12. It was submitted, trial Court though negatived issue
on title, but answered possession in affirmative. Insofar as
pencil entry, it was submitted, this Court in CRP no.2502/1984
had examined records in detail and held plaintiff was in
possession of suit property. However, first appellate Court
dismissed appeal without considering said aspect. Aggrieved
thereby, plaintiff as well as defendants filed appeal. Without
taking note of same, it erroneously dismissed suit in entirety.
13. It was submitted, provisions of Order XLI Rule 31 of
CPC mandate first appellate Court to frame proper points for
consideration and to traverse findings on all issues while
deciding appeal under Section 96 of CPC. Failure rendered
judgment and decree passed by first appellate Court erroneous.
In support of submissions, learned counsel relied on decision of
this Court in case of Bangarappa v. Rudrappa reported in
ILR 2012 KAR 1020 and of Hon'ble Supreme Court in case of
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Santosh Hazari v. Purushottam Tiwari (dead) by LRs
reported in AIR 2001 SC 965 and Vinod Kumar v.
Gangadhar reported in (2014) 10 SC 1050. It was
submitted, first appellate Court ought to have appreciated fact
that possession was handed over at time of execution of
mortgage deed. And though defendants did not have any right
over suit property, they claimed to be owners, without
producing any material or leading evidence to establish either
title or possession.
14. It was submitted Ex.P2 would establish title and
revenue records were mutated in name of plaintiff. It was
submitted, while passing judgment in CRP, this Court held
pencil entry was illegal and ordered for its removal. Col.16 of
Ex.P6 evidenced removal. Said aspect was also not appreciated
by first appellate Court.
15. It was submitted, defendants failed to establish that
they were either mortgager or their successors, while plaintiff
was direct successor of mortgagee. Consequently, defendants
did not have any right over suit property. Non appreciation of
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said fact rendered judgment and decree by first appellate Court
perverse.
16. On above grounds, learned counsel sought to
answer substantial question of law in favour of appellant and
allow appeal.
17. On other hand, Sri GS Balagangadhar, learned
counsel appearing for respondents-defendants sought to
oppose appeal. At outset, it was submitted, claim of plaintiff
was contrary to Order VI Rule 7 of CPC, which reads:
"7. Departure - No pleading shall, except by
way of amendment, raise any new ground of
claim or contain any allegation of fact
inconsistent with the previous pleadings of
the party pleading the same."
18. In light of above, it was submitted, plaintiff had
vaguely asserted she was owner in possession of suit property,
without disclosing manner of acquisition of title or possession,
which would fall short of compliance with above provision. It
was submitted, there was no description of flow of title or
possession, without even mentioning particulars of when and
how her husband died. Therefore, suit was liable for dismissal
on ground of improper description of suit property and same
not tallying with documents produced by plaintiff. In any case,
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plaintiff failed to conclusively prove title. And even insofar as
possession, PW.2 gave contradictory description of suit
property, while PW.3 turned hostile. Further, PW.1 was GPA
holder of plaintiff, who admitted ignorance about partition /
division. Further, he got marked only Ex.P2 and admitted
ignorance about other documents.
19. Insofar as contention about acceptability of 'pencil
entries' based on observations in revision petition, it was
submitted order in challenge therein was interim in nature and
as per settled principles of law, interim order would merge with
final decree. Therefore, observations would not inure to
plaintiff. Thus, trial Court rightly negatived issue of ownership,
it erred in holding plaintiff was in possession. As examination of
PWs.2 and 3 would not benefit plaintiff, dismissal of suit in toto,
by first appellate Court was justified. It was submitted, as per
decision of Hon'ble Supreme Court in case of Anathula
Sudhakar v. P Buchi Reddy reported in (2008) 4 SCC 594,
plaintiff has to establish his possession as on date of suit and
cannot take advantage of mutation entries post lite. Therefore,
RoRs of year 1989, when suit was filed in 1981, would be
unreliable. Thus trial Court erred in granting permanent
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injunction and first appellate Court rightly dismissed suit.
Contention that same violated Order XLI Rule 33 of CPC would
not come to plaintiff's aid. It was submitted, out of total extent,
8 guntas was allotted to another person and remaining to
defendants in Ex.D4 - registered partition deed. Same would
prima-facie establish defendants' title and possession. When
total extent of land was 2 Acres 10 guntas and extent mortgage
was 2 Acres 2 guntas, claim of plaintiff over entire extent was
without basis and falsify claim. Hence, dismissal of suit was
proper.
20. It was lastly submitted as appeal was under Section
100 of CPC, scope of interference would be limited only if any
substantial question of law arose for consideration. As none
arose, sought for dismissal of appeal.
21. In reply, learned counsel for plaintiff submitted,
trial Court framed additional issue no.4, insofar as discrepancy
in boundary and answered it in negative. Therefore, first
appellate Court ought to have framed a specific point for
consideration. Failure would be violative of provisions of Order
XLI Rule 33 of CPC. It was submitted, in view of admission of
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mortgage deed, trial Court rightly held defendants failed to
establish their claim based on partition.
22. Though defendants claimed Sy.no.69/1 measured 3
Acres 2 guntas they failed to establish same. In fact, it is
settled law that boundaries prevail over extent and property
was identifiable from boundaries. Further, Ex.P2 was certified
copy of original and would be secondary evidence as per
Section 65 of Evidence Act. Having failed to object to its
marking, defendants cannot turnaround in Second Appeal and
question its veracity. Though defendants based their claim on
partition deed, they produced its certified copy marked in
another suit, which cannot be looked into. Defendants ought to
have called for records of said suit or got marked original and
no explanation was offered for failure to produce original deed.
It was submitted, registered document would have presumptive
value under Section 92 of Evidence Act. And documentary
evidence cannot be discarded merely on ground of
contradictory oral evidence.
23. In support of his submissions about validity of
pencil entries, learned counsel relied on decision of Hon'ble
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Supreme Court in case of Narayan Laxman Patil v. Gala
Construction Company Ltd. reported in 2016 (14) SCC 388
and observations of this Court in CRP no.2602/1984:
"5. The patta produced by the plaintiff shows
that the land Sy.no.69/1 stands in the khata of
the husband of the plaintiff-respondent no.1. The
extract of the Record of Rights for the year
1974-75 shows that the plaintiff who is the wife
of Khalandersab is the khatedar. The plaintiff has
been shown as the khatedar and the cultivator of
the land in question upto the year 1976-77. For
the first time during 1977-78, the name of
defendant-1 has been shown as the cultivator.
His name is not shown in col.no.9 i.e. Khatedar
or Kabjedar's column. The name of 1st defendant
is being shown in the cultivator's column from
1977-78 to 1979-80 only in pencil. I am really
amazed at the tenerity of the village accountant
who has been constantly making entries in
pencil. If the village accountants are allowed to
play truant by making pencil entries, the
sacredness of the Record of Rights extract would
cease to have any force. I am really surprised
that the Revenue Authorities have not taken any
action against the village accountant for
continuously making pencil entries in the name
of defendant-1 from the year 1977-78, upto
date. The pencil entries, as per the
provisions of the Land Reforms Act, have no
evidenciary value at all and an enquiry must
be held by the authorities concerned to
verify the correctness or otherwise of the
pencil entries made by the village
accountant. If there is any pencil entry, it must
be carried out into the register of disputes and
an enquiry must be held by the concerned
authority and should be certified. So long as it is
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not certified, the pencil entry would not be worth
even the pencil with which it is written. I am
sure, the Deputy Commissioner would enquire
into the conduct of the village accountant and
take necessary action against him for making
these pencil entries. A copy of this order may be
sent to the Deputy Commissioner, by name,
Tumkur District to take necessary action in the
matter against the village accountant."
24. For proposition that revenue entries based on
untrue facts would not attract any presumption, he relied on
ratio in case of Dayaram and Ors. v. Dawalatshah and Ors.,
reported in 1971 (1) SCC 358. It was submitted, when faced
with rival but unsubstantiated claims of title, one with better
title would be entitled for relief, he relied on decisions in case of
Ashish Kumar v. Hari Kishan, reported in 2015 SCC Online
Del 14059 and Bimla Chopra and Anr. v. Kuldeep, reported
in 2023 SCC OnLine 2669.
25. For proposition that recitals in registered document
attracted presumption, he relied on decision of Hon'ble
Supreme Court in case of Manik Majumder and Ors. v.
Dipak Kumar Saha (dead) through LRs and Ors. reported
in AIR 2023 SC 506. On above submissions, learned counsel
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submitted, following substantial questions of law would arise for
consideration:
1. When plaintiff traced her title to Ex.P2 dated
30.05.1948, whether both Courts were
justified in denying relief of declaration?
2. When Khalandar Sab was put in possession of
suit property under Ex.P.2 and plaintiff was
admittedly his widow, failure to decree suit
was justified?
3. Whether first appellate Court is justified in
dismissing plaintiff's cross objection?
4. When defendants failed to establish any
semblance of right over schedule property,
whether dismissal of suit of plaintiff is
justified?
26. In reply, learned counsel for defendants submitted
that Order VII Rule 14 of CPC mandates pleading with all
particulars. As plaintiff deliberately not complied with said
requirement, suit was liable for dismissal. It was submitted
when defendant specifically contended that suit was without
cause of action, and plaintiff had specifically denied Ex.D6 -
sale deed, and despite trial Court noting oral evidence was
contradicting documentary evidence, it erroneously decreed
suit.
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27. It was submitted, first appellate Court noted
plaintiff's claim of title and possession over suit property was
based on registered document. However, instead of producing
original title deed, plaintiff produced certified copy. It was
submitted Section 91 of the Indian Evidence Act, 1872, governs
admissibility of evidence for proving terms of contracts, grants
or other dispositions of property that have been reduced to
writing. It essentially establishes "best evidence rule" for
written documents, requiring document itself to be primary
evidence and secondary evidence could be accepted only if
original is unavailable. It was submitted, while answering issue
no.1, trial Court observed plaintiff failed to establish how her
husband became owner of suit property.
28. Further, merely on death of husband, plaintiff would
not get absolute right over suit property, when other surviving
heirs would have share in it. It was submitted, while passing
impugned judgment and decree, first appellate Court
considered contentions of plaintiff insofar as findings of trial
Court on issue no.1 and held dismissal of suit insofar as
declaration was justified. And on ground that plaintiff had failed
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to establish possession as on date of suit, set-aside decree of
permanent injunction and dismissed suit in entirety.
29. Heard learned counsel for parties and perused
impugned judgment and decree and records.
30. This appeal is by unsuccessful plaintiff in suit for
declaration and permanent injunction, wherein trial Court
rejected relief of declaration but granted injunction while first
appellate Court allowed defendants' appeal, rejected plaintiff's
cross-objection and dismissed suit in entirety.
31. Plaintiff's claim for declaration and permanent
injunction was based on assertion that suit property originally
belonged to Mariyanna, Rudrappa and Bhadrappa. It was
mortgaged under Ex.D4 in favour of Virupanna and Mariyappa,
who in turn mortgaged it under Ex.P2 in favour of plaintiff's
husband along with possession and succeeded to it on death of
her husband. Suit claim was substantiated by producing
mortgage deed as Ex.P2, Khata Extract as Ex.P3, Record of
Rights as Ex.P4, Index of Land Extract as Ex.P5, RTCs as
Exs.P6 to 9, Tax Paid Receipts as Exs.P10 to P14 and Patta
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Book as Ex.P15. Plaintiff was deposed as PW.1 and examined
two independent witnesses as PWs.2 and 3.
32. Suit was opposed by defendants by claiming that
suit property was ancestral property and inherited by defendant
no.1 in family division at Ex.D4 and claiming to be in
possession. To substantiate same, defendants produced
registered sale deeds dated 19.03.1958, 20.06.1959 and
24.06.1959 as Exs.D1 to D3, certified copy of Vibhaga Patra in
OS no.316/1989 as Ex.D4, registered sale deeds dated
23.12.1969 and 14.03.1979 as Exs.D5 and D6, Order sheet,
plaint and written statement in OS no.247/1980 as Exs.D7 to
D9, RTCs of Sy.no.69/1 as Exs.D10 to D15, RTCs of Sy.no.69/2
as Exs.D16 to D19, RTCs of Sy.no.69/3 as Exs.D20 to D23,
RTCs of Sy.no.69/4 as Exs.D24 to D27, RTC of Sy.no.51/1 as
Ex.D28, RTC of Sy.no.51/2 as Ex.D29, RTC of Sy.no.51/3 as
Ex.D30, Tax paid receipts as Exs.D31 to D42, Mucchalike dated
05.01.1980 as Ex.D43, Certified copy of Sale Deed receipt as
Ex.D44 etc.
33. While passing impugned judgment and decree, trial
Court took note of rival pleadings as well as oral and
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documentary evidence led. It observed though plaintiff was
claiming declaration of title and permanent injunction, no
details were mentioned in pleadings except stating that suit
property belonged to her husband, she had inherited it on his
death. It also noted that instead of plaintiff, her son deposed as
PW.1 on her behalf under Ex.P1 - SPoA. And even PW.1
deposed that suit property was mortgaged to his father by
Virupanna and Mariyappa, in whose favour, it was mortgaged
by Rudrappa. Trial Court also noted PW.1 deposed about his
father being in possession as mortgagee as corroborated by
mortgage deed, RTCs, Revenue receipts and Patta book as
Exs.P2 to P15.
34. It noted, recitals in Ex.P2 showed mortgage of 3
Acres and 2 guntas in Sy.no.69 by Virupanna and Mariyappa
in favour of Khalander Sab and Ex.P4 was earlier mortgage by
Mariyanna, Rudrappa and Bhadrappa in favour of Virupanna
and Mariyappa and Exs.P3, P5, P6 to P9 corroborating same. It
however, noted that there was no material to show plaintiff or
her husband had acquired ownership over suit property. It
answered issue no.1 regarding title in negative. It however,
observed above material indicated plaintiff's possession over
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suit property. It also adverted to defendants' claim of
possession on basis of Exs.D10 to D15 - pencil entries of name
of Fakrusab in Col.12 (2) of RoRs, which were held by this
Court in CRP no.2502/1984 to have been made illegally. It also
noted, Ex.D43 was in respect of land bearing Sy.no.69/4
whereas subject matter of present suit was Sy.no.69/1. It
observed that plaintiff was not party to Ex.D45 - sale deed of
pump set fixed to Well in Sy.no.69/1, therefore it would not
bind plaintiff. On above observations, it held plaintiff had
established possession and answered issue no.2.
35. While examining claim of defendant no.1 about
getting suit property in family division, it noted, production of
Exs.D1 to D3, D5 and D6 - sale deeds. It however observed
subject matter of Ex.D1 was 30 guntas of land in Sy.no.69,
which was different from suit property. On perusal of Exs.D2
and D3 - sale deeds, it observed property demised was 2/3rd
share in Sy.no.69/1 i.e. 38 guntas. It also observed that one of
pages of Ex.D2 sale deed was not produced. On perusal of
RTCs/RoRs, it concluded that despite sale deeds, defendant
no.1 was not in physical possession of suit property by
redeeming mortgage. Trial Court held Ex.D4 - copy of partition
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deed was unreliable as its original allegedly produced in
another suit was not summoned nor any explanation offered. It
noted, admission of ignorance by DW.1 in which suit, original of
Ex.D4 was produced rendered it unreliable. Trial Court held
Exs.D5 and D6 as irrelevant as they were pertaining to lands
bearing Sy.no.69/2 and 69/3 and not suit property. Insofar as
Exs.D7 to D9 and Ex.D44 - pleadings, order sheet and
compromise decree in OS no.247/1980, it noted would not bind
plaintiff as he was not a party. Trial Court further held Exs.D32
to D34 and D40 - revenue receipts as irrelevant for being post
lite. On basis of above observations, it held defendant no.1
failing to establish his title over suit property. It answered
additional issues no.1 to 3 accordingly.
36. And on ground that despite taking specific
contention about improper description of suit property,
defendant no.1 had failed to establish same, it held additional
issue no.4 in negative. Further, based on its finding on issue
no.1, it held plaintiff entitled for relief of permanent injunction
only and proceeded to decree suit in part.
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37. In Appeal, first appellate Court took note of rival
contentions as well as pleadings, evidence led and findings of
trial Court in impugned judgment and decree. On perusal of
Ex.P2, it observed mortgage of suit property by Mariyappa in
favour of plaintiff's husband and reference to earlier mortgage
of same in favour of Mariyappa. It observed corroboration of
mortgage in Ex.P3 - Khata extract, Ex.P4 - RoR and Ex.P5 -
Index of land. It observed Exs.P6 to P9 reflected name of
plaintiff's husband in Col.9 as mortgagee. Based on said
material, it concluded plaintiff had established possession but
not ownership. It also observed PWs.2 and 3 had not deposed
about ownership right of plaintiff over suit property.
38. It also observed, defendants no.1 and 6 were
brothers of plaintiff's husband while defendants no.2 to 5 were
children of defendant no.1. And Exs.D10 to D15 - RoR of suit
property showed name of defendant no.1 in Col.12. On
comparison of Exs.P6 to P9 and Exs.D10 to D15 - RoRs of suit
property from 1979-80 to 1991-92, it observed name of
defendant no.1 appeared in Col.12 upto year 1987, when
plaintiff got it deleted under M.R.no.10/1987-88. It noted
plaintiff had failed to produce said mutation extract or order of
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Assistant Commissioner for such deletion. It noted that name of
defendant no.1 was appearing in Col.12 of RoR as on date of
suit and deletion was during pendency of suit, apparently in
pursuance of order passed in CRP no.2502/1984. It observed,
Exs.D7 to D9, Order sheet and pleadings in OS no.247/1980
showed suit filed for declaration by defendant no.1 against
Suban Sab and Shivanna in respect of Sy.no.69/1 was filed on
16.09.1980 and disposed of in terms of compromise. From
above, it concluded that plaintiff failed to establish possession
over suit property as on date of suit and trial Court had
committed error in recording finding to contrary.
39. Based on above finding and taking note of fact that
plaintiff had merely filed Cross-objection against finding on
issue no.1 about title, it held plaintiff would not be entitled for
any relief. In that context, it observed that there would be no
need to advert to findings on additional issues no.1 to 4.
Consequently, it answered point no.1 in affirmative and point
no.2 in negative and allowed both appeals by defendants and
rejected Cross-objection of plaintiff.
40. Main grounds urged herein are suit was for
declaration of title and possession, as per plaintiff, suit property
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was mortgaged in favour of plaintiff's husband on 30.05.1948
at Ex.P2 and on failure to redeem same, mortgager lost right of
redemption and title vested with plaintiff.
41. Hon'ble Supreme Court in case of L.K. Trust v.
EDC Ltd., reported in (2011) 6 SCC 780, held:
"61. The mortgagor under Indian law is the
owner who had parted with some rights of
ownership and the right of redemption is the
right which he exercises by virtue of his
residuary ownership to resume what he has
parted with. In India this right of redemption,
however, is a statutory one. A right of
redemption is an incident of a subsisting
mortgage and subsists so long as the
mortgage itself subsists. The judicial trend
indicates that dismissal of an earlier suit for
redemption whether as abated or as
withdrawn or in default would not debar the
mortgagor from filing a second suit for
redemption so long as the mortgage subsists.
This right cannot be extinguished except by
the act of parties or by the decree of a court.
As explained by this Court in Jayasingh
Dnyanu Mhoprekar v. Krishna Babaji
Patil [(1985) 4 SCC 162] : (SCC p. 167, para
6)
"6. ... the right of redemption under a
mortgage deed can come to an end only
in a manner known to law. Such
extinguishment of the right can take
place by contract between the parties,
by a merger or by a statutory provision
which debars the mortgagor from
redeeming the mortgage."
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62. The mortgagor's right of redemption is
exercised by the payment or tender to the
mortgagee at the proper time and at the
proper place of the mortgage money. When it
is extinguished by the act of parties, the act
must take the shape and observe the
formalities which the law prescribes. A
mortgage being a security for the debt, the
right of redemption continues although the
mortgagor fails to pay the debt at the due
date. Any provision inserted to prevent,
evade or hamper the redemption is void."
42. Though both Courts concurrently held plaintiff
established mortgage of suit property in favour of plaintiff's
husband, in absence of material to establish loss of right of
redemption in manner provided by law, plaintiff's claim for
declaration of title would not sustain. Both Courts were fully
justified in rejecting prayer for declaration of title and no
substantial question of law arises on this count.
43. Next ground that failure by first appellate Court to
frame proper points for consideration relying on ratio laid down
in Bangarappa's case (supra), Hon'ble Supreme Court in
Mrugendra Indravadan Mehta v. Ahmedabad Municipal
Corpn., 2024 SCC OnLine SC 849
"27. This being the legal position vis-à-vis the
Act of 1976, it was contended before us by
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the plaintiffs that the impugned judgment of
the High Court is liable to be set aside on the
short ground that no points for determination
were framed therein, as required by Order 41
Rule 31 CPC. Reliance was placed on Malluru
Mallappa (Dead) through
Lrs. v. Kuruvathappa5, wherein this Court
observed that the first appellate Court is
required to set out the points for
determination, record the decision thereon
and give its own reasoning. It was further
observed that, even when the said Court
affirms the judgment of the Trial Court, it has
to comply with the requirements of Order 41
Rule 31 CPC as non-observance thereof would
lead to an infirmity in its judgment. However,
it may be noted that no absolute proposition
was laid down therein to the effect that
failure to frame points for determination, in
itself, would render the first appellate Court's
judgment invalid on that ground.
28. Reference was also made to Santosh
Hazari v. Purushottam Tiwari (Deceased) by
LRs6, wherein this Court held that a first
appeal is a valuable right and unless
restricted by law, the whole case would be
open for rehearing before it, both on
questions of fact and law, and, therefore, the
judgment of the first appellate Court must
reflect conscious application of mind and it
must record findings supported by reasons on
all the issues arising, along with the
contentions put forth and pressed by the
parties for decision of the said Court. It was
further observed that, while reversing a
finding of fact, the first appellate Court must
come into close quarters with the reasoning
of the Trial Court and then assign its own
reasons for arriving at a different finding.
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This, per this Court, would satisfy the
requirement of Order 41 Rule 31 CPC.
29. However, in Laliteshwar Prasad
Singh v. S.P. Srivastava (Dead) thru. Lrs.7,
this Court, while affirming the afore stated
principles, observed that it is well settled that
the mere omission to frame the points for
determination would not vitiate the judgment
of the first appellate Court, provided that the
first appellate Court recorded its reasons
based on the evidence adduced by both
parties.
30. Thus, even if the first appellate Court
does not separately frame the points for
determination arising in the first appeal, it
would not prove fatal as long as that Court
deals with all the issues that actually arise for
deliberation in the said appeal. Substantial
compliance with the mandate of Order 41
Rule 31 CPC in that regard is sufficient. In
this regard, useful reference may be made
to G. Amalorpavam v. R.C. Diocese of
Madurai8, wherein this Court held as under:--
'9. The question whether in a particular
case there has been substantial
compliance with the provisions of
Order 41 Rule 31 CPC has to be
determined on the nature of the
judgment delivered in each case. Non-
compliance with the provisions may
not vitiate the judgment and make it
wholly void, and may be ignored if
there has been substantial compliance
with it and the second appellate court
is in a position to ascertain the findings
of the lower appellate court. It is no
doubt desirable that the appellate
court should comply with all the
requirements of Order 41 Rule 31 CPC.
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But if it is possible to make out from
the judgment that there is substantial
compliance with the said requirements
and that justice has not thereby
suffered, that would be sufficient.
Where the appellate court has
considered the entire evidence on
record and discussed the same in
detail, come to any conclusion and its
findings are supported by reasons even
though the point has not been framed
by the appellate court there is
substantial compliance with the
provisions of Order 41 Rule 31 CPC and
the judgment is not in any manner
vitiated by the absence of a point of
determination. Where there is an
honest endeavour on the part of the
lower appellate court to consider the
controversy between the parties and
there is proper appraisement of the
respective cases and weighing and
balancing of the evidence, facts and
the other considerations appearing on
both sides is clearly manifest by the
perusal of the judgment of the lower
appellate court, it would be a valid
judgment even though it does not
contain the points for determination.
The object of the rule in making it
incumbent upon the appellate court to
frame points for determination and to
cite reasons for the decision is to focus
attention of the court on the rival
contentions which arise for
determination and also to provide
litigant parties opportunity in
understanding the ground upon which
the decision is founded with a view to
enable them to know the basis of the
decision and if so considered
appropriate and so advised to avail the
remedy of second appeal conferred by
Section 100 CPC.'
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31. As already noted hereinabove, the High
Court did set out all the issues framed by the
Trial Court in the body of the judgment and
was, therefore, fully conscious of all the
points that it had to consider in the appeal.
Further, we do not find that any particular
issue that was considered by the Trial Court
was left out by the High Court while
adjudicating the appeal. In effect, we do not
find merit in the contention that the impugned
judgment is liable to be set aside on this
preliminary ground, warranting reconsideration of
the first appeal by the High Court afresh."
(emphasis supplied)
44. Even contention about failure by first appellate
Court to give findings on additional issues no.1 to 4 as violative
of Order XLI Rule 31 of CPC giving rise to substantial question
of law by referring to Santosh Hazari and Vinod Kumar's
cases (supra), it is seen, while passing impugned judgment and
decree, first appellate Court considered pleadings, evidence and
contentions of both parties insofar as title and possession over
suit property. Moreover, additional issues are about defendants'
claim over suit property. Admittedly there is no counter claim
by defendants. It is settled law that plaintiff's case has to stand
on it's own and cannot seek to take advantage of weakness of
defendants' case. Therefore ratio of decisions relied on would
not be attracted.
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45. Entry of name of defendant no.1 in Exs.D10 to D15
were pencil entries, held illegal by this Court. Even though said
finding was while deciding legality of interim order, but finding
about entries was conclusive. Therefore, finding on pencil
entries would not be a substantial question of law.
46. It is also contended, when mortgage under Ex.P2 -
registered deed is admitted and neither redemption nor claim
for redemption is established, plaintiff's claim over suit property
would be better than that of defendants, entitling plaintiff for
protection as per ratio in Ashish Kumar, Bimla Chopra and
Manik Majumder's cases (supra). Though contention would
appear carrying weight insofar as plaintiff's claim for protection
from interference by defendants, but both Courts examined
plaintiff' claim for permanent injunction by applying appropriate
principles. While finding of trial Court about plaintiff being in
lawful possession was based on Ex.P2 - mortgage deed and
Exs.P3 to P10 - Revenue Records of years 1986-87 to 1991-92,
first appellate Court differed with said finding on ground that
Ex.P2 was certified copy of Mortgage Deed and plaintiff had not
laid proper basis for relying on secondary evidence, in pleading.
It also noted Exs.P3 to 10 were post lite and would not
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establish her possession as on date of suit. Said finding being
after due appreciation of material placed on record by both
parties and by assigning cogent reasons, would not be open for
interference on ground of perversity.
47. Indeed, observations of first appellate Court about
Cross-objections enabling objector to only support decree
impugned, would appear contrary to principles of law clarified
by this Court in case of Annasaheb Balesha Waghe v.
Appasaheb Dada Pommai reported in 2007 SCC OnLine
Kar 106, holding:
"16. Therefore, what emerges from the aforesaid
discussion is:
An appeal lies only against the decree and
no appeal lies against a finding. A party who
has not preferred an appeal against a
portion of the decree of which he is
aggrieved may prefer a cross objection
which is in the nature of a cross appeal, in
an appeal preferred by the opposite party
against the decree, which is partly in his
favour and partly against him. However, in
an appeal against a decree, the respondent
can challenge a finding which is against him
though decree is in his favour, without filing
a cross objections. He can also file cross
objection challenging the said adverse
finding. The difference is when the
respondent challenges an adverse finding,
without filing a cross objection and if the
appellant withdraws the appeal or the
appeal is dismissed for default, then the
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right of the respondent to get that adverse
finding set aside is lost. But if he has filed a
cross objection challenging the said adverse
finding, notwithstanding the appellant
withdrawing the appeal or the appeal is
dismissed for default he can independently
prosecute his cross objection and the Court
is under an obligation to consider the said
cross objection and pass order on merits."
48. But, while passing impugned judgment and decree,
first appellate Court considered pleadings, evidence led and
contentions of plaintiff while examining her claim for
declaration of title as well as possession after weighing it
against material produced by defendants. It is held above that
findings of first appellate Court are justified and not perverse as
would give rise to substantial question of law.
49. Even contention that defendants failed to establish
their claim over suit property, while plaintiff established
possession over suit property, it is seen defendants claimed to
be brothers of plaintiff's husband. They claimed that suit
property fell to their share in family division. Trial Court framed
additional issues no.1 to 4 about defendants' claim and
answered them in negative. In appeal, first appellate Court
observed it was unnecessary to advert to said findings.
Defendants have not filed Cross Appeal. Therefore, it would
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appear defendants are not aggrieved by rejection of their
claims over suit property.
50. There would be yet another justification for these
findings. Admittedly, defendants no.1 and 6 are brothers of
plaintiff's husband, while defendants no.2 to 5 are descendants
of defendant no.1 and PW.1 is son of plaintiff, who is widow of
deceased. It is elicited from PW.1 that he has another brother
Ameed Khan. Succession under Mohmedan law would open only
after death. Khalander Sab left behind widow (plaintiff) and two
sons, wherein plaintiff as widow would take 1/8th share and
sons sharing remaining 7/8th equally leaving no scope for
inheritance by siblings of deceased, who would be residuaries.
Therefore, claim by defendants as brother of deceased -
husband of plaintiff would not sustain.
51. However it has to be reiterated yet again that in a
suit, plaintiff has to succeed on his own strength and not on
weakness of defendant's case. As noted above, plaintiff failed
to discharge burden to establish his title and possession over
suit property as on date of suit. In view of above, mere failure
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of defendants to establish their right over suit property would
not entitle plaintiff for permanent injunction.
52. For aforesaid reasons, I hold no substantial
questions of law including those proposed, arise for
consideration. Consequently, following:
ORDER
Both appeals are dismissed.
Sd/-
(RAVI V HOSMANI)
JUDGE
PSG,AV,GRD
