Karnataka High Court
Sri.Mohamad Gouse S/O Abdul Razak ... vs Abhiman Housing Society on 25 February, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.100791/2019 (INJ)
BETWEEN
1. SRI.MOHAMAD GOUSE S/O ABDUL RAZAK TAMATAGAR
@ KHADRI, AGE: 57 YEARS,
OCC: AGRICULTURE,
R/O KCC BANK ROAD, DHARWAD.
2. SRI.ABDUL KADAR S/O ABDUL RAZAK TAMATAGAR
@ KHADRI, AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O KCC BANK ROAD, DHARWAD.
... APPELLANTS
(BY SRI.SANTOSH B.MALLIGAWAD, ADV.)
AND
1. ABHIMAN HOUSING SOCIETY,
BY ITS PRESIDENT,
SRI.BASAVARAJ BASAVENEPPA TEGUR,
AGE: 65 YEARS, OCC: BUSINESS,
R/O BASAVARAJ NILAY, BESIDE DAIVAGANA
KALYAN MANTAP ROAD, DHARWAD.
2. SHRI.BASANGOUDA APPAYGOUDA PATIL,
AGE: MAJOR, OCC: RETIRED TEACHER,
R/O PLOT NO.2224 NO.11, AKKAMAHADEVI
MARG ROAD, MAHANTESH NAGAR, BELGAUM.
3. SHRI.M.L.MATTENNAVAR S/O L.S.MATTENNAVAR,
AGE: MAJOR, OCC: SERVICE,
R/O EXAM SECTION, KARNATAKA UNIVERSITY DHARWAD.
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4. SHRI.CHANNAYYA S.HIREMATH,
AGE: MAJOR, OCC: TEACHER,
R/O BANK SIDE OF VIDYASREE HOUSE,
JAYANAGAR BARAKOTTI LINK ROAD,
OPP.TO PARK TEMPLE, DHARWAD.
5. SHRI.HEMANNA S/O HUCHAPPA MADIYADAR,
AGE: MAJOR, OCC: SERVICE,
R/O KARNATAKA UNIVERSITY DHARWAD.
6. SHRI.M.S.KOPPAD,
SINCE DECEASED BY HIS LRS.
6(a) SUMANGALA W/O MALLAPPA KOPPAD,
AGE: MAJOR, HOUSEHOLD,
R/O OPP.SHIRHARI UPHAR, MALMANE BADAVANE,
NAVODAY NAGAR, KUD GATE, DHARWAD.
6(b) SHASHIDHAR S/O MALLAPPA KOPPAD,
AGE: MAJOR, HOUSEHOLD,
R/O OPP.SHIRHARI UPHAR, MALMANE BADAVANE,
NAVODAY NAGAR, KUD GATE, DHARWAD.
7. SMT.J.D.SHAILJI W/O NILKANT
C/O SRI.S.S.SHIRKOL,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O HOUSE NO.C 13/1118, DURGADEVI COLONY,
HALIYAL ROAD, DHARWAD.
8. SMT.BASAVVA W/O S.S.SHRIKOL,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O HOUSE NO.C 13/1118, DURGADEVI COLONY,
HALIYAL ROAD, DHARWAD.
9. SRI.SANJAY S.O B.N.JIRALE,
AGE: MAJOR, OCC: STUDENT,
R/O 5TH CROSS, SADHANKERI, DHARWAD.
10. SMT.SHAKUNTALA W/O DR.K.M.HOSAMANI,
AGE: MAJOR, OCC: STUDENT,
R/O 39 SUHASWATI 3RD CROSS,
SHIVAGIRI, DHARWAD.
3
11. SRI.GOPAL KRISHNA S/O VENKATESH BINDAGI,
AGE: MAJOR, OCC: SERVICE TYPIST,
R/O RTO OFFICE, HONNAVAR, DIST: KARWAR.
12. SRI.MUDDANGOUDA S/O DYAMANAGOUDAR,
SANGANGOUDA,
AGE; MAJOR, OCC: SERVICE,
R/O NEAR MOSQUE, KARNATAKA CIRCLE,
NAVANAGAR, HUBLI.
13. SRI.ASHOKRAJ S/O IRAPPA BYALI,
AGE: MAJOR, OCC: SERVICE STATE BANK OF INDIA,
R/O PLOT NO.89, RANI CHANNAMMA NAGAR,
LAST BUS STOP, DHARWAD.
... RESPONDENTS
(BY SRI.B.S.SANGATI, ADV. FOR R7, R8 & R12,
SRI.K.L.PATIL, ADV. FOR R1,
SRI.S.R.HEGDE, ADV. FOR R2,
SRI.P.S.TADAPATRI & SRI.B.G.INDI, ADVS. FOR R4,
SRI.M.M.PATIL, ADV. FOR R6(a) & (b),
R9, R11, & R13 ARE SERVED AND UNREPRSENTED,
NOTICE TO R3, R5 & R10 DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 100 R/W ORDER XLI
RULE 1 OF CPC SEEKING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 22.10.2018 IN O.S.NO.671/2010 PASSED BY THE I ADDL.
CIVIL JUDGE AND JMFC, DHARWAD AND SET ASIDE THE JUDGMENT
DATED 27.09.2019 PASSED IN R.A.NO.49/2018 PASSED BY IV ADDL.
SENOIR CIVIL JUDGE AND JMFC, DHARWAD.
THIS APPEAL HAVING BEEN HEARD AND RESEVED FOR
JUDGMENT ON 18.02.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by the unsuccessful plaintiffs wherein both the courts below dismissed the suit filed by the appellants/plaintiffs.
2. Brief facts of the case are that:
The appellants have instituted a bare suit for injunction against the respondents/defendants. Appellants claim that suit property is a part of Sy.No.96A/2 measuring 37 guntas situated at Saptapur, Dharwad. The appellants/plaintiffs claim that they are legal heirs of one Roshanbi Tamatagar and they are in exclusive possession and enjoyment over the suit property. Appellants/plaintiffs have specifically pleaded that after the demise of Roshanbi, the three sons of one Gousemiya got their names mutated to the property by excluding the names of their sisters.
Appellants/plaintiffs claim that Roshanbi was also one of the sisters. Appellants/plaintiffs also claim that suit property was infact allotted to the share of Roshanbi orally. Appellants/plaintiffs have further contended that legal heirs 5 of said Gousemiya have sold the properties including the suit properties, which was infact in possession of the present appellants herein to respondent No.1/defendant No.1-society in the year 1993 for a sale consideration of Rs.3,10,000/-. Appellants/plaintiffs claim that society has laid plots in the property and respondent No.1-society without having any right and title insofar as suit schedule property is concerned measuring 37 guntas attempted to dispossess the appellants/plaintiffs. Hence, they constrained to file the present suit for injunction.
3. On receipt of summons, respondent No.1/defendant No.1-society contested the proceedings by filing written statement. Respondent No.1-society stoutly denied the entire averments made in the plaint. Respondent No.1-society has also seriously disputed the possession of the appellants/plaintiffs over the property. Respondent No.1 further contended that suit is bad for non-joinder of necessary parties and specific contention 6 was also taken disputing the status of the appellants/plaintiffs with the said Roshanbi. It was also specifically contended that bare suit for injunction is not maintainable without seeking relief of declaration.
4. The purchasers of plots from respondent No.1- society namely defendant Nos.7, 8, 11 and 12 also contested the proceedings by filing written statement by specifically contending that they have purchased respective plots from defendant No.1-society and that they are in lawful possession of the said plots from the date of purchase.
5. The trial court having examined ocular and documentary evidence let in by the parties to the suit answered issue Nos.1 and 2 in the negative and has recorded a categorical finding that appellants/plaintiffs have failed to prove that they are legal heirs of Roshanbi Tamatagar. Trial court also held that appellants have failed to prove that they are in lawful possession and enjoyment 7 over the suit property as on the date of filing of the suit. While answering issue No.2, the trial court has also held that appellants/plaintiffs have failed to prove alleged obstruction as pleaded in the plaint. In the absence of prayer in regard to plea of adverse possession, the trial court deleted issue No.3. The trial court has also answered issue No.5 in the affirmative by holding that present suit which is for injunction simplicitor is also not maintainable without seeking relief of declaration.
6. The trial court taking note of the fact that suit is one for bare injunction has infact culled-out several categorical admissions given by plaintiff No.3 who is examined as P.W.1. The extraction of ocular evidence is found at para 21 of the judgment. Plaintiff No.3 admitted in unequivocal terms that suit property totally measures 1 acre 37 guntas. He has further admitted that around 80-90 plots were formed in the suit property. He has further admitted in unequivocal terms that he is in possession of 2 8 guntas and the same is situated on the western side. In the cross-examination, the trial court found that respondent No.1-society has succeeded in eliciting from the mouth of P.W.1 in the cross-examination that he has no title document to support his claim pertaining to 37 guntas of land in the above said Sy.No.98/2. The plaintiffs have also admitted in cross-examination that their names are not found in the revenue records. The trial court has also taken note of the fact that plaintiffs have admitted that in terms of Ex.P22, it is only Nayakawadi family names are mutated to the revenue records. The trial court also found that plaintiffs have further admitted in unequivocal terms that after the death of Gousemiya, his three sons have infact effected partition and the suit property has undergone sub- division. The trial court also found that respondent No.1 succeeding in eliciting that ancestor Gousemiya was owner to the extent of 4 acres 21 guntas and his legal heirs have sold the entire extent in favour of respondent No.1-society. At para 14 of the trial court judgment, the trial court has 9 further specifically observed and has taken note of the admission of the plaintiffs wherein they have admitted that they have no documents to demonstrate that their grandmother Roshanbi and the present plaintiffs have no documents to establish that they are in lawful possession of 37 guntas in the above said survey number. The trial court having meticulously examined all these significant details has arrived at a conclusion that appellants/plaintiffs are not in lawful possession and enjoyment over the suit schedule property and therefore, they cannot assert possessory right without seeking relief of declaration when all three sons of Gousemiya have sold entire extent measuring 4 acres 21 guntas for valuable sale consideration in favour of housing society, i.e., respondent No.1/defendant No.1. On these set of reasoning, the trial court answered issues against the appellants/plaintiffs and proceeded to dismiss the suit.
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7. Feeling aggrieved by the judgment and decree of the trial court, the present appellants/plaintiffs preferred an appeal before the first appellate court. The plaintiffs specifically contended that trial court has not properly appreciated the evidence on record. The plaintiffs' grievance before the first appellate court was that the Court Commissioner was examined as D.W.1 and photos were furnished by him which were marked at Ex.C1. Placing reliance on Commissioner's report and photos, the appellants/plaintiffs contended that trial court has not at all examined the Commissioner report and therefore, the evidence on record is not properly evaluated by the trial court. Therefore, a claim was made that judgment and decree of the trial court is erroneous and would warrant interference at the hands of the first appellate court.
8. The first appellate court having independently assessed ocular and documentary evidence has held that respondent No.1-society has acquired valid right and title 11 pursuant to registered sale deed executed by its vendors on 19.08.1984 as per Ex.D1. The first appellate court has taken cognizance of Ex.D4 and D5 which clearly indicate that sites were formed and the same were distributed. The first appellate court also taken judicial note of record of rights which clearly reveals that respondent No.1-society name is duly mutated to the suit property. Having taken note of property tax assessment extract and other clinching rebuttal evidence on record, the first appellate court was of the view that judgment and decree of the trial court is based on legal rebuttal evidence let in by respondent No.1/defendant No.1. The clinching rebuttal evidence would virtually outweigh slender evidence placed on record by appellants. The first appellate court on re-appreciation has also found that present appellants are tracing their right through Roshanbi. Appellants/plaintiffs have failed to substantiate their claim and produce clinching and documentary evidence to establish that Roshanbi had legitimate right in the suit schedule property and that her 12 father Gousemiya had relinquished 37 guntas of land in favour of Roshanbi. No documentary evidence is placed on record. Therefore, the first appellate court proceeded to dismiss the appeal.
9. Learned counsel for the appellants/plaintiffs would vehemently argue and contend before this court that suit property measures 1 acre 37 guntas in Sy.No.96A/2. Learned counsel for the appellants/plaintiffs claim that appellants/plaintiffs are in exclusive possession over 37 guntas, which has not lost its characteristic of agriculture and there are mango trees in 37 guntas.
Appellants/plaintiffs have placed heavy reliance on Commissioner's report and contends that Commissioner report clinches the issue and clearly establishes that appellants/plaintiffs are in lawful possession. He would submit to this court that evidence adduced by appellants/plaintiffs would clearly establish that they are in lawful possession and therefore, would contend that both 13 the courts have totally misread the evidence on record. He would submit that approach of both the courts below is totally one sided and the evidence adduced by the appellants/plaintiffs is discarded without assigning reasons. Therefore, he would submit that judgment and decree of both the courts below are erroneous and are not at all sustainable.
10. To buttress his arguments he placed reliance on the following judgments.
i) Premanath Kakde V. Amarnath reported in 2018 (1) Kar.L.J. 237.
ii) Mallappa Ramappa Naik and Ors. Vs. Ittappa Kamappa Band and Ors. Reported in 2021 (4) KCCR 3610.
iii) Malluru Mallappa (D) thr. L.Rs. Vs. Kuruvathappa and Ors reported in (2020) 4 SCC 313.
iv) N.Swamygowda Vs. Ramegowda and Ors.
reported in 2009 (4) KCCR 3003.14
v) Nizar Ahmed Sheriff Vs. A.Kannan reported in 1999(2) KCCR 1010 (SC).
vi) Rame Gowda (D) by Lrs. Vs. M.Varadappa Naidu (D) by Lrs. and Ors. reported in (2004) 1 SCC 769.
vii) Smt.Rubi Sood and Anr. Vs. Major Rtd. reported in 2015 SCC online HP 1237.
viii) Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur and Ors. reported in (2019) 8 SCC 729.
11. Placing reliance on these judgments he would submit to this court that trial court has strangely not even taken note of Commissioner report. Therefore, by taking this court to the provisions of Order XXVI Rule 10 of CPC, he would submit to this court that Commissioner report forms part of evidence and therefore, there has to be an evaluation of Commissioner report in the context of the controversy between the parties. He would also vehemently argue and contend that several admission given by defendants in the cross-examination are not taken into consideration and both the courts below erred in not 15 adding credence to the cross-examination of defendants while recording finding. Therefore, he would submit to this court that judgment passed without referring to the evidence is not at all judgment in the eye of law. To buttress his arguments, he would place reliance on the judgment rendered by this court in the case of Premanath Kakde Vs Amarnath1. He would also contend that trial court has erred in not recording its reasons on all the issues and therefore, judgment rendered by the trial court is contrary to the dictum laid down by the Apex Court in the case of K.V.Ramireddi Vs. Prema2. While questioning the reasons assigned by the first appellate court, he would submit to this court that first appellate court has failed in its duty in independently applying its mind and re- appreciate the evidence on record of the parties. He would seriously question the reasons assigned by the first appellate court on the ground that there is absolutely no independent assessment by the first appellate court. He 1 2018 (1) KarLJ 237 2 AIR 2008 SC 1534 16 also placed reliance on the judgment of the Apex Court rendered in the case of Malluru Mallappa (D) thr. L.Rs. Vs. Kuruvathappa and Ors.3. He has also placed reliance on the judgment rendered by the Apex Court in the case of N.Swamygowda Vs. Ramegowda and Ors.4 To buttress his claim that when the nature of the suit property is in dispute, the appointment of court commissioner for local inspection is a must and a party seeking local inspection cannot be precluded from producing best proof of evidence and when there is a local inspection and commissioner report is produced, the same forms part of records and both the courts below have not dealt with the commissioner report.
12. Per contra, learned counsel appearing for respondent No.1/defendant No.1 would counter the arguments addressed by the learned counsel for the appellants. He would straightway take this court to para 4 3 (2020) 4 SCC 313 4 2009 (4) KCCR 3003 17 of the plaint. By placing reliance on para 4 of the plaint, he would submit to this court that averments made in para 4 of the plaint would clinch the issue. He would submit to this court present appellants have admitted in unequivocal terms that three sons of Gousemiya Nayakawadi namely, Maktum Hussain, Hussainsab and Jaffar have dealt with the suit schedule property in the year 1993 itself by selling the same to respondent No.1-society for sale consideration of Rs.3,10,000/- including the property which was in possession of the plaintiffs. He would also place reliance on para 6 of the plaint wherein appellants have admitted in unequivocal terms that defendant No.1 after purchase has converted the land for non-agriculture use and has formed a layout and has also alienated some plots and purchasers name is duly mutated in the revenue records.
13. In the background of these admitted pleadings, learned counsel for respondent No.1 would then requests this court to examine the cross-examination of P.W.1. By 18 taking this court to the cross-examination of P.W.1, he would submit to this court that appellants/plaintiffs have admitted in unequivocal terms that suit property totally measures 1 acre 37 guntas and respondent No.1/defendant No.1 formed layout and has laid 80-90 plots in the suit property. He has taken this court to several admissions given by the plaintiffs which are culled-out by the trial court in its judgment. He would further submit to this court that appellants/plaintiffs have admitted and it is well within their knowledge that respondent No.1-society has purchased suit schedule property under registered sale deed way back in 1993 and the said land was converted and plots were formed. Therefore, without questioning the sale deed, the present appellants cannot maintain injunction suit simplicitor. Therefore, he would contend that both the courts below have concurrently held that appellants/plaintiffs are not in lawful possession and have rightly proceeded to dismiss the suit. Therefore, he would 19 submit to this court that there is no scope of reevaluating and re-assessing evidence under Section 100 of CPC.
14. Heard the learned counsel for the appellants, learned counsel for the respondents and perused the judgments under challenge. I have bestowed my anxious consideration to the entire trial court records. I have also gone through the judgment cited by the appellants/plaintiffs.
15. Though the captioned second appeal is filed questioning concurrent judgments, in the background of peculiar facts and circumstances of the case, I deem it necessary to refer para 4 to 6 of the plaint, which reads as under:
"4. The propositus Gousamiyya Kadarsab Nayakawadi was the owner and after his demise his 3 sons got their only names mutated by name Maktum Hussain, Hussansab and Jaffer. But name of daughter Roshinbhi not mutated as legal heirs, subsequently in pursuance of Jaffer sold his share to Maktum Hussain and Ismail and Maktum Hussain's Legal heirs gor mutated their names. But 20 names of Roshabhi and her heirs never come in record of rights but she remained in possession and after her death present plaintiff continue in possession. In the year 1993 all together sole some properties to Abhiman housing co-operative society for total consideration of Rs.3,10,000 including property in possession of the plaintiffs, then it is learnt that same is converted into Non Agricultural use and plot where made and sold to members of the society who are the defendants. This fact came to knowledge of plaintiffs when the survey officials cme to survey the land for subdivision purpose. Then after wards plaintiff availed required documents and shocked to know, that heir of Roshnbhi's brother played fraud and created bogus documents and created sale deed and mutated without the knowledge of the Roshnbhi and present plaintiffs.
5. The plaintiffs are in law full and peaceful settled uninterrupted possession of the suit property without any bodies obstructions till today. But since one month defendants coming to suit site with surveyor and causing obstructions and threatening to dispossess plaintiffs from suit property high handedly illegally in absence due process of law.
6. The 1st defendant by illegal purchase converted land in to non agriculture user and prepare a layout and alienated some plot to defendants 2 to 13 and their names mutated in record of rights for 21 different areas. By virtue of which they are trying to take possession without due process of law. So plaintiffs are constrained to file the suit."
16. If the averments made in the plaint are meticulously examined, probably the appellants/plaintiffs have made a feeble attempt by contending that they are legal heirs of Roshanbi who is the daughter of one Gousemiya Nayakawadi. What needs to be examined by this court is, after the death of Gousemiya his three sons have dealt not only suit property but other properties. Respondent No.1-society has purchased entire extent measuring 4 acres 21 guntas under registered sale deed and after conversion, plots are formed and the same are alienated to various purchasers. From the records, it is also forthcoming that Roshanbi died in the year 1978. Appellants/plaintiffs claim is that 37 guntas was orally relinquished by Roshanbi's father in favour of Roshanbi. No documents are produced. Appellants/plaintiffs have not placed on record any material indicating that they are legal heirs of said Roshanbi.
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17. If the brothers of Roshanbi have meddled with the property way back in 1993, nothing prevented appellants/plaintiffs in initiating proper proceedings and assert their legitimate share in the suit schedule property. After alienation, the nature of the suit property was changed and third party rights are created. If these factual aspects are examined in the context of categorical admissions given by the plaintiffs in the cross-examination, then I am of the view that both the courts below were justified in holding that appellants/plaintiffs are not in lawful possession over the suit schedule property. The categorical admissions are culled-out by the trial court at para 21 of the judgment of the trial court. These admissions are fatal to the case of the appellants/plaintiffs and the said admissions would go to the root of the case. The appellants/plaintiffs have miserably failed to prove their lawful possession as on the date of filing of the suit. 23
18. The suit is one for bare injunction. Therefore, there cannot be any delegation to Commissioner to ascertain as to who is in possession of the suit schedule property and if permitted, the same amounts to collection of evidence, which is impermissible in a bare suit for injunction. Even otherwise, both the courts below have declined to rely on the Commissioner report. If the local inspection is incomplete or inconclusive, it is well within the jurisdiction of the court in not relying the report. It is more than trite law that ultimately, it is for the court to rely or refrain from relying upon report of the Commissioner while either granting or refusing a decree. It is trite law that, it is for the court of first instance to ascertain and find out as to how much reliance can be placed on the report of the Commissioner and the evidence taken by him. As stated by me in the preceding paragraphs, plaintiff No.3 who is examined as P.W.1 has given several categorical admissions in regard to change of nature of the suit schedule property, forming of layout by respondent No.1- 24 socitey and also alienations made by the society. He has also admitted in unequivocal terms that Roshanbi's three brothers who inherited properties from Gousemiya have sold entire extent of 4 acres 21 guntas way back in 1993. He has admitted in unequivocal terms that he has no title documents to support his claim. He has admitted in unequivocal terms that suit schedule properties totally measures 1 acre 37 guntas and respondent No.1 formed layout and has laid 80-90 plots in the suit property. There is categorical admission that he own 2 guntas of land adjoining to the suit property. If he admits that he is in possession of 2 guntas adjoining to the suit property, then this court is unable to understand as to how he can lay a claim over 37 guntas in Sy.No.98.2, which totally measures 1 acres 37 guntas. All these significant details are taken int consideration by both the courts below. Commissioner report is not conclusive evidence and there is absolutely no clarity in the commissioner report and the same would not come to the aid of appellants/plaintiffs. The commissioner 25 report would lose its credence in the light of the admissions given by the plaintiffs in the cross-examination and also several admissions given in the plaint at para 4 to 6. Therefore, the finding recorded by the courts below is based on rebuttal evidence placed on record by respondent No.1-society and therefore, would not warrant any interference at the hands of this court.
19. Both the courts below have come to the conclusion that present suit for injunction simplicitor is not maintainable. In the plaint, appellants/plaintiffs admit that respondent No.1-society has acquired right and title based on a registered document. Therefore, it was incumbent on the part of appellants/plaintiffs to file a comprehensive suit to prove their relationship with Roshanbi and were also required to prove that Roshanbi had legitimate right in the suit schedule property.
20. Admittedly, parties are governed under Mohammedan Law. Roshanbi died in the year 1978 and her brothers alienated the suit schedule property. If the sister 26 predeceased, the appellants/plaintiffs were required to file comprehensive suit and ought to have established their right and were required to place on record the evidence indicating as to how they would inherit the share of predeceased sister, when parties are governed by Mohammedan Law. It is in this background, I am of the view that judgment and decree passed by both the courts below would not warrant any interference. The suit for injunction simplicitor filed by appellants/plaintiffs is not at all maintainable.
21. The judgments cited by the appellants/plaintiffs have absolutely no application to the present case on hand. I do not find any infirmity or illegality in the judgments under challenge. No substantial question of law arises for consideration in the present case on hand.
Accordingly, the appeal stands dismissed.
Sd/-
JUDGE MBS/-