Karnataka High Court
Smt Kulsumbi vs Smt Mehaboobi on 24 May, 2023
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RSA No.2027/2007
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.2027/2007
BETWEEN:
SMT. KULSUMBI
W/O. ANWAR BAIG YARAGATTI,
AGED ABOUT 48 YEARS,
OCC: TEACHER,
R/O: MADIHAL,
DHARWAD - 580 008.
... APPELLANT
(BY SRI GODE NAGARAJ, ADVOCATE)
AND:
1. SMT. MEHABOOBI
Digitally
YASHAVANT
signed by
YASHAVANT
NARAYANKAR
W/O. SYED IBRAHIM DAFEDAR,
NARAYANKAR Date:
2023.05.26
12:01:42
AGED ABOUT 65 YEARS,
+0530
OCC:HOUSEHOLD,
R/O. BARA IMAM GALLI,
DHARWAD - 580 001.
SINCE DECEASED BY HER LR's.
1(a) SAYED NASEEM
S/O. LATE SYED IBRAHIM DAFEDAR,
AGED ABOUT 50 YEARS,
1(b) SYED IKBAL
S/O. LATE SYED IBRAHIM DAFEDAR,
AGED ABOUT 45 YEARS,
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RSA No.2027/2007
1(c) RAZIYA BEGUM
D/O. LATE SYED IBRAHIM DAFEDAR,
AGED ABOUT 40 YEARS,
1(d) AMEENA BEGUM
D/O. LATE SYED IBRAHIM DAFEDAR,
AGED ABOUT 38 YEARS,
1(e) FAMIDA BEGUM
D/O. LATE SYED IBRAHIM DAFEDAR,
AGED ABOUT 36 YEARS,
1(f) SHAHIDA BEGUM
D/O. LATE SYED IBRAHIM DAFEDAR,
AGED ABOUT 34 YEARS,
ALL ARE R/O. HEBBALLI AGASI
BARA IMAM GALLI,
DHARWAD - 580 006.
... RESPONDENTS
(BY SRI J.S. SHETTY, ADVOCATE AND
SRI M.M. MALAGI, ADVOCATE FOR C/RESPONDENT IN
CP. NO.608/2007)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 21.04.2007
PASSED IN RA.NO.43/2003 ON THE FILE OF THE I ADDL.CIVIL
JUDGE (SR.DN.) AND CJM., DHARWAD, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DT.
17.12.2002 PASSED IN OS.NO.240/1996 ON THE FILE OF THE I
ADDL. CIVIL JUDGE (JR.DN.) AND JMFC., DHARWAD.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGEMENT ON 05.04.2023, COMING FOR PRONOUNCEMENT
OF JUDGEMENT, THIS DAY, THIS COURT, PRONOUNCED THE
FOLLOWING:
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RSA No.2027/2007
JUDGEMENT
The unsuccessful defendant is assailing the judgment and decree dated 21.04.2007 in RA No.43/2003 on the file of I Addl. Civil Judge (Sr.Dn.) & CJM, Dharwad, reversing the judgment and decree dated 17.12.2002 in O.S.No.240/1996 on the file of I Addl. Civil Judge (Jr.Dn.) & JMFC, Dharwad.
2. This Court, while admitting the appeal on 29.03.2011, has framed the following substantial question of law:
"Whether the learned Judge of the lower appellate Court is right in law in first examining the merits of appeal and deciding to allow the appeal and thereafter taking up an application for condoning the delay in preferring the appeal as unless delay is condoned in the first instance, there is no appeal in the eye of law and therefore tentative decision to allow the appeal even before the appeal was valid in law and for reversing the Judgment and decree of trial court can be said to be a Judgment sustainable in law?"-4- RSA No.2027/2007
3. Learned counsel sought to frame additional substantial question of law by filing an application which reads as under:
"Whether the appellate Court is justified in decreeing the suit O.S.240/1996 when the suit is not maintainable without seeking for declaration and for possession?"
4. This Court has framed the following additional substantial question of law on 05.04.2023:
"Whether the suit of the plaintiff is maintainable without seeking for declaration and for possession?"
5. Learned counsel for the appellants and learned counsel for the respondents have been heard on the substantial questions of law stated supra.
6. The brief facts of the case are that the plaintiff filed the suit for declaration to declare that the sale deed executed by Abdul Khadar son of Dastagirsab Byalihal is not binding on the suit property and the plaintiff and for permanent injunction restraining the defendant from constructing any structure or building in the suit property. -5- RSA No.2027/2007 The suit property is an open site bearing CTS No.133 of Madihal, Dharwad measuring 100 sq.yds. According to the plaintiff, suit schedule property originally belonged to one Hatelma and on her death, by way of succession by her grand-sons namely, Munafsab son of Sultansab Bijapur, Imamsab son of Dadabhai Bijapur and Dastagirsab son of Meeransab Bijapur and they are also called as Naikwadi. The plaintiff claims to be the daughter of Imamsab Dadabhai Bijapur and after the death of Imamsab and Dastagirsab, Munafsab gave waradi to enter the name in the revenue records and at that time, it was known to the plaintiff that the names of one Aminabi wife of Dastagirsab Bijapur, Mehboobsab and Abdul Khadar and N.Jilani was entered in the revenue records as the legal heirs of the deceased Dastagirsab Meeransab Bijapur. According to the plaintiff, the said names were entered without any right and they are not the wife and sons of the deceased Dastagirsab Meeransab Bijapur and that the deceased Dastagir M.Bijapur had wife by name Rukhiya who died issueless on 16.04.1948 and it is stated that the Munafsab -6- RSA No.2027/2007 got deleted the names of Imamsab and Dastagirsab without the knowledge of the plaintiff and the plaintiff on coming to know about the illegal entries filed an application to enter her name as the legal heir of deceased Imamsab. It is further stated that one Abdul Khadar Dastagirsab Byalihal @ Bijapur, who is not the legal heir of Dastagir Meeransab Bijapur, got entered his name as a legal heir in collusion with the muthavalli in the year 1993 wherein the name of Munafsab was subsequently deleted on his death. It is stated that the sale deed has been executed in the name of defendant in the first week of May 1996 and he started to put up construction without having any valid right over the suit schedule property. The cause of action arose when the plaintiff came to know about the illegal entry and the creation of the sale deed in favour of the defendant and when the defendant started to put up construction over the suit schedule property.
7. Pursuant to the issuance of summons, the defendant appeared and filed written statement inter alia -7- RSA No.2027/2007 contending that the plaintiff has not sought for the relief of declaration that she is the absolute owner of the suit schedule property. According to the defendant, on due enquiry, has purchased the suit schedule property from its real owner and he is a bona fide purchaser for a valuable consideration. It is also contended that the suit of the plaintiff is barred by limitation.
8. The trial Court, on the basis of the pleadings, and documents produced on record, framed issues and later, as per the direction of the first appellate Court on remand, the issues were reframed as under:
ISSUES
1. Whether the plaintiff proves that the suit property was belonged to Smt.Hatelma and her grand sons stated at para No.6 of the plaint succeeded to same as heirs after her death ?
2. Whether the plaintiff proves that she is daughter of Imamsab s/o.Dadamiya Bijapur Naikwadi and entitled for entire suit property ?
3. Whether the plaintiff proves that Abdul Khadar s/o.Dastagirsab Byalihal @ Bijapur the vendor of -8- RSA No.2027/2007 defendant has no right or title over the suit property?
4. Whether the plaintiff proves that suit is maintainable without impleading other heirs and also the vendor of defendant as parties to the suit?
5. Whether the defendant proves that her vendor had valid title and right to alienate suit property in her favour?
6. Whether the plaintiff proves that the sale deed executed by Abdul Khadar s/o.Dastigirsab Byalihal @ Bijapur in favour of defendant is not binding upon her ?
9. In order to substantiate the claim, plaintiff examined herself as PW.1 and two more witnesses as PWs.2 and 3 and after remand, the plaintiff examined three more witnesses as PWs.4 to 6 and marked documents at Exs.P-1 to P-16. The defendant examined himself as DW.1 and witness as DW.2 and got marked document at Ex.D-1.
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10. The trial Court, on the basis of the pleadings, oral and documentary evidence on record, held that the plaintiff has proved that the suit schedule property belongs to one Hatelma and on her death, her legal representatives succeeded to the suit schedule property, that the plaintiff is the daughter of Imamsab Dadamiyan Bijapur, that the vendor of the defendant by name Abdul Khader son of Dastagirsab Bylihal @ Bijapur had no right over the suit schedule property and the vendor of defendant had no valid title to alienate the suit schedule property in favour of the defendant, however, dismissed the suit of the plaintiff while answering issue Nos.6 and 7 holding that the suit of the plaintiff is not maintainable without seeking for the relief of declaration of plaintiff's title and for cancellation of the sale deed executed in favour of the defendant.
11. Aggrieved by the findings on issue Nos.6 and 7, the plaintiff preferred regular appeal before the first appellate Court. The first appellate Court on re-
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RSA No.2027/2007appreciation of the material on record set aside the findings on issue Nos.6 and 7 and declared that the sale deed executed by Abdul Khader Dastagirsab Bylihal is not binding on the plaintiff and consequently, restrained the defendants by way of permanent injunction not to construct any structure or building in the suit schedule properties as the defendant has no right, title or interest over the suit schedule property.
12. Aggrieved by the reversal of the judgment and decree of the trial Court on issue Nos.6 and 7, the present appeal by the defendant.
13. Learned counsel for the appellant - defendant would contend that the suit of the plaintiff without seeking for declaration and possession is not maintainable and the judgment of the first appellate Court in reversing the judgment of the trial Court needs to be set aside. Learned counsel would contend that the first appellate Court while deciding the appeal ought to have considered the delay in preferring the appeal before hearing the appeal on merits
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RSA No.2027/2007and the allowing of the application for condonation of delay at the time of final hearing is not sustainable. According to the learned counsel, no appeal is maintainable without condoning the delay in filing the appeal. In support of his contention, learned counsel relied upon the judgment of the Co-ordinate Bench of this Court in the case of Sadashiv S/o. Balagauda Patil vs. Rajeshwari [RSA.No.100498/2014 disposed on 22.092015] (Sadashiv) and Shri. Baddeppa vs. Shri. hanmukhappa [MSA.No.100119/2019 disposed on 10.08.2021] (Baddeppa).
14. Per contra, learned counsel for the respondent
- plaintiff while justifying the judgment of the first appellate Court would contend that the plea regarding delay not being considered before hearing the appeal on merits is not available to the appellant and she cannot be termed as an aggrieved person, more so, because the delay was condoned on hearing both the sides and the judgment of the first appellate Court was passed on
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RSA No.2027/2007considering the entire evidence and material available on record. Learned counsel would contend that the appellant has not come to the Court saying that the appellant was not afforded an opportunity of hearing before allowing the application and the methodology adopted by the appellant is technical and hence unsustainable. Learned counsel would contend that the order sheet of the first appellate Court evidences that on the submission made by the appellant that I.A.No.1 to condone the delay of 13 days in preferring the appeal was directed to be listed along with the main appeal and thus the appellant cannot now contend that the delay application could not have been heard along with the main appeal. Learned counsel would further contend that the second line of argument by the appellant that the suit of the appellant without seeking for declaration is not maintainable is unacceptable as the plaintiff is not executant to the sale deed and in the absence of the same, the plaintiff need not seek for declaration that the sale deed executed by Abdul Khadar in favour of the appellant herein is null and void. Stating
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RSA No.2027/2007this ground, learned counsel would contend that the substantial question of law needs to be answered in favour of the appellant.
15. This Court has carefully considered the rival contentions urged by the learned counsel on both sides and perused the entire material on record.
16. The first line of argument of learned counsel for the appellant is that, the application seeking for condonation of delay and the appeal on merits cannot be simultaneously heard as the application has to be considered in the first instance and the first appellate Court fell in error in not considering the application for condoning the delay in the first instance and as such, the order of the first appellate Court needs to be set aside.
19. There is absolutely no quarrel to the settled position of law that the application seeking condonation of delay has to be decided at the first instance and not after hearing the appeal on merits. In this regard, it is relevant
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RSA No.2027/2007to consider the order sheet of the first appellate Court and to note that at the time of preferring the appeal before the first appellate Court, the appellant along with the appeal had filed an application I.A.No.1 for condonation of delay of 13 days in preferring the appeal under Section 5 of the Limitation Act.
21. On several occasions, the matter was listed for hearing on the said application. On 05.06.2006, on the submission by the counsel for the appellant herein stating that he has no objection to hear the I.A. for condoning the delay along with the main, I.A. was directed to be taken up along with the main appeal and the said order reads as under:
"Shri A.N.B.files vakalat for resp - with no objejection. Counsel for appellant submitted that the IA be heard with main appeal, counsel for resp has no objection for that. Hence, IA will be heard with main appeal. Call for LCR.
8.11.06."
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RSA No.2027/2007
20. In light of the submission made, the application was directed to be listed along with the main appeal and on the same day, the matter was heard, I.A.No.1 was allowed and the delay of 13 days in preferring the appeal was condoned and the appeal was heard on merits.
21. The appellant, though vehemently contended that the first appellate Court was not justified in examining the merits of the appeal and proceeded to allow the appeal and thereafter, allowed the application for condonation of delay and the delay must be condoned at the earliest stage. This contention though is a settled proposition of law that without condoning the delay, there is no appeal in the eye of law, however, it is relevant to note that the appellant has not pointed out any prejudice or lack of opportunity if the appeal was heard along with the delay application (I.A.1). The most relevant fact to state is that, the application for condonation of delay was heard along with the main appeal on the specific submission made by the learned counsel for the appellant.
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RSA No.2027/2007
22. Refusing to condone the delay can result in the meritorious matter being thrown out at the threshold and the cause of justice is being defeated. Against this, if the delay is condoned, at the most what can happen is, the matter has to be decided on merits after hearing the parties and that is the intention of the legislature by conferring the power to condone the delay by adverting Section 51 of the Indian Limitation Act, 1963. In order to enable the Court to do substantial justice to the parties by disposing of the matter on merits. In the present case, it is not the contention of the appellant that no sufficient opportunity was granted to the appellant resulting in violation of principles of natural justice. On the contrary, the material would reveal that the application for condoning the delay of 13 days was considered after hearing the parties in the appeal and the same was condoned and there is no requirement in law for adjourning the hearing of the appeal on merits on a subsequent date. The first appellate Court, on the very
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RSA No.2027/2007day, has condoned the delay and heard the matter on merits and on the submission made by the appellant that the application has to be heard along with the main and thus, at this stage, the appellant cannot contend, that the procedure adopted by the appellate Court in arriving at the conclusion and condoning the delay on the face of it is illegal and the technical objection raised by the appellant is not sustainable to defeat the cause of substantial justice. The judgments relied by the learned counsel for the appellant in the cases of Sadashiv and Baddeppa stated supra were with regard to the application seeking to condone the delay filed by the appellant before the first appellate Court was rejected and the Co-ordinate Bench of this Court held that the application to condone the delay has to be considered taking into consideration "sufficient cause" implied by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner and the Courts should not be hyper-technical in condoning the delay. The judgments relied upon by the learned counsel for the appellant are not applicable to the
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RSA No.2027/2007facts and circumstances of the present case, since the settled position of law that there is no bar to the application for condoning the delay and hearing of the appeal on merits cannot be considered on the same day. Accordingly, the first substantial question of law is answered against the appellant.
16. The plaintiff filed suit for declaration and permanent injunction to declare that the sale deed executed by one Abdul Kadhar is not binding on the plaintiff. In the plaint it is averred that the plaintiff is the daughter of one Imam Dadamiyan Bijapur, who is one of the successors of the suit schedule property. On the other hand, the defendant - appellant contended that the plaintiff is no way concerned with the suit schedule property and cannot claim right over the suit schedule property without seeking for declaration. The trial Court held that the suit of the plaintiff is not maintainable without seeking for a prayer for declaration of plaintiff's title and for cancellation of the sale deed executed by one
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RSA No.2027/2007Abdul Khadar in favour of defendant - appellant, however held that the plaintiff has proved that the suit schedule property belonged to one Hatelma and was succeeded by her grand-sons including the father of the plaintiff i.e., Imamsab son of Dadabhai Bijapur. It was also held that the plaintiff has proved that she is the daughter of the said Imamsab son of Dadamiyan Bijapur and entitled for the entire suit schedule property.
17. The trial Court further held that the plaintiff proved, that Abdul Khadar had no right or title over the suit schedule property and as such, had no right to alienate the suit schedule property in favour of the defendant. However, the trial Court, while holding issue Nos.1 to 5 in favour of the plaintiff, has held that the suit of the plaintiff is not maintainable in the absence of prayer seeking declaration regarding the sale deed, the finding of issue Nos.1 to 5 in favour of the plaintiff stood unchallenged by the defendant and has reached finality. The appeal before the first appellate Court was preferred
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RSA No.2027/2007by the plaintiff insofar as holding that the suit was not maintainable on issue Nos.6 and 7 before the first appellate Court. No appeal was preferred by the appellant and the findings and reasoning of the trial Court holding that the plaintiff is the daughter of Imamsab, that Abdul Khadar had no right, title or interest over the suit schedule property to alienate the suit property in favour of the defendant and that the plaintiff is the daughter of Imamsab Dadamiyan and thus, held in favour of the plaintiff and the appeal has reached finality. Thus, the undisputed fact remains that the suit schedule property belongs to the family of the plaintiff and the vendor of the defendant had no right to alienate the suit schedule property. Thus, the question regarding title of the suit schedule property in favour of the plaintiff need not be answered in the present second appeal and the only question that needs to be considered by this Court is with regard to, "whether the suit of the plaintiff is maintainable without seeking for declaration", which is the second
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RSA No.2027/2007substantial question of law framed by this Court at the time of hearing of the appeal.
23. The contention of the appellant that the suit of the plaintiff is not maintainable without seeking necessary declaration is unsustainable in light of the judgment of the Apex Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh & others [AIR 2010 SC 2807], wherein it is held as under:
"Leave granted. The appellant filed a suit (Case No. 381 of 2007) on the file of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarised below:
(i) for a declaration that two houses and certain agricultural lands purchased by his father, S. Rajinder Singh were coparcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof;
(ii) for a declaration that the will dated 14-
7-1985 with the codicil dated 17-8-1988 made in favour of the third defendant, and gift deed dated 10-9-2003 made in favour
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RSA No.2027/2007of the fourth defendant were void and non est "qua the coparcenary";
(iii) for a declaration that the sale deeds dated 20-4-2001, 24-4-2001 and 6-7-2001 executed by his father, S. Rajinder Singh in favour of the first defendant and sale deed dated 27-9-2003 executed by the alleged power-of-attorney holder of S. Rajinder Singh in favour of the second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the "coparcenary", as they were not for legal necessity or for benefit of the family; and
(iv) for consequential injunctions restraining Defendants 1 to 4 from alienating the suit properties.
6. The second proviso to Section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under sub-clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under sub-clause (e) thereof.
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RSA No.2027/2007
7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non- executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not
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RSA No.2027/2007only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."
24. A similar view is taken by the Division Bench of this Court in the case of Ganapati Santaram Bhosale Vs. Ramachandra Subbarao Kulkarni [ILR 1985 KAR 1115], wherein it has been held as under:
"19. The second contention that the suit should have failed for lack of specific relief in regard to the setting aside of the sales is also devoid of merit. It is now well settled that in a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties which, fall to his share:"
25. The Division Bench of this Court, in RFA.No.23/2002 connected with RFA No.1012/2001 at para Nos.13.5 and 13.6 considering the judgments of Suhrid Singh and Ganapati Santaram Bhosale, has
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RSA No.2027/2007held that the plaintiffs who are not parties to the alienation to seek a declaration that the alienations are not binding upon them or their alleged share in the properties and they need not seek for cancellation of the sale deed, in light of the proposition of law as stated supra in the judgments referred above, the substantial question of law needs to be answered against the appellant.
26. For the foregoing reasons stated supra, this Court pass the following:
ORDER
(i) The regular second appeal filed by the defendant is hereby dismissed.
(ii) The judgment and decree of the first appellate Court stands confirmed.
No order as to costs.
Sd/-
JUDGE VMB/S*