Karnataka High Court
Abdul Hafij Uddin Khaji vs Sayed Ali Sayed Idris Khaji on 25 June, 2020
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 25 T H DAY OF JUN E, 2020
BEFORE
THE HON'BLE MR.J USTICE N .S . SANJ AY GOWDA
R.S.A .No .5635/ 2013 (Pe rmnt. I nj.)
BETWEEN
ABDUL HAFIJ UDDIN KHAJI
SINCE DECEASED BY HIS LRS.
1. SHANAZ W/O ABDULHAI KHAJI,
AGE: 59 YEARS, OCC: HOUSEHOLD,
2. HATEEM S/O ABDULHAI KHAJI,
AGE: 26 YEARS, OCC: STUDENT,
3. SOHAIL S/O ABDULHAI KHAJI,
AGE: 23 YEARS, OCC: STUDENT,
ALL ARE R/O.MIRJAN, TAL.KUMTA-581362
..... APPELLANTS
(BY SRI DINESH M KULKARNI, ADV.)
AND
SAYED ALI SAYED IDRIS KHAJI
SINCE DECEASED BY HIS LRS.
1. JAHEEDA SAYED ALI KHAJI,
AGE: 39 YEARS, OCC: HOUSEHOLD,
2. SAYED AJIJULLA SAYED IDRIS KHAJI,
AGED: 69 YEARS, OCC: RETIRED FROM SERVICE,
REYOD,
BOTH ARE R/O.MIRJAN, TAL.KUMTA-581362
2
3. SAYED MARTUJA S/O SYED KHADIR PASHA,
AGED: 65 YEARS, OCC: MEDICAL PRACTITIONER,
R/O.BELEKERI, TQ: ANKOLA.
..... RESPONDENTS
(BY SRI J.S. SHETTY, ADV. FOR R-2
R-1 & R-3 ARE SERVED)
THIS APPEAL IS F ILED UND ER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.04.2013
PASSED IN R.A .N o.207/2006 ON T HE FILE OF THE SENIOR
CIVIL JUDGE, KUMTA, PART LY ALLOWING THE A PPEAL,
FILED AGAINST THE JUDGMENT AND DECREE DATED
29.11.2004 AND T HE DECREE PASSED IN O.S.N O.3/2000 ON
THE FILE OF THE ADDL. CIVIL J UDGE (JR.DN .), KUMTA,
DISMISSING THE SUIT FILED FOR PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The legal representatives of the first defendant are in second appeal.
2. The plaintiffs filed a suit seeking for a decree of permanent injunction and also for a mandatory injunction.
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3. It was their case that the suit schedule property bearing Sy.No.11B/1/1A measuring 20 guntas 8 annas was their land and it was in their possession and the defendants had no right over this property. They stated that the defendants owned land bearing Sy.No.11B/1/1B measuring 14 guntas 8 annas which was situated adjacent to the suit property. It was stated that defendants had encroached upon the plaintiffs' land to the extent of 5 to 6 guntas as indicated in the rough sketch marked as "CDEF" and they had attempted to sink a borewell in that portion. It was stated that though a legal notice was issued to the defendants, they ignored the same and proceeded to encroach upon the property of the plaintiffs and consequently the plaintiffs were forced to file a suit for permanent injunction to protect their interest and also for a mandatory injunction to remove the encroachment.
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4. The suit was contested by the defendants. The defendant No.1 contended that he was enjoying his property and he had also protected his property bearing Sy.No.11B/1/1B by erecting a compound wall for the past more than 40 years. He stated that he had not encroached upon any portion of the plaintiffs' property.
5. The Trial Court, on consideration of the evidence adduced before it, came to the conclusion that the plaintiffs were not entitled for the decree of permanent injunction or mandatory injunction and proceeded to dismiss the suit.
6. It may be pertinent to note here that during the trial, a Court Commissioner had been appointed by the Trial Court and he had submitted a report. However, in the said report, he had stated that he had only identified 20 guntas 8 annas of the plaintiffs' land and since the survey authorities had not bifurcated the Sy.No.11B, he had been unable to identify the 5 plaintiff's property. The Trial Court dismissed the suit in the light of this Commissioner's report.
7. Being aggrieved, the plaintiffs carried the matter in appeal.
8. In appeal, the Appellate Court found that the issues were not properly framed and it proceeded to exercise its power under Order XLI Rule 24 of C.P.C. and reframed the issues.
9. The Appellate Court also appointed the Surveyor attached to the office of the Thasildar, Kumta as the Court Commissioner to conduct local investigation and to identify the property of the plaintiffs in view of the subsequent sub-division of Sy. No.11B.
10. The Commissioner appointed by the Appellate Court, accordingly, visited the area and after taking note of the division of Sy.No.11B by the survey 6 authorities, found that there had been indeed an encroachment of 6 guntas by the defendants and he accordingly prepared a report indicating the extent of encroachment.
11. The Appellate Court placing the reliance on the said Commissioner's report, proceeded to decree the suit and had directed the defendants to hand over the possession of area earmarked in his sketch.
12. It is against this judgment of the Lower Appellate Court that this second appeal has been filed.
13. It is settled law that the Appellate Court is the final Court for recording a finding of fact. In the instant case, the Appellate Court thought it fit to appoint a Court Commissioner to determine as to whether there was any encroachment or not and the Appellate Court, to ascertain this fact appointed a Surveyor to visit the spot and submit a report. 7
14. The Appellate Court on securing the report, had proceeded to come to the conclusion that there was indeed an encroachment by the defendants and the plaintiffs were therefore entitled to succeed.
15. It is to be stated here that the Court Commissioner had, in fact, clearly reported that 6 guntas of the plaintiffs' property had been encroached. In the light of the fact that the defendants could not claim any right in respect of any portion of Sy.No.11B/1/1A, the decree passed by the Appellate Court cannot be found fault with.
16. However, learned counsel for the appellants contended that there was no prayer seeking for possession and therefore, the decree directing the defendants handing over the possession could not have been granted. He also contended that the Appellate Court had erred in reframing the issues, even assuming that the Appellate Court had the power to reframe the issues. He stated that in any view of the matter, the 8 matter required to be remanded to the Trial Court and an opportunity may be afforded to the appellants to have their say in the matter.
17. The power of the Court to mould the relief cannot be disputed. Admittedly, the prayer made in the suit was for a mandatory injunction to remove the encroachment. The Appellate Court after having come to the conclusion that there was an encroachment and after noticing that the said encroachment had also been demarcated, it has rightly proceeded to grant a decree for possession. In my view, moulding of relief by the Appellate Court and granting possession in a suit filed seeking for mandatory injunction to remove an encroachment cannot be illegal, especially, when it was based on evidence adduced, which cannot be said to be perverse or unreasonable.
18. As far as the second argument that the Appellate Court had committed an error in reframing the issues and that an opportunity was required to be 9 granted, is concerned, in my view, the same is untenable. The Appellate Court has been conferred with the power to reframe the issues, if it finds that there was sufficient evidence on record to determine actual issues in controversy.
19. In the instant case, the Appellate Court has come to the conclusion that the evidence on record was adequate to render a decision and after noticing that the issues have been improperly framed, the Appellate Court has proceeded to reframe the same and decide the appeal on merits on the basis of the evidence adduced by the parties.
20. In my view, this approach of the Appellate Court is in accordance with law and the same cannot be found fault with.
21. I find no question of law, much less, a substantial question of law arising for consideration in 10 this second appeal and the same is accordingly dismissed.
Sd/-
JUDGE Naa