Karnataka High Court
Smt Hayath Bee W/O Sadanahalli Jabar Sab vs Smt Najamunnissa W/O Shafiullah on 8 September, 2023
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NC: 2023:KHC:32762
RSA No. 1642 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1642 OF 2007
BETWEEN:
SMT. HAYATH BEE
W/O SADANAHALLI JABAR SAB
AGE 50 YEARS
R/A D BLOCK
GUDIBANDA TOWN
KOLAR DISTRICT.
...APPELLANT
(BY SRI. G R LAKSHMIPATHY REDDY., ADVOCATE)
AND:
SMT. NAJAMUNNISSA
W/O SHAFIULLAH
Digitally signed AGE 33 YEARS
by R DEEPA R/A D BLOCK
Location: High GUDIBANDA TOWN
Court of ...RESPONDENT
Karnataka
(BY SRI. K.N. NITISH, ADVOCATE)
THIS RSA IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 13.3.2007 PASSED IN RA.NO.
126/2004 ON THE FILE OF THE ADDL.SESSIONS JUDGE &
PRESIDING OFFICER, FAST TRACK COURT-V, CHICKBALLAPUR,
DISMISSING THE APPEAL AND UPHOLDING THE ORDER DATED
19.7.2004 PASSED IN EX.NO. 64/2002 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) & JMFC, GUDIBANDA, ALLOWING
I.A.NO.V FILED U/S 47 R/W 21 R 97, 98, 99, 100 AND 101 R/W
S 151 CPC.
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NC: 2023:KHC:32762
RSA No. 1642 of 2007
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 13.03.2007, passed in R.A.No.126/2004 by the Fast Track Court V, Chickballapur, confirming the order on I.A.No.5 dated 19.07.2004, passed in Execution Petition No.64/2002 by the Civil Judge (Jr.Dn.) & JMFC, Gudibanda.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the decree-holder and respondent is the objector.
3. The brief facts leading rise to filing of this appeal are as under:
The decree-holder filed a suit in O.S.No.205/1992 for declaration of title and possession against Mahaboob & others. The said suit came to be decreed vide judgment dated 22.08.1997. The said judgment was confirmed in -3- NC: 2023:KHC:32762 RSA No. 1642 of 2007 R.A.No.52/1997 by the Civil Judge (Sr.Dn.), Chikkaballapur, vide judgment dated 12.08.1999, and the same was confirmed in RSA No.71/2000 by this Court vide judgment dated 05.12.2001. The defendants in the said suit did not deliver the possession of the suit property. The decree-holder filed an execution petition in Ex.No. 64/2002. In the said execution petition, the objector filed an application under Section 47 r/w Order 21 Rule 97, 98, 99, 100 and 101 r/w Section 151 of CPC contending that the suit property covers the objector's property which is in her possession. The decree-holder obtained decree in O.S.No.205/1992 by misleading and suppressing the real facts by giving false measurements and false boundaries of the suit property. The decree passed in the said suit is not executable against the objector, as the objector was not a party to the original proceedings. It is contended that she is the absolute owner of the property which originally belonged to her father and the same was granted by the Town Municipality for upset price of Rs.940/- on 07.09.1987. The concerned authorities -4- NC: 2023:KHC:32762 RSA No. 1642 of 2007 passed a resolution that the property was allotted to Basha Sab and khatha was changed in the name of Basha Sab. After the death of Basha Sab, the said property was inherited by his wife Smt. Hajarambi vide order dated 18.08.1993. The said Hajarambi sold the said property in favour of the objector. Since from the date of purchase, the objector was the absolute owner in possession of the property bearing Assessment No.154/112-B measuring East-West 25 feet, North-South 15 feet.
4. The said application was opposed by the decree- holder by filing objections.
5. The Trial Court held an enquiry on the said application.
6. In order to prove the case of the objector, the objector examined herself as PW-1 and reiterated the averments made in I.A.No.5. The objector also examined one witness as PW-2 who has deposed that the objector is in possession of the suit schedule property. The decree- -5-
NC: 2023:KHC:32762 RSA No. 1642 of 2007 holder taking undue advantage of the decree is trying to encroach upon the property of the objector. Further it is the case of the objector that after the purchase of the said property, objector is paying property tax and hence she is the absolute owner and in possession of the suit schedule property. It is further deposed that the decree-holder by suppressing the facts, has obtained collusive decree and trying to execute the same. Further in the course of cross-examination, nothing has been elicited from the mouth of these witnesses.
7. The decree-holder was examined as RW-1. Though the decree-holder has produced document which discloses that she has got title only to an extent of 26 x 23 feet, inspite of it, the decree-holder by misleading the Court got mutated her name to the extent of 8 x 16 yards. When the said fact came to the knowledge of the officials of Panchayat, they got issued legal notice to the decree- holder and after holding due enquiry, cancelled the khatha -6- NC: 2023:KHC:32762 RSA No. 1642 of 2007 made in the name of the decree-holder and continued the name of Mahaboob in the assessment extract No.154/112.
8. The executing Court after recording the evidence and considering the material on record, held that the property involved in O.S.No.205/1992 is the same property which is shown in Ex.P1 and the property shown in Ex.P1 is the property owned and possessed by the objector and consequently allowed the application vide order dated 19.07.2004.
9. The decree-holder aggrieved by the order on I.A.No.5 preferred an appeal in R.A.No.126/2004. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1) Whether the appeal is maintainable?
2) Whether executing Court is justified in allowing Objector's application holding property covered under the decree of O.S.205/92 not included the Objector's claim?
3) What order?-7-
NC: 2023:KHC:32762 RSA No. 1642 of 2007
10. The First Appellate Court, on re-appreciating the oral and documentary evidence, answered point Nos.1 and 2 in affirmative and consequently dismissed the appeal. The decree-holder, aggrieved by the order passed on I.A.No.5 by the trial Court and the judgment and decree passed by the First Appellate Court, has filed this second appeal.
11. This court admitted the appeal on the following substantial questions of law :
1) Whether the courts below are right in passing the impugned orders in favour of the respondent, holding that the property involved in O.S.No.205/1992 is different from the property claimed from the respondent in IA No.V?
2) Whether the courts below are right in passing the impugned orders contrary to Ex.P1, the sketch produced in O.S.No.205/1992 with specific measurements and boundaries?-8-
NC: 2023:KHC:32762 RSA No. 1642 of 2007
12. Heard learned counsel for the parties.
13. Learned counsel for the decree-holder submits that the courts below have committed an error in passing the impugned orders. He submits that the property claimed by the objector in I.A.No.5 is different from the one claimed in O.S.No.205/1992. He submits that the judgment and decree passed by the trial Court in O.S.No.205/1992 is in respect of property bearing Assessment No.154/112-B. Hence the executing Court has committed an error in not properly appreciating the material on record. He further submits that the First Appellate Court without properly re-appreciating the material on record, has upheld the order passed on I.A.No.5 by the trial Court. He submits that the impugned orders passed by the courts below are arbitrary and erroneous. Hence on these grounds he prays to allow the appeal.
14. Learned counsel for the objector submits that the suit property in O.S.No.205/1992 wherein the house -9- NC: 2023:KHC:32762 RSA No. 1642 of 2007 which was in dilapidated condition was already in possession of the decree-holder and hence he submits that the courts below have concurrently recording a finding of fact against the decree-holder holding that the subject- matter of the suit property is the same property shown in I.A.No.5 filed by the objector. Hence he submits that the decree-holder has no right to execute the decree passed in O.S.No.205/1992. On these grounds he prays to dismiss the appeal.
15. Perused the records and considered the submissions of learned counsel for the parties.
16. SUBSTANTIAL QUESTIONS OF LAW NO.1 AND 2:
These two questions are interlinked with each other and hence taken up for common discussion. It is not in dispute that the decree-holder had filed a suit in O.S.No.205/1992 for the relief of declaration of title and possession against Mahaboob & Others. The said suit came to be decreed by the trial Court. The defendants in the said suit aggrieved by the said judgment and decree,
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NC: 2023:KHC:32762 RSA No. 1642 of 2007 preferred an appeal in R.A.No.52/1997 before the First Appellate Court. The First Appellate Court vide judgment dated 12.08.1999, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Aggrieved by the said judgment and decree, the defendants therein preferred a second appeal before this Court in RSA No.71/2000. This Court vide judgment dated 05.12.2001, dismissed the second appeal. After the dismissal of the appeal, the decree-holder requested the judgment-debtor to vacate and handover the possession of the suit schedule property. The judgment-debtor did not deliver the possession of the suit schedule property. The decree- holder was forced to file the execution petition in Ex.No.64/2002. In the said execution, the objector filed an application under Section 47 r/w Order 21 Rule 97, 98, 99, 100 and 101 r/w Section 151 of CPC, alleging that the subject-matter of the suit in O.S.No.205/1992 is the property owned and possessed by the objector and the decree-holder has no right, title or interest over the property. Further, the objector has produced Ex.P3 which
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NC: 2023:KHC:32762 RSA No. 1642 of 2007 reveals that the entry made in the name of the decree- holder in respect of the suit property is cancelled by the Town Panchayat vide its order dated 31.01.1984, stating that the sale agreement does not tally with the record of the Town Panchayat. The said order was not challenged by the decree-holder. Without disclosing the said fact, the decree-holder has filed the suit against Mahaboob and another. Further, the objector has also produced the sketch marked as Ex.P1. The decree-holder on the basis of the judgment and decree passed in O.S.No.205/1992, is trying to dispossess the objector, wherein the decree- holder has no right, title or interest over the said property. Further, the witness of decree-holder has admitted that the objector constructed a house on the said land and the said land is a Government land and the subject-matter of the suit property in O.S.No.205/1992 was marked by letters 'LKEF' in Ex.P1. Further, the objector has clearly stated in the application that the objector is not in possession of the property marked as 'LKEF' and further the executing Court has observed that the building which
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NC: 2023:KHC:32762 RSA No. 1642 of 2007 was later shown in 'LKEF' was collapsed and no person is residing in it and it is in possession of the decree-holder. Hence, the question of executing decree against the objector does not arise. The executing Court considering the evidence of the objector as well as the documents produced by the objector and also the evidence of decree- holder, was justified in allowing I.A.No.5 filed by the objector and the objector has proved that the property involved in O.S.No.205/1992 is different from the property claimed in I.A.No.5, but the decree-holder is trying to evict the objector on the basis of the judgment and decree passed in O.S.No.205/1992. Further, there is a passage between the property shown in letters 'LKEF' and the property of the objector. The First Appellate Court on re- appreciation of the material on record, was justified in upholding the order passed on I.A.No.5. I do not find any grounds to interfere with the impugned judgment and order.
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NC: 2023:KHC:32762 RSA No. 1642 of 2007
17. In view of the above discussion, I answer substantial questions of law in affirmative and proceed to pass the following:
ORDER The appeal is dismissed.
No order as to the costs.
SD/-
JUDGE RD