Karnataka High Court
Shaikh Abdulla S/O Mahammad Kamal vs Abdul Sattar Mohammed Shaikh on 25 July, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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RSA No. 411 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO. 411 OF 2006 (INJ)
BETWEEN:
SHAIKH ABDULLA S/O MAHAMMAD KAMAL
AGED ABOUT 71 YEARS,
AGRICULTURIST AND RETIRED GOVERNMENT
SERVANTR/AT KATHINKON VILLAGE,
SUNKERI TALUK, KARWAR-581301
SINCE DECEASED BY HIS LRS.
1A. MARIYAMBI WD/O ABDULLA SHAIKH
R/O KATHINKON SUNKERI,
KARWAR(T), UTTAR KANNADA (D),
KARNATAKA
1B. MEERAN S/O ABDULLA SHAIKH
AGE: 60 YEARS, OCC: PVT. SERVICE
R/O KATHINKON SUNKERI
KARWAR (T), UTTAR KANNADA (D),
KARNATAKA-581301
1C. ABDUL KHADAR S/O ABDULLA SHAIKH
AGE: 58 YEARS, OCC: PVT. SERICE,
R/O KATHINKON SUNKERI
KARWAR (T), UTTAR KANNADA (D),
KARNATAKA-581301
1D. SHRI KAMAL S/O ABDULLA SHAIKH
AGE: 56 YEAS, OCC: PVT. SERVICE,
R/O KATHINKON SUNKERI
KARWAR (T), UTTAR KANNADA (D),
KARNATAKA-581301
1E. JALALLUDDIN S/O ABDULLA SHAIKH
AGE: 52 YEARS, OCC: PVT. SERIVCE
R/O KATHINKON SUNKERI
KARWAR (T), UTTAR KANNADA (D),
KARNATAKA-581301
1F. SUFI S/O ABDULLA SHAIKH
AGE: 52 YEARS, OCC: PVT. SERVICE,
R/O KATHINKON SUNKERI
KARWAR (T), UTTAR KANNADA (D),
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RSA No. 411 of 2006
KARNATAKA-581301
1G. MAIMUNNA W/O SALEEM SHAIKH
AGE: 46 YEARS, OCC: HOUSE WIFE
R/O MIRIJAN, KUMTA (D)
...APPELLANTS
(BY SRI. SANGRAM S KULKARNI, ADVOCATE)
AND:
1. ABDUL SATTAR MOHAMMED SHAIKH
S/O MOHAMMED ALI KATTIGE,
AGE: ABOUT 57 YEARS, R/O ADDE, STATION ROAD,
HUBLI-580021
2. U.F.M. GANAPATI SUBBA SAVALKAR
AGED ABOUT 74 YEARS, AGRICULTURIST,
R/O NEAR URDU SCHOOL, KATHINKON, SUNKERI,
TALUK: KARWAR-581301
3. RAMAKRISHNA S/O VENKATAESH SAVALKAR
AGED ABOUT 45 YEARS, AGRICULTURIST, R/O NEAR
URDU SCHOOL, KATHINKON, SUNKERI, TALUK KARWAR-
581301
4. RAVI S/O PUNDLIK SAVALKAR
AGED ABOUT 42 YEARS, R/O NEAR URDU SCHOOL,
KATHINKON, SUNKERI, TALUK KARWAR-581301
...RESPONDENTS
(BY SRI. S C JAINAR AND SRI. M.R.MULLA, ADV. FOR R1,
SRI. VIGHNESHWAR S.SHASTRY, ADV. FOR R2,
R4 SERVED)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 7.11.2005 PASSED IN R.A.NO
57/2004 ON THE FILE OF THE DISTRICT JUDGE, FAST TRACK
COURT-II, U.K., KARWAR, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD
24.11.2000 PASSED IN OS 61/88 ON THE FILE OF THE CIVIL
JUDGE (JR.DN.) KARWAR. TRAIL COURT DECREED THE
SUIT. APPELLATE COURT ALLOWED THE APPEAL SUIT FOR
DECLARATION, MANDATORY INJUNCTION AND PERMANENT
INJUNCTION.
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RSA No. 411 of 2006
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
Challenging the judgment and decree dated 07.11.20051 passed by District Judge, Fast Track Court II, Uttara Kannada, Karwar in R.A.No.57/2017, this second appeal is filed by plaintiff.
2. Appellant herein was original plaintiff, while respondents herein were defendants no.1 to 4 respectively in suit. For sake of convenience, parties to this appeal will hereinafter be referred to by their rankings before trial Court.
3. O.S.no.61/1988 was filed seeking for:
a) Declaration declaring that defendant have absolutely no right, title interest, no possession of whatsoever in nature nor any kind of legal status as defendants being trespassers simplicities in respect of the partition of suit land bearing Sy.No.38/6 fully described in hand-sketch at ABCD and -4- RSA No. 411 of 2006
b) Consequential relief of mandatory injunction to remove temporary fence put up by defendant nos.2 to 5 in the month of January 1988 for first time, at CD line in plaint sketch and defendants by way of mandatory injunction may kindly be directed to remove electricity line (two lines) overhanging in suit lands of plaintiffs by approaching KEB in the interest of justice and equity.
4. In plaint, it was stated that plaintiff was in lawful possession of 12 guntas in land bearing Sy.no.38/6 in Kathinkon village, shown as 'ABCD' in hand sketch appended to plaint (hereinafter referred to as 'suit property'). Plaintiff claimed to have inherited suit property from his ancestors and constructed his residential house and latrine therein. And as defendants' houses lie towards east of suit property, they had no right title or interest or possession over suit property. On 06.7.1987, plaintiff received a notice from City Municipality, Karwar alleging obstruction of public way to -5- RSA No. 411 of 2006 Sy.no.38/7, which he promptly denied in reply. Thereafter he received a caveat petition filed by defendant in which 3 ft. wide right of way was claimed in suit land on basis of survey conducted on 17.11.1987 wherein Surveyor falsely showed existence of lane in suit land.
5. Subsequently, defendants sought to erect a fence at 'CD' line alleging that survey was carried behind back of plaintiff and such attempt amounted to interference with plaintiff's right. Hence, suit was filed.
6. Despite service of suit summons, defendant no.3 did not enter appearance. He was placed ex-parte. Defendants no.1 and 2 filed written statement. It was adopted by others. In written statement apart from denying plaint averments, it was contended that suit property and property of defendants were earlier comprised in one survey number and later subdivided by earlier owner. On -6- RSA No. 411 of 2006 northern side of suit land, there was pathway running East to West joining land of defendant no.1. Defendants residing on eastern side of suit land were using said pathway to reach their houses from Bandar road. They were also using it to transport timber, without interruption and as of right since more than 50 years. It was also stated that they had legally obtained electricity line and sought for dismissal of suit.
7. Based on pleadings, trial Court framed following issues and additional issues:
(1) Whether the plaintiff proves that defendants have no right title and interest over the suit land bearing Sy.No.38/6 measuring 00.12.00 of Kathinkon?
(2) Whether the plaintiff proves that defendant no.2 to 5 have encroached upon the suit land to the extent of 5'6" in width and 100' in length in the month of January, 1988 as alleged?-7- RSA No. 411 of 2006
(3) Whether the defendants prove the existence and the use of the alleged suit pathway of the width of 12' in the northern portion of the suit land since more than 50 years?
(4) Whether the plaintiff proves that he is entitle for the relief of mandatory injunction for removal of the disputed suit temporary fence?
(5) Tow ah relief the plaintiff is entitle for?
(6) What order or decree?
ADDL. ISSUES
1. Whether plaintiff proves that defendants have illegally taken electric line from suit land by encroaching it?
2. Whether plaintiff is entitled to the relief sought for?
3. Whether K.E.B. is a necessary party to the suit?
4. Whether plaintiff defendants prove that the land of the defendant no.1 were formerly constituted one survey number -8- RSA No. 411 of 2006 and later they were sub-divided an they were owned by a single owner as contended at para no.5 of the main written statement.
5. Whether the defendants prove that the alleged pathway of the northern portion of the plaintiff's land is in existence for more than 100 years and they are using the same by way of immemorial user as contended in the additional written statement?
6. Whether defendants prove that they have legally as of right taken electrical line as contended in the additional written statement?
7. Whether defendants prove user of the alleged suit pathway in the Northern portion of the suit land as of right along with others residing at the Eastern side of the suit land since more than 50 years as contended in para 5 of the main written statement?
8. Thereafter, plaintiff examined himself and three others as PWs.1 to PW4 and got marked Exs.P1 to P25. Defendant no.2 was examined as DW1.
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9. On consideration, trial Court answered issues no.1, 2, 4 and additional issues no.1, 2, 4 in affirmative, issue no.3 and additional issue nos.3 and 5 to 7 in negative and issue no.5 by decreeing suit declaring that plaintiff was owner in possession of suit land and directed defendants to remove fence put up at CD line and to remove electricity line overhanging suit land etc.
10. Aggrieved by said decree, defendants filed R.A.No.57/2004 on several grounds. It was contended that judgment and decree passed by trial Court was erroneous. Though plaintiff failed to prove existence of right of way, trial Court decreed suit. Minor contradictions as to width of passage was over emphasized. Findings on issues were erroneous without considering contention of defendants. Evidentiary value of Survey sketch was not considered. It erred in casting burden upon defendants and report of Court Commissioner was not properly appreciated etc.
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RSA No. 411 of 2006
11. Based on contentions urged, first appellate Court framed following points for its consideration:-
1. Whether the plaintiff is entitled for declaration prayed for?
2. Whether the plaintiff proves that defendants have encroached an area of 5' 6" in width and 100' in length in the suit property?
3. Whether the defendants prove the existence of passage through the suit property?
4. Whether the plaintiff proves that electricity live wire caused to be drawn by the defendants is illegal?
5. Whether the defendants prove their right of easement of prescription and necessity over suit passage?
6. Whether the plaintiff is entitled for injunction in mandatory form?
7. Is interference to the findings of the trial court necessary?
8. What order?
12. Upon hearing counsel, appellate Court answered point nos.1 to 6 in negative, point no.7 in affirmative and point no.8 by allowing appeal setting aside judgment and decree passed by trial Court and dismissing suit.
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RSA No. 411 of 2006
13. Against said judgment and decree plaintiff has preferred this appeal.
14. Sri Sangram S. Kulkarni, learned counsel for appellant submitted that Appellate Court erred in setting aside well reasoned judgment and decree. The ground on which it interfered was not specifically urged in appeal. Even finding that defendants have not encroached upon suit property was contrary to admission elicited. While passing impugned judgment, it observed that defendants failed to prove right of easement over suit property. Despite same, it erroneously allowed appeal.
15. Sri M.M. Khannur, advocate appearing for Sri S.C.Jainar, learned counsel for respondent no.1 supported impugned judgment and decree and submitted that findings of Courts regarding plaintiff's right were finding of fact and no substantial question of law arose for consideration.
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RSA No. 411 of 2006
16. Heard learned counsel. Perused impugned judgment and decree and records. Appeal was admitted on 22.7.2015 for considering following substantial questions of law:-
1. Whether the First Appellate Court was justified in dismissing the suit of the appellant even after coming to the conclusion that the defendants have failed to prove the right of easement of prescription and necessity over the suit schedule property?
2. Whether the Lower Appellate Court is justified in giving a finding that the defendants have set-up a right of easement only as a defence and not sought for any such right to be recognized and declared?
3. Whether the Lower Appellate Court is justified in reversing the judgment and decree passed by the trial Court?
17. From above submission, it is not in dispute that plaintiff is owner of Survey no.38/6 and defendants were owners of Survey no.38/7. However, dispute is regarding
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RSA No. 411 of 2006 area marked with letters 'ABCD' in hand sketch appended to plaint, while plaintiff contends that it is a part of suit property and it is not a path way, defendants contend that same is a path way and they have been using it since 50 years.
18. While passing impugned judgment, trial Court referred to deposition of PW1 wherein he admitted that land bearing Sy.nos.38/6 and 36/7 comprised of same survey number earlier. Insofar as ABCD pathway, it observed that defendants had pleaded that they were using said area as pathway since time of their ancestors. By examining evidence, casting burden upon defendants and coming to conclusion that defendants failed to establish usage of ABCD area as pathway, trial Court decreed suit. First appellate Court on re-examination of evidence on record, however took a different view. On examination of relief sought for by plaintiff, it observed that plaintiff had sought negative declaration instead of seeking for a declaration of his title over suit property. Though on re-examination of evidence, it observed that defendants failed to establish existence of
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RSA No. 411 of 2006 easement over suit property, noting that plaintiff had sought for negative declaration which was opposed to Specific Relief Act, allowed appeal and set aside impugned judgment and decree and dismissed suit.
19. Though it was contended that no specific contention was urged by defendants about maintainability of suit, appellate Court having equal powers as trial Court, would not be barred from re-examining entire material.
20. Admittedly main relief sought for by plaintiff was for declaration that 'defendants are not having any right over suit property', a negative declaration which cannot be granted unless plaintiff seeks specific prayer for declaring his title over suit property. Hence, suit would not be maintainable. Even ancillary prayer for mandatory injunction to remove temporary fence or electricity lines, cannot be considered without plaintiff his title.
21. First appellate Court upon re-examination of evidence on record and reasons assigned by trial Court has rightly interfered with judgment and decree passed by trial
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RSA No. 411 of 2006 Court. Admittedly defendants did not seek counter claim. As plaintiff filed suit for declaration, he was required to establish his title case would be on plaintiff and pleadings or contentions urged by defendants would not discharge burden upon plaintiff to demonstrate maintainability of his suit. Therefore, substantial questions of law no.1 and 2 would not arise for consideration.
22. On examination of impugned judgment and decree passed by both Courts, it is seen that relief sought for by plaintiff in suit was not maintainable. Exercising power vested under Section 96 of C.P.C., appellate Court rightly set-aside judgment and decree passed by trial Court. Hence, substantial question of law no.3 requires to be answered in affirmative and following:
ORDER Appeal is dismissed.
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JUDGE Vmb/CLK