Karnataka High Court
Mudakappa S/O Ramapp Yakalaspur vs Samsuddin S/O Rajak Sab Pattekhanavar on 26 June, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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RSA No. 5576 of 2009
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 5576 OF 2009
BETWEEN
MUDAKAPPA
S/O RAMAPPA YAKLASPUR
AGE: 34 YEARS,
OCC: AGRICULTURE,
R/O: KALAKERI,
TQ: MUNDARGI,
DIST: GADAG-582118.
...APPELLANT
(BY KUMARI RANJITA RADDI ALAGAWADI FOR
SRI. B.V.SOMPUR; SRI. V.B.HOSAMATH; AND
SRI.C.B.SHAKUNAVALLI, ADVOCATES)
AND
Digitally
signed by
YASHAVANT
YASHAVANT NARAYANKAR
1. SAMSUDDIN
NARAYANKAR Date:
2023.07.06
12:39:50 -
0700
S/O RAJAK SAB PATTEKHANAVAR
AGE 35 YEARS,
OCC: AGRI,
2. MEHABOOB SAB RAZAK SAB PATTEKHANAVAR
AGE: 33 YEARS,
OCC: AGRI,
3. SMT. AMMAJANABI
W/O BUDNESAB PATTEKHANAVAR
AGE: 56 YEARS,
OCC:AGRI,
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RSA No. 5576 of 2009
4. RAJASHUSAIN
S/O BUDNESAB PATTEKHANAVAR
AGE: 34 YEARS,
OCC:AGRI,
5. JAHIRABANU
D/O BUDNESAB PATTEKHANAVAR
AGE 31 YEARS,
OCC: AGRI,
ALL THE RESPONDENTS ARE
R/O: KALAKERI, TQ: MUNDARAGI,
DIST: GADAG-582118.
...RESPONDENTS
(BY SRI. SADIQ N GOODWALA ADV. FOR R1 & R2;
APPEAL AGAINST R3 TO R5 AS DISMISSED)
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT & DECREE DTD:1/9/2009 PASSED IN R.A.NO:55/2007
ON THE FILE OF THE CIVIL JUDGE (SD) & CJM, GADAG,
ALLOWING THE APPEAL , FILED AGAINST THE JUDGMENT AND
DECREE DTD:19/4/2007 PASSED IN O.S.NO:46/04 ON THE FILE
OF THE CIVIL JUDGE (JD) & JMFC, MUNDARAGI, DISMISSING THE
SUIT FILED FOR PRE-EMPTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
12.06.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.
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RSA No. 5576 of 2009
JUDGMENT
This appeal is filed under Section 100 of CPC, by defendant no.4 challenging the judgment and decree passed by the Civil Judge (Sr.Dn) & CJM, Gadag in RA No.55/2007 dated 01.09.2009.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. Brief facts of the case are as under:
The plaintiffs have filed suit in OS no.46/2004 on the file of Civil Judge (Jr.Dn), Mundaragi for enforcing the right of pre- emption with a direction to the defendants to execute the sale deed pertaining to suit schedule property by delivering the possession. The suit schedule property is open site bearing Gram Panchayat No.417 situated at Kalkeri village in Mundaragi taluk measuring East to West 34 ft. North to South 15 ft with specific boundaries as referred in the plaint. The suit schedule property is adjacent to the plaintiffs house and plaintiffs and defendant Nos.1 to 3 belongs to Mohammedan community and professing Muslim religion. The property was originally owned -4- RSA No. 5576 of 2009 by defendant Nos.1 to 3 and they were in possession and enjoyment of the same. Without giving any information, they have sold the suit property to defendant no.4 for a sum of Rs.8,000/- under registered sale deed dated 04.12.2004. Immediately, after getting knowledge, the plaintiffs approached the defendants, but, defendants did not heed to the request of the plaintiffs. It is the contention of the plaintiffs that they have got right of pre-emption under Section 17 of Mohammedan Law and defendant no.4, who has purchased the suit property belong to Hindu community and hence, they sought to enforce right of pre-emption as it affects their privacy.
4. Defendant nos.1 to 3 appeared and disputed the claim of the plaintiffs. Though defendant nos.1 to 3 have admitted the description of the suit schedule property, they have disputed the other contentions and they claim that they have got absolute right to alienate the suit schedule property being the owners and they sold it for a valuable consideration and hence, they sought for dismissal of the suit. Defendants further pleaded that area is not exclusive locality of the Muslim community alone and all the community people are residing in -5- RSA No. 5576 of 2009 their locality and question of affecting privacy does not arise at all.
5. Defendant no.4 filed his written statement and he denied the description of the suit schedule property. He has also denied that plaintiffs and defendant nos.1 to 3 are relatives and according to him, his ancestral house property is abutting the suit property. Defendant no.4 further denies that as he belongs to Hindu community, it will cause obstruction in professing the Mohammedan religion by the plaintiffs. He denied other contentions and sought for dismissal of the suit.
6. The Trial Court on the basis of the rival pleadings has framed the following issues:-
Issues "1) Whether plaintiff prove that the 4th defendant is stranger and that due to his presence in the suit property their privacy is affected?
2) Whether defendant No. 4 proves that the ancestral property is situated near the suit property and that the residents of the vicinity are belonged to different communities ?
3) Whether plaintiff has right of pre- emption over suit property ?
4) Whether plaintiff is ready and willing to get pre-emption of suit property?-6-
RSA No. 5576 of 2009
5) Whether plaintiffs entitled for the relief sought?
6) what order or decree?"
7. Plaintiff No.1 was examined as PW1 and one more witness was examined as PW2 and placed reliance on 3 documents marked at Exs.P1 to P3. Defendant No.4 examined as DW1 and four witnesses were examined as DW2 to DW5 and placed reliance on document marked at Ex.D1.
8. After having heard the arguments and after perusing the records, the trial Court answered issue Nos.1, 3, 4 and 5 in the negative and while issue no.2 is partly answered in the affirmative and ultimately dismissed the suit.
9. Being aggrieved by this judgment and decree, the plaintiffs have filed RA no.55/2007 on the file of the Civil Judge (Sr.Dn) & CJM, Gadag. The learned Senior Civil Judge after re- appreciating the oral as well as documentary evidence, has set aside the judgment and decree of trial Court and decreed the suit with a direction to the defendants to execute the sale deed pertaining to the suit schedule property. Being aggrieved by this divergent finding, defendant no.4 is before this Court. -7- RSA No. 5576 of 2009
10. While admitting the appeal on 03.03.2014, this Court has framed the following substantial question of law:-
"Whether the First Appellate Court has committed a serious error in reversing the judgment of the trial Court by coming to the conclusion that PW.1 is an adjacent owner of the suit schedule property to claim the right of pre-emption against defendant No.4?"
11. Heard the arguments advanced by the learned counsel for the appellant and learned counsel for the respondent nos.1 and 2. Perused records. The appeal as against respondent nos.3 to 5 is dismissed.
12. The learned counsel for the appellant would contend that suit is filed claiming right of pre-emption by the plaintiffs and there is no dispute regarding sale by defendant nos.1 to 3 in favour of appellant-defendant no.4. He would contend that records disclose that both the properties are situated adjoining to each other and hence, question of affecting of privacy does not arise at all. He would also contend that the suit property itself is disclosed as an open space in the plaint. But all along, evidence is led as if it was a house property. He would also contend that right of pre-emption cannot be made applicable in -8- RSA No. 5576 of 2009 respect of practice to a particular religion and it amounts caste discretion. He would also contend that admittedly defendant is in possession of the suit property for more than 15 years and admittedly, he is also neighbour and his house is situated adjoining to the suit property and the right of pre-emption is hit by Article 19 of the Constitution. He would also contend that discrimination on the basis of the caste is not permissible as it hurts the basic principle of the Constitution of India regarding equality and equal status. Hence, he would contend that though the trial Court appreciating all these aspects, has rightly dismissed the suit, the First Appellate Court has wrongly allowed the appeal by setting aside the decree passed by the trial Court. Hence, he would seek interference by this Court
13. Per contra, learned counsel for the respondents in this context invites the attention of the Court to Sections 226 and 231 of Mohammedan law. He would also invite the attention of certain admissions given by DW2 and DW3 in their cross examination and argues that considering the contradiction in the evidence of DW2 and DW3, the First Appellate Court is justified in reversing the judgment and decree of trial Court. Hence, he would seek for dismissing the appeal.
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14. Admittedly, the plaintiffs are seeking right of pre- emption. Before proceeding, it is necessary to consider the Article 19 of the Constitution of India, especially Article 19(1)(e) which reads as under:-
"19. Protection of certain rights regarding freedom of speech, etc.-1) All citizens shall have the right-
a) *****
b) *****
c) *****
d) *****
e) to reside and settle in any part of the territory of India;
2) *****
3) *****
15. Hence, Article 19(1)(e) has given freedom to the citizens of India to reside and settle in any part of territory of India.
16. At the same time, it is also important to note the description of the suit property in the plaint. The suit schedule property is described as an open site bearing Gram Panchayat No.417 in Sl.No.460 with specific boundaries. But, the evidence adduced by the plaintiffs itself disclose that suit
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RSA No. 5576 of 2009property is a house property. But, the description of the suit property in the plaint was as if it is an open space. It is also important to note here that plaintiffs are challenging the sale deed executed by defendant nos.1 to 3 in favour defendant no.4 pertaining to suit schedule property. The suit schedule property is specifically described in the sale deed with specific boundaries. Further, PW1 in his cross examination itself admitted that adjoining to the suit property, the house of defendant no.4, i.e. the present appellant is situated. But, the First Appellate Court, blindly ignored this admission on the ground that there is no evidence led as to on which side of the suit property the house of defendant no.4 is situated. No such questions were posed to DW2 and the suit schedule property mentioned in the sale deed is completely contrary to the suit schedule property described in the schedule. But, this major discrepancy in the description of the suit schedule property was ignored by the First Appellate Court and it has not even bothered to consider this aspect.
17. Ancestral house of defendant no.4 is situated adjoining to the suit schedule property and later on, he has purchased the suit schedule property under the registered sale deed. Admittedly the lane in which the suit schedule property is
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RSA No. 5576 of 2009situated is not an exclusive area of Muslim community. Further, the suit property and the house of plaintiffs are adjoining to each other and question of affecting privacy does not arise at all. It is also come in evidence that the number of persons belonging to various communities are residing in the said area and there is no specific street designated for Muslim community in Kalkeri village. Even appellant has not deposited the pre-emption amount before the trial Court or First Appellate Court to show that his bonafideness to purchase the suit schedule property. When there are other houses belonging various persons of different communities, question of enforcing right of pre-emption does not arise at all and as rightly argued it amounts to restriction of right to reside as guaranteed by Article 19(1)(e) of the Constitution of India.
18. In this contest, the learned counsel for the appellant has placed reliance on a decision reported in 1965 AIR 166, (Sant Ram and others vs. Labh Singh and Others). The Hon'ble Apex Court in the said decision has specifically observed that law relating to pre-emption on the ground of vicinage is void. On the same point, learned counsel for the appellant has placed reliance on a decision reported in 1961 AIR 1327, (Bhau Ram vs. B Baijnath Singh and Others),
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RSA No. 5576 of 2009wherein the Hon'ble Apex Court while dealing with Articles 13 and 19 has held that right of pre-emption by vicinage is void under Article 19(1)(e) and (f) of the Constitution of India. The Hon'ble Apex Court reiterated this fact again in a decision reported in (1998) 8 SCC 83 (A. Razzaque Sajansaheb Bagwan and Others vs. Ibrahim Haji Mohammed Husain). Hence, the Hon'ble Apex Court long back in 1961 itself has held that law of pre-emption based on vicinage is void as it is hit by Article 19(1)(e) of the Constitution. As such the provisions of Sec 17, 226 and 231 of Mohammedan law have no relevance.
19. The Hon'ble Apex Court has subsequently followed the said principles itself and admittedly in the instance case, the plaintiffs are claiming right of vicinage through pre- emption. Admittedly, it is void in view of the article 19(1)(e) and it amounts to caste discrimination. The Constitution of India empowers each citizen a right to acquire property and settle anywhere in India. Under such circumstance, only on the ground that privacy being affected, relief cannot be granted and in what way their privacy is affected is not at all forthcoming. Further, the description of the suit schedule property itself is entirely different in the plaint and in the evidence. In the pleading, the suit property is shown to be
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RSA No. 5576 of 2009open space, but, in evidence, it is stated to be house property. Further the boundaries referred in the sale deed under Ex.D1 which is now under challenge are entirely different pertaining to boundaries mentioned in the schedule of plaint. PW1 himself admits that house of the defendant no.4 is situated adjoining to the suit property, but, the same was not described in the boundaries of the suit schedule property by the plaintiffs. Hence, it is evident that the plaintiffs have not approached the Court with clean hand. The description of suit schedule property is also contradictory and the right of pre-emption which is based on vicinage is void as held by the Hon'ble Apex Court. Under such circumstances, even on merit, the plaintiffs are not going to succeed in anyway. The First Appellate Court ignoring the entire material evidence including fact that property of defendant No.4 is adjoining to suit property and contradictory evidence regarding the nature of the suit property and boundaries, blindly decreed the suit of the plaintiffs without appreciating the oral and documentary evidence in proper perspective. The entire approach of the First Appellate Court is erroneous and arbitrary and had failed to properly appreciate the oral and documentary evidence led before the Court. The First Appellate Court has committed a serious error in reversing
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RSA No. 5576 of 2009the judgment of the trial Court only on the ground that PW1 is the adjacent owner of the suit property having right to claim right of pre-emption. Hence, considering these facts and circumstances, the substantial question of law is answered in the affirmative and as such, the appeal filed by defendant no.4 needs to be allowed. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed.
The impugned the judgment and decree passed by the Civil Judge (Sr.Dn) & CJM, Gadag in RA No.55/2007 dated 01.09.2009 is set aside and judgment and decree passed in OS no.46/2004 on the file of the Civil Judge (Jr.Dn), Mundaragi dated 19.04.2007 stands restored.
Under the circumstances, there is no order as to costs in this appeal.
Sd/-
JUDGE Vmb/Ct:pa