Karnataka High Court
Sri. Ameer Sab vs Abdul Khalak on 23 November, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 1620 OF 2013 (DEC/INJ)
BETWEEN:
SRI. AMEER SAB
S/O LATE ABDUL LATHEEF,
AGED ABOUT 59 YEARS,
BEEF MUTTON MERCHANT,
RESIDING NEAR BOMBAU BUILDING,
POOR HOUSE COLONY, TUMKUR TOWN,
TUMKUR
...APPELLANT
(BY SRI.SRI.K.N.NITISH, ADVOCATE FOR
SRI.K V NARASIMHAN, ADVOCATE)
AND:
1. ABDUL KHALAK
AGED ABOUT 59 YEARS,
2. AHAMAD SHERIEF
AGED ABOUT 55 YEARS,
(AMENDED AS PER THE ORDER OF
COURT DATED 02.04.2014)
3. MAHAMMED SHERIEF
AGED ABOUT 53 YEARS
4. JAFAR SHERIEF
AGED ABOUT 51 YEARS
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5. SHAMIULLA
AGED ABOUT 49 YEARS
RESPONDENT NO.1 TO 5 ARE
THE SONS OF SMT.JAHARABI,
THEY ARE R/O HOGEBEELU, 2ND BLOCK,
MADHUGIRI TOWN, TUMKUR DISTRICT
6. MAHABOOBI
W/O HUSSAIN KHAN,
AGED ABOUT 47 YEARS
7. ZAREENA TAJ
W/O USEUF SHARIEF,
AGED ABOUT 43 YEARS,
RESPONDENT NO.6 & 7 ARE
R/O TUMKUR TOWN
TUMKUR
...RESPONDENTS
(BY SRI.A V GANGADHARAPPA, ADVOCATE FOR R1-7)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 17.7.2013 PASSED IN
R.A.NO.38/08 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 11.1.2008
PASSED IN OS.NO.16/05 ON THE FILE OF CIVIL JUDGE (JR.DN.)
AND JMFC, KORATAGERE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.07.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by unsuccessful defendant questioning concurrent findings of the Courts below wherein the plaintiffs' suit seeking declaration of title and also declaration to the effect that the sale deed dated 27.11.2001 set up by defendant is a concocted document and for consequential relief of injunction is decreed by both the Courts.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. Plaintiffs instituted a suit seeking declaration of title and for permanent injunction restraining defendant from interfering with plaintiffs' peaceful possession and enjoyment over the suit schedule property. The subject matter of the suit is land bearing Survey No.31/1 measuring 1 acre 13 guntas. The plaintiffs contended that their mother Jaharabi was the absolute owner of the suit 4 land bearing Survey No.31/1. Plaintiffs contended that their mother was in exclusive possession and enjoyment and that she died on 26.12.2000. Plaintiffs further contended that they have inherited the property left behind by their mother Jaharabi. Plaintiffs specifically contended that defendant has no manner of right, title and possession over the suit schedule property. It was specifically claimed that defendant has concocted a document said to be the sale deed dated 27.11.2001. Plaintiffs further alleged that defendant got his name mutated based on the concocted sale deed dated 27.11.2001. Plaintiffs have specifically alleged that their mother used to sign in Urdu language, while LTM is found on the disputed sale deed dated 27.11.2001. Plaintiffs claimed that their mother was educated and was well versed and she always used to sign in Urdu. Hence, the present suit.
4. The defendant on receipt of summons filed written statement and stoutly denied the entire averments 5 made in the plaint. Defendant in written statement however, set up a title by way of adverse possession. Defendant claimed that he is in possession over the suit schedule property for more than 12 years and therefore, claimed that he has perfected his title by way of adverse possession. Defendant contended that his name is duly mutated in the revenue records and the same have gone unchallenged by plaintiffs' ancestor and the suit is barred by limitation.
5. Plaintiffs to substantiate their claim let in oral evidence by examining first plaintiff as P.W.1 and two independent witnesses as P.Ws.2 and 3. Plaintiffs produced documentary evidence vide Exs.P1 to 12 while defendant examined himself as D.W.1 and two independent witnesses as D.Ws. 2 and 3 and produced original sale deed which was marked at Ex.D1. Defendant also produced tax paid receipts, index of land which were marked as Exs.D2 to D11.
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6. The trial Court taking note of Ex.P2 which is the death certificate of plaintiffs' mother Jaharabi found that their mother died on 26.12.2000, while Ex.D1, which is set up by defendant was executed on 27.11.2001. It is in this background the trial Court held that the sale deed set up by the defendant is a concocted document.
7. The contention of the defendant that he is in possession of the suit land and his possession is hostile animus to that of the real owner was also negatived by the trial Court. While examining the revenue records more particularly Ex.D6, the trial Court found that the name of one Ameer Sab is found in the revenue records in the cultivator's column. However, the trial Court found that the plaintiffs have succeeded in eliciting in the cross- examination of defendant that the name Ameer Sab in fact pertains to defendant's father-in-law. He has admitted in the cross-examination in unequivocal terms that in Column No.12(2) the name of Ameer Sab refers to his father-in- 7 law. Therefore, trial Court found that defendant's whose name is identical cannot take advantage of the name found in cultivator's column and therefore, the trial Court held that the defendant even otherwise failed to establish that he is in possession of the suit land.
8. Referring to these significant details, the trial court held that plaintiffs have succeeded in establishing that the sale deed dated 27.11.2001 is a concocted document and therefore, proceeded to hold that plaintiffs' have succeeded in establishing their ownership over the suit schedule property and consequently, issue No.2 was also answered in the affirmative and trial Court held that plaintiffs have succeeded in proving that defendant has concocted the sale deed dated 27.11.2001 and only on the basis of sale deed, his name was mutated in the revenue records. The trial Court while dealing with Issue No.4 held that defendant has failed to prove that he has perfected his 8 title by way of adverse possession. Consequently, the suit was decreed.
9. Defendant feeling aggrieved by the judgment and decree of the trial Court preferred an appeal before the appellate Court. The appellate Court being a final fact finding authority has independently assessed the entire oral and documentary evidence on record. The appellate Court while examining the claim of defendant based on the registered sale deed dated 27.11.2001 vide Ex.D1 has also come to the conclusion that if Jaharabi died on 26.12.2000, the sale deed set up by defendant is obviously a concocted document which is dated 27.11.2001. It is in this background, the appellate Court was also of the view that the sale deed set up by the defendant is a fraudulent document. Referring to the other evidence on record, the appellate Court also held that Jaharabi during her life time used to sign in Urdu and therefore, the LTM found on the sale deed vide Ex.D1 is a forged one and Jaharabi who was 9 acquainted with signing in Urdu could not have affixed her LTM. Referring to the evidence on record, the appellate Court also held that the sale deed set up by the defendant is a concocted document. Consequently, the appeal was dismissed.
These concurrent findings are under challenge in this second appeal.
10. Heard the learned counsel appearing for defendant and the learned counsel appearing for plaintiffs. Perused the concurrent judgments under challenge.
11. Plaintiffs who are children of Jaharabi have instituted the present suit. Plaintiffs claimed that the property was originally owned by their mother Jaharabi. The present suit is filed by specifically contending that sale deed dated 27.11.2001 set up by defendant is a concocted document. It is quite interesting to note that defendant in his written statement has not claimed title based on 10 registered sale deed dated 27.11.2001. In the written statement, defendant has claimed title by way of adverse possession.
12. However, during trial, defendant conveniently has changed his defence and has asserted title based on a registered sale deed. Both the Courts taking note of Ex.P2 which is the death certificate have clearly held that if Jaharabi died on 26.12.2000 which is evident from death certificate vide Ex.P2 she could not have executed a registered sale deed eleven months after her death. Therefore the trial Court as well as the appellate Court held that the document set up by defendant vide Ex.D1, which is a registered sale deed dated 27.11.2001 alleged to have been executed by Jaharabi is a fraudulent document. This document is also discarded by referring to Ex.P8 which is certified copy of challan submitted by Jaharabi during her life time to the Consumer Co-operative Society, Madhugiri. This document is in fact signed in Urdu by Jaharabi during 11 her life time. Plaintiffs have also examined P.W.3 who happens to be the Secretary of the Consumer Co-Operative Society, Madhugiri, who has supported the plaintiffs' case and has made a statement on oath that Jaharabi obtained loan and she used to sign in Urdu language. Therefore, even on this count, both the Courts have held that the thumb impression found on Ex.D1 is forged and the same does not belong to Jaharabi. On these two counts, the sale deed setup by defendant is found to be a fraudulent document.
13. Insofar as plea of adverse possession is concerned, both the Courts have examined the evidence let in by defendant. Once plea of adverse possession is set up in defence, then it is a trite law that there is nothing to be done by the plaintiffs. Plaintiffs can be non-suited provided defendant who has set up title by way of adverse possession proves and establishes the said fact by leading rebuttal evidence. The revenue records produced by 12 defendant do not indicate that defendant is in possession. Both the Courts have concurrently held that defendant has failed to prove his possession. It is a trite law that even if a party who sets up adverse possession proves his possession that in itself would not constitute a hostile animus and that would amount to perfection of title by way of adverse possession. There has to be a positive evidence indicating that original owner who was aware of hostile title, as asserted by the defendant, had abandoned her right over the suit schedule property. Simultaneously, defendant has to establish that his possession was hostile animus to that of the true owner and that the said possession was continuous and uninterrupted for a statutory period of twelve years. All these necessary ingredients are not at all found in the present case on hand. Both the Courts referring to the revenue records have found that defendant taking undue advantage of similarity in his name to that of his father-in-law has tried to take advantage and has tried 13 to make out a case that he is in possession of the property referring to the name found in column 12(2) of revenue records. The trial Court, more particularly, has taken note of this aspect and has recorded a categorical finding that the name found in the Cultivator's column is that of father- in-law of defendant and this fact is successfully elicited by plaintiffs in the cross-examination of defendant. Defendant in cross-examination has admitted in unequivocal terms that the name found in the cultivator's column in column No.12(2) is that of his father-in-law.
14. If these significant details are looked into, then this Court is of the view that the concurrent findings recorded by the Courts below are based on clinching evidence let in by plaintiffs and in absence of rebuttal evidence let in by defendant to demonstrate that he has perfected his title by way of adverse possession. The conduct of the defendant is found to be grossly unfair. The charge of fraud though in the civil proceeding must be 14 established beyond reasonable doubt, however, in the present case on hand, there is tangible evidence and the said evidence is found to be sufficient to arrive at a conclusion that defendant has indulged in creating a fraudulent document. The death certificate at Ex.P2 would clinch the entire controversy between the parties. If Jaharabi had died in 2000, then the sale deed which has come into existence after 11 months after the death of Jaharabi is obviously a concocted document at the instance of defendant. Therefore, the concurrent findings recorded by both the Courts below are based on legal evidence let in plaintiffs in the present case on hand. No substantial question of law arises for consideration.
15. Hence, the second appeal is dismissed.
Sd/-
JUDGE *alb/-