Karnataka High Court
Gulamalli S/O Abdul Kayum Bhori Since ... vs Mahiboobsaheb Ahammadsab Mulla Since ... on 20 July, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF JULY , 2022
BEFORE
HON'BLE JUSTICE RAJENDRA BADAMIKAR
RSA NO. 2705/2006 (RES)
C/W
RSA.CROB NO.200006/2016
IN RSA NO.2705/2006
BETWEEN
1. GULAMALLI S/O ABDUL KAYUM BHORI
SINCE DECD BY HIS LRs.
1a) LUKMAN S/O GULAMALI BHORI,
AGED: 64 YEARS, OCC: BUSINESS,
SINCE DECEASED BY LRs.
i) MARIYUM W/O LUKMAN BHORI,
AGE: 60 YEARS, OCC: HOUSEHOLD,
ii) ALIFIYA D/O LUKMAN,
AGE: 30 YEARS, OCC: HOUSEHOLD,
iii) REHANA D/O LUKMAN,
AGE: 26 YEARS, OCC: HOUSEHOLD,
iv) ALI HUSSAIN S/O LUKMAN,
AGE: 21 YEARS, OCC: STUDENT,
ALL R/O BADI KAMAN, VIJAYAPUR.
2
1b) ABID S/O GULAMALI BHORI,
AGE: 56 YEARS, OCC: BUSINESS,
1c) ABDUL KAYUM S/O GULA MALLI BHORI,
AGE: 49 YEARS, OCC: BUSINESS
1d) SHABBIR S/O GULAMALI BHORI,
AGE: 54 YEARS, OCC: BUSINESS,
1e) SMT RUKKAYYA D/O GULAMALI BHORI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
ALL R/O JUMMA MASJID ROAD,
BIJAPUR.
1f) SMT ZUBEDA W/O KHALIMUDDIN TAKIWALA,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O INGALA BANGALOW,AHMED NAGAR-414001.
1g) SMT. MALAKA W/O FAKRUDDIN
BELGAUMAWALA, AGE: MAJOR, OCC: HOUSEHOLD
WORK,R/O STATION ROAD, GANESH PETH,
HUBLI DIST. DHARWAD-580001.
1h) SMT. RASHIDA W/O MAHAMAD HAWELIWALA,
AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
R/O BHIGAWAN CHOWK, BARRAMALL,
DIST. PUNE-411001.
..APPELLANTS
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND
1. MAHIBOOBSAHEB AHMED SAB MULLA,
SINCE DECEASED BY HIS LRs.
1a) SMT. MAHABOOBI
W/O MAHABOOB SAHEB MULLA,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
3
1b) JABBAR S/O MAHABOOBSAHEB MULLA,
AGE: 54 YEARS, OCC: BUSINESS,
1c) LATIF S/O MAHABOOB SAHEB MULLA,
AGE: 49 YEARS, OCC: BUSINESS,
NO: 1A TO 1C ARE R/O M/S MULLA AND
SONS SAW MILL, NEAR K.C.MARKET,
BIJAPUR-586101.
1d) FATIMA W/O HAJI SAB CHANAGAONKAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O NEAR BABALESHWAR NAKA,
BIJAPUR
1e) BATUL W/O RAIS KALBURGI,
R/O CHATI GALLI KUMBAR VES.,
SHOLAPUR, DIST: SOLAPUR 413 202.
2. ABBASALI AHAMMAD SAB MULLA,
(SINCE DEAD BY LRs)
2a) AHMMAD S/O ABBASALI MULLA,
AGE: 53 YEARS, OCC: BUSINESS,
2b) MOHAMMAD S/O ABBASALI MULLA,
AGED:52 YEARS, OCC: BUSINESS,
2c) AZEEZ S/O ABBAALI MULLA,
AGE: 50 YEARS, OCC: BUSINESS,
2d) IQBAL S/O ABBASALI MULLA,
AGE: 45 YEARS, OCC BUSINESS,
2e) MUSTAQ S/O ABBASALI MULLA,
AGE: 46 YRS, OCC BUSINESS,
3. JAHANGIR S/O MAHIBOOB SAHEB MULLA,
AGE: MAJOR, OCC: BUSINESS,
4
4. AYUB S/O MAHIBOOB SAHEB MULLA,
AGE: MAJOR, OCC: BUSINESS,
5. MOHAMMED S/O MAHIBOOB SAHEB MULLA,
AGE: MAJOR, OCC: BUSINESS,
RESPONDENTS NO: 3 TO 5 ARE
R/O C/O M/s MULLA AND SONS
MULLA SAW MILL, BIJAPUR-586101.
6. M/S MULLA AND SONS MULLA SAW
MILL BY ITS PARTNER JAHANGIR
MAHABOOB SAHEB,
R/O BIJAPUR-586101.
7. ANIS AHMMAD S/O ABBASAHEB MULLA,
AGE: MAJOR, OCC: BUSINESS,
R/O M/s MULLA AND SONS
MULLA SAW MILL, BIJAPUR-586101.
.....RESPONDENTS
(BY SRI. M.G.BHRUNGIMATH, ADVOCATE FOR R1(A) TO R1(E),
R2(B) TO R2(E), R3, R4, R6 & R7;
BY SRI. HARSHAVARDHAN.R.MALIPATIL, ADVOCATE FOR R2(A)
TO R2(E) & R7;
VIDE ORDER DATED 29.03.2016 SERVICE OF NOTICE TO R5 IS
HELD SUFFICIENT)
THIS RSA FILED U/S 100 OF CPC PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 11.07.2006
PASSED IN R.A.NO.263/2005 ON THE FILE OF THE FIRST
TRACK COURT-II, BIJAPUR AND SET ASIDE THE IMPUGNED
JUDGMENT AND DECREE DATED 14.11.2003 PASSED IN
O.S.NO.423/1990 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JN.DIVN.) BIJAPUR AND ETC.
*********
5
IN RSA CROB NO.200006/2016
BETWEEN
MAHIBOOB SAHEB AHAMMADSAB MULLA,
(DECEASED BY HIS LRs)
MAHEBOOBI W/O MAHABOOB SAHEB MULLA,
(DECEASED BY HER LRs)
1. JABBAR S/O MAHABOOB SAHIB MULLA,
AGE: 59 YEAR, OCC: BUSINESS.
2. LATIF S/O MAHABOOB SAHEB MULLA,
AGE:59 YEARS, OCC:BUSINESS,
(RESPONDENTS ARE
R/O. M/S. MULLA AND SONS
SAW MILL NEAR KC MARKET, BIJAPUR)
3. FATIMA W/O HAJISAB CHANAGAONKAR,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O NEAR BABALESHWAR NAKA, BIJAPUR.
4. BATUL W/O RAIS KALBURGI,
R/O CHATI GALLI KUMBAR VES.,
SHOLAPUR, DIST.SOLAPUR 413202.
ABBAS ALI AHAMADSAB MULLA,
(DECEASED) BY LRs.
5. AHAMAD S/O ABBASALI MULLA,
AGE: MAJOR , OCC:BUSINESS,
6. MOHAMMAD S/O ABBASALI MULLA,
AGE: 62 YEARS, OCC: BUSINESS,
7. AZEEZ S/O ABBASALI MULLA,
AGE: 60 YEARS, OCC: BUSINESS
8. IQBAL S/O ABBASALI MULLA,
AGE:58 YEARS, OCC:BUSINESS,
6
9. MUSTAQ S/O ABBASALI MULLA,
AGE: 56 YEARS, OCC: BUSINESS,
RESPONDENTS-5 TO 9 ARE,
R/O NEAR IBRAHIM ROZA, JORAPUR PETH,
BIJAPUR.
10. JAHANGIR S/O MAHILBOOB SAHEB MULLA,
AGE:MAJOR, OCC:BUSINESS,
R/O:C/O M/S MULLA AND SONS
MULLA SAW MILL, BIJAPUR.
11. AYUB S/O MAHIBOOB SAHEB MULLA,
AGE: MAJOR, OCC:BUSINESS,
R/O:C/O M/S MULLA AND SONS
MULLA SAW MILL, BIJAPUR.
12. MAHAMMAD S/O ABBASALI MULLA,
AGE: MAJOR OCC: BUSINESS,
R/O C/O MULLA AND SONS
MULLA SAW MILL, BIJAPUR.
13. M/S MULLA AND SONS MULLA SAW MILL,
BY ITS PARTNER JAHANGIR
S/O.MAHABOOB SAHEB, R/O:BIJAPUR.
14. ANIS AHAMMAD S/O ABBASAHEB MULLA,
AGE:MAJOR, OCC BUSINESS,
R/O:M/S MULLA AND SONS
MULLA SAW MILL, BIJAPUR.
...CROSS OBJECTORS
(BY SRI. HARSHAVARDHAN.R.MALIPATIL, ADVOCATE)
AND
GULAM ALI S/O ABDUL KHAYUM BHORI,
(SINCE DECEASED BY HIS LRs)
7
1A) LUKMAN S/O GULAMALI BHORI,
AGE: 74 YEARS, OCC:BUSINESS,
DECEASED BY LRs.
1(A)(i) MARIYUM D/O LUKMAN BHORI,
AGE: 60 YEARS, OCC: HOSUEHOLD,
1(A)(ii) ALIFIYA D/O LUKMAN,
AGE: 30 YEARS, OCC: HOSUEHOLD,
1(A)(iii) REHANA D/O LUKMAN,
AGE: 30 YEARS, OCC: HOUSEHOLD
ALL R/O JUMMA MASJID ROAD,
VIJAYAPUR-586101.
1(A)(iv) ALI HUSSAIN S/O LUKMAN,
AGE: 21 YEARS OCC: STUDENT,
R/O BADI KAMAN, VIJAYAPUR-586101.
1B) ABID S/O GULAMANI BHORI,
AGE: 66 YEARS, OCC: BUSINESS,
1C) ABDUL KHAYUM S/O GULAMALLI BHORI,
AGE:60 YEARS, OCC:BUSINESS.
1D) SHABBIR S/O GULAMALLI BHORI,
AGE: 64 YEARS, OCC: BUSINESS,.
1E) SMT. RUKKAYYA D/O GULAM ALI BHORI,
AGE:65 YEARS, OCC: BUSINESS,
APPELLANT NO.1A TO 1E ARE
R/O: JUMMA MASJID ROAD, BIJAPUR-586101.
1F) SMT. ZUBEDA W/O KHALIMUDDIN TAKIWALA,
AGE: 70 YEARS, OCC:BUSINESS,
INGALE BANGALOW, AHMED NAGAR-414001.
1G) SMT. MALAKA W/O FAKRUDDIN,
8
AGE: MAJOR, OCC: HOUSEHOLD,
R/O STATION ROAD, GANESH PETH,
HUBLI, DIST DHARWAD-580001.
1H) SMT. RASHIDA W/O MAHAMAD HAWALIWALE,
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O BHAGWAN CHOWK, BARRIMALI,
DIST: PUNE - 411001.
.........RESPONDENTS
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE FOR R1(A) (I) TO
R1(A1), (IV), R1 (B) TO R1(H))
THIS RSA CROB. IS FILED UNDER ORDER 41 RULE 22 OF
THE CPC, PRAYING TO ALLOW THIS CROSS OBJECTION AND
ANSWER ADDL. ISSUE NO.1 BEFORE THE TRIAL COURT (ISSUE
NO.4 BEFORE FIRST APPELLATE COURT) IN FAVOUR OF THE
APPELLANT HEREIN AND CONFIRM THE JUDGMENT AND
DECREE PASSED BY THE PRL. CIVIL JUDGE (JR.DVN.) BIJAPUR
IN OS NO.423 OF 1990 AND ALSO JUDGMENT AND DECREE OF
THE FIRST APPELLATE COURT I.E. PRESIDING OFFICER, FAST
TRACK COURT-II, BIJAPUR IN RA NO.263 OF 2005 AND
CONSEQUENTLY DISMISS THE SUIT ON THE GROUND OF
LIMITATION ALSO.
THESE RSA AND RSA-CROB HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON25.07.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
9
JUDGMENT
This appeal and cross-appeal are filed challenging the judgment and decree dated 14.11.2003 passed by the Principal Civil Judge (Jr. Dn.) at Bijapur, in OS No.423/1990 and the judgment and decree dated 11.07.2006 passed by the Fast Track Court-II, Bijapur, in RA No.263/2005.
2. RSA No.2705/2006 is filed under Section 100 of Civil Procedure Code, 1908 ('CPC' for short) challenging the concurrent findings of both the Courts below, whereby the suit of the plaintiffs came to be dismissed. However, RSA CROB No.200006/2016 is filed under Order 41 Rule 22 of CPC, only as against the finding of the First Appellate Court regarding Point No.4 framed by First Appellate Court in respect of limitation, which was answered in favour of plaintiff and against the defendants.
3. For the sake of convenience parties herein are referred with the original ranks occupied by them before the Trial Court.
10
4. The plaintiffs have filed a suit for the relief of possession of the suit schedule properties along with mesne profits. It is the contention of the plaintiff that, he has purchased the suit open sites under the registered sale deed dated 21.08.1978, 08.06.1979, 21.09.1979 and 29.01.1980 from one Abdulrazak Peerjade and these properties are shown to be Part Nos.I to IV in the suit map. It is also contended that the plaintiff is in possession of the above said properties since the date of purchase. It is also asserted that, defendants have purchased open site bearing CTS No.437/A/1A/3A from Abdulrazak Peerjade in the year 1989 marked as E.F.M.N and they are doing timber business on the open site by erecting shed in the name and style of M/s Mulla & Sons, Mulla Saw Mill, Bijapur. It is also asserted that the site of the defendants touches the plaintiffs' open site in Part Nos. III & IV towards South bearing CTS No. 437/A/1A/3B/1. It is further case of the plaintiffs that the defendants are dumping the logs of timber in the open site of the plaintiffs illegally causing encroachment since last 20 years and the plaintiffs requested the defendants to remove 11 the materials so dumped and vacate the encroached area. However, instead of vacating and clearing of timber logs, on 22.11.1989, the defendants have broken the lock of shed illegally and as such, the plaintiff-Gulam Ali lodged a complaint with Gandhi Chowk Police Station and hence, the plaintiff claims that he is constrained to file a suit for possession of encroached portion shown in the map as EFBPQRGD.
5. The defendants have appeared before the trial Court and filed their common written statement and denied the entire claim of the plaintiffs regarding the alleged encroachment. It is also denied that the plaintiff is the owner of the respective CTS numbers shown at Parts- I to IV in the sketch map under the registered sale deeds, as alleged. It is also denied that the defendants have encroached the said area by putting timber logs in the suit schedule property and they have also broke open the lock of the shed, when the plaintiff requested them to remove the encroachment. It is specifically asserted by the defendants 12 that CTS No.437 of Ward No.4 is a Wakf Property belonging to Nyamatulla Shaha Quadri Darga notified in the Karnataka Gazette. It is also asserted that, one Chandpeer Peerzade and Imamuddin Quadri were the Mutawallies of said Wakf Institution viz., Nyamatulla Shaha Quadri Darga and one Mohammed Mukatas Abbas Ali Mulla has formed the Partnership Firm and running Saw Mill in the entire CTS No.437 and that M/s. Mulla Partnership Firm has taken the entire CTS No.437 on lease from the then Mutawallies in the year 1970 and are regularly paying rent to Mutawallies and their family members. It is contended that the defendants Nos.1 to 5 have installed the Saw Mill in CTS No.437 and running their timber business and neither the plaintiff nor the vendors were in possession of the suit schedule property, nor there is any delivery of property to the plaintiff under the alleged sale deeds. It is also contended that, the merchants and carpenters are doing their business on the suit property by dumping wood since 1970 till day and prior to 1970, the entire CTS 437 was in possession of the then owner i.e., Laxmi Saw Mill, from whom, the Saw Mill was purchased by 13 M/s. Mulla Partnership Firm in the year 1970. It is also asserted that, the suit of the plaintiffs is barred by law of limitation and the alleged sale deeds do not confer any right or title in favour of the plaintiff, as the vendor of plaintiff himself does not have any title. Hence, the defendants have sought for dismissal of the suit.
6. On the basis of the pleadings, the trial Court has framed the following Ten issues and subsequently it has framed Four Additional Issues, as under:
i) Whether the plaintiff proves that he is owner of the suit property bearing CTS No.437/A/1A/3B/1 and 437/A/1A/dB/2 marked by letters 'EFBPQRGD' as shown in the plaint sketch and also averred in paras-2 and 3 of the plaint?
ii) Whether the plaintiff proves that the defendants have unauthorisedly and illegally encroached the 'suit property' 'EFBPQRGD as averred in Para-6 of the plaint?
iii) Whether the plaintiff entitled to the relief of recovery of the possession of the 'suit property' from the defendants?14
iv) Do the defendants prove that the entire CTS No.437 including the 'suit property' is a Wakf Property?
v) Whether the suit is bad for non-joinder of necessary party i.e., the Wakf Board?
vi) Whether the defendants prove that they have taken entire CTS No.437 including 'suit property' on lease from the Mutawallies of the Wakf Institution in 1970 and running their Saw Mill i.e., M/s. Mulla Partnership Firm as averred in Paras-
17, 18 and 24 of written statement?
vii) Whether the suit property is valued and proper Court fee is paid?
viii) Do the defendants prove that this Court has no pecuniary jurisdiction to try the suit as averred in Para-11 of written statement?
ix) Whether the defendants prove that the suit of the plaintiff is false and vexatious one and that they each entitled compensatory cost of Rs.1,000/- from the plaintiff?
x) To what relief the plaintiff is entitled to?
xi) What order, what decree?
15
ADDITIONAL ISSUES:
i) Whether defendant Nos. 6 and 7 prove that the
plaintiff's suit is barred against them by law of limitation?
ii) Whether defendant Nos. 6 & 7 further prove that they have become owners to the suit property by law of adverse possession as pleaded by them?
iii) Whether defendant Nos. 6 & 7 further prove that notice as contemplated u/Sec.90 of the Karnataka Wakf Act,1995 is mandatory one?
iv) Whether defendant Nos. 6 & 7 are entitled for the relief of permanent injunction against the plaintiff as prayed in their counter claim?
7. During the pendency of the suit, the plaintiff expired and his legal heirs were brought on record. Defendants No.1 and 2 have also expired during the pendency of the suit and their legal heirs were also brought on record. The son of the plaintiff i.e., Plaintiff No.1(a)- Lukman Bhori was examined as PW.1 and one witness was examined as PW.2, while the plaintiffs have produced 13 documents marked at Exs. P1 to P13. The defendant No.3- Jahangir Auub/Mulla is examined as DW.1 and Nine witnesses were examined as DW.2 to DW.10 and Ex.D1 to D.418 are marked on behalf of defendants.
16
8. The trial Court after appreciating the oral and documentary evidence and after hearing arguments has answered Issues No. 1 to 5 and 7 to 10 in the negative, while issue No.6 was partly answered in the affirmative. Further, the Additional Nos. 1 and 4 were answered in the affirmative, while Additional Issue Nos. 2 and 3 were answered in the negative, and ultimately dismissed the suit of the plaintiff.
9. Being aggrieved by the said judgment and decree, the Legal Representatives of the original plaintiff have filed an appeal in RA No.263/2005 before the Court of the Presiding Officer, Fast Track Court -II, Bijapur.
10. The learned Sessions Judge, after re-
appreciating the oral and documentary evidence has confirmed the judgment and decree passed by the trial Court. However, as regards Additional Issue No.1, the learned Sessions Judge has answered it in the negative. 17
11. It is also important to note here that defendant Nos. 6 & 7 have sought counter-claim before the trial Court regarding adverse possession as well as injunction and the trial Court has rejected the claim of adverse possession, but granted injunction. The said judgment and decree is also confirmed by the First Appellate Court.
12. Being aggrieved by this judgment and decree passed by the First Appellate Court, the appellants/plaintiffs have filed appeal in RSA No.2705/2006, while RSA CROB No.200006/2016 is filed by the defendants/cross-objectors after a long delay, challenging the finding on Additional Issue No.1 regarding limitation.
13. Learned counsel for the appellant/plaintiff would contend that the suit is filed on 31.07.1990 and the plaintiff has purchased the suit schedule properties under four registered sale deeds as noted above and the defendants have also purchased a portion of the property, which is on the Southern side. It is contended that, the vendor of the plaintiff and defendant are one and the same and the 18 defendants being carrying on timber business, had dumped the timber logs in the suit schedule property. He would also contend that the suit is filed within 12 years from the date of first purchase and hence, question of limitation does not arise. He has also asserted that the defendants are taking inconsistent stands, as at one breath they claim that the entire property is wakf property and they are lessees under the Mutuvallies, but again they claim that they have purchased it from the same vendor of the plaintiff. Further, they also seek adverse possession. Hence, he would contend that there are inconsistent stands and he also contended that Article 64 is not applicable and Article 65 is applicable as the suit is for possession. He would also contend that the application filed under Order 41 Rule 27 was rejected on technical grounds and the plaintiff is claiming possession on the basis of the sale deeds and the sale deeds are not challenged, and when defendants are not claiming to be the true owners, they are not entitled to dispute the claim of the plaintiff. He would also contend that, the cross-appeal is filed after 10 years and there is inordinate delay and he 19 would also contend that the from the date of first sale deed, the suit is well within time and defendants are admittedly purchased the Northern portion of property, which is evident from Ex.D.395. He would also contend that the suit for possession is based on title and as such, declaration is not necessary. Hence, he would contend that both the Courts below have erred in holding that the vendor of plaintiff was not having any title and as such, the plaintiff has also not acquired any title. He would also contend that the trial Court has also erred in holding that the sale deeds are not proved as the witnesses were not examined, which is an erroneous finding. Hence, he would seek for allowing appeal by decreeing his suit.
14. Per contra, the learned counsel for the respondents/defendants/cross-objectors would contend that the suit for possession without declaration of title is not maintainable, as the defendants have disputed the very title of the original plaintiff. He would also contend that the claim of the plaintiff is based on Four sale deeds and the very 20 same sale deeds were challenged by vendor in OS No.91/1984, which was subsequently abated. He would also contend that the title of the plaintiffs itself is doubtful and regarding title of the plaintiff, both the courts below have concurrently held against the plaintiff and no other evidence is placed to over-come the said finding. He would also contend that Ex.D-398 is Gazette Notification regarding Wakf property and defendants are in possession as lessees under the Mutuvallies and the plaintiff was neither the title holder nor possessor of the suit schedule property. He would also contend that the application under Order 41 Rule 27 of CPC was rejected by the First Appellate Court, as an affidavit was filed pertaining to the dead person and no illegality is found with the same. It is contended that the vendor of the plaintiff himself did not possess any valid title and under such circumstances, he cannot convey any better title. Hence, he would seek for dismissal of the appeal. But, as regards the cross-objection, he claimed that the issue was regarding limitation. However, under Article 64, the Limitation is 12 years. He contends that the suit of the 21 plaintiff does not fall under Article 64 and his suit falls under Section-6 of the Specific Relief Act, 1963 and that the suit is required to be filed within six months from the date of dispossession and hence, the suit is also barred by law of limitation. However, it is important to note here that there is an inordinate delay in filing this second appeal and no proper explanation was also given.
15. This Court after considering the rival contentions, on 20.09.2016 has framed the following substantial questions of law, in RSA No.2705/2006:
i) Whether the Courts below were right in holding that appellant-plaintiffs had failed to prove their ownership in respect of the suit schedule sites although Exs.P1 to P4 were produced and marked in evidence by them and in the face of defendant Nos. 6 and 7 claiming their right to the suit properties by adverse possession?
ii) Whether the Courts below were right in dismissing the plaintiff's suit and consequently allowing the counter-claim of defendant Nos. 6 and 7, and thereby restraining plaintiffs from interfering with the possession and enjoyment of suit schedule 22 properties by defendant Nos. 6 and 7 by way of permanent injunction?
16. The original plaintiff-Gulam Ali has filed the suit for the relief of possession of the alleged encroached properties and for mesne profits. It is evident that, he has filed suit for possession based on title and not based on previous possession.
17. The Section-6 of Specific Relief Act deals in respect of the suit for possession on the basis of previous possession and limitation prescribed is six months for filing the suit for possession from the date of dispossession, on the basis of earlier possession. However, admittedly, in the present suit, the plaintiff is not claiming possession of the suit property on the basis of previous possession. But, he is claiming possession on the basis of title. Hence, Section-6 of the Specific Relief Act is not applicable and in respect of possession based on title, the limitation prescribed is 12 years. Admittedly, the first sale deed is dated 21.08.1978 as per Ex.P1 and from the said date, the suit is well-in time, as 23 the suit is filed on 31.07.1990. Hence, the argument advanced in this regard by the learned for respondents/defendants i.e., the Cross-objectors has no relevancy and as such, the First Appellate Court is justified in holding that the suit is not barred by law of limitation.
18. The plaintiff claims that, he has purchased the suit schedule properties under Four registered sale deeds from one Abdulrazak Mustafa Peerjade and defendants have also purchased CTS No.437/A/1A/3B/1 situated on the Northern side from the same vendor i.e., Abdulrazak Mustafa Peerjade. According to plaintiff, there was an encroachment over the suit properties. The plaintiff has died during the pendency of the suit and his son viz., plaintiff No.1(a) Lukman Bhori is examined as PW.1. He has reiterated the plaint averments regarding purchase and placed reliance on the sale deeds marked at Exs.P1 to P4. The plaintiff has also placed reliance on Exs.P5 & P6 to show that, Abdulrazak Mustafa Peerjade was the holder of the properties since 02.12.1978. But, there is no evidence as to on what basis 24 the name of the vendor of the plaintiff is mutated in respect of suit schedule properties bearing CTS No.437/A/1A/3A/1 and CTS Nos. 437/A/A/3B/2 of Bijapur City. The plaintiff admittedly, has not produced any single piece of document to show the title of the original owner viz., Abdulrazak Mustafa Peerjade and in respect of these properties, no doubt, the defendants also claimed to have purchased the Southern portion of properties from Abdulrazak Mustafa Peerjade. But, that does not assist the plaintiff in proving his title and when the vendor of the plaintiff himself does possess valid title, he cannot transfer any better title in favour of the plaintiff. Exs.P5 and P6 are not the documents of title and they are not sufficient to prove that, they establish title of the vendor of the plaintiff. No doubt, the plaintiff has placed reliance on Ex.P8 to P13 to prove that, he has paid taxes up to 1999. But, that does not establish the title of plaintiff or his earlier vendor and unless the title of vendor is established, the vendor cannot transfer any better title in favour of the plaintiff. No doubt, the Tribunal is not justified in observing regarding non-examination of the 25 attesting witnesses to the sale deeds-Ex.P1 to Ex.P4 regarding proof of sale deeds. The sale deed is admittedly not a compulsory registerable document and the registration itself is sufficient. But, the question of passing title is only relevant and when the vendor of the plaintiff himself does not possess valid title, he cannot transfer any better title.
19. Apart from that, it is also important to note here that, the vendor of the plaintiff has also filed OS No.91/1984 as per Ex.D12 against the plaintiff seeking the relief of re- conveyance on the ground that, it was not out and out sale, but that was not a relevant factor to consider this aspect. Very interestingly, the present plaintiff did not contest the suit in OS No.91/1984. However the said suit came to be abated. But, that does not establish that the vendor of the plaintiff had any title over the suit schedule property.
20. On perusal of Exs. P1 to P4, it is evident that the plaintiff claims to be owner of about more than 4500 Sq.Ft. of area under the sale deeds, while he claims that the defendants encroached EFBPQRGD and this area is also more 26 than 5600 Sq.Ft.. In that event, it is evident that the entire area is alleged to have been encroached by the defendants and then the question will arise as to 'what the plaintiff was doing?'. It is also the contention of the plaintiff that, when he requested the defendants to vacate and remove the encroachment, on 22.11.1989, they broke open the lock of the shed belonging to the plaintiff and in this regard, he lodged a complaint. But, no document has been produced to show that the plaintiff has lodged any such complaint. Very interestingly, PW.1 in his cross-examination deposed that, in 1987 the defendants broke open the lock put to shed, as such the statements of the plaintiff and PW.1 are inconsistent. PW.1 further deposed that, there was no shed existed as claimed in the plaint. As such, the plaintiff is taking inconsistent stands regarding existence of shed and breaking open the lock and lodging of complaint in the year 1988 or 1989 or non-existence of the shed itself. These stands clearly establish that PW.1 does not know anything regarding the suit schedule properties and no piece of 27 document has been produced to prove the possession of the plaintiff over the suit schedule properties.
21. On the contrary, the defendants have produced number of rent receipts said to have been issued by Mr.Abdulrazak Mustafa Peerjade under Ex.D-14 to D-380 from the year 1977 to 1991, wherein there is reference of payment of rents on the basis of lease. These documents prima facie establish that the defendants are in possession of the suit schedule properties under the lease and the plaintiff has failed to substantiate his contention that he was put in possession after the execution of sale deeds and was dispossessed.
22. Considering the suit filed by the Abdulrazak in 1984 against the plaintiff, it is evident that no sale deed was executed and no possession was handed-over to the plaintiff. Under these circumstances, both the Courts below have after considering the oral and documentary evidence in detail, have clearly observed that the plaintiff was not at all in the possession of the suit schedule property and the 28 plaintiff has failed to prove his title and Ex.P1 to P4 do not confer any title in favour of the plaintiff. The plaintiff has also not produced any material document to show the title of the vendor. On the contrary, Ex.D402, which is the certified copy of the lease deed discloses that the defendants are in possession under the lease. Apart from that, the defendants have also produced Ex.D11 ie., CTS Map of CTS No.437, wherein the entire plot is shown to be one compact block, which is again reiterated by the report of the Commissioner as per Ex.D2. Further, Ex.398 is a notification issued by the Government, wherein CTS No.437 is shown to be wakf property at Sl.No.180. No doubt, Wakf Board has not initiated any proceedings. But, admittedly in the instant case, the Wakf Board is not a party. Further, the vendor-Abdulrazak Mustafa Peerjade himself was alleged to be a Mutuwalli and under these circumstances, this document casts serious cloud over the title of both the vendor of the plaintiff and the plaintiff. The plaintiff has not produced any material document to show the exclusive title of the vendor and Ex.D398 completely demolish the claim of 29 the plaintiff. Though the Wakf Board never exercised powers over this property, that itself does not confer any right to a Mutuvalli to claim any right over the wakf property. Both the Courts below have consistently appreciated the oral and documentary evidence and have come to a conclusion that the plaintiff has failed to establish his title over the suit schedule properties. In view of the fact that the title of the vendor of the plaintiff itself is not established, merely because the defendants have also purchased a portion of the suit properties under Ex.D395 from the same vendor, it cannot be presumed that the vendor of the plaintiff was having a valid title over the suit schedule properties.
23. The learned counsel for the appellant has placed reliance on a decision reported in (2021) 1 SCC (Civil) 520 [Uttam Chand (Dead) through Legal Representatives Vs. Nathu Ram (Dead) through Legal Representatives and others]. There is no dispute regarding the principles enunciated in the above cited decision as, though the defendants are claiming adverse possession, they are taking 30 inconsistent stands and they never admitted the title of the plaintiff. To assert that the title is by way adverse possession, he is required to prove as to who is the true owner and if a person claiming adverse possession is not sure as to who is the true owner, question of claming hostile possession, as well as of denying the title of true-owner does not arise at all. The same principle is again reiterated in the decision reported in 2006 (6) AIR KAR R 13 [T.Anjanappa and Others Vs. Somalingappa and Another]. Hence, the trial Court has rightly rejected the claim of defendants regarding adverse possession.
24. The learned counsel has further placed reliance on a decision reported in AIR 2012 SC (Civil) 1201 [Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through LRs.], which is in respect of Section 6 of the Specific Relief Act and wherein the suit by a person other than title holder and the nature of the pleadings are enumerated in detail. In the instant case, the plaintiff is seeking possession on the basis of title and 31 hence Section 6 of the Specific Relief is not applicable to the case of the plaintiff and hence, the principles enunciated in the above cited decision will not render any assistance to the plaintiff.
25. The learned counsel further placed reliance on a decision reported in HCR 2019 Kant. 204 [Siddanagouda and others Vs. Smt. Kashibai @ Kantamma and another] and argued that, the suit is based on title for possession, Article 65 of Limitation Act is applicable and the First Appellate Court has rightly held that the suit is not barred by law of limitation and the argument by the learned counsel for respondents in this regard are not acceptable and the said decision makes it clear regarding the proper procedure. In this regard, he has also placed reliance on the decision reported in 2007 SAR (Civil) 157 [M.Durai Vs. Madhu and Others]. But, in the case on hand, both the Courts below have rightly held that adverse possession is not established and hence, the said principles will make no difference and as such, the claim of the defendants in this 32 regard is already rejected. On this point itself, the learned counsel placed reliance on a decision reported in (2009) 13 SCC 229 [L.N. Aswathama and Another]. He has also placed reliance on the decision reported in 2021 SCCR 237 [Iqbal Basith and Others Vs. N. Subbalakshmi and Others]. But, the principles enunciated in the above cited decision are much helpful to the defendants rather than the plaintiffs.
26. The learned counsel has further placed reliance on a decision reported in HCR 2016 Kant. 882 [Basavaraj since deceased by his LRs. and Others Vs. Veda Prakash, S/o. Parashuram Gampa] and argued that, the suit for possession without seeking any declaratory relief is maintainable. There is no dispute regarding proposition of law laid down in the said decision. But, however, the title of the vendor of the plaintiff is in dispute and when there is no piece of document forthcoming to prove the title of the vendor, then the plaintiff ought to have sought for declaration of his title, as the suit is based on title. Hence, 33 considering the facts and circumstances of the case in hand, the principles enunciated in the above cited decision are not at all applicable to the facts and circumstances of the case in hand.
27. The learned counsel has further placed reliance on a decision reported in 2007 (4) AIR Kar. R 107 [Marlam Hussain Vs. Syedani and Others] and argued that, though the normal rule is that the concurrent findings of the trial Court and First Appellate Court should not be disturbed, but, however it is not an absolute rule and when the Courts below ignore to weigh the preponderating circumstances, that can be looked into in the second appeal. But, in the instant case, both the courts below have consistently held that, the title of the vendor of the plaintiff itself is not established and as such, he cannot convey better title. Under such circumstances, the principles enunciated in the above cited decision will not be much helpful to the plaintiff.
34
28. The learned counsel would also place reliance on a decision reported in HCR 2019 Kant. 360 [Ramesh and others Vs. Kiran @ Ramachandra] and contended that, additional evidence would be necessary for rendering a complete and effective adjudication and pronouncing of judgment in a more satisfactory manner and application permitting to produce additional documents ought to have been allowed by the Appellate Court. But, the said principles do not have any applicability to the case in hand, as the Appellate Court has rejected the application in view of the fact that the affidavit is filed pertaining to a dead person and no better affidavit is filed. Apart from that, before this Court, no such application is moved and under such circumstances, the said contention holds no water.
29. Learned counsel for the respondent has placed reliance on a decision reported in 2008 SAR (Civil) 878 [Anathula Sudhakar Vs. P. Buchi Reddy]. The principles enunciated in this decision are directly applicable to the case in hand as, in the instant case the records clearly establish that, the defendants are in possession of the suit schedule property 35 and since they are in a settled possession under lease agreement, the trial Court has rightly granted injunction. Further, the learned counsel has relied on a decision of the Division Bench of this Court rendered in RFA 798/2016 dated 15.12.2021 in the case of R. Krishnappa Vs. Govindaiah and Others], wherein it is held that, where there is a cloud raised over the title of the plaintiff and he does not have possession, the suit for declaration of possession with or without consequential injunction is the remedy and without seeking declaratory relief, suit is not maintainable. The said principles are directly applicable to the facts and circumstances of the case in hand.
30. Considering facts and circumstances of the case, it is evident that both the Courts below have justified in rejecting the claim of the appellants/plaintiffs by dismissing the suit for possession in view of the fact that. the plaintiff has failed to prove the title and merely because the defendants are claiming adverse possession, it cannot be presumed that the plaintiff is having title over the suit schedule property. Further, considering the settled possession of the defendants, both the 36 Courts below are justified in granting injunction against the plaintiff. Hence, both the substantial questions of law framed by this Court are answered in the affirmative in favour of the defendants and as such, the appeal is devoid of any merits and needs to be rejected. Consequently, the cross-appeal is also not maintainable, as the issue of limitation under Section-6 of the Specific Relief Act, 1963 is not applicable and further there is inordinate delay in filing the appeal. Under such circumstances, both the appeal and Cross-appeal fail and accordingly, I proceed to pass the following:-
ORDER The RSA No.2705/2006 and RSA-CROB no.200006/2016 are dismissed.
Consequently, pending Interlocutory Applications if any, are also stand dismissed.
Sd/-
JUDGE KGR*