Karnataka High Court
Jahangirsab S/O Khadirsab ... vs Lalabi Former W/O Jahangir Sab ... on 9 December, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2024:KHC-K:9472
RSA No. 200214 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200214 OF 2020 (DEC)
BETWEEN:
1. JAHANGIRSAB S/O KHADIRSAB GUNDANAPALLI,
AGED ABOUT 78 YEARS, OCC: AGRICULTURE,
R/O. H.NO. 38, WANGI COLONY,
NAVANAGAR, BAGALKOT.
2. SHABBEERAHMAD S/O NABISAB KODAGANUR,
AGED ABOUT 52 YEARS,
OCC: GOVERNMENT SERVANT,
R/O. KODAGI, TQ. BASAVANA BAGEWADI-586121.
GOUSMODDIN S/O NABISAB KODAGANUR
SINCE DECEASED BY HIS LRS.
Digitally signed
by SACHIN 3. HUSAINBI W/O GOUSMODDIN KODAGANUR,
AGED ABOUT 70 YEARS, OCC: HOUSEHOLD WORK,
Location: HIGH
COURT OF R/O. KUDAGI, TQ. BASAVANA BAGEWADI-586121.
KARNATAKA
4. KASHIM S/O GOUSMODDIN KODAGANUR,
AGED ABOUT 50 YEARS, OCC: HOUSEHOLD WORK,
R/O. KUDAGI, TQ. BASAVANA BAGEWADI-586121.
5. USMAN S/O GOUSMODDIN KODAGANUR,
AGED ABOUT 46 YEARS, OCC. HOUSEHOLD WORK,
R/O. KUDAGI, TQ. BASAVANA BAGEWADI-586121.
...APPELLANTS
(BY SRI AMRESH S. ROJA, ADVOCATE FOR APPELLANT
NO. 2 TO 5;
V/O DTD. 08/3/21 APPEAL DISMISSED AS AGAINST A1 )
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NC: 2024:KHC-K:9472
RSA No. 200214 of 2020
AND:
1. LALABI FORMER W/O JAHANGIR SAB GUDANPALLI,
PRESENTLY W/O HAJILAL ALAMSAB PARAZ,
AGED ABOUT 68 YEARS, OCC: HOUSEHOLD WORK,
R/O. KUDAGI, NOW AT RANGEEN MASJID,
STATION BACK ROAD, VIJAYAPURA.
2. SPECIAL LAND ACQUISITION OFFICER,
KARNATAKA INDUSTRIAL DEVELOPMENT BOARD,
LAKKAMMANAHALLI, DHARWAD-580001.
...RESPONDENTS
(BY SRI M.V.V. RAMANA , ADVOCATE AND
SRI SANGANABASAVA B. PATIL, ADVOCATE FOR R1;
SRI SHIVAKUMAR R. TENGLI, ADVOCATE FOR R2)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THIS APPEAL AND TO SET ASIDE THE
JUDGMENT AND DECREE DATED 11.09.2020 PASSED IN
R.A.NO.21/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC AT BASAVANABAGEWADI SETTING ASIDE THE
JUDGMENT AND DECREE DATED 19.03.2019 PASSED IN
O.S.NO.341/2010 ON THE FILE OF THE CIVIL JUDGE AND
JMFC, BASAVANABAGEWADI AND TO PASS ANY OTHER
APPROPRIATE ORDERS AS DEEMED FIT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) This appeal is by defendants being aggrieved by the judgment and order dated 11.09.2020 passed in RA No.20/2019 clubbed with RA No.21/2019 on the file of -3- NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 Senior Civil Judge and JMFC, Basavana Bagewadi (hereinafter referred to as 'the First Appellate Court' for short), by which the First Appellate Court while allowing the appeals decreed the suits in OS No.73/2008 and OS No.341/2010 filed by the plaintiff declaring her as absolute owner of the suit schedule property and further held that the sale deed executed by defendant No.1 in favor of defendants No.2 and 3 in respect of suit schedule property was not binding on the plaintiff.
2. Brief facts of the case are that;
The suit in OS No.73/2008 was initially filed by the plaintiff against her husband seeking declaration that she is the absolute owner of the suit property and for consequential relief of permanent injunction, restraining him or anybody acting on his behalf from alienating the suit schedule property.
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 The subject matter of the suit is land in survey No.604/2 measuring 7 acres 29 guntas situated at Kudagi village, Basavana-Bagewadi District.
3. The case of the plaintiff is that she is the wife of defendant and that their marriage was solemnized about 37 years prior to filing of the suit. That at the time of marriage plaintiff was age about 19 years and the father of the defendant, one Nabisab S/o Rajesab Gundanapalli had given the suit property to the plaintiff in lieu of Mehar. Ever since then the plaintiff has been in possession and enjoyment of the suit schedule property as absolute owner thereof and her name having been entered in the revenue records as such. That upon the death of father, the defendant obtained mutation of his name in the revenue records without the knowledge of the plaintiff and based on the said document made attempts to sell the suit schedule property. Plaintiff had approached the local Jamat, in which the defendant had threatened to pronounce Talaq. Despite the advice of the Jamat, that he -5- NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 cannot sell the property as it was given to plaintiff towards her Mehar, he did not heed to their advice. This constrained her to file the suit for declaration.
4. Defendant appeared and filed written- statement. Though he admitted the factum of marriage, he contended that one Nabisab Rajesab Gundanapalli was the cousin brother of his father, who died long ago, that at the time of his marriage with the plaintiff said Nabisab had given 7 acres 29 guntas out of 14 acres 10 guntas of land bearing R.S.No.604 towards Mehar to the plaintiff. That the said Mehar does not create any title or interest in favour of the plaintiff. That due to the differences, relation between the plaintiff and the defendant deteriorated. Reconciliation efforts failed. Plaintiff had expressed her desire to remarry someone else. There was no child begotten out of the marriage. Ultimately plaintiff requested him to give Talaq by way of Khula. Defendant agreed subject to condition of plaintiff returning the land to the defendant. Accordingly, on 05.04.1996, plaintiff -6- NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 obtained Khula. As such there was no relationship of husband and wife between the plaintiff and the defendant.
5. That thereafter, plaintiff contacted marriage with one Hajilal Alamsab Paras of Zenda Katta, Vijayapur by producing the said Talaqnama and she is living with her second husband and her name appears in the public records as wife of Hajilal Alamsab Paras and as per her promise, she had orally gifted the suit land to the defendant before the members of Jamat, which was accepted by the defendant. Possession of the land has been handed over by the plaintiff to the defendant. Thereafter, plaintiff herself gave Wardi to the Village Accountant on 08.01.1999 to mutate the name of the defendant in the revenue records by deleting her name. Accordingly, mutation register entry - 7695 was prepared by the authorities.
6. That due to the financial difficulties defendants sold the suit land in favor of one Shabbeer Ahmad Nabisab Kodaganur and Gousmoddin Nabisab Kodaganur on -7- NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 20.12.2008 by registered deeds of sale. The suit land has been subsequently acquired by KIADB. As such, plaintiff has no right over the property that the present suit is filed by the plaintiff along with her second husband to unlawfully enrich themselves. Hence, sought for dismissal of the suit.
7. Trial Court framed the following issues in O.S.No.73/2008:
1. Whether the plaintiff proves that she is the absolute owner in possession of suit property?
2. Whether the plaintiff proves that defendant is obstructing her possession over the suit property?
3. Whether the defendant proves that plaintiff has relinquished her right over suit property in his favour as pleaded in the written-statement?
4. Whether plaintiff is entitled for the reliefs sought?
8. Thereafter plaintiff filed another suit in OS No.341/2010. Apart from repeating the averments made in the earlier suit in OS No.73/2008, it is further contended that despite there being an ex-parte order of temporary injunction defendant No.1 on 20.11.2008 sold -8- NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 the suit property in favor of defendant Nos.2 and 3 and the said deed of sale was not binding on the plaintiff. That on 01.05.2010 when the plaintiff perused the records, she learnt about the sale deed having executed on 20.11.2008. Based on which defendant No.2 and 3 have obtained their names in the revenue records vide ME No.122 and they are not the bonafide purchasers. That the suit property had then been acquired by the Government for establishment of thermal power plant and the defendants No.2 and 3 are in hurry to receive the compensation amount. Hence, the suits.
9. Defendants No.1 filed written statement, reiterating the contention of the written-statement filed in the earlier suit in OS No.73/2008 and sought for dismissal of the suit.
10. Defendants No.2 and 3 filed separate written- statement contending that, they are the bona-fide purchasers and sought for dismissal of the suit. -9-
NC: 2024:KHC-K:9472 RSA No. 200214 of 2020
11. The Trial Court framed following issues in OS No.341/2010.
1. Whether the plaintiff proves that she is the owner of suit property?
2. Whether the plaintiff proves that sale-deed executed by defendant No.1 in favour of defendants No.2 and 3 pertaining to the suit property is not binding upon her title?
3. Whether the defendants No.2 and 3 prove that they are bonafide purchasers of suit property without notice?
4. Whether the defendant No.1 proves that plaintiff is bound by rule of estoppels?
5. What order or decree?
12. Since the parties in both the suits and subject matter and the reliefs sought were identical, both the matters were taken up for common trial and disposal.
13. Plaintiff examined herself as PW1 and two additional two witnesses examined as PW2 and PW3 and exhibited 26 documents marked as Ex.P1 to P26. Defendants No.1 and 2 examined themselves as DW1 and DW2 and exhibited as many as 146 documents marked as Ex.D1 to D146. Four more witnesses have been examined as DW3 to DW6.
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020
14. The Trial Court on appreciation of pleading and evidence answered Issue Nos.1 and 2 in the negative and Issue No. 3 in the affirmative in OS No.73/2008 and Issue Nos.1 and 2 in the negative and Issue Nos. 3 and 4 in the Affirmative in OS No.341/2010 and consequently dismissed both the suits. Being aggrieved the plaintiff preferred an appeal before the Appellate Court in RA No.20/2019 as against dismissal of the suit in OS No.73/2008 and RA No.21/2019 as against dismissal of her suit in OS No.341/2010.
15. The First Appellate Court on consideration of the grounds urged framed the following points for its consideration:
1. Whether the findings of the trial court on issue No.1 and 2 in O.S.No.73/2008 and O.S.No.341/2010 in the negative and issue No.3 in O.S.No.73/2008, issue No.3 and 4 in O.S.No.341/2010 in the affirmative and issue No.4 in O.S.No.73/2008 and issue No.5 in O.S.No.341/2010 as per final order is erroneous, capricious, vexatious?
2. Whether the judgment and decree of the trial court calls for interference of this court?
3. What order or decree?
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16. The First Appellate Court on re-appreciation of the evidence answered point Nos.1 and 2 in the affirmative and consequently allowed both the appeals and declared the plaintiff to be the absolute owner of the property and further declared the deeds of sale executed by defendant No.1 in favor of defendants No.2 and 3 was not binding on the plaintiff. Being aggrieved by the same, defendants are before this court.
17. This Court vide order dated 30.11.2020, admitted the appeal for consideration of the following substantial question of law;
1. Whether the finding recorded by the first Appellate Court with regard to the finding recorded by the trial Court on issue No.3 in O.S.No.73/2008 is justified?
2. Whether the documents referred to by the defendants as Exs.D9 to D10 are relevant for the purpose of adjudication of this appeal?
18. On 08.03.2021 an application was filed on behalf of appellant No.1/defendant No.1 seeking dismissal of the appeal as withdrawn. Taking the same on record,
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 this Court dismissed the appeal, to the extent of appellant No.1 as withdrawn and permitted the appeal to be continued as far as appellant Nos.2 to 5/defendants 2 and 3 are concerned.
19. Sri.Amresh S. Roja, learned counsel for the appellants Nos.2 to 5 reiterating the grounds urged in the memorandum of appeal submitted that defendant No.1 in his written-statement has specifically pleaded about the plaintiff executing the Khulanama and thereafter releasing the suit property, which was given to her in lieu of mehar in favour of defendant No.1. That he had specifically pleaded about the plaintiff voluntarily given an application along with an affidavit dated 08.07.1998 to the revenue authorities, requesting them to mutate the name of defendant No.1. He submits that the defendant No.1 has also pleaded the plaintiff having contacted second marriage that in proof of the said averments made, defendant produced the document which is Ex.D9. He further submits that Ex.D9 is the letter which is voluntarily
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 given by the plaintiff accompanied by Ex.D10 which is an affidavit given by her in confirmation of she relinquishing her right in respect of suit property in favor of defendant No.1.
20. He further submits defendant No.2 the purchaser has produced documents at Ex.D34 to D55. He further submits apart from that to prove the second marriage DW3 and DW5 have been examined. Thus, he submits that despite production of cogent evidence which was accepted by the trial Court, the first appellate Court was not justified in reversing the said findings and in decreeing the suit. He further submits that since the dissolution of marriage by Khula between the plaintiff and defendant No.1 and her second marriage with one Hajilal Alamsab Paras has been established by producing documentary evidence, the first appellate Court grossly erred in not appreciating the said documents independently which has resulted in perversity giving rise to the above substantial
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 questions of law which requires to be answered in the affirmative. Hence, seeks for allowing of the appeal.
21. Per contra, Sri.M.V.V.Ramana, learned counsel appearing through video conference along with Sri.Sanganabasava Patil, learned counsel for respondent No.1 justifying the judgment and order passed by the First Appellate Court submits that admittedly suit property belonged to the plaintiff, she having been given the same in lieu of Mehar and her name being reflected in the revenue records from the year 1973 till the year 1976, has remained undisputed. As such, she is the owner of the property. He further submits that there has been no divorce of marriage between the plaintiff and defendant No.1, and no documentary evidence justifying the said claim has been produced or proved by the defendants.
22. He submits that the witnesses who have been examined by the defendants 1 and 2 have not supported the case and have pleaded ignorance about the facts of
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 the case including the factum of second marriage of the plaintiff. He further submits documents which are produced are not admissible as production of the same is contrary to the mandatory provisions provided under the Evidence Act requiring production of secondary evidence. He submits First Appellate Court having appreciated the facts and circumstances of the case has set aside the otherwise illegal Judgment and decree passed by the trial Court. Hence, he submits no substantial question of law would arise for consideration in the matter requiring interference and seeks for dismissal of the appeal.
23. Heard and perused the records.
24. Admitted fact of the matter is that marriage between the plaintiff and defendant No.1 was solemnized in the year 1971 and in lieu of mehar payable by the defendant No.1, the suit land in Sy.No.604/2 measuring 7 acres 29 guntas was given to the plaintiff and that the name of the plaintiff was accordingly mutated in the
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 revenue records as seen at Ex.P11. There is also no dispute of the fact that the plaintiff continued to enjoy the suit property as the absolute owner.
25. Since the relationship of the plaintiff with the defendant No.1 and her ownership over the property stands admitted, nothing much is required to be adverted to in that regard. There is also no dispute that presently the suit schedule property has been acquired by the Karnataka Industrial Areas Development Board.
26. Defendant in his written statement has taken a specific contention that plaintiff during the year 1996 had requested defendant No.1 to give her khula and in response thereof he had pronounced Talaq as per Ex.D17 subject to condition of plaintiff giving up her rights over the suit property in his favor. In this regard, document at Ex.D17 and English translation of the same is produced at Ex.D17(a). DW1 in his evidence/cross examination has admitted that he do not know to read Urdu and he do not
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 know who has written the said document. He has further admitted that he do not even know who has given information for the purpose of writing document at Ex.D17. He states the said document must have been written by Kudagi jamath, however, Exhibit D17 is not on the letterhead of the said jamath. He also admits that there is no signature of any member of the said jamaths on Ex.D17. He further admits that Ex.D17 does not contain the name of the plaintiff. He also admits that he do not know whether plaintiff was present at Kudagi when Ex.D17 was written. He also admits that no reason is assigned as to why Ex.D17 was executed.
27. When the document at Ex.D17 is perused in the light of the aforesaid categoric admissions of the defendant No.1, it does not evince the credibility with regard to its authenticity. The said document neither bears the names or the signatures of the witnesses in whose presence the said document was executed or the Talaq was pronounced. There is also no evidence whether the
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 said document was communicated to the plaintiff. Since defendant No.1 admittedly not aware of the contents of Ex.D17, even the person who purported to have translated the said document has not been examined. The first Appellate Court has adverted to these aspects of the matter and has declined to take the same into account. This Court do not find any irregularity in the first Appellate Court in declining to accept the said document.
28. Further defendants have examined DW5 who is the brother of the plaintiff. The said witness in his cross examination has admitted that he has not signed the Khulanama and he do not know the exact date when the said document was executed. Though he says that he was present along with six other persons, he do not know the names of the said persons. He further admits that the plaintiff had filed a criminal case in Crime No.130/2016 on 15.02.2017 against him for he threatening and assaulting her. Thus, as rightly taken note of by the first Appellate Court, the factum of divorce/Khula has not been
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 established by the defendant No.1 and the evidence of the said witness is not reliable.
29. The second aspect of the matter is with regard to alleged retransfer and re-conveyance of the property by the plaintiff in favor of Defendant No.1. In this regard, except Exhibit D9 and D10, nothing has been produced. Ex.D9 and D10 are the photocopies of alleged letter purportedly issued by the plaintiff and the alleged affidavit purportedly executed by the plaintiff on 08.07.1998. Nothing is placed on record as to the whereabouts of the originals of the said documents. No efforts seem to have been made to comply with the requirement of production of secondary evidence. The said document has been stoutly denied by the plaintiff.
30. The defendant No.1 at paragraph 2 of his cross examination recorded on 02.09.2016 has admitted as under:
"Before the plaintiff giving Ex.D9 and Ex.D10 in writing, I had pronounced talaq. That there is
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 no specific date mentioned in Exhibit D9 and D10 with regard to the date of Talaq. He is not aware as to who has given the information for writing Ex.D9 and D10. He is also not aware as to who has typed the said documents. He is also not aware as to who purchased the stamp paper for the purpose of Ex.D10. He admits the signature found on Ex.D10 to be his signature. He has further deposed that he is not aware as to who is Hajilal Paras mentioned at second page of Ex.D9 and he is also not aware as to who has written similar name in Exhibit D10. He further admits that he is not aware as to who has identified the executant of Ex.D10 before the notary. He also admits that the notary has not affixed his signature on Ex.D10. He also admits that he has not stated in the affidavit evidence as to where are the originals of Ex.D9 and D10."
31. Since the plaintiff has vehemently denied the execution of Ex.D9 and D10, it was incumbent upon the defendant No.1 to prove the said documents in the manner known to law. Except producing the photocopies of Ex.D9 and D10 and without even producing any material as to the whereabouts of the originals or as to he having made any attempt to produce or secure the originals and defendant not having made any efforts to prove the alleged thumb impression of plaintiff on the said
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 documents, cannot be said to have proved the execution of said documents in a manner known to law.
32. In any event, Ex.D10 cannot be taken into consideration as a document conveying right, title and interest in the immovable property by the plaintiff in favour of defendant No.1 creating and extinguishing of any right in respect of immovable property as the same is required to be registered as mandatorily required under Section 17 of the Registration Act, 1908.
33. The third aspect of the matter is with regard to the alleged second marriage contacted by the plaintiff as contended by the defendant No.1. Ex.D16 is the marriage register allegedly maintained by Burkhapur Dargah. DW-6 has been examined in support of Ex.D16 and 17. The said witnesses have stated Ex.D17 formed part of Ex.D16. Ex.D17 as already noted is the khulanama which has not been proved by the defendant No.1. Ex.D16 is the photocopy of marriage register. DW6 in his cross
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 examination has admitted that he has not produced any record to show that he is the Sajjadanashin of said Dargah. He has also admitted that he has not produced the originals of Ex.D16 and D17. As already noted, Ex.D17 neither bears the signature or address of the plaintiff. How did DW6 came in possession of said documents is also not clear.
34. Documents in the nature of voters list, application allegedly filed by the plaintiff seeking change of her name and seeking family pension, and various applications filed by defendant No.2 under the Right to Information Act to obtain the said documents produced at Ex.D33 to D86.
35. In the cross examination of DW-2 has admitted that he is not aware of the date of second marriage of the plaintiff. Though he claims that the second husband of the plaintiff also known as Paraz, there is no document produced to that effect. He admits Ex.D34 do not bear official seal of the office. He admits thumb impression
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 found on Ex.D.45 is incomplete. He admits the name of the father of Hajilal Paras is not mentioned in Ex.D51 to D56. Name of husband of the plaintiff is not mentioned Ex.D57. He admits that no one has identified the thumb impression found on Ex.D59. He also admits Ex.D60 to 69 do not bear official seal. He admits defendant No.1 has not filed any application before any authority seeking information or made any allegation of plaintiff committing any fraud. He admits all the documents at Ex.D71 to 85 are the applications filed by him. He admits Ex.D88 do not pertain to the present case. He admits Ex.D101-103 do not bear official seal of the office. He admits Ex.D109 to 112 have come to his custody and not to defendant No.1. He admits documents Ex.D30 to Ex.D144 have come into existence after inception of the suit.
36. Though the trial Court has taken these documents produced by defendant No.2 under the Right to Information Act, there is no material produced as to whether there has been a compliance of production of
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 secondary evidence as required under law. Neither the authenticity of the said documents is examined nor its contents are proved particularly in view of the said admitted documents not bearing official seal of the issuing office. Clearly there is no acceptable material evidence. Plaintiff is before this Court claiming relief of declaration of her title and defendant No.1 has set up the theory of (a) divorce of the plaintiff with defendant No.1; (b) plaintiff allegedly relinquishing suit property in favour of defendant No.1 and (c) plaintiff allegedly contacting second marriage. The burden of proof on these three aspects was squarely on the defendants inasmuch as defendants wanted the Courts to believe the existence of the said facts. Failure to produce the legally acceptable evidence in proof of the same would invariably result in defendant not discharging their burden. The First Appellate Court has rightly taken into consideration the said aspect of the matter and allowed the appeals and set aside the Judgment and decree passed by the trial Court.
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37. It may also be necessary to note that even if there was a divorce and plaintiff contacting second marriage as alleged it would not mean that there is transfer of suit property by the plaintiff in favour of defendant No.1 in the manner known to law. Documents at Ex.D9 and D10 cannot under any circumstances be taken as proof of conveyance of immovable property in the manner known to law. Particularly in view of the fact that according to the defendant the alleged talaq/khula had taken place on 05.04.1996 and the alleged wardi by plaintiff as per Ex.D9 and affidavit at Ex.D10 was made on 08.07.1998 which is more than two years from the alleged date of talaq/khula. Conveyance of property even it is to be considered, by plaintiff in favour of defendant No.1 ought to have been through a registered instrument and not otherwise.
38. Another aspect of the matter is two appeals were filed by the plaintiff namely one in R.A.No.20/2019 as against the dismissal of the suit in O.S.No.73/2008 which
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 the plaintiff had filed against defendant No.1 for declaration of title and another appeal in R.A.No.21/2019 is filed as against the decree passed in O.S.No.341/2010. Present appeal is only in respect of R.A.No.21/2019 which was against the Judgment and decree passed in O.S.No.341/2010 and no appeal is filed in respect of judgment and order passed in R.A.No.20/2019 which in turn had been filed by the plaintiff against the dismissal of suit in O.S.No.73/2008 which has attained finality.
39. For the aforesaid reasons and analysis the substantial question of law raised in the appeal are answered accordingly. In that the finding recorded by the trial Court with regard to finding recorded at issue No.3 is justified and no error or illegality can be found in that regard. Documents at Ex.D9 and 10 not having been proved in the manner known to law cannot be relied upon.
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NC: 2024:KHC-K:9472 RSA No. 200214 of 2020 Accordingly, appeal is dismissed. Judgment and order dated 11.09.2020 passed in R.A.No.21/2019 by the First Appellate Court is confirmed.
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(M.G.S.KAMAL) JUDGE KBM/SBN List No.: 1 Sl No.: 47