Karnataka High Court
Madarangi Gouse Peer Sab Dead By His Lrs vs Abdul Razak Sab S/O Madar Sab on 29 September, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
BETWEEN:
RSA 606/2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29"" DAY or SEPTEMBER, 2010.,
BEFORE
THE HONBLE MRJUSTICE JAWAD RAHEM A" A
Madarangi Gouse Peer Sab
Dead by his LRs.
1.
. Sri Afzfoz,
Smt.Mahaboob Bi,
W/0 late Madarangi GoL§f_e'M«--°ee-r Sab," 2,
Aged about 79 years,
House wife.
. Sri Nusratfi . if.
S/o late V_i${tadVa.ra--ru'_c._z_;i,, Gouge Peer Sa b,»
Aged Vaobuizi 6x3:.yea"r§:s;'
AgricuJtur_ist, *
R/0 Hdsa Camp,
Davartag-:-are-rS7"7"213.5' "*
S/0.?-jate'~r~4adarn'agi V Gouge Peer Sab,
.. «. Aged ab-out-- 59 yearsf
. Ag ric;u_!tu.r;':3t__'«..., _
. .Sré..':!£iy'aé;~AV.O_
S/go'iate_ N€ad_arnagi Gouse Peer Sab,
Aged a..bout<*48 years,
AAAppe|..|a.r::ts No.:1.,3 and 4 are
R/cgsantebennur Village,
' Chaeranagiré Taluk~S77 213
.j(_'lvE'.~'_:_'§SRI ES.S.MURALI, ADV.)
W"
R.§.A.Ng.§g§g;g_og
APPELLANTS
AND:
(8)
(b)
(C)
(Cl)
(8)
(1')
.1-pg)
. Abdul Razak Sab,
S/0 Madar Sab.
M.Ezaz Sab,
S/o Abdul Razak Sab,
. Yusuf Sab,
S/o Madar Sat),
Dead by his LRs.
Arnrnerjan,
W/o Yusuf Sab,
Abdul Khadar, .
S/o late Yusuf Sab, A
Mohammad Yasin, H
S/0 late Yusuif 'Gab,
Absua!a_veV:'--».'4 '
S/o Eabiuliaj '
Katnum~.mlssa,'::lol A
W/to 3a_l::iu!ia,:g
Zakeer E-'Eussai.r)«,' H
S/o Yusuf Sab, ._ A
.. Sganuita, . _
" O5»~.'i'.'JSUf Sa b,
"All a re"l'4ajors Agriculturists,
R/o_. "SaVnthelf.i_en r:V.=..{r' 'Vi I lage,
Channagiri Ta'lul_:,f
A ll _ Davanagere'District--S77 213.
sm AISILSHIVAN NA, ADV.FOR R1 & R2,
..fR3(alto g) - served & unrepresented)
RSA 606/2009
RESPONDENTS
A This Regular Second Appeal is filed under Section :00 of CPC gaygaainst the judgment and decree dated 19.3.2009, passed in R'.'A.No.2S/2006, on the file of the II Addl.Civi! Iudge (Sr.Dn.), j'Davanagere, dismissing the appeal and confirming the judgment RSA 606/2009 and decree dated 15.12.2005, passed in O.S.No.69/1999, on the file of the Aclc:ii.CiviI Judge (3r.Dn.), Channagiri. This appeal coming on for Admission this day, Vthercourt detivered the foiiowing: "
QQDQMENT
1. This second appeai is directedfagiaiinst the-;jaAd_g4men'tV"and decree dated 19.03.2009 in R.A.No.2:45/2'CiV_(Ai6 on:,.tAh:'e'~fi'ie'V Adcii. Civil Judge (Sr.Dn.), the judgment and decree dated'15.Vi'2'.2'(jQ$j"i-ngO.Sé.No.69/1999 on the file of the Addi. Civil adage {.3vr;ui3'n.},:qiC,h.avnn_agiri.
2. This appeai'"i«s:pI'postedfor a'dAmiS$ion:VVT'a'fter notice to the respondent. V
3. Heard. '*0
4. Theifacts the case papers reveal that one Madarangi' Gouge Péer«"Sab (since deceased) filed a suit in zflV'(3,$.|\ip:'69y'.19*99 seeVi?i'in"gV decree of permanent injunction to 'res'traiVn= diegfendants from interfering in any manner with his Ap.eacefui[poissession and enjoyment of the vacant site i1"»-=.__d-escribe'd___in the scheduie to the piaint, on the basis that the .,ptoperty was acquired by one Madarangi Madar Sab who RSA 606/ 2009 is his senior paternai uncie. Thereafter, the properties acquired by the famiiy were subjected to partition and;b--y orai partition amongst them, the piaintiff has assignedéhyd-44i:gViy'en the schedule property towards his share. He if-J__asvj&nVd'--'is' physical possession and enjoymentzofi theyschedtiie_p:ro*p'er't'y pursuant to the partition ofythe prop_erties.x defendants who have no mannerfof ripht_,_'ti~ti_é.= andiiiiiniterestwi interfered with his posses.sAionriiih" t.he'second«'Awee'kV: of March 1999, necessitating appropriateT-V-order::}.to--.iir.:est_rain his activity. It was aiso ave§rredVV'thati;_h'isg a1titennpt'sv~_avre:'Vjintended to protect the Dropertv iiri if
5. The respioin.'dven_Ht~de<fer.dant_' resisted the suit, inter aiia contendingj~.._thiat' Madarangi Madar Sab had purcha;sedo_thex p-roV_pe'1rty'in duestion in 1929 from the originai of awdeed of sale. He has been in physical property. The iocai panchayath has re--
assigned ,.;iuini3ers as K.No.336 & K.No.337. The property in if"'::v"i4y"'-.i;iothVoy_the"i-numbers is thereafter re--numbered as K.i\io.338. .They»~have put a residentiai house on the property ieaving a iii"
RSA 606/ 2009
small vacant portion and are residing there. Denying the claim of the plaintiff, they sought for dismissal of the st;-'i't.._
6. During the pendency of the suit, the application seeking permission to amend if decree of mandatory injunction 'gro-iu defendants had after filing the _suitfe.nc'roache,d'.i,a"port'i--on»of., the property. Thus, the suit wastnot onlyfoivihjunécltion, but also for removal of encro'a'c.hme'nt'. "
7. However, in support. Aoffthe __p"la.Ai_n.t" 'averments, the plaintiff produced'«.e)§tratEA_ts ,of:3re'le«vajn.t,register in respect of the sched'u'le-_p'r:opetty t'o._'show""'thaVt his name was entered thereuncier and l<hathaV'wa's«,aiso in his name. Per contra, the defendants referregd 'vtoA'~t_he~.-'absolute deed of sale in favour of "VMada'rang.i:MadarhSavb----of' the year 1929 to claim succession to .V'--theiVp'roperty ,a'ft:'er.his demise.
8. .'["i'he _éTi'iaii.c::Court noticed that except for the revenue V%"--«___"e,ntries,~~the plaintiff had not produced any other document :o'n*«_.that ground, the suit was dismissed. In appeal against RSA 606/2009 the said judgment, the Appellate Court accepting the reasoning of the Trial Court, has dismissed the appeal also.
9. Learned Counsel for the appeliants wouid con.t_e'nd'_'t:h;a:t"it was the plaintiff's case that the property wagsylpurchlasledl' V' Madarangi Madar Sab who is his;';uHncl'e',..vbut-:'t-h,e=_p.ro'p'erty belonged to the family. By oral partitilo-ri, the:,."_or:o'perty."w,as--..L assigned to his share and thus,"he:"was en't.it_led_"'.topossession V and title. He would subr':m'.t_ that"'h§vi.:"¢olu'I'd_'nothaveproduced any other document except,bfCrtevenue registers to show his pog.5essi1i3n. the for injunction, those d ocu "nt. V
10. Pei;contra,l"'Coii;:nsei~ifor----tlie-C respondent-defendant would contend thiatalthe p'rope'rt-y""'i-at'guestion was purchased by the fatheif._{of' the respondent-defendant and after his demise, he hasis,u'cce'e.de.dA"'to the same.
are, the plaintiff admits that Madarangi _Mada"r"«.Sab' acquired the property by virtue of a valid sale Thesdefendant had nothing eise to prove on the basis ,.oi'g:'sueh admission in the plaint. The defendant had I'?
2'\ RSA 606/2009 established his right, title and interest in the property. It is thus ciear that the physicai possession was proved by .the fact that the plaintiff had sought for mandatory remove the alleged encroachment. 3
12. I have perused the recordsiiimaide suppiementation to the contention4s..A_o§. both.".i,tAhe" learned-.., CounseL
13. No doubt, the plaintiff ciainispiosisessioniofthe schedule property. But as could bets-een',v e_s:tabfii.s'h_'_.that possession was iawfui, he ,r;lriy;ei3. ms; title'..9throurghMaiiiarangi Madar Sab. There th'e'iip'I'aint itseif that Madarangi Madar Sap had'purchased'itheproperty and he is his paternal uncle. Part'i«es"are._ i'«4_oharnmedans and are undoubtedly ""~governied,y_._l):y Mohainwm-ed'an Law. On the contention that there .V'w'aséa'r=_ oral /,,'I33}'tition in the family, the plaintiff claims titie. When""Mad_ar'a'no:i VMadar Sab had purchased the property and he ..is';_said to be the paternal uncle, the property ufnd,oiub.tedly would pass on upon his death to his heirs and V.___"'resi;duaries according to law of succession. Therefore, the yvflmiode of succession pleaded by the plaintiff through partition g,Q,.-
9» RSA 606/2009 is wholly unacceptable. It is not in dispute that the defendant is the son of Madarangi Madar Sab and therefore, prim"a----.yfacie upon the death of Madarangi Madar Sab, he unless it is shown that there is any mode of dispossessilonf the property by Madarangi Madar f"Sab« f;ayo'u_r_ f plaintiff, the defendant would be his s'u__cce_ssor..:_I'n"thesyejfacts, and circumstances and as the"~-.la'n..d in 'e,,uest_i'onV"i.yisV"not an agrarian land, but it is a" non-res'idf.e§ntiVVa'ln-.land';'t'he"concept of possession follows title unless there is any semblance3offit}ht,i;_jAtitle_:'e.an§;"«.f.fhjteVresVt,VV'v even though the suit is for could not have been granted.:*'I'"do'f.Vn:nft the finding recorded by both theicourits' no substantial question of law arises for colnsidefraytionlin'this appeal. Appeal is dismissed at "*td7'.e s§5i'§6.l.,¢f admiAs'si'o--ne«'No costs.