Shri Mohammed Bahuddin vs Shri Dattatraya on 19 November, 2011

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Karnataka High Court

Shri Mohammed Bahuddin vs Shri Dattatraya on 19 November, 2011

Bench: N.Ananda

RSA No.2537 OF 2007
BETWEEN:
Shri. Raj Ahmed S / o Babumiyan

Age: 67 Years, Occ: Retd. Govet. Servant,-.p  A
R/ o Shah Hussain Chilla, T "

Brahampur, Gulbarga-- 585 l0'\\'     

[By Sri. G.S. Biradar. Advocate}
AND: " 0'

Shri. Dattatraya .

S / o Limbaji Rao Patil,

Age: Major, .

OCC:AgI'iCu1ture,s.  A

R/o Sangolgi  ._       

Tq. Aland Dist:._Gi:Llbarga«=58.5 103} V   Respondent

(By Sri A.PlJaK-algiydatd.   

This l_AQ0egt1'lpar_VA€3ec'ond__App'eal is ﬁled U/S 100 of CPC
against the eJudgment._and"D4eeree Dated: 17.07.2007 passed
in R.A. No'.'2.o/05 on thefae of the IAddl. Civil Judge (Sr.

Dn.pp.)_§: 'Gulbarga,' wherein dismissed the Appeal and Conﬁrmed

0 . 'Jndginent and vlljeeree Dated: 18.12.2004 passed in O.S.
O8/:1V98Q_:'c_n* file of the Prl. own Judge (Jr. Dn.,)
Giilbtarga.'T_».,_ * 

 Tljieseiappeals coming on for admission this day, the

 Courtdeliivered the following:



0 'A Dhoétih-al.  

JUDG7lV[ENT

These appeals are listed for admission. The 'shower

Court records are received. With the COI'1S€1'1t.v~Of""'l€.§§I'fi€d..'

counsel for both parties, the matter is tal_<enl:"up'iforllpfinaliu 0'

disposal.

2. These Regular  ./2Xppleals l"alr»e;<..ﬁled3 

unsuccessful plaintiffs; in    No.
08/ 1980. The Respondent is '«com'mo'ndefendant in both the
suits. o.s. Nor» 707/isso filed  declaration of
ownership  "open plot measuring

107' x 'i'\Io..ll'l"':.//01f (l§.fwBrahmapur, Gulbarga
bounded llET;asVtA§--p Go"Vernm'ent road (30' wide), West :

Governrnentp  and Nala, North Plot of

Hanmanth éxwalikar  south by House of Prabhakar

0   8/ 1980 was filed for declaration of title and

injunctionvﬁin respect of open plot measuring 107' (East-

 A'West)  (North--south) in Sy. No. 113/2 of Brahmpur,

Clullbarga bounded by, East ~ Government road (30' wide),

M~ .



4

West - Government road (30' wide), North House of Eramma
W/o Girimallappa and south by plot of Mohd. 

(plaintiff in o.s. No. 07/ 1980).

4. The Common defendant «o'onteste--d the"suits-inter

alia contending that he had purchlaseoﬁpilot  ._

east--78', west-73', north--75' ~vs_outh¥6.6"   I13/2*" 9

bounded by East- ﬁP.roposged.u:"Ro'ad', .VlV"est:H Vblala and
Government road,   south plot of
Sharanappa Patil of  registered
sale deed  .onellll"\l7eerbhadrappa S/o
sh1va1i;1gai3pa"::-  V are claiming the very

propeifty in   so its.

5.  llearnedttrial-l':judge by Common judgment dated

  dislniissed the suits inter alia holding that

'  -failed to prove that suit properties shown in

'O...S'.=lNo.l  and O.S. No. 08/ 1980 do not overlap the

 propegrfya aoquired by defendant under sale deed dated 04-

  09419621. The plaintiffs were before the I appellate court in

 No. 108/1985 and RA. No. 109/1985. The learned





93/2005. The learned judge of I appellate 

reconsideration of the matter remanded the  _

court to appoint court commissioner and decideV..the:'case in .1 pp 

accordance with law and also as per the d~ir'ectior1sV contained

in RSA No. 1012/1994 and 1013/1199.4. The.'1;1eamelci=.n m7a1'--.,

judge appointed city surveyor-¥of.nGulhargaV.m'unicipality ash

the court commissioriverzn  cornmislsionerinspected
the suit properties in  and identified
and demarcatedtvhe   to respective
sale deeds___     with sketch. The
  of court commissioner
and the  was examined as PW 6.

The "learr1edA:.:'triVa1..:lj't1.dge on reconsideration of the

matter acc'cp:ted.th"e report and dismissed the suits.

  Thereafter«.p1aintiffs'"were before I--appe11ate court in RA. No.

    No. 20/2005. The learned judge of I-

lappellatefcjciilrt on reconsideration of the matter, dismissed

the appeanls. Therefore, the plaintiff in O.S. No. 07/ 1980 has

 xpreferred RSA No. 2536/2007 and plaintiff in 08. No.

1  -,_:O"3 /1980 has filed RSA No. 2537/2007. 
p N ,



7. In my considered opinion the  *

question of law is;   _

"Whether the Courts below liavesnot 'lcons_idered=.¢th1€i

material evidence?

8. I have heard Sri o.sr..B1fada1~,_ learned..c.ounsel for
appellants and Sri A.P."Jalhag'irdar,  counsel for the
respondent.   i 

9. Before A'adve1'tiI'1g' -- to 'c.o'n_tentions! raised by the
parties, it is  state that theilpredecessor in title of
appellants  appeals is common.
The original 1 olV'vnerl:'opf S[jfL'N_o.1l'3/ 2 in which different plots
were sold was  It is also not in dispute that

registered salexdeeds on which parties are placed reliance are

l d  '- app'end~ed with sketlches.

H  l.V()'.lRf'_lp--'l1ep:=.learned counsel for appellant has made the

followirig submissions;

The court commissioner has not identiﬁed the property

l  reference to registered sale deed dated 04-09-1964. The

  ....--learned counsel would submit that the registered sale deed

W'  / A7



dated O4-O9-1964 relied upon by the defendant 

and possession over the suit properties in O.S.  l'li380..:

and O.S. No. 08/1980 does not_be_ar Su'rvey'_':.nrurnber.v 

Therefore, the report prepared by v'Cou_rt

no basis.

The learned counsel for&..app.e_1'1ants.wouldsubmit that
trial courts should not   surveyor as the
court Commissi.jo11er.  for appellants
would   have ignored the
material     judgements Cannot be

sustairzed, --

ll. The l'e211gfr;ed'--._oou"nsel for respondent would justify

 *

1'2; Inyorder to answer substantial question of law A *-.rai_sed irrthe Course of arguments it is necessary to refer the contents f.:registered sale deed relied upon by the parties and thereport of commissioner and sketch prepared by the l"'Vl_AAC.onir,nissioner. The registered sale deed relied upon by defendant is marked as Ex.D~l. This registered sale deed 9 was executed by Veerbhadrappa S / o Shivalingappa in favour of defendant on O4-09- 1964.

The learned counsel for respondent "

said Veerbhadrappa S/ o ShiVa1i»ngappa.'lWacquireld ll property from one Rajappa and said from Sharanappa who was tl'1lev"'o.riginal land lovyrier'v-b.earing * it Sy..No.113/ 2. The registered islhappendveid with a sketch. V T The plot. by East-

proposed iloV'ernment road, North-

Governmelat "of Sharanappa Patil. The registered sketch indicate property acquired by-.._devfendant Tisxjuadrilateral in shape measuring 78'v»~e3'aste1n side"73f___on western side, 75' on northern side .V55'.,o'n southern side.

l3_.l."lvT'liiei::learned counsel for appellant would submit that there is no mention of survey number in the registered A V~:T:"sxale""~«.deed dated 04-09-1964. Therefore, contention of Mpéwmxi.

11 registered sale deed dated 14-02-1979 executed'"=,gby Hanrnanth (son of original Vendor) in favour of V. O.S.No. 08/ 1980. The property described in the"doc:irne1it an open plot measuring 107' x 46' in sy.--~ No.51 V by East Government road (30' wide), (30' wide), North house of ._V14s~r1_1ail lands of " 9' Hanmanth of Brahmpur .docurhent is appended with sketch is uoftivregistered sale deed. On perusal of these the vendor of plaintiff measuring 107' x 92' to the gthatigthe plot sold to plaintiff in isjvdgtoyvardsddddsouth of plot sold to the plaintiffdfinx On careful consideration of registered docurnentsd relied on by the plaintiffs and V' ..def'endants 'and sltetches appended thereto which form parts lof dvtsalegdeeds, it is clear that properties derived by defendants are bounded on the east by road, west bydijoad. The sketch prepared by Court commissioner A disclose that the properties demarcated by the conlrnissioner are bounded by east road' 12 However, there are variations of boundaries on northern and southern side. It is obvious as the registered sale. executed in favour of defendant is of the yearf1'964...l__:arid registered sale deeds executed in favour of "

the year 1979. In the report of comrnissio4nerl"it is sho'wnL the property of the plaintiff in_.Q.S. l\to.llO7/ 19E§C:.covers:':

portion of Sy. No. 131/1 on slo'utfI*iem siCle,l'SyV-L on western side. It is also of Commissioner that portion of land Sy. road and the plot in Sy.No. No. 113/ 1 lies between road towards east of the «plaintiffs who have relied on registered sale have not explained as to howllthueir vendors transferred parts of land in Sy.No. V. p_ 1 in uSy.ll\I"o*; 1 1__£_3__/ 1.

1 1 sketch appended to registered sale deed dated O.4'l'*'(j9'-19.'6.Zlv»v'*:!:,\"Ji5ulCl reveal the measurements of property of lg_defenci~an'tg_. The Commissioner with reference to registered ~?_"sale"'~..deed and appended sketch executed in favour of defendant has demarcated the property of defendant. The N. .

l4 learned counsel would submit that it Commissioner does not reflect true state-of affairsf T1'1eref_o,reVC,K. the matter requires a remand to trial"

appointment of fresh court "'--~commissicner._ for<--v...proper r ' demarcation and identiﬁcation _oflVth_e 'properties held by the parties. I am not pVe'rs'uade_d gto. submissions of learned counsel for appel.la--nts.for the reasons; In RSA No;«..'1'o12/1994'..~1and"RsA_1§1§. 1013/1994, this Court has a specific direction that demarcated with reference to recitals}ind'eeds relied upon by parties. Therefore,°'submissionl_o'f: counsel for appellants that the of Commissioner and sketch appended thereto do l,An'otyCl1eflect.'th.e correct location of properties cannot be __a"ccelpted«.._a'l'he.,defendant has produced several documents to purchase of property on 04-09-1964 his name was entered in municipal records and he had obtained fflicelrice for construction of house and the licence was

--renewed. The property was also measured and demarcated Wwlhen the city survey was conducted and the roperty was f\_') .

16

17. In the result, both Parties to bear their costs. the; appeals am *MK

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