Dismissed

Shamshuddin S/O Fakeersab Reshmi, v. Smt.Irene W/O Assis Rodrigues

Karnataka HC14 Mar 2017RSA/100181/2016

Case brief

AI extract

What is this about?

This is an appeal under Section 100 CPC against a judgment dismissing an appeal and confirming a suit decree for declaration, injunction, and possession. The High Court dismissed the appeal, holding that establishing title is necessary to declare defendants as encroachers, thereby ruling out a substantial question of law.

What did the court decide?

Appeal dismissed; decree of lower courts affirmed.

Shamshuddin S/O Fakeersab Reshmi, Vs Smt.Irene W/O Assis Rodrigues — Partition | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF MARCH, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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R.S.A. NO.100181/2016 (DEC & POSSN)

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BETWEEN:

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SHAMSHUDDIN S/O FAKEERSAB RESHMI, AGE ABOUT 65 YEARS, OCC: ADVOCATE, R/O: NAGASHETTIKOPPA, KESHWAPUR, HUBBALLI-580023.

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SMT.SHAMSHIYA W/O SHAMSHUDDIN RESHMI, AGE ABOUT 56 YEARS, OCC: RAILWAY SERVICE, R/O: NAGASHETTIKOPPA, KESHWAPUR, HUBBALLI-580023.

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... APPELLANTS

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(BY SRI M R MULLA, ADVOCATE)

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AND :

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SMT.IRENE W/O. ASSIS RODRIGUES, SINCE DECEASED BY HER LRS

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1A) JOSEPH S/O ASSIS RODRIGUES, SINCE DECEASED BY HIS LRS

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1A(A) PHILOMINA W/O JOSEPH RODRIGUES, AGE ABOUT 61 YEARS, OCC: HOUSEHOLD, R/O: DESHPANDE NAGAR, HUBBALLI-580029.

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1A(B) ASSIS S/O JOSEPH RODRIGUES, AGE ABOUT 38 YEARS, OCC: PRIVATE SERVICE,

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R/O : DESHPANDE NAGAR, HUBBALLI-580029.

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1A(C) WILLIAM S/O JOSEPH RODRIGUES,

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AGE ABOUT 37 YEARS, OCC: TELCO SERVICE,, R/O: DESHPANDE NAGAR, HUBBALLI - 580029.

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1A(D) HARRY S/O JOSEPH RODRIGUES, AGE ABOUT 36 YEARS, OCC: TELCO SERVICE, R/O:DESHPANDE NAGAR, HUBBALLI - 580029.

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1B) PHILIP S/O ASSIS RODRIGUES AGE ABOUT 62 YEARS, OCC: BUSINESS, R/O: DESHPANDE NAGAR, HUBBALLI - 580029.

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1C) SMT.MAGADALINE W/O MARTIN RODRIGUES SINCE DECEASED BY HER LRS

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1C(A) FRANCIS S/O MARTIN RODRIGUES, AGE ABOUT 54 YEARS, OCC: BUSINESS, R/O: SUPREME WINE SHOP, COURT ROAD, SIRSI (UK)-581307.

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1D) SMT.PHILOMINA W/O PETER GONSALVES, AGE ABOUT 74 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR R.C. CHURCH, BINAGAR, P.O. BAINAGAR, TALUKA KARWAR-581307.

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ABDULKHADAR VALLAD S/O FAKKIRSAB RESHMI, AGE ABOUT 62 YEARS, OCC: PENSIONER, R/O: NAGASHETTIKOPPA, KESHWAPUR, HUBBALLI-580023.

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... RESPONDENTS

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THIS APPEAL IS FILED U/SEC. 100 OF C.P.C. AGAINST THE JUDGMENT AND DECREE DATED 28.01.2016 PASSED IN R.A. NO.374/2009, ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBAKLLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.12.2009 PASSED IN O.S. NO.234/1997 ON THE FILE OF THE FIRST ADDITIONAL CIVIL JUDGE (SR. DN.), HUBBALLI, DECREEING THE SUIT FILED FOR DECLARATION, MANDATORY INJUNCTION, PERMANENT INJUNCTION, POSSESSION OF THE PROPERTY.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THIS COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel for appellant. On facts he argues that the plaintiff, in connivance with survey authorities, was able to get a false sketch prepared to show that the defendants have encroached upon the property, and even the Surveyor went to the extent of manipulating the property number, in the defendants property No.2A/1A/1-I, the last letter ‘I’ was meddled with and written as ‘L’ to show that the property bearing number 2A/1A/1-L belongs to the plaintiff. According to his argument, the plaintiff’s property does not exist in that vicinity; there is a dispute with regard to identity of the property, and hence, both the Courts have given a

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wrong finding that the defendants have encroached upon the plaintiff’s property. This argument cannot be accepted not only for the reason that there is a concurrent finding of facts about encroachment made by the defendants, but also for the reason that in Ex.D7, a document produced by defendants, the northern boundary of defendants’ property is shown as a road, and then the land of Irene Rodrigues (plaintiff). Moreover, the defendants claim the possession just on the basis of an agreement of sale executed by one Nijamuddin Savanur. The Survey Report also shows encroachment on plaintiff’s land. So these facts, as they stand proved, have to be accepted.

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On law, the learned counsel argues tht the plaintiff’s case should fail as they have not sought declaration of title; the main relief that the plaintiff has sought is to declare that the defendants are trespassers. The First Appellate Court has held that the plaintiff may not have in specific terms claimed declaration of their title, but Ex.P-5 indicates that title of the suit property is with the plaintiffs

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and that the defendants are encroachers. In my opinion, even to declare that the defendants are encroachers, the plaintiff must establish her title on the suit property, and unless title is established, there cannot be a declaration that defendants are encroachers. So the declaratory relief that the plaintiff has sought is inclusive one. This argument cannot be accepted. No substantial question of law arises for admitting this appeal. Hence, this appeal stands dismissed.

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Sd/JUDGE

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hnm

Shamshuddin S/O Fakeersab Reshmi, v. Smt.Irene W/O Assis Rodrigues

Case brief

What is this about?

What did the court decide?

Shamshuddin S/O Fakeersab Reshmi, v. Smt.Irene W/O Assis Rodrigues

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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