Dismissed

Kamarunnisa v. Channappa

Karnataka HC7 Mar 2017RSA/198/2005

Case brief

AI extract

What is this about?

This appeal challenges the dismissal of a suit for declaration of title. The High Court held that the certificate produced by the plaintiff (Ex.P-1) was merely an identity proof of residence issued by the slum board, not an allotment letter or title deed. Consequently, the appeal was dismissed, upholding the appellate court's decision. Reliance was also placed on tax receipts being insufficient to

What the court decided

AI extract

Kamarunnisa Vs Channappa — Property and Title | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 7^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.198/2005 (DEC)

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BETWEEN:

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SMT. KAMARUNNISA W/O. SIRAJUDDIN MULLAH, AGE. 42 YEARS, OCC. HOUSEHOLD WORK, R/O. ANJANEYA NAGAR, KELEGERI, DHARWAD, DIST.DHARWAD-580008.

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… APPELLANT

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(BY SRI AHMED ALI RAHIMAN SHAH, ADV.)

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AND:

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CHANNAPPA S/O. DURGAPPA BYAHATTI, AGE. 36 YEARS, OCC.COOLIE.

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SMT. THIMMAVVA W/O. CHANNAPPA BYAHATTI, AGE. 32 YEARS, OCC.COOLIE.

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BOTH ARE RESIDENTS OF ANJANEYA NAGAR, KELEGERI, DHARWAD – 580008.

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… RESPONDENTS

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(BY SRI D.K. KALLANAGOUDAR, ADVOCATE)

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THIS APPEAL IS FILED U/SEC. 100 OF C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.11.2004 MADE IN R.A. NO.104/2002 ON THE

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FILE OF III ADDL. C.J. (SR.DN.) & CJM, DHARWAD, AT DHARWARD, AND CONFIRM THE JUDGMENT AND DECREE DATED 15.03.2002 MADE IN O.S. NO.33/2000 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.), DHARWAD, AND ALLOW THIS APPEAL WITH COSTS.

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

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JUDGMENT

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This appeal was admitted on 12.11.2007 on the following substantial question of law.

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“ Whether the Lower Appellate Court was justified in reversing the Judgment and Decree of the Trial Court holding that under Ex.P1 the plaintiff – appellant has not derived any title?

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The plaintiff – Smt. Kamarunnisa initially filed a suit for permanent injunction in respect of a hut bearing No.13 situated in R.S. Nos.133 and 371 of Kelgeri village, Dharwad. According to the plaintiff, Karnataka Slum Clearance Improvement Board, Bengaluru (for short, ‘Board’) formed residential plots in the said area for the purpose of rehabilitating the slum dwellers. Since the plaintiff was a resident of the said area, the Karnataka Slum Improvement Board granted the said property to her in the year 1995.

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Since then she has been in actual possession. She has paid tax. The defendants do not have any manner of right and title to interfere with her possession, and therefore, she filed a suit for injunction. She amended the plaint subsequently for the reason that according to her, on 27.01.2001, the defendants were successful in dispossessing her from suit property illegally. Since she was a paradaneshian lady, she could not resist the defendants and lost her possession. Therefore, she amended the plaint to seek declaration of title and possession of suit property from the defendants.

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The defendants, in their written statement denied the entire case of the plaintiff and contended very specifically that they belong to a backward community, and therefore, when the Board took a decision to allot sites to weaker section of the society, they got allotted the suit property to them. In fact, the suit property was allotted in the name of the first defendant. They put up a shed like structure and they have been residing there for the last 20-25 years. They contended further that the hakku pathra issued to them by the Board was washed away in the rain waters and the plaintiff, who has knowledge of this filed the suit in order to

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take undue advantage of the defendants having lost the papers.

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The trial Court, upon assessing the oral and documentary evidence came to the conclusion that the plaintiff was able to prove her ownership over the suit property, and therefore, declared that she was the absolute owner and ordered the defendants to deliver possession of the suit property to the plaintiff within three months from the date of the decree. The trial Court, to come to this conclusion, mainly relied upon Ex.P-1 a certificate issued by the Assistant Director of Karnataka Slum Clearance Board, Bangalore II Sub-Division, Hubli; and tax paid receipts as per Exs.P-2 to P-4. When the defendants challenged this judgment and decree by filing an appeal before the Court of III Additional Civil Judge (Sr. Dn.) & C.J.M., Dharwad, the learned First Appellate Judge reversed the judgment of the trial Court and dismissed the suit. The Appellate Judge has held that Ex.P-1 does not establish the title of the plaintiff. According to him, Ex.P-1 is only a certificate issued by the Board, with regard to the identity of the persons residing in the slum area. Exs.P-2 to P-4 are only tax paid receipts and

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they are also not helpful to the plaintiff for establishing right, title or interest in the said property. Therefore, having come to a conclusion about Exs.P-1 to P-4 in this manner, the First Appellate Court allowed the appeal and set aside the judgment of the trial Court.

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The appellant’s counsel now argues that the First Appellate Court has misconstrued Ex.P-1. It is actually a hakku pathra, issued by the Board. In that hakku pathra, property number is clearly mentioned. On the back of this Ex.P-1, name of the plaintiff, her husband and son are also written. Added to this, Exs.P-1 to P4 show that plaintiff paid the tax in respect of the suit property. Since she was allottee from the Board, the plaintiff could produce nothing but Ex.P1. The trial Court rightly appreciated the evidence, but the First Appellate Court committed an error in law in reversing the findings of the trial Court. Therefore, it is argued that Ex.P-1 should be held to be a document establishing the plaintiff’s title.

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Learned counsel for the respondents submit that Ex.P-1 cannot be considered as hakku pathra. According to

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him, it is just an identity proof. He refers to Ex.D-1 and argued that suit property was allotted to the defendant No.1. Therefore, it is his argument that the First Appellate Court rightly dismissed the suit by allowing the appeal.

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This is a suit for declaration of title and ownership. If the plaintiff wants to prove her title over the property on the basis of allotment made by the Board, she must produce a document showing the allotment to her. On perusing Ex.P-1 it becomes very clear that it is not a hakku pathra or allotment letter. It is just an identity proof (Parichaya/Nondani Pathra). In the footnote, it is clearly written as Guruthu pathra, and therefore, this document only confirms the residence of a person in the slum area and does not confirm any kind of right or interest. It has to be noted here that a portion therein to the effect that “this letter does not confirm any kind of right or interest” found in the footnote has been struck off. The First Appellate Court has made a clear observation regarding this. If Ex.D-1 is perused, it becomes further clear that suit property bearing No.13 was allotted to the first defendant. This is a letter issued by Executive Engineer of Karnataka Slum Clearance

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Board. Exs.P-2 to 4 are said to be tax paid receipts. Merely based on these tax paid receipts, one cannot establish title. Therefore, when it becomes clear that Ex.P-1 is not a hakku pathra or an allotment letter, the First Appellate Court is justified in reversing the judgment of the trial Court and dismissing the suit. Hence, this appeal deserves to be dismissed. Accordingly, it is dismissed.

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Sd/JUDGE

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hnm

Kamarunnisa v. Channappa

Case brief

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Kamarunnisa v. Channappa

Case brief

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