Dismissed

Jameelunnisa Begum v. Kalaiah

Karnataka HC5 Sept 2023RSA/1874/2012

Case brief

AI extract

What is this about?

A second appeal filed under Section 100 of CPC challenging the dismissal of a suit for declaration of title. The High Court found no substantial question of law to frame as the lower courts correctly noted a discrepancy between the property in the appellant's sale deed (Sy.No.77/2) and the suit schedule (Sy.No.77/12). The appeal was dismissed.

What did the court decide?

The regular second appeal is dismissed. No case for framing a substantial question of law was made out.

Jameelunnisa Begum Vs Kalaiah — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:32004 RSA No. 1874 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO. 1874 OF 2012 (DEC/INJ)

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BETWEEN:

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JAMEELUNNISA BEGUM

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W/O.LATE SYED GULAM MOHAMMED MISKIN SAB DEAD BY HER LRS.

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1(a) SYED FALAHUDDIN

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S/O.LATE SYED GULAM MOHAMMED MISKIN SAB AGED ABOUT 64 YEARS R/AT PETE, ARKALGUD KASABA HOBLI ARKALGUD TALUK HASSAN DISTRICT

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Digitally signed by CHAITHRA P Location: HIGH COURT OF KARNATAKA

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1(b) SYED MASLEHUDDIN S/O.LATE SYED GULAM MOHAMMED MISKIN SAB AGED ABOUT 63 YEARS

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1(c) SMT.SYEDA AMTHUL MATHIUNNISA W/O.NISAR AHMED D/O.LATE SYED GULAM MOHAMMED MISKIN SAB AGED ABOUT 61 YEARS

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1(d) SMT.SYEDA AMTHULBASEERUNNISA W/O.MOHAMED SADIQULLA D/O.LATE SYED GULAM MOHAMMED MISKIN SAB AGED ABOUT 59 YEARS

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2 - NC: 2023:KHC:32004 RSA No. 1874 of 2012

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A-1(b) TO A-1(d) ARE RESIDING AT NO.104, 2^ND MAIN PARVATHIPURAM BENGALURU - 560 004

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…APPELLANTS

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(BY SRI G.C.SHANMUKHA ALONG WITH SRI S.B. HALLI, ADVOCATES)

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AND:

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KALAIAH

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S/O.LATE DYAVAIAH @ BUDIYAIAH AGED ABOUT 59 YEARS MALAIKERE VILLAGE KASABA HOBLI ARKALGUD TALUK HASSAN DISTRICT

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2. SAKINABHIYAMMA

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W/O.LATE ABDUL KHALAK SAB

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DEAD BY LRS.

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2(a) NOORJAAN W/O.MUMTAJ AHAMAD AGED ABOUT 55 YEARS KELLURU VILLAGE KASABA HOBLI ARKALGUD TALUK HASSAN DISTRICT-573 102

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2(b) RIHANABANU

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W/O.NALBANDH SALEEM

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AGED ABOUT 50 YEARS

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MUSLIM BLOCK

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K.R.NAGARA VILLAGE & POST K.R.NAGARA TALUK

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MYSORE DISTRICT-571 602

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3 - NC: 2023:KHC:32004 RSA No. 1874 of 2012

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2(c) FERHANABANU W/O.USMAAN AGED ABOUT 48 YEARS HONNENAHALLI VILLAGE SALIGRAMA HOBLI K.R.NAGARA TALUK MYSORE DISTRICT-571 604

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H.K. MUKTHAR PASHA S/O.LATE ABDUL KHALAK SAB AGED ABOUT 52 YEARS R/AT HEBBALU VILLAGE K.R.NAGARA TALUK MYSORE DISTRICT-571 602

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NISSAR AHAMAD S/O.LATE ABDUL KHALAB SAB AGED ABOUT 51 YEARS R/AT HEBBALU VILLAGE K.R.NAGARA TALUK MYSORE DISTRICT-571 602

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…RESPONDENTS

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(BY SRI PRASANNA V.R., ADVOCATE FOR R-1; R-2(a) TO R-2(c), R3 AND R4 ARE SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, ARKALGUD IN R.A.NO.430/2008 DATED 12.03.2012 IN CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE AND JMFC, ARKALGUD IN O.S.NO.244/2003 DATED 25.01.2007 AND ETC.

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

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4 - NC: 2023:KHC:32004 RSA No. 1874 of 2012

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JUDGMENT

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This appeal is preferred by the appellants-plaintiffs challenging the judgment and decree dated 12.03.2012 passed by Senior Civil Judge and JMFC, Arkalgud in R.A.No.430/2008, which confirmed the judgment and decree dated 25.01.2007 passed by the Civil Judge (Jr.Dn.) and JMFC, Arkalgud in O.S.No.244/2003.

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Parties shall be referred to as per their status before the trial Court.

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The original plaintiff filed a suit against the defendants for the relief of declaration to declare that the plaintiff is the absolute owner of the suit schedule property and also to declare that the sale deed executed in favour of defendant No.1 by defendant Nos.2 and 4 does not bind the title and interest of the plaintiff and for the relief of permanent injunction and other consequential reliefs.

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It is the case of plaintiff that she is the absolute owner of the suit schedule property, which originally belonged to the husband of defendant No.2 and father of defendant Nos.3 and 4 by name, one Sri Abdul Khalak Sab. It is the further case of

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the plaintiff that defendant Nos.2 and 4 have sold the properties in favour of the plaintiff pertaining to two properties namely, survey Nos.77/10 and 77/12 on 04.03.1988 by way of a registered sale deed. Pursuant to which, the plaintiff was put into the peaceful possession and enjoyment of the said two properties.

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4.1 It is the further case of the plaintiff that while executing the sale deed, defendant No.2 and her husband, Abdul Khalak Sab have committed a mistake therein by mentioning the survey number as 77/2 instead of Sy.No.77/12. The plaintiff being an uneducated lady, did not notice the same and was not aware of it. But, she continued to be in possession of the suit schedule property, which according to her, survey No.77/12 by virtue of registered sale deed-Ex.P2. It is the further case of the plaintiff that taking advantage of the same, defendant No.2 colluding with the Revenue officials (Tahsildar) got changed the khatha in her name, aggrieved by which, the plaintiff has filed an appeal in R.A.No.23/2000-01 before the Assistant Commissioner, Sakaleshapura against defendant No.2 and the Tahsildar, which came to be dismissed. This being the state of affairs, defendant No.1 started interfering with the

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plaintiff's peaceful possession and enjoyment of the suit schedule property. Hence, the plaintiff filed a suit before the trial Court claiming that she having purchased the suit schedule property, defendant No.1 is trying to dispossess the plaintiff from the suit schedule property at the instigation of defendant Nos.2 to 4.

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4.2 Defendant Nos.1 and 4 appeared before the trial Court. Defendant No.1 filed his written statement denying the averments made by the plaintiff and contended that there is absolutely no cause of action and he is in lawful possession of the suit schedule property having purchased the same from defendant No.2 and her sons under a registered sale deed dated 09.11.2002 for a valuable sale consideration and he further took up the plea that the plaintiff does not have any right, title and interest over the suit schedule property, which absolutely belongs to him pursuant to the sale deed dated 09.11.2002.

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4.3 Defendant Nos.2(a) to 2(c) and 3 were placed ex parte.

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4.4 Defendant No.4 has also filed the written statement denying the averments made in the plaint and did not agree to

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the contention put-forth by the plaintiff or plea taken by the plaintiff in the plaint and sought for dismissal of the suit.

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4.5 Based on the pleadings of both the parties, the learned trial Judge framed the following issues for

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consideration:

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"1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property?

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2. Whether the plaintiff proves that she is in lawful possession over the suit schedule property?

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3. Whether the plaintiff proves the interference by the defendant?

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4. Whether the plaintiff proves that the sale deed executed in favour of the 1^st defendant is not binding on her?

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5. Whether this Court is not having pecuniary jurisdiction to try the suit as contended by the 1^st defendant in para 7 of the written statement?

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6. Whether the plaintiff is entitled for Declaration and Permanent Injunction?

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7. What Order or Decree?"

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4.6 On the basis of pleadings and issues, the plaintiff and

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defendants in order to establish and substantiate their respective case adduced evidence. The plaintiff examined her

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son, who is the GPA Holder as PW.1 and got examined another witness as PW.2 and got marked the documents as Ex.P1 to Ex.P8, whereas defendants examined defendant No.1 as DW.1 and defendant No.4 as DW.2 and got marked the documents as Exs.D1 to Ex.D17.

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4.7 The trial Court, after hearing learned counsel for plaintiff as well as learned counsel for defendants, on the basis of the pleadings, material evidence, both oral and documentary, dismissed the suit of the plaintiff.

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4.8 Being aggrieved by dismissal of the suit, the plaintiff preferred an appeal before the first Appellate Court in R.A.No.25/2007, which was subsequently re-numbered as R.A.No.430/2008.

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4.9 The first Appellate Court, after service of notice on the defendants and hearing learned counsel for plaintiff as well as learned counsel for defendants formulated following points for consideration:

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"1. Whether the Appellant/plaintiff proves that the impugned judgement and decree dated, 25/01/2007 passed in O.S. No.244/2003 by the trial court in dismissal of the suit, is contrary to

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9 - NC: 2023:KHC:32004 RSA No. 1874 of 2012

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law, facts, evidence and probabilities of the case and as such, it is liable to be interfered with?

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2. What order?"

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4.10 The first Appellate Court , on re-appreciation and re-analysation of the entire oral and documentary evidence on record, having not found favour with the case made out by the plaintiff, dismissed the appeal. Consequently, confirmed the judgment and decree passed by the trial Court.

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4.11 Being aggrieved by the concurrent finding of the order passed by the trial Court and the first Appellate Court, the plaintiff is before this Court questioning the same by invoking the provisions of Section 100 of CPC raising certain substantial questions of law to be considered by this Court, which is narrated in the appeal memo.

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Heard Sri G.C.Shanmukha along with Sri S.B.Halli, learned counsel for appellants and Sri Prasanna V.R., learned counsel for respondent No.1.

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It is the vehement contention of learned counsel for appellants-plaintiffs that the judgment and decree passed by both the Courts are opposed to the pleadings, evidence and the

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10 - NC: 2023:KHC:32004 RSA No. 1874 of 2012

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material placed on record and both the Courts have committed an error in dismissing the suit and the appeal and have ignored the fact that the plaintiff had actually purchased the property bearing Sy.No.77/12 and defendant Nos.2 and 4 also intended to sell Sy.No.77/12, but while executing the sale deed and registering the same, they committed an error by incorporating the survey number of the property sold to the plaintiff as Sy.No.77/2 rather than 77/12. The entire sum and substance of the arguments put-forth by learned counsel for appellantsplaintiffs is on the ground that the plaintiff purchased the property bearing Sy.No.77/12, but the vendors of the plaintiff while incorporating the survey number in the sale deed have committed an error in describing it as Sy.No.77/2. Therefore, the plaintiff filed a suit seeking relief of declaration and other consequential reliefs. It is the contention of learned counsel that the appellants-plaintiffs are in peaceful possession and enjoyment of the suit schedule property by virtue of the sale deed dated 04.03.1988 and defendant No.1, who purchased the suit schedule property in the guise of having purchased Sy.No.77/12, is interfering with the plaintiffs' peaceful possession and enjoyment over the suit schedule property.

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It is the contention of learned counsel for respondent No.1-defendant No.1 that even if the contention of the plaintiffs is considered by this Court, they have not placed a single piece of evidence or documents to establish or to show that they are in peaceful possession of the property bearing Sy.No.77/12 except the oral statement and the statement made in the pleading. They have only produced the material evidence to the effect that they have purchased the property under the registered sale deed and other documents as per Exs.P1 to P8. Considering all these aspects, the trial Court has dismissed the suit, so also, the first Appellate Court on re-appreciation and re-analysation of the entire material on record, both oral and documentary, dismissed the appeal confirming the judgment and decree passed by the trial Court.

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Having heard learned counsel for appellants-plaintiffs and learned counsel for respondent No.1-defendant No.1, admittedly, the plaintiff is the recipient of the registered sale deed executed by defendant Nos.2 and 4 dated 04.03.1988 as per Ex.P2 measuring to an extent of 0-19 guntas and the sale deed shows that the property sold is Sy.No.77/2. The plaintiff has filed the suit seeking for the relief of declaration to declare

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that the plaintiff is the absolute owner of the suit schedule property and to declare the sale deed executed in favour of defendant No.1 does not bind the title and interest of the plaintiff. The suit schedule property is described as Sy.No.77/12 measuring 0-19 guntas. The plaintiff has produced documentary evidence in support of her case as per Exs.P1 to P8, which depict that the plaintiff is the owner of property bearing Sy.No.77/2 measuring 0-19 guntas. Defendant No.1 has placed before the Court his sale deed executed by defendant No.2 and her sons dated 02.09.2002 measuring to an extent of 0-19 guntas pertaining to property bearing Sy.No.77/12 and he claims to be the absolute owner and in peaceful possession of the suit schedule property. This factual aspect of the matter and admitted questions of fact has been considered by the trial Court as well as first Appellate Court. Considering the fact that the plaintiff's sale deed at Ex.P2 dated 04.03.1988 is pertaining to Sy.No.77/2 measuring 0-19 guntas and not pertaining to the property bearing Sy.No.77/12 measuring 0-19 guntas, both the Courts did not find substance in the contentions put-forth by the plaintiff even on the basis of documentary evidence and oral evidence. Accordingly, the trial

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13 - NC: 2023:KHC:32004 RSA No. 1874 of 2012

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Court dismissed the suit of the plaintiff, so also, the first Appellate Court confirmed the said dismissal of the suit.

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While considering the second appeal under Section 100 of CPC, this Court will have to be circumspect and try not to venture into adverting to the factual aspects of the matter, as the first Appellate Court has already re-analysed the factual aspects and given a finding dismissing the contention put-forth by the plaintiff and confirmed the judgment and decree passed by the trial Court. Section 100 of CPC has a limited narrow scope to consider only the substantial question of law and not venture into the factual issues. No doubt, it is true that the second appeal can also be appreciated, in case, if both the Courts have ignored and not taken into consideration the material evidence both oral and documentary placed on record. Unfortunately, in the case on hand, all the documents produced by the plaintiff are pertaining to Sy.No.77/2, which are marked as Exs.P1 to P8.

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During the pendency of this appeal, the appellantsplaintiffs have filed an application in I.A.No.3/2012 seeking for amendment in the plaint by incorporating para-6(a) for

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NC: 2023:KHC:32004 RSA No. 1874 of 2012

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rectification of the sale deed dated 04.03.1988-Ex.P2 as Sy.No.77/12 instead of Sy.No.77/2 and even the prayer made in the application does not clearly describe as to from whom the rectification is sought. The said application has been stoutly objected to by respondent No.1-defendant No.1, who has filed his detailed statement of objections.

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In the second appeal filed under Section 100 of CPC, this Court is bound to restrict itself to answer or consider the substantial question of law and not to entertain any amendment application to the plaint, which is seeking a new relief of rectification of the sale deed dated 04.03.1988 in the second appeal by introducing new facts. Therefore, this Court does not find favour to the application filed under Order VI Rule 17 of CPC read with Section 26 of the Specific Relief Act, as even the averments made and the prayer sought therein is vague, which does not depict from whom the rectification is sought. Accordingly, the application in I.A.No.3/2012 deserves to be dismissed and it is dismissed.

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Now coming to the aspect of substantial questions of law, though the appellants-plaintiffs have formulated few

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15 - NC: 2023:KHC:32004 RSA No. 1874 of 2012

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substantial questions of law in the appeal memo, this Court, after perusal of the impugned judgment and decree of both the Courts and on hearing the arguments of learned counsel for appellants-plaintiffs as well as respondent No.1-defendant No.1, does not find any reason to frame the substantial question of law for consideration, as the trial Court and the first Appellate Court have passed a well reasoned order by dismissing the suit and the appeal, relying on all the material placed by the plaintiff marked as Exs.P1 to P8, so also, the documents relied on by the defendants and also rejecting the contention put-forth by the plaintiff.

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In view of the above discussions, there is no merit in the

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appeal preferred by the appellants-plaintiffs. Hence, the appeal deserves to be dismissed, as no case is made-out for framing the substantial question of law. Accordingly, I proceed to pass the following:

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ORDER

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i) The Regular Second Appeal is dismissed;

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ii) However, it is open for the appellants-plaintiffs to seek appropriate remedies with regard to

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rectification of the sale deed, which however will be subject to the law of limitation.

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In view of dismissal of the appeal, pending applications, if

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any, pale into insignificance.

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Sd/JUDGE

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CPN/LB

Jameelunnisa Begum v. Kalaiah

Case brief

What is this about?

What did the court decide?

Jameelunnisa Begum v. Kalaiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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