Dismissed

Sri Khazi Iqbal Ahmed v. Sri Halappa T R @ Halappa

Karnataka HC12 Sept 2024RFA/834/2022

Case brief

AI extract

What is this about?

In a second appeal regarding property title, the High Court dismissed the appeal, upholding the trial court's decree declaring the plaintiff as the absolute owner. The court relied on the presumed validity of registered deeds and revenue entries from 1967, finding them superior to the defendants' 2015 sale deed.

What did the court decide?

The appeal was dismissed. The judgment and decree of the learned trial court dating to 11.02.2022 were restored and upheld.

Sri Khazi Iqbal Ahmed Vs Sri Halappa T R @ Halappa — Partition | Karnataka HC (2024)

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RFA No. 834 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF SEPTEMBER, 2024 PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT AND

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THE HON'BLE MR JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 834 OF 2022 (DEC/INJ)

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BETWEEN:

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1 . SRI KHAZI IQBAL AHMED S/O LATE KHAZI ABDUL RAHIM AGED ABOUT 67 YEARS, NEAR BABAIAH TEMPLE CHICKPET, TUMKUR-572101.

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2 . SRI A NAGESH S/O B ANDANAPPA AGED ABOUT 49 YEARS, R/AT BYRAVESHWARA NILAYA CHIKKABIDIREKAL NAGASANDRA POST DASANAPURA HOBLI TUMKUR ROAD, BANGALORE-560073

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…APPELLANTS

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(BY SRI. RAJANNA H., ADV.)

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AND:

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SRI HALLAPPA T. R. @ HALAPPA S/O LATE GARERANGAIAH AGED ABOUT 87 YEARS, R/AT KURIPALYA (BHAVANINAGARA) TUMKUR - 572105.

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…RESPONDENT

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(BY SRI. SHIVANANDA D.S., ADV. FOR C/RESPONDENT)

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RFA No. 834 of 2022

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THIS RFA IS FILED UNDER SECTION 96 CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.02.2022 PASSED IN OS No.448/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.08.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, KRISHNA S DIXIT J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and HON'BLE MR JUSTICE G BASAVARAJA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

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This appeal by the defendants seeks to call in question the judgment & decree dated 11.02.2022 whereby, respondent-plaintiff’s title suit in O.S.No.448/2015 has been favoured. The decree reads as under:

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“The suit of the plaintiff is decreed with costs.

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It is declared that the plaintiff is the absolute owner, in lawful possession of the suit schedule property as on the date of suit.

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The defendants are restrained from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property by way of permanent injunction.

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RFA No. 834 of 2022

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The sale deed dated:19.08.2015 (Ex.D.10) executed by the defendant No.1 in favour of the defendant No.2 is not binding upon plaintiff.

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The revenue entries of suit schedule property effected on the basis of sale deed 19.08.2015 executed by defendant No.1 in favour of defendant No.2 shall be cancelled and that entry shall be made in name of plaintiff. ”

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II. BRIEF FACTS OF THE CASE AS PUT FORTH BY THE PARTIES:

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(a) Respondent (hereafter ‘plaintiff’) had filed the subject suit inter alia for a decree of declaration & injunction. Suit land admeasures 01A-09G in Sy.No.7/1 at Tumakuru, Amanikere, Kasaba Hobli. He bought the same from Smt.Sabira Banu W/o Khazi Ghulam Mohiddin & their son T.K.Inayatulla vide registered Sale Deed dated 30.10.1967. Pursuant to said conveyance, the entries in the Revenue Records were mutated in favour of the plaintiff. After the death of Mr.Gaarerangaiah, the property devolved upon the plaintiff and he continues to be in its possession.

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RFA No. 834 of 2022

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(b) There were certain RTS proceedings taken up by the plaintiff side to get restoration of name to the said property after the demise of his father Mr.Gaarerangaiah, that went adverse to his interest vide order dated 21.07.2014 made by the Assistant Commissioner which had cancelled Tahasildar’s order dated 27.11.2007. The name of Mr.Gaarerangaiah had appeared in column No.12 of RTC whereas in column No.10, names of Khazi Mohammed Abeed and Khazi Iqbal Ahmed had appeared vide M.R..No.15/2008-09 dated 3.10.2008. All this was made behind the back of plaintiff, on the basis of a particular partition. On the basis of this entry, when plaintiff’s possession of land was threatened by the defendants and that lead to the institution of subject suit.

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(c) Defendants entered appearance through their advocates and resisted the suit by filing the Written Statement contending that the property is a khazi land of ancestors of 1^st defendant under whom it ultimately fell into the hands of 1^st defendant; the subject sale deed of 1967 is a bogus document obtained behind the back and it

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RFA No. 834 of 2022

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did not create any interest in favour of Mr.Gaarerangaiah; therefore, the question of said property falling into the hands of plaintiff by succession (“pavati vaarasu Hakku”) would not arise.

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(d) There were tenancy proceedings wherein occupancy was claimed by Mr.Ramaiah and Mr.Hanumaiah against the 1^st defendant; the Tribunal had granted occupancy vide order dated 16.01.1988; this was challenged by the 1^st defendant in W.P.No.15090/1993 and the Land Tribunal order having been set at naught, vide judgment dated 9.4.1999, matter was remanded for fresh consideration. The Tribunal vide order dated 28.11.2006 had negatived their claim on the ground of lack of jurisdiction; claimants’ W.P.No.18192/2007 having been favoured by a learned Single of this Court in W.P.No.2211/2000, matter is remanded to the Deputy Commissioner and the same is registered as INA(A)1/2013-14 which is still pending.

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(e) There were mutation proceedings in RRT(A)(T)492/2015-16 challenging the entry made in favour of Doddaiah and others, sons of late Hanumaiah.

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The Assistant Commissioner having examined the matter

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passed the order dated 29.7.2015 in favour of 1^st defendant. He sold the suit property in favour of 2^nd defendant by virtue of registered sale deed dated 19.08.2015 and the same is valid & effective; pursuant to said sale deed, entries have been mutated in the Revenue

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Records and that the 2^nd defendant has been in peaceful cultivation of the same.

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III. AS TO HOW PROCEEDINGS FIGURED AT THE HANDS OF TRIAL COURT:

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(a) On the basis of pleadings of the parties and the

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documents accompanying the same, learned II Addl. Senior Civil Judge, Tumakuru, framed five principal issues vide order dated 3.10.2017 as under:

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“1. Whether plaintiff proves his title and possession on the suit schedule property as on the date of suit?

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2. Whether plaintiff proves the alleged interference of the defendants?

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3. Whether defendants prove that the court fee paid by the plaintiff is insufficient?

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5. Whether defendants prove that the suit schedule property was Kazi Inam Service land

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RFA No. 834 of 2022

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granted by the Government to Kazi Mohammed Aziz?

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5. Whether plaintiff is entitled for the reliefs as prayed?”

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Amendment of pleadings were permitted by the learned trial Judge; defendants had moved application filed u/o VII Rule 11 of CPC, 1908 seeking dismissal of the suit; the same was negatived;

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(b) Subsequently, trial of the suit began; to prove his case, plaintiff entered the witness box and deposed as PW.1 and his evidence was closed; request of the defendants to recall him to the box for further crossexamination was rejected vide order dated 29.11.2018; 2^nd defendant therefore had filed W.P.No.50428/2018 (GM-CPC) challenging the same; a learned Single Judge of this Court vide order dated 10.01.2020 allowed the same

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and permitted further cross-examination of said witness. He had also directed expeditious trial & disposal of the suit. In his deposition, as many as thirteen documents came to be produced and got marked as Exs.P1 to P13. They comprised of sale deed, lease deed, RTCs, AC’s

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order, etc. He also got examined one Mr.Gaviraju, who is the owner of the neighbouring land.

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(c) From the side of defendants, the 2^nd defendantNagesh got himself examined as DW.1; the 1^st defendant entered the witness box and deposed as DW.2; one Mr.Bhaskar.K was examined as DW.3. In their deposition, as many as ten documents came to be produced and got marked as Exs.D1 to D10. They comprised of order in W.P.No.15090/1993, Form-7, Land Tribunal’s orders, Tahasildar’s order, Assistant Commissioner’s order, Sale Deed, etc.

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(d) Learned trial Judge having perused the pleadings and considered the evidentiary material on record, both oral & documentary, has entered the judgment & decree in favour of the respondent-plaintiff. The same has been placed at our hands in appeal. An application u/o XLI Rule 27 of CPC, 1908 has been moved by the appellant; at the hearing of main matter, we have considered the same; the documents sought to be produced are taken on record, the same being relevant to the adjudication of lis between the

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RFA No. 834 of 2022

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parties. We also appreciate both the sides in producing the certified copies of LCR with the request that matter be

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heard & decided on merits once for all.

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IV. We have heard the learned counsel for the parties; we have perused the Appeal Papers; we have also turned each of the pages of certified copies of LCR placed on record by both the sides. We decline indulgence in the matter for the following reasons:

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(i) The first submission of learned counsel appearing for the defendants that the suit land along with other is a Khazi Service Inam land of the ancestors of 1^st defendant, cannot be examined by this Court inasmuch as the Land Tribunal order dated 28.11.2006 having been set aside in W.P.No.18192/2007, the matter has been remanded to the Deputy Commissioner (Inams) for consideration afresh and the matter is pending consideration there. Suffice it to say that to those proceedings or to the writ petition, the plaintiff was not a party eo nomine. The questions that would essentially fall within the domain of the authority

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RFA No. 834 of 2022

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constituted under the provisions of the Inams Abolition Acts, cannot be usurped by this court for examination in the appellate jurisdiction conferred u/s 96 of CPC, 1908. Any observation if made may prejudice the case of parties to this appeal. Therefore, we do not propose to undertake a deeper examination of the same.

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(ii) The second submission of learned counsel for the defendants that the subject sale deed has not created any interest in favour of the plaintiff, is bit difficult to countenance and reasons for this are not far to seek: the father of plaintiff Mr.Gaarerangaiah had bought the subject land vide registered sale deed dated 30.10.1967; original of the same has come from the lawful custody of plaintiff; obviously, it is more than 30 year old document. Therefore, it enjoys presumptive validity of great degree vide section 90 of the Indian Evidence Act, 1872; the said document having been executed by the widow & son of Khazi Ghulam Mohiddin, would certainly convey the title to the property in question; it also enjoys added presumptive validity because of registration, that was compulsive under

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RFA No. 834 of 2022

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the provisions of section 17(1) of the Indian Registration Act, 1908 read with sections 54 & 55 of the Transfer of Property Act, 1882. This view gains support from the decision of the Apex Court in PREM SINGH vs. BIRBAL¹ ,

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wherein, para 27 reads as under:

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“There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”

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The execution of the said document vide Ex.P1 has been duly proved by the deposition of PW.1 and in his crossexamination, nothing worthwhile has been elicited to discredit his version. Nothing is brought out to impeach the credibility of this witness. At this length of time, the non-examination of its executants pales into insignificance.

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(iii) There is yet another reason as to why the Sale Deed

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at Ex.P1 needs to be given credence, there being no challenge to the same in this suit by way of Counter Claim

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1 (2006) 5 SCC 353

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RFA No. 834 of 2022

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nor any appropriate proceedings have been taken up by the appellants for voiding it; the said document is preceded by registered lease deed dated 26.11.1945; that stood in the name of Khazi Ghulam Mohiddin as the lessee in possession of the subject land; the vendors of subject land vide Sale Deed at Ex.P1 claim under him; the first vendor Smt.Sabira Banu was his wife; the second vendor Sri.T.K.Inayatulla was his son. When the suit was filed in 2015, this document was 70 year old and as already mentioned, it has been registered; further, entries in the Revenue Records were mutated in favour of the lessee as well. In the absence of any rebuttal material, the validity of this document cannot be discounted because of the mandate of section 90 of the 1872 Act read with section 17(1) of the 1908 Act, in the given fact matrix of the case. The contention of learned counsel appearing for the defendants that the 1^st defendant was in the possession of this land and the 2^nd defendant being his vendee, is holding the subject land pursuant to registered Sale Deed dated 19.08.2015 vide Ex.D10, therefore does not merit

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RFA No. 834 of 2022

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acceptance, there being an intervening registered Sale Deed dated 30.10.1967 vide Ex.P1 and the entries in the

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Revenue Records made immediately following the same vide Exs.P8 to P10. There are revenue receipts standing in the name of Mr.Gaarerangaiah, the father of plaintiff vide Exs.P2 to P6. The entries in the Revenue Records made pursuant to registered Sale Deed of 1967 coupled with revenue receipts enjoy a strong presumptive value u/s 133 of the Karnataka Land Revenue Act, 1964 which reads as under:

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“133. Presumption regarding entries in the records.

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An entry in the Record of Rights and a certified entry in the Register of Mutations [or in the patta book] [Inserted by Act 23 of 1982 w.e.f. 15.7.1982.] shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.”

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The Sale Deed of 2015 at Ex.D10 which the 2^nd defendant

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got from the 1^st defendant would not come to their rescue when this conveyance is executed 48 years after the plaintiff’s father got the land vide Sale Deed after 1967 at Ex.P1. It has long been settled position of law that as

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RFA No. 834 of 2022

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between two conveyances affecting the same property, the prior one will have primacy & efficacy over the latter. The deposition of plaintiff as PW.1 would support the case of plaintiff that his father acquired title to the subject land under the Sale Deed of 1967. Even if we are persuaded not to believe the version of PW.2 who happens to be the owner of land which is situate adjoining the sandwiched strip of land i.e., his being on the one side and suit land being on the other.

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(iv) The next submission of learned counsel appearing for the defendants that there are collateral quasi-judicial & judicial proceedings that mention about the suit land being the inam land originally belonging to Mohammed Aziz by virtue of khazi service inam, is bit difficult to countenance. Such a version would have been reflected in the registered Lease Deed of 1945 at Ex.P7 and the registered Sale Deed of the year 1967 at Ex.P1; there is absolutely no explanation from the side of defendant No.1 who had deposed as DW.2 and defendant No.2 who had deposed as DW.1. However, whether the subject land is inam land, as

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RFA No. 834 of 2022

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we have already mentioned above, is being examined by the jurisdictional authority under the provisions of Inams Abolition Act, on remand being made by the writ court in W.P.No.18192/2007, disposed off on 8.2.2011 and therefore, we do not undertake a deeper examination of the same. In the Land Tribunal proceedings held u/s 48A of the Karnataka Land Reforms Act, 1961 in terms of applications filed by so called tenants in Form 7, the plaintiff or his father Mr.Gaarerangaiah was/is not a party. They were not made parties in W.P.No.15090/1993 & W.P.No.2211/2000; no explanation is offered as to why they were not arrayed as parties to the said proceedings. Even they are not impleaded in the remanded proceedings that are said to be pending before the Spl. Deputy Commissioner pursuant to order dated 8.2.2011 entered in W.P.No.18192/2007.

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(v) Now, let us examine the deposition of parties: plaintiff was deposed as PW.1 and pursuant to an order made by a learned Single Judge of this Court on 10.01.2020 in 2^nd defendant’s W.P.No.50428/2018, he

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RFA No. 834 of 2022

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was further cross-examined. The said witness has specifically stated about 1967 Sale Deed of his father, marked as Ex.P1; the entries in the Revenue Records standing in favour of his father in Exs.P8 to P10 pursuant to said Sale Deed; the Revenue Receipts are also produced vide Exs.P2 to P6; in his cross-examination, nothing worthwhile has been elicited to discredit his version as to acquisition of title to the land by his father and succession of the same. How all of a sudden, Mr.Gaarerangaiah’s name came to be deleted from the Revenue Records from the subsequent years, remains to be a mystery wrapped in enigma. Mere assertion of the defendants that under the subject Lease Deed of 1945 at Ex.P7 and the Sale Deed of 1967 at Ex.P1, plaintiffs’ father has not derived title nor was he in possession of the land in question, has not been substantiated.

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(vi) Even the Asst. Commissioner’s order dated 21.07.2014 vide Ex.P11 discusses certain aspects u/s 136(2) of the 1964 Act after hearing both the sides. He has rightly set at naught Tahasildar’s order dated

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RFA No. 834 of 2022

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27.11.2007 vide Ex.D3 which had directed entry in favour of the 1^st defendant. The submission of appellants’ counsel

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that the matter is put in Revision u/s 136(3) of the said Act and now pending before the Deputy Commissioner, does not have relevance because of the decree obtained by the plaintiff. The revenue authorities are bound to make entries in terms of said decree as is mandated by the proviso to section 135 which reads as under:

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“Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in any record or register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under Chapter VI of the Specific Relief Act, 1877; and the entry in the record or register shall be amended in accordance with any such declaration.”

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Therefore, there is nothing that can be examined by the Deputy Commissioner in the said Revision which needs to be consigned to file.

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(vii) The last submission that the 1^st defendant has executed a registered Power of Attorney dated 4.12.2000 followed by a registered Sale Deed dated 19.08.2015 vide

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RFA No. 834 of 2022

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Ex.D10 in favour of the 2^nd defendant, does not come to their aid, to say the least. We have already observed above that as between two competing conveyances comprising the same property, the earlier holds the field subject to all just exceptions into which argued case of the appellants does not fit. The so called partition in the family of the 1^st defendant is also admittedly long after the 1967 Sale Deed. How that partition was effected amongst the family members and what deed was executed, remain to be unanswered. No independent witness has been examined nor any other party to the said partition; no explanation is offered as to why that has not been done. We are also not sure what worth this partition would have had, even if such examination of those persons had taken place. Nothing worthwhile comes out from the deposition of witnesses examined on behalf of the defendants. After all, oral evidence of the witnesses cannot much counter the picture emerging from the documentary evidence especially when such documents being compulsory registrable have been registered. Added, the documents

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RFA No. 834 of 2022

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namely 1945 registered Lease Deed and 1967 Sale Deed are of the decades long bygone. Only the original beneficiaries under the said conveyances have joined the Larger World, leaving their survivors.

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(viii) With the leave of court and with the gracious consent of the plaintiff’s counsel, the appellants have produced three documents, they are certified copies of Inam Register and the deposition of Tahasildar, Tumkur in O.S.No.461/2015 i.e., Exs.C1 to C8. The extracts of Inam Register which we have marked as Exs.D11 & D12, do not much come to the aid of appellants. They do not fully reflect in what process the markings have gained entry to the same and who made these entries and who certified them. We have marked the copies of deposition of Tumkur Tahasildar made in O.S.No.161/2015 collectively as Ex.D13. This deposition was made in a suit in O.S.No.461/2015; the Tahasildar was examined as the Court Commissioner-CW.2; what was that suit, who were parties thereto and what happened to it ultimately has not been stated by the appellants. We are not shown that the

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RFA No. 834 of 2022

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plaintiff is a party to the same. Having gone through the contents of the deposition, we do not find anything

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worthwhile that would come to the aid of appellants/defendants. The plaintiff herein had no opportunity of cross-examining the said Tahasildar, he being miles away from the proceedings in which said deposition is generated. More is not necessary to specify.

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(ix) We have carefully examined the structure of impugned judgment & decree and the evidentiary material banked upon by the learned Judge of the Court below who has taken a lot of pains in framing the same. He has given cogent reason as to why the deposition of witnesses examined on behalf of the defendants cannot be given much credence, the documentary evidence lead by the plaintiff’s side being a wealth of material. True it is that the said judgment could have been written more articulately. It was Oscar Wilde (1854-1900) an Irish Poet and Playwright who had wittingly said:

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“There is scope for improvement even in heaven”

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RFA No. 834 of 2022

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The above applies to our scripts too as they would do to others’ howsoever meticulously they are structured. Be that as it may; we place on record our deep appreciation for the learned trial Judge Mr.Mallikarjun Ishwarappa Kamatagi.

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In the above circumstances, we find the appeal being unmeritorious, therefore, the same is liable to be dismissed and accordingly, it is, costs in the circumstances having been made easy.

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Registry to send a copy of this judgment to the learned Judge of the Court below Mr.Mallikarjun Ishwarappa Kamatagi by Speed Post, immediately.

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Sd/(KRISHNA S DIXIT) JUDGE

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Sd/(G BASAVARAJA) JUDGE

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Cbc

Sri Khazi Iqbal Ahmed v. Sri Halappa T R @ Halappa

Case brief

What is this about?

What did the court decide?

Sri Khazi Iqbal Ahmed v. Sri Halappa T R @ Halappa

Case brief

What is this about?

What did the court decide?

What the court decided

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