Second appeal against concurrent decrees granting the Mosque a permanent injunction restraining the defendant from encroaching on a 140x6 feet strip allotted by Gramapanchayat resolution. Courts found defendant had vacated and received an alternative site; no substantial question of law arose and the appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:11933 RSA No. 756 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 756 OF 2021 (INJ)
BETWEEN:
SMT. SIDDAMMA W/O LATE BORAIAH, AGED ABOUT 64 YEARS, PROPRIETOR, TIN TEA SHOP BY THE SIDE OF JAMIYA MASJID, NORTH WESTERN SIDE, NAYAKANAHATTY VILLAGE, CHALLAKERE TALUK, CHITRADURGA DISTRICT 577 522.
…APPELLANT
(BY SRI. SIDDAPPA B M., ADVOCATE)
AND:
Digitally signed 1. JAMIYA MASJID, by SUMA B N NAYAKANAHATTY, CHALLAKERE TALUK, Location: High Court of REPRESENTED BY ITS PRESIDENT Karnataka ALHAZ N.H.MOHAMMED MOOSA S/O MOHAMMED HUSSAIN, SINCE DEAD BY SRI.MOHAMMAD SAB YUSUF, S/O K.MOHAMMED SAB, PRESIDENT OF JAMIYA MASJID, NAYAKANAHATTY VILLAGE, CHALLAKERE TALUK, BY PRESIDENT SYED ANWAR, S/O LATE SYED UBEDULLA SAB,
MAJOR, PRESIDENT OF JAMIYA MASJID, NAYAKANAHATTY VILLAGE, CHALLAKERE TALUK
CHITRADURGA DISTRICT 577 522.
NAYAKANAHATTY TIMBER MERCHANT AND AGRICULTURIST R/O NAYAKANAHATTY VILLAGE, CHALLAKERE TALUK CHITRADURGA DISTRICT 577 522.
CHITRADURGA DISTRICT 577 522.
…RESPONDENTS
(BY SRI. RAMA BHAT K., ADVOCATE FOR R1 SRI.KALEEMULLAH, ADVOCATE FOR R2 TO R3)
NC: 2024:KHC:11933 RSA No. 756 of 2021
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.11.2020 PASSED IN R.A.NO.32/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C, CHALLAKERE AND THE JUDGMENT AND DECREE DATED 06.06.2019 PASSED IN O.S.NO.187/2006 ON THE FILE OF THE PRL.CIVIL JUDGE AND J.M.F.C, CHALLAKERE AND ETC., THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant No.2 aggrieved by the judgment and decree dated 06.06.2019 passed in O.S.No.187/2006 on the file of Prl. Civil Judge and J.M.F.C, Challakere (hereinafter 'the Trial Court') which is confirmed by
the judgment and decree dated 09.11.2020 passed in R.A.No.32/2019 on the file of Senior Civil Judge and J.M.F.C, Challakere (hereinafter 'the First Appellate Court').
of the said property is depicted in a rough sketch enclosed to the plaint. It the further case of the plaintiff that originally the suit schedule property was measuring only East-West 140 ft and North-South 120 ft was falling short for the requirement and requested the defendant No.1-Gramapanachayat to grant 6 feet of vacant land which was available on the northern side of the said property. Considering the said request the defendant No.1-Gramapanachayat had allotted property measuring 140X6 vide resolution dated 28.11.1987. Thus, presently the plaintiffMosque is in possession of 140X126 feet. Plaintiff-Mosque intended to put up a compound wall around the suit schedule property including the portion of the land granted as above. That the defendant No.2 having no manner of right, title and interest or possession over the said 140X6 feet property in collusion with defendant No.1 is trying to encroach the same and illegally occupy the space and trying to keep a Dabba Shop (Wooden Box) in the said space, constraining the plaintiffMosque to file the suit. It is further contended that in a suit in O.S.No.252/1995 defendant No.2 had obtained the injunction against defendant No.1-Grama Panchayat. However, the plaintiff was not the party to the suit, as such said decree was
NC: 2024:KHC:11933 RSA No. 756 of 2021
not binding on the plaintiff. The plaintiff was constrained to file the suit in view of the illegal interference being caused by the defendant No.2.
NC: 2024:KHC:11933 RSA No. 756 of 2021
defendant over the said space was established. Hence, sought
for dismissal of the suit.
"1. Whether plaintiff/Masjid proves that, it is in possession and enjoyment of the suit property?
2. Whether it further proves the interference of the defendants?
3. Whether plaintiff is entitled for the relief of permanent injunction as claimed?
4. What Order or Decrее?"
himself as PW.1 and additional one witness has been examined
in favour of the plaintiff as PW.2 and exhibited 38 documents marked as Ex.P1 to Ex.P38. In order to prove their defence, defendant No.2 examined herself as DW1 and exhibited 8 documents marked as Ex.D1 to Ex.D8. Two additional witnesses have been examined as DW.2 and DW.3 and
exhibited 24 documents marked as Ex.D9 to Ex.D32. One K.Guruswamy was appointed as the Court Commissioner and he has been examined as CW.1 and he exhibited 38 documents which are marked as Ex.C1 to Ex.C38.
NC: 2024:KHC:11933 RSA No. 756 of 2021
"1. Whether the defendant no.2/appellant proves that the trial court erred in holding that the plaintiff is in possession and enjoyment of the of the suit schedule property as on the date of filing of the suit?
2. Whether the defendant no.2/appellant proves that the trial court erred in holding the alleged interference by the defendants?
3. Whether the defendant no.2/appellant proves that the
4. Whether the defendant no.2/appellant proves that the judgment and decree passed in OS.No. 187/2006 dtd.6-6-2019 by the Principal Civil Judge, Challakere, is erroneous, capricious, arbitrary, which needs he interference of this court?
5. What order?"
Appellate Court answered point Nos.1 to 4 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same appellant is before this Court.
NC: 2024:KHC:11933 RSA No. 756 of 2021
NC: 2024:KHC:11933 RSA No. 756 of 2021
defendant No.1 granted additional land measuring 140X6 feet to the plaintiff-Mosque . The Trial Court and the First Appellate Court have taken into consideration that the fact that during the year 1988 itself, defendant No.2 was removed from the subject property by granting an alternative site measuring 30X40 feet site by the then Assistant Commissioner and ever since then defendant No.2 is not in possession of the immovable property. In the earlier suit in O.S.No.252/1995 plaintiff herein has not been made party. He also submitted that the Commissioner report has been taken into consideration by the Trial Court and same has been held in favour of the plaintiff-Mosque.
28.11.1987 at Ex.P22. Admittedly the said resolution remained unchallenged. Further the defendant No.1-Gramapanachayat has confirmed passing of the said resolution and there is no dispute to the said extent. The Trial Court taking note of this aspect of the matter has held that the plaintiff-Mosque has proved its title and possession to the said extent of land.
NC: 2024:KHC:11933 RSA No. 756 of 2021
Gramapanchayat and the said factual aspect of the matter has not been disputed by the defendant No.1- Gramapanchayat.
NC: 2024:KHC:11933 RSA No. 756 of 2021
NC: 2024:KHC:11933 RSA No. 756 of 2021
Gramapanchayat and allotment of alternative site. The said allotment was during the pendency of suit in O.S.No.252/1995 and the First Appellate Court has found that the defendant No.2 had not informed to the Court about she vacating the said premises and allotment of alternate site in the said proceedings. The First Appellate Court has found that without informing these aspects of the matter, defendant No.2 had obtained the decree in the said suit in O.S.No.252/1995 on 07.06.2002 based on which she had attempted to interfere with the possession of the plaintiff-Mosque and accordingly dismissed the regular appeal.
NC: 2024:KHC:11933 RSA No. 756 of 2021
Accordingly, this appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First
Appellate Court.
Sd/JUDGE
RL
3 issues framed by the court
Whether the plaintiff-Mosque proved possession and enjoyment of the suit property including the 140x6 feet portion granted by the Gramapanchayat.
Whether the defendant No.2 established possession over the 140x6 feet portion so as to defeat the claim for permanent injunction.
Whether any substantial question of law arose warranting interference under Section 100 CPC.
1 provisions across 1 enactments
Smt. Siddamma
Jamiya Masjid, Nayakanahatty (represented by its President)
Syed Nasurulla
Aboobakar Sidiq
Pattana Panchayat, Nayakanahatty
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
