Mr. Savade Sabjan @ Savade Vs Mr.Murad Sab

MS. ARSHIYA BANU D/O LATE SAVDE SABJAN AGED ABOUT 31 YEARS, APPELLANTS NO.2 TO 7 ARE RESIDING AT HYRIGE VILLAGE, HANAGUDU HOBLI, HUNSUR TALUK, MYSURU DISTRICT - 571 106.

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HC-KAR

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DASTHAGIRI SAB (SINCE DEAD BY HIS LR'S)

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MS. NASREEN BANU AGED ABOUT 59 YEARS D/O LATE DASTAGIR SAB

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MS. ALMAAS BANU AGED ABOUT 39 YEARS D/O LATE DASTAGIR SAB

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MR. SHAKEEL AGED ABOUT 37 YEARS S/O LATE DASTAGIR SAB

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MS. THABASSUM BANU AGED ABOUT 35 YEARS D/O LATE DASTAGIR SAB

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APPELLATS NOS.8 TO 11 ARE RESIDING AT HYRIGE VILLAGE, HANAGUDU HOBLI, HUNSUR TALUK, MYSURU DISTRICT - 571 106.

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MR. ANWARPASHA AGED ABOUT 41 YEARS S/O LATE GUDU SAB RESIDING AT HYRIGE VILLAGE, HANAGUDU HOBLI, HUNSUR TALUK, MYSURU DISTRICT - 5711 06

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…APPELLANTS

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(BY SRI. SHIVAKUMAR N, ADVOCATE)

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AND:

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MURAD SAB (SINCE DEAD BY HIS LR'S)

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MR. JAREERA BI WIFE OF LATE MURAD SAB AGED ABOUT 66 YEARS

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MUBARAQ,

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SON OF LATE MURAD SAB, AGED ABOUT 40 YEARS,

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RAHAZAN,

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SON OF LATE MURAD SAB, AGED ABOUT 38 YEARS,

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CHAND PASHA,

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SON OF LATE MURAD SAB, AGED ABOUT 36 YEARS,

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FAROON

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SON OF LATE MURAD SAB AGED ABOUT 34 YEARS,

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KALANDAR

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SON OF LATE MURAD SAB, AGED ABOUT 32 YEARS,

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THE RESPONDENTS 1 TO 6 ARE R/AT SHALIM TAILOR, NALA ROAD, OLD MARKET, SHIVAJI NAGAR, BENGALURU - 560 001.

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NAYAZ PASHA S/O LATE IBRAHIM AGED ABOUT 49 YEARS.

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…RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.08.2020 PASSED IN RA.No.686/2014 ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, SITTING AT HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.02.2014 PASSED IN OS No.55/1994 ON THE FILE OF THE CIVIL JUDGE AND JMFC, HUNSUR.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.Shivakumar N., learned counsel for the

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appellants. This Court did not deem it fit to issue notice to respondents.

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Defendants are the appellants in this second appeal challenging the validity of the judgment and decree passed in O.S.No.55/1994 which was confirmed by the First Appellate Court in RA No.686/2014 whereby, the plaintiffs were declared as the owners and they are entitled for an order of injunction against the appellants in respect of the landed property bearing Sy.No.81 measuring 4 acres situated at Thattekere village, Hanagodu Hobli, Hunsur Taluk bounded on East by land of Swamappa and Sannathammegowda, West by land of Chikkadasaiah and Subbamma, North by land of Ibrahim Khan and South by land of Chote Sab(hereinafter referred to as suit property).

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HC-KAR

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Facts which are utmost necessary for disposal of the present appeal are as under:

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3.1. Plaintiffs filed a suit for declaration and

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injunction against the defendants by contending that they are the absolute owners of the suit property. They also contended that they were cultivating the suit property as an unanuthorised cultivators and thereafter, they applied for grant of the suit land to the competent authority.

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3.2. Tahsildar after holding an enquiry, granted the suit land to the plaintiffs by grant order dated 28.03.1994. Revenue entries were mutated in the name of the plaintiffs and thereafter, they enjoyed the suit property.

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3.3. When the matter stood thus, on 04.07.1994, defendants tried to interfere with the suit property stating that they are having right over the suit property. When the attempt made by defendants was unable to be prevented, plaintiffs approached the Civil Court with a prayer for declaration and consequential injunction.

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HC-KAR

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Pursuant to the suit summons, defendants

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entered appearance and contended that they are also in unauthorized occupation of the suit land and in fact, plaintiffs were never in possession of the suit property and therefore, they have also applied to the competent authority for the grant of said land in their favour.

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It is their contention that the application filed by the defendants is rejected and against which an appeal is filed and same is pending consideration before the Appellate Authority.

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Based on the rival contentions of the parties, learned Trial Judge raised necessary issues and additional issues.

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After due enquiry, learned Trial Judge decreed the suit of the plaintiffs and declared that plaintiffs are the owners in possession of the suit property and passed an order of permanent injunction against the defendants and their henchmen from interfering with the suit property.

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Being aggrieved by the same, defendants filed a

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Regular Appeal before the First Appellate Court in RA No.686/2014.

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During the pendency of the appeal, plaintiff No.1 and defendant No.3 died and their legal representatives were brought on record.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the factual and legal aspects of the matter, dismissed the appeal filed by the defendants and confirmed the judgment and decree passed by the Trial Court.

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Being further aggrieved by the same, defendants are before this Court, on following grounds and substantial questions of law:

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GROUNDS

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The Judgment and Decree dated 14.08.2020 passed by the Appellate Court in R.A.No.686/2014 by confirming

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HC-KAR

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the judgment and decree dated 28.2.2014 passed by the Trial Court in O.S.No. 55/1994 ("the Judgment of the Courts Below") are not sustainable in law or on facts and are liable to be set aside.

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The Appellate Court failed to appreciate that in the order dated 09.03.2015 (Ex. R-1) passed by the Assistant Commissioner, Hunsur Sub Division, Hunsur, there is a categorical finding by the Assistant Commissioner that the property being claimed both by the LRs of the Plaintiff and the Defendant No. 3 (viz., the Suit Schedule Property) is one and the same and that though the said property which is granted in favour of both the Plaintiff and the Defendant No.3 is mentioned as Sy. No. 81, it is in fact Sy. No. 83 only.

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In view of the above reason, the Appellate Court ought to have further appreciated that the description of the suit schedule property as Sy. No. 81 was erroneous, that the suit schedule property was in fact the property bearing Sy. No. 83, and consequently the Plaintiff was not entitled for a judgment and decree in respect of the suit schedule property as prayed for in the plaint.

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The Appellate Court ought to have further appreciated that in her cross examination in R.A.No.686/2014, RW1 (wife of the deceased Plaintiff) admitted (i) that there were big boulders on the schedule property and that

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they were in fact removed by brother of Defendant No. 3 by using JCB; and (ii) that the Tahsildar has directed that possession of the schedule property be transferred from Defendant No.3 to the Plaintiff; which establish the fact that the Defendant No.3 and his LRS have been in peaceful possession and enjoyment of the suit schedule property.

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The Appellate Court ought to have further appreciated that in the written arguments filed by the LRs of the Plaintiff in LND 10/2010-11 (which is extracted by the Assistant Commissioner, Hunsur Sub-Division, Hunsur in his order dated 09.03.2015 Ex. R-1) the LRs of the Plaintiff have admitted that as per the survey sketch the Defendant No.3 is in possession of Sy.No.83. This admission coupled with the finding of the Assistant Commissioner, Hunsur, which is mentioned above, establishes that in fact it is the Defendant No.3 who has been in possession of the suit schedule property.

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Both the Appellate Court and the Trial Court failed to appreciate that PW-3 has unequivocally admitted in his cross examination that "it is the Defendants who have been in possession of the suit schedule property".

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The Appellate Court ought to have appreciated the above and held that of the suit schedule property and that the Plaintiff and his LRs are in fact it is Defendant

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No. 3 and his LRs who have been in possession erroneously claiming the same to their property by assigning wrong survey number to it viz., Sy. No. 81 instead of Sy. No.83, and consequently ought to have allowed the appeal and dismissed the suit.

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Without prejudice to the above, it is submitted that the Appellate Court ought to have appreciated that the Assistant Commissioner, Hunsur Sub Division, Hunsur allowed the appeal filed by the LRs of the Plaintiff and set aside the grant of the suit schedule property in favour of the Defendant No.3 only on the ground that the Plaintiff's suit was decreed and that the LRs of Defendant No.3 have filed an appeal against the said order before the Deputy Commissioner, Mysuru and the said appeal is pending. Therefore, the Appellate Court ought not to have dismissed the appeal on the basis of the order dated 09.03.2015 in LND 10/201011 (Ex. R-1) passed by the Assistant Commissioner, Hunsur.

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In view of the above reasons, the Trial Court and the Appellate Court ought to have held that the Plaintiff is neither the owner nor in possession the suit schedule property.

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Without prejudice to the above, it is submitted that the Courts below ought to have appreciated that in as

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much as the Plaintiff did not seek the relief of possession of the suit schedule property, the suit for declaration was not maintainable under Section 34 of the Specific Reliefs Act, 1963 and ought to have dismissed the suit / appeal.”

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SUBSTANTIAL QUESTIONS OF LAW

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a) Whether the Appellate Court despite there being a finding by the Assistant Commissioner (in Ex. R-1) that the property in question, i.e., the suit schedule property, is in fact bearing Sy. No.83 (as against the Plaintiff's claim of Sy. No.81), was justified in holding that the LRs of the Plaintiffs are the absolute owners of the suit schedule property?

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b) Whether the suit for declaration and injunction filed by the Plaintiff without seeking a prayer for possession of the suit schedule property was maintainable when in fact it is clear from the evidence of PW-3 and RW-1 (in the R.A.) that it was the Defendant No.3 who was in possession of the suit schedule property? And also non-payment of court fee seeking relief of possession?

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c) Whether the both the Courts below were justified in not appreciating the admissions of Plaintiff's witness and the documentary evidence produced by

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the parties which establish that the right and possession of the Defendant No. 3 over the Suit Schedule Properties?

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d) Whether the Appellate Court was right in placing reliance on the order dated 09.09.2015 passed by the Assistant Commissioner, Hunsuru in LND 10/2010 when it was admitted by RW-1 that the LRs have preferred an appeal against the said order of the Assistant Commissioner and the said appeal was pending?

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Learned counsel for the appellants reiterating

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the grounds urged in the appeal memorandum vehemently contended that though the plaintiffs were granted the land

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by the Tahsildar vide Ex.P.1, they were never in possession of the suit property and it is these defendants who were in possession of the property from the time immemorial and taking note of the same, an application was filed before the revenue entries which was allowed at the first instance and later on, set aside by the appellate

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Authority. Post remand, the application filed by the appellants came to be dismissed against which the appellants have now approached the Appellate Authority. Therefore, they have got better tile and possession over the suit property than the plaintiffs and sought for admitting the appeal on the aforesaid substantial questions of law.

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Having heard the arguments of learned counsel

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for the appellants, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that the grant certificate issued in favour of the plaintiffs is dated 28.03.1994. Earlier to that, it is the plaintiffs who were in unauthorized occupation of the land.

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Admittedly, the Tahsildar had the power to grant the land in favour of the plaintiffs and after due enquiry, suit property was granted in favour of the plaintiffs. Revenue entries were also mutated. When the

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matter stood thus, on 04.07.1994, defendants started interfering with the suit property claiming right over the suit property.

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Even according to the defendants, their possession was unauthorized and therefore, Tahsildar has not properly held an enquiry and their application seeking grant of the land was at the first instance allowed and later on, set aside by the Appellate Authority.

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It is also contended on behalf of the defendants that after the remand, competent authorities rejected the application seeking grant of suit land in favour of defendants. Defendants have now filed an appeal before the Appellate Authority which is pending adjudication.

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These aspects of the matter having been admitted by the parties, what is to be looked into is the validity of the grant order dated 28.03.1994 marked at Ex.P.1, RTC extracts vide Exs.P.4 to 6 and 14 to 16, tax paid receipts in respect of suit property is marked as

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Exs.P.2 and 3, endorsements vide Ex.P.10 and Mahazar vide Ex.P.13 also makes it clear that it is the plaintiffs who were the owners of the property. Very same mahazar is also relied upon by the defendants which is marked vide Ex.D.7.

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Taking note of these aspects of the matter and when the grant order of the plaintiffs is not challenged and a contra claim is made to the Appellate Authority, the Civil Court based on the title deeds produced by the plaintiffs and based on the revenue entries, decreeing the suit of the plaintiffs is just and proper which has been rightly reappreciated by the learned Judge in the First Appellate Court.

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Taking note of these aspects of the matter and

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especially when the defendants themselves claim as an unauthorized occupants and their application for grant is still to be adjudicated before the Appellate Authority; this Court does not find any good grounds to admit the appeal on the aforesaid substantial questions of law.

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