Sri Mohammad Hayath Sab Vs Sri Adiveppa

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 10.12.2012 PASSED IN R.A.NO.19/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, SORAB, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 18.4.2011 PASSED IN OS.NO.138/1999 ON THE FILE OF CIVIL JUDGE AND JMFC, SORAB.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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NC: 2025:KHC:33221 RSA No. 684 of 2013

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HC-KAR

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ORAL JUDGMENT

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This Second Appeal is arising from the concurrent finding in a suit for possession. The suit is filed in respect of the property bearing Sy.No.11/2 measuring 4 acres 17 guntas in Chatradahalli village, Taluk:Sourab. The plaintiffs claim to have purchased the suit property under the registered sale deed dated 13.06.1966 from Imamsab son of Hussain Sab.

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It is claimed that the plaintiff's vendor purchased the property under registered sale deed on 07.02.1950. Plaintiffs claim that eversince they purchased the property on 13.06.1966, the plaintiffs are in possession in the said property.

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The suit is filed on the premise that there is interference by the defendants in the peaceful possession and enjoyment of the property who admittedly is the owner of adjacent property bearing Sy.No.11/1.

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It is relevant to mention that when the property

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was purchased in the year 1966, it was numbered as

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4 - NC: 2025:KHC:33221 RSA No. 684 of 2013

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HC-KAR

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Sy.No.11 and it was part of larger extent of land bearing Sy.No.11 measuring 14 acres 1 gunta (Ex.D.14) and it appears that out of 14 acres 1 gunta, 5 guntas were kharab. Thus, total extent of land is 13 acres 36 guntas excluding 5 guntas of kharab.

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Defendants contested the suit. Defendants disputed the execution of sale deed dated 13.06.1966 in favour of the plaintiff in respect of the entire extent of the suit land. Defendants took a stand that the plaintiff is the owner and in possession only to the extent of 3 acres 22 guntas since the purchase on 13.06.1966. It is his contention that the extent of 4 acres 16 guntas mentioned in the sale deed is erroneous and extent of land in Sy.No.11/2, the suit survey is only 3 acres 22 guntas and not 4 acres 16 guntas as described in the sale deed.

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Defendants also took a stand that the plaintiff started interfering in the defendants' possession on making a wrong claim over 4 acres 16 guntas based on the order dated 16.06.1995 passed by the Tahasildar. Defendants also

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HC-KAR

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contend that against the order passed by Tahasildar, defendants filed an appeal before the Assistant Commissioner and the Assistant Commissioner dismissed the appeal without properly appreciating the contentions. The order passed by the Assistant Commissioner was questioned before the Deputy Commissioner by filing Revision Petition in Misc. No.10/2001-2002 and the operation of order of Tahasildar was stayed on 28.06.2001.

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Defendants also pleaded that the father of defendant No.2 - Panchaksharappa purchased the property from the previous owner Imamsab son of Mohammad Hussain Sab in Sy.No.11 under registered sale deed dated 28.05.1951 and the defendants' ancestors were in possession of 9 acres 20 guntas excluding 35 guntas of kharab. It is also contended that the property between the plaintiff and the defendants demarcated by a bund. Thus, the defendant prayed for dismissal of the suit.

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The Trial Court framed the following issues:

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NC: 2025:KHC:33221 RSA No. 684 of 2013

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HC-KAR

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(1) Whether plaintiff proves that, he has been in actual possession of the suit schedule property as on the date of the suit?

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(2) Whether plaintiff proves the alleged interference caused by the defendants?

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(3) Whether plaintiff is entitled for the relief as sought?

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(4) What order or decree?

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This appeal is admitted on 21.07.2016 to consider

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the following substantial questions of law:

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(1) Were the Courts below justified in dismissing the suit of the plaintiffs ignoring the material document Ex.P8 registered sale deed and other documents, Exs.P2 to P10 - Revenue Records clearly indicates that plaintiffs are in possession of the suit schedule property?

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(2) Were the Courts below justified in dismissing the suit of the plaintiffs when both the Courts concurrently held that no doubt the plaintiff got the title in respect of the total extent of 4 acres 16 guntas of land by virtue of the registered sale deed, he is not in possession of the suit property ignoring Ex.P11, the order passed by the Deputy Commissioner who is the final authority under

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NC: 2025:KHC:33221 RSA No. 684 of 2013

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HC-KAR

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the provisions of Section 136(3) of the Karnataka Land Revenue Act?

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(3) Were the Courts below justified in dismissing the suit of the plaintiffs in the facts and circumstances of the present case?

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To substantiate the contention relating to the

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ownership to the extent of 4 acres 16 guntas, plaintiff has produced the sale deed. The plaintiff has also produced at Ex.P6- the survey sketch prepared in the year 2000, pursuant to the order passed by the Assistant Director of Land Records. The plaintiff in his cross-examination has admitted that Ex.P6 sketch is prepared pursuant to the order of ADLR. The said record would indicate that the plaintiff is not in possession of 34 guntas in Sy.No.11/2. And it is also noted in the said sketch that 34 guntas in Sy.No.11/2 is in occupation of holder of Sy.No.11/2. This fact is also admitted in the cross-examination. Noticing these facts, the Trial Court has held that the plaintiff is not in possession of the property.

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First Appellate Court has also concluded that the plaintiff is not in possession of the property and the finding

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NC: 2025:KHC:33221 RSA No. 684 of 2013

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HC-KAR

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relating to the possession to the extent of 34 guntas appears to be based on Ex.P6 as well as the admission in the crossexamination of P.W.1. This finding cannot be disturbed in a proceeding under Section 100 of Code of Civil Procedure.

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It is also noticed that both the Courts have held that the plaintiff has acquired ownership of the property. However, suit is dismissed on the ground that the plaintiff has not established his possession over 34 guntas of land.

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After noticing Ex.P6 - sketch and also the admission relating to the possession of the defendants over the property, this Court does not find any error in the judgment and decree passed by the Trial Court in coming to the conclusion that the plaintiff has not established his possession over disputed 34 guntas of land.

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It is also noticed that the defendants have not raised a defence of adverse possession. Defendants claim that property in dispute was purchased by them. Since both the Courts have given a finding that the plaintiff is the owner of 4 acres 16 guntas of land, an inference could be drawn

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HC-KAR

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that the defendants are in possession of 34 guntas of land belonging to the plaintiff. Since the plaintiff has not filed a suit for possession and has admitted that in crossexamination that he is not in possession, the dismissal of the suit for injunction cannot be said to be erroneous so as to interfere in the jurisdiction under Section 100 of Code of Civil Procedure.

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Under these circumstances, this Court does not find any reason to interfere in the finding of the Trial Court and well as First Appellate Court. If the plaintiff has any other remedy under law, he is at liberty to take such suitable action.

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16. Accordingly, Second Appeal is dismissed .

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SD/(ANANT RAMANATH HEGDE) JUDGE

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GVP List No.: 1 Sl No.: 16

Sri Mohammad Hayath Sab v. Sri Adiveppa

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Sri Mohammad Hayath Sab v. Sri Adiveppa

Case brief

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