Smt. Aubiya Bee D/O Osmansab Masuldar and Anr. Vs Pasha Miyan S/O Mastan Sab Masuldar Died by Lr and Ors.

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1 - NC: 2025:KHC-K:2270 RSA No. 7217 of 2013

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 9^TH DAY OF APRIL, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR SECOND APPEAL NO. 7217 OF 2013 (DEC)

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BETWEEN:

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SMT. AUBIYA BEE D/O OSMANSAB MASULDAR

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AGE: 59 YEARS, OCC: AGRICULTURE & HOUSEHOLD, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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SMT. MANGALBAI W/O NAROBAGANESH AGE ABOUT 44 YEARS, OCC: AGRICULTURE & HOUSEHOLD, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA

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(BY SRI MEER MOHAMMED ALI, ADVOCATE)

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AND:

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…APPELLANTS

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PASHA MIYAN

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S/O MASTAN SAB MASULDAR DIED BY LRS

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A. MUMTAZ BEE W/O LATE PASHA MIYAN, AGE: 64 YEARS, OCC: HOUSEHOLD, R/O: VILLAGE GHAT BORAL,

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TQ: HUMANABAD,DIST: BIDAR.

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B. ABDUL KAREEM S/O PASHAMIYAN AGE ABOUT 34 YEARS, OCC: AGRICULTURE, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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C. FAREED BEE D/O PASHAMIYAN AGE ABOUT 32 YEARS, OCC: HOUSEHOLD, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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D. ABDUL HAMEED S/O PASHAMIYAN AGE ABOUT 30 YEARS, OCC: AGRICULTURE, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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E. ABDUL MUSTAFA S/O PASHAMIYAN AGE ABOUT 28 YEARS, OCC: AGRICULTURE, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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F. FARZANA BEGUM D/O PASHAMIYAN AGE ABOUT 24 YEARS, OCC: HOUSEHOLD, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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MRS. ZAINAB BEE D/O MASTAN SAB MASULDAR AGE ABOUT 66 YEARS, OCC: AGRICULTURE, R/O: VILLAGE GHAT BORAL,

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TQ: HUMANABAD,DIST: BIDAR.

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MADHAR SAB S/O MASTAN SAB MASULDAR AGE ABOUT 55 YEARS, OCC: AGRICULTURE, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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SMT. AYESHA BEE D/O MASTGAN SAB MASULDAR AGE ABOUT 51 YEARS, OCC: AGRICULTURE, R/O: VILLAGE GHAT BORAL, TQ: HUMANABAD,DIST: BIDAR.

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…RESPONDENTS

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(BY SRI SACHIN M.MAHAJAN, ADVOCATE for R1(A) to R1(F), R2 AND R4; V/O DATED 23.02.2023 R1(A) TO R1(F) R3 AND R4 ARE LRS OF DECEASED R2)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.19/2009 NEW NO.170/2011 DATED 13.03.2013 BY THE SENIOR CIVIL JUDGE COURT HUMNABAD AND TO CONFIRM THE JUDGMENT AND DECREE PASSED IN O.S.NO.48/2005 DATED 22.04.2009 BY THE ADDITIONAL CIVIL JUDGE (JR.DN), HUMNABAD IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS REGULAR SECOND APPEAL, COMING ON FOR FURTHER 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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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

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This second appeal is arising out of the divergent decree in suit for declaration of title. Initially the suit is dismissed and on appeal by the plaintiffs, the judgment and decree passed by the Trial Court are set-aside and suit is decreed.

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The suit is filed in respect of the property bearing in Sy.No.61/2,3 measuring 7 acres 25 guntas in Ghat Boral Village, Humnabad Taluk. The plaintiffs claimed that they are the joint owners of the suit property and also claimed that they are entitled to have their names entered into property records of the suit property as the joint owners by deleting the names of the defendants in the property records.

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By way of an amendment they also claimed that

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the registered sale deed dated 14.06.2005, Ex.D-1 in favour of defendant No.2, is not valid and binding on them.

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Defendants contested the suit by filing common

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written statement. Defendant No.1 claimed that she was the absolute owner of the property and thereafter, she sold the suit property to defendant No.2 under registered sale deed dated 14.06.2005. The Trial Court dismissed the suit, accepting the contention of the defendants.

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The plaintiffs filed the appeal, the First Appellate Court held that the plaintiffs are the joint owners and defendant No.1 had no title over the property and thereafter, by allowing the appeal, decreed the suit.

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This appeal was admitted on 20.06.2024, to answer the following substantial questions of law:

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“1) Whether the Appellate Court was justified in reversing the judgment and decree of the Trial Court on the ground that the defendants have failed to prove their title over the suit schedule property?

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Whether the Appellate Court was justified in decreeing the suit in the absence of the plaintiffs proving their title over the suit schedule property on the strength of any title documents?”

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One more substantial question of law needs to

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be framed in view of the production of additional documents along with the application filed under Order 41 Rule 27 of CPC. Accordingly, the same is framed as under:

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“3) Whether the appellants have made out a case for production of additional documents?”

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The appellants have filed an application under

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Order 41 Rule 27 of Civil Procedure Code to produce additional evidence, which are in the nature the property records of suit property and several other properties, which according to the appellants belonged to the Usman Sab the father of appellant No.1 and his two cousins Mastan Sab and Gafoor Sab. The family tree is as follows:

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Suit is filed by the children of Mastansab claiming ownership of the property referred to above. Challenging the sale deed executed by Auliyabee in favour of defendant No.2, the plaintiffs contend that the property belonged to their father Mastansab and without any basis, after demise of Mastansab in the year 1969, Auliyabee’s name is entered in the property records, though the Auliyabee is not legal heir of late Mastansab.

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The First Appellate Court referring to the

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property records produced by the plaintiffs as well as defendants came to the conclusion that the Mastansab was

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the owner of the property and after his demise name of Auliyabee who is the daughter of the Mastansab’s brother could not have been entered in the property records. Thus, the appeal was allowed.

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Learned counsel appearing for the defendantsappellants submits that the Khasra Pahani pertaining to the property bearing Sy.No.61/1,2 would disclose that the property belonged to Haneefabee and Mastansab. Haneefabee and her husband’s brother Mastansab were in joint cultivation of the property as sakkmidar. This entry for the year 1955-1956 found in the property record, clearly discloses that the Haneefabee was the owner of the property and Mastansab was not the owner. Without any basis the Mastansab’s name is entered in the property records, after 1956-1957 and on his death, Auliyabee made a claim to enter her name in the property records, as it is the contention of the Auliyabee that the property originally belonged to Osmansab who is her father, and after Osmansab his wife Haneefabee became the owner of

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the property. After the death of Haneefabee, her daughter Auliyabee made a claim over the property and this claim was not opposed by the plaintiffs, who are the children of Mastansab as they were aware that the property did belong to Haneefabee and earlier to Haneefabee it belonged to Osmansab.

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Learned counsel appearing for the appellants to substantiate his contention also referred to additional documents produced along with an application under Order 41 Rule 27 of Code of Civil Procedure (Code) and also contended that defendant No.1 could not produce these records on account of illiteracy and poverty. It is also submitted that Khasra Pahani for the year 1954-55, produced along with the application for production of additional documents would clearly disclose that the property belonged to Haneefabee and without any basis name of Mastansab is entered in the property records by misinterpreting the name of Mastansab appearing in column pertaining to the cultivator. It is urged with

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reference to those documents that Mastansab was one of

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the pattedars of the property.

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It is also submitted with reference to other documents produced along with an application under Order 41 Rule 27 of the Code that Mastansab did possess other properties, and there was partition among Osmansab, Mastansab and Gafoorsab the three grandsons propositus of Kasimsab. In addition to that it is also urged that the plaintiffs filed a suit claiming the declaration of the title and also challenged the registered sale deed. This being a position, the burden is on the plaintiffs to establish that they have title over of the property. Without any proof relating to the title the suit could not have been decreed by the First Appellate Court by setting-aside the judgment and decree passed by the Trial Court is the submission.

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Learned Counsel appearing for the

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plaintiffs/respondents on the other hand would contend that the First Appellate Court is justified in revering the

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judgment and decree passed by the Trial Court. It is urged on behalf of the respondents at the Trial Court disregarded the documentary evidence produced by the plaintiffs as well as the defendants, which established title of Mastansab. It is urged that First Appellate Court as referred to the entries in Ex.P1 and P2 and also the other

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documents produced by the defendants, which would establish that Mastansab was the owner of the property. It is also urged by the learned counsel for the respondents that the Mustansab died in the year 1969, and his the brother’s daughter namely defendant No.1 could not have moved an application to enter her name as the legal heir of Late Mastansab, when Mastansab is survived by four children namely, the plaintiffs. The mutation in Ex.P4 could not have been certified by the entering name of defendant No.1 as the legal heir of Late Mastansab.

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It is also urged by the learned counsel for the

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respondents that no ground is made out to allow an application under Order 41 Rule 27 of the Code at this

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stage and proper reasons are not assigned, as to why documents sought to be produced as additional evidence are not produced before the Trial Court or at least to the First Appellate Court.

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This Court has considered the contentions raised at the Bar and perused the records.

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It is noticed that both parties do not have any title deeds in the form of any registered documents to establish their claim right over the suit property and it is also an admitted fact that in this Kalaburagi region, under certain circumstances, Khasra Pahani is also treated as title deed.

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The Khasra Pahani for the year 1954-55, is produced for the first time before this Court by way of additional document. The said Khasra Pahani would disclose the name of the plaintiff’s mother-Haneefabee as pattedar in respect of Sy.No.61/A/1 measuring 8 areas 38 guntas and in the said property records name of

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Mastansab that is plaintiff’s father is appearing in column No.15 as cultivator. Ex.P-1, is the record of right pertaining to property bearing Sy.No.61. Ex.P-2 the RTC for the year 1961-62 pertaining to Sy.No.61 in column No.11 reveals the name of name of Mastansab and in column No.12 there is entry to the effect Sikkimidar. Since the name of the appellant is also found in the Khasra Pahani it is necessary to decide the case with reference to said documents.

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The First Appellate Court and Trial Court did not have benefit of appreciating the Khasra Pahani which was not produced before the Trial Court. Since, Khasra Pahani maintained by the Revenue Department carries some presumption (which of course is rebuttable) the appellants should be given an opportunity to lead evidence based on said Khasra Pahani and the respondents should be given an opportunity to lead rebuttal evidence.

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This Court is of the view that, the additional documents may have some bearing on the merits of the

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matter and the appellants have made out a case for production of additional documents.

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Hence, the additional substantial question of

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law is answered in the affirmative and substantial questions of law framed on 20.06.2024 do not survive for consideration at this stage. Hence, the following:

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ORDER

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(i) The appeal is allowed in part;

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(ii) The Judgment and decree dated 22.04.2009 passed by the trial Court in O.S.No.48/2005 and the Judgment and decree dated 13.03.2013 passed by the appellate Court in R.A.(Old) No.19/2009, R.A.(New) No.170/2011, are set aside;

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