Kaleem Khan Vs M Raja

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.03.2024 PASSED IN OS.NO.3637/2015 ON THE FILE OF THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, C/C LXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND POSSESSION.

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NC: 2026:KHC:7055 RFA No. 2174 of 2024

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiff assailing the judgment and decree rendered in O.S.No.3637/2015, wherein plaintiff’s suit seeking relief of declaration and possession is dismissed by the Court below.

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2. For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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3. Facts leading to the case are as under:

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The plaintiff, tracing his title through a registered sale deed dated 24.10.2013 executed by one Azmathullah, has instituted the present suit alleging that defendant Nos.1 and 2, acting in collusion, have brought into existence false and fabricated documents. It is specifically alleged that defendant No.2, without any semblance of

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right, title or interest, has illegally encroached upon and occupied the schedule ‘B’ property. The plaintiff further avers that despite repeated demands made by the plaintiff calling upon defendant Nos.1 and 2 to vacate and hand over vacant possession of the schedule ‘B’ property, they have willfully refused to do so and, on the contrary, threatened the plaintiff with initiation of false criminal proceedings alleging life threat. Apprehending further complications and after seeking legal opinion, the plaintiff has instituted the present suit seeking declaration of title and consequential relief of possession in respect of the schedule ‘B’ property.

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Upon service of summons, defendant No.2 entered appearance and filed his written statement, stoutly denying all the averments made in the plaint. Defendant No.2, on the contrary, traced his title through his mother, late Chinnathayamma. It is contended that Chinnathayamma had acquired the property in question and had put up a residential house thereon and, upon her

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demise, the property devolved upon her legal heirs, namely defendant No.2, his sister Muniyamma (defendant No.1) and another sister, Smt. Lakshmi. Defendant No.2 asserts that all the three siblings were in joint possession and enjoyment of the property bearing Katha No.153, situated at Devarajeevanahalli, Kasaba Hobli, Bengaluru North Taluk, which now falls within the limits of BBMP Ward No.48. It is further contended that defendant No.1 and the other sister Lakshmi have executed a registered release deed dated 12.03.2014 relinquishing their respective shares in favour of defendant No.2, thereby conferring absolute title upon him. On these grounds, defendant No.2 sought for dismissal of the suit.

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On the basis of the rival pleadings, the Trial

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Court framed appropriate issues. The parties were afforded opportunity to lead evidence. The plaintiff examined himself as PW.1 and produced eleven documents in support of his claim. Defendant No.2

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examined himself as DW.1 and relied upon fourteen

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documents.

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The Trial Court, upon appreciation of the oral and documentary evidence and placing significant reliance on the admissions elicited in the cross-examination of PW.1, answered Issue No.1 in the negative, holding that the plaintiff had failed to establish his title over the suit schedule property. Consequently, Issue No.2 was also answered in the negative, and it was held that the plaintiff was not entitled to the relief of possession of the schedule ‘B’ property.

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This Court has heard the learned counsel

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appearing for the plaintiff and the learned counsel appearing for the defendants. Being the first appellate Court and the final fact-finding authority, this Court has independently re-appreciated the pleadings as well as the entire oral and documentary evidence on record. Upon

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such consideration, the following points arise for

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determination:

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i) Whether the finding recorded by the Trial Court holding that the plaintiff has failed to prove his title over the suit schedule property is perverse and contrary to the registered sale deed dated 24.10.2013 executed by Azmathullah in favour of the plaintiff and marked as Ex.P-3?

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ii) Whether the finding of the Trial Court that the plaintiff has failed to establish the existence of schedule ‘B’ property bearing Sy.No.272/2 and that, under the guise of seeking possession, the plaintiff is virtually laying claim over property bearing Khatha No.153 situated at Devarajeevanahalli, Kasaba Hobli, Bengaluru, measuring East–West 22½ feet and North–South 28 feet, suffers from perversity and misappreciation of evidence?

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iii) What order?

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Finding on Point Nos.i and ii:

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On meticulous examination of the records,

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though plaintiff has not produced GPA's executed by Chinnathayamma who was the original owner pertaining to

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suit schedule 'B' property, based on pleadings in the plaint, this Court deems it fit to cull out the flow chart as per the pleadings though not admitted by defendants. The same is as follows:

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ADBUL REHMAN - - - ORIGINAL OWNER SOLD - 23.08.1937 MUNIYAMMA

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GPA - 26.04.1995 DHANALAKSHMI REGISTERED GPA - 03.08.1995 PYAREJAN

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GPA - 20.09.1996 HABEEBUNNISSA

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SALE DEED - 07.05.2007 AZMATHULLAH

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SALE DEED - 24.10.2013 PLAINTIFF

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SELL HALF PORTION

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NASEEMA BANU

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This Court on meticulous examination of Exs.

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P-1 to P-3 and Ex.P-9 also deems it fit to draw a sketch in

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terms of the title documents pertaining to property bearing Sy.No.272/2.

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SOLD TO
NASEEMA BANU N
17 ½'
35'
Schedule B
17 ½'
property
24'

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10. This Court also deems it fit to advert to the

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schedule attached to the registered release deed relied by defendant No.2 alleged to have been executed by defendant No.1 and Smt. Lakshmi, which is evidenced at Ex.P-9.

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"SCHEDULE PROPERTY

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All that piece and parcel of the Property bearing Village Panchayath Katha No.153, situated at Devarajeevanahalli Village, Kasaba Hobli, Bangalore

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North Taluk, now within the limits of BBMP, Katha No.153, Bangalore, measuring East to West: 22.1/2 feet and North to South: 28 feet, totally 630 square feet and bounded on:

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East by	:	Property of Raghuvappa
West by	:	Road
North by	:	Property of Muniyamma
South by	:	Private Property

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In witness whereof the Releasors and the Releasee have signed this Release Deed on the day, month and year first above written at Bangalore.”

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This Court also deems it fit to extract the relevant suggestions made in cross-examination of PW.1, which would have a direct bearing on the identification of the suit schedule property. The same is extracted which reads as under:

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"xxxxxxx I do not know that defendants are brother and sister. It is true to suggest that defendants are residing suit B schedule property. It is true to suggest that towards south of suit B

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schedule property the remaining property of defendants is situated. It is true to suggest that on suit B schedule property and remaining property on the southern side on suit B schedule property the defendant has constructed tiles roofed house and residing over there."

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[Emphasis Supplied]

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This Court, having adverted to the documentary

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evidence proceeds to examine whether the identity and location of the suit schedule ‘B’ property stand established. On a conjoint reading of the schedules annexed to the plaint, the registered sale deed executed by Habibunnisa in favour of Azmathullah dated 07.05.2007, the subsequent sale deed executed by Azmathullah in favour of the plaintiff dated 24.10.2013, and the sale deed executed by the plaintiff on the very same day in favour of Naseema Banu, it is clearly evident that the suit schedule property forms an identifiable and demarcated portion of land bearing Sy.No.272/2. Significantly, the location and physical identity of the suit schedule ‘B’ property have

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been unequivocally elicited through the suggestions put to

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PW.1 in the course of cross-examination by defendant No.2, which are extracted in paragraph 11 supra. These admissions clearly establish not only possession but also the situational identity of the suit schedule ‘B’ property.

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Though defendant No.2 has traced his claim through one late Chinnathayamma, who admittedly acquired land bearing Sy.No.272/2 under a registered sale deed dated 23.08.1937, the document on which defendant No.2 places reliance, namely the registered release deed executed by defendant No.1 and Smt. Lakshmi, pertains exclusively to property bearing Village Panchayath Katha No.153. A plain reading of the schedule appended to the release deed, extracted in paragraph 10 supra, unmistakably indicates that the property described therein is a site measuring 22½ feet East–West and 28 feet North–South, bearing Katha No.153, situated at Devarajeevanahalli Village. The said schedule, on its own terms, does not refer to Sy.No.272/2 nor does it

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demonstrate any correlation with the agricultural survey land from which the plaintiff traces title.

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The core issue, therefore, which falls for determination is whether the suit schedule ‘B’ property is part and parcel of Sy.No.272/2, as asserted by the plaintiff. The plaint specifically avers that the suit schedule ‘B’ property forms the southern portion of Sy.No.272/2. The total extent of Sy.No.272/2 measures 35 feet North– South and 24 feet East–West. Under the registered sale deed dated 24.10.2013 executed by the plaintiff in favour of Naseema Banu, the northern half portion measuring 17½ feet North–South and 24 feet East–West was alienated, while the southern half portion was expressly retained by the plaintiff. This fact stands corroborated not only by the recitals and schedule in the said sale deed but also by the admissions elicited from PW.1 during crossexamination, wherein defendant No.2 has categorically suggested that he is in possession of the suit schedule ‘B’ property and that the remaining portion of his alleged

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property lies to the south thereof. These admissions unmistakably demonstrate that defendant No.2 is, in effect, laying claim to the southern portion of Sy.No.272/2 retained by the plaintiff.

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The existence and continuity of title in respect of Sy.No.272/2 are further fortified by the katha extracts and encumbrance certificates produced on record. The revenue records and encumbrance certificate marked at Ex.P-4 clearly reflect that Sy.No.272/2 stood in the names of Azmathullah and Nasirulla, that Azmathullah conveyed title to the plaintiff under the registered sale deed dated 24.10.2013, and that on the same day the plaintiff conveyed the northern half portion to Naseema Banu. These contemporaneous transactions, duly reflected in the statutory records, were wholly overlooked by the Trial Court. The Trial Court, instead of appreciating the distinction between property bearing Sy.No.272/2 and the site bearing Katha No.153, has erroneously conflated the two and proceeded to non-suit the plaintiff. Such an

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approach amounts to a clear misreading of both oral and documentary evidence.

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Conclusions and Reasons for Reversal:

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Upon a holistic and independent re-appreciation of the pleadings, oral evidence and documentary material on record, this Court is of the considered view that the judgment and decree passed by the Trial Court cannot be sustained either on facts or in law. The reasons for interference are summarised as under:

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i) The Trial Court has committed a manifest error in holding that the plaintiff failed to establish title over the suit schedule property. The plaintiff’s title flows from an unchallenged registered sale deed dated 24.10.2013 executed by Azmathullah, which is duly supported by prior title deeds, katha entries and encumbrance certificates. In the absence of any declaratory relief sought by defendant No.2 to invalidate the said sale deed, the Trial Court could

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not have ignored or diluted the legal effect of a registered conveyance.

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ii) The Trial Court has fundamentally erred in conflating two distinct properties, namely land bearing Sy.No.272/2 and site bearing Katha No.153. While the plaintiff’s claim is confined to a demarcated portion of Sy.No.272/2, the defence set up by defendant No.2 is exclusively founded on a release deed pertaining to Katha No.153. The Trial Court has failed to appreciate that a release deed cannot, in law, operate as a document of title over a property not traceable to the schedule therein.

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iii) The identity and location of the suit schedule ‘B’ property stand conclusively established not only through the chain of title documents produced by the plaintiff but also through categorical admissions elicited from PW.1 during cross-examination at the instance of defendant No.2. The Trial Court has completely overlooked these admissions, which clearly demonstrate that defendant

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No.2 is in possession of the southern portion of Sy.No.272/2 retained by the plaintiff.

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iv) The documentary evidence in the form of encumbrance certificates and revenue records clearly reflects successive transactions in respect of Sy.No.272/2, including the sale by Azmathullah to the plaintiff and the subsequent bifurcation effected by the plaintiff on 24.10.2013. The Trial Court, instead of appreciating these contemporaneous and statutory records, has proceeded on surmises and conjectures, thereby vitiating its findings.

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v) The approach adopted by the Trial Court discloses

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a clear misreading of material evidence and a failure to exercise jurisdiction vested in it, resulting in findings which are perverse and contrary to the record. Such findings, when tested on the touchstone of settled principles governing civil adjudication, cannot be permitted to stand.

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vi) This Court is therefore of the considered view that the findings recorded by the Trial Court are contrary to the

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evidence on record and suffer from perversity, warranting interference. Accordingly, Point Nos.(i) and (ii) are answered in the affirmative .

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Finding on Point No.iii:

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For the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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(i) The appeal is allowed ;

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(ii) The judgment and decree dated 06.03.2024 passed by the LXXV Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.3637/2015 is hereby set aside. Consequently, the suit filed by the plaintiff is decreed;

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(iii) The plaintiff is hereby declared to be the absolute owner of the suit schedule property;

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(iv) The defendant is directed to deliver vacant and peaceful possession of the suit schedule property to the plaintiff within a period of three (3) months from the date of receipt of a certified copy of this judgment;

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(v) Draw Decree accordingly.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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CA List No.: 1 Sl No.: 14

Kaleem Khan v. M Raja

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Kaleem Khan v. M Raja

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