M.a.Suresh Babu Vs Shahina

SHAHINA D/O MAHABOOB SAB WIFE OF T.H.HYDER SAB AGED ABOUT 41 YEARS No.326, JAI BHYVANESHWARIN NAGARA K.S.C.B. QUARTERS, NANDININ EXTENSION, BANGALORE 560 056.

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DIL SHAB, D/O MAHABOOB SHAH WIFE OF SHAFFIULA AGED ABOUT 46 YEARS C/O KADER SAB PLOT NO.39, 1^ST MAIN ROAD, 1^ST CROSS, VIJAYANANDAN NAGAR, NANDINI LAYOUT POST, BANGALORE - 58.

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SHAMSAD

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SON OF MAHABOOB SAB AGED ABOUT 36 YEARS, C/O DOMACALS ENGINEERING PVT. LTD PLOT NO.214, 1^ST CROSS, 3^RD PHASE, PEENYA INDUSTRIAL AREA, BANGALORE 58.

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NASARIN, D/O MAHABOOB SAB WIFE OF AJJU, AGED ABOUT 33 YEARS, No.326, JAI BHUVANESHWARIN NAGAR, K.S.C.B. QUARTERS, NANDININ EXTENSION, BANGALORE – 560 056.

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MAHABOOD @ BAHABOOB SAB SON OF LATE SYED PEERAN SAB AGED ABOUT 56 YEARS # CHURCH ROAD HABEEB KHAN BUILDING BESIDE PUSPANJALI THEATRE, MYSORE ROAD, HIRIYUR TOWN,HIRIYUR TALUK, CHITRADURGA. PIN – 577 527.

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GHOUSE SAB SON OF KAREEM SAB AGED ABOUT 51 YEARS OIL MERCHANT R/O HOSADURGA TOWN VINAYAKA EXTN. HOSADURGA TOWN, PIN- 577 527.

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SYED ASHRULLA S/O SYED ALI AGED ABOUT 28 YEARS

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R/AT OLD TAN BADAVANE NEAR DURGAMMA TEMPLE, HOSADURGA TOWN, PIN- 577 527.

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ALLAHBHAKSHI S/O LATE SYED KHALANDER AGED ABOUT 34 YEARS VINAYAKA BADAVANE NEAR BHAVI COLONY, DURGAMMA TEMPLE BACKSIDE HOSADURGA, CHITRADURGA DISTRICT – 577 527.

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SYED BUDEN

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S/O LATE SYED KARIM SAB, AGED ABOUT 58 YEARS R/AT MALAGONDANAHALLI, DINDAVARA POST, HIRIYUR TALUK- 577 598.

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ZABEULLA S/O GHOUSE PHEER AGED ABOUT 29 YEARS VINAYAKA BADAVANE, MASTAMMA BEEDHI, HOSADURGA TOWN – 577 527.

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MAHABOOB BASHA S/O DADA PHEER AGED ABOUT 43 YEARS, R/AT HINDUSTAN TYRE PATCH WORKS, BESIDE GURU CHILDREN HOSPITAL, HULIYAR ROAD, HIRIYUR- 577 598.

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12. JALEEL BASHA

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S/O LATE DAD PHEER AGED ABOUT 41 YEARS, R/AT HINDUSTAN TYRE PATCH WORKS,

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BESIDE GURU CHILDREN HOSPITAL, HULLYAR ROAD, HIRIYUR- 577 598.

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SADIQ BASHA S/O DADA PHEER AGED ABOUT 38 YEARS, R/AT HINDUSTAN TYRE PATCH WORKS, BESIDE GURU CHILDREN HOSPITAL, HULLYAR ROAD, HIRIYUR- 577 598.

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KHADIR BASHA S/O DADA PHEER, AGED ABOUT 36 YEARS, R/AT HINDUSTAN TYRE PATCH WORKS, BESIDE GURU CHILDREN HOSPITAL, HULIYAR ROAD, HIRIYUR- 577 598.

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SMT. YASMEEN W/O ABDUL RAHIM, D/O LATE SYED KALANDAR, AGED ABOIUT 38 YEARS, VINAYAKA BADAVANE, NEAR BHAVI COLONY, DURGAMMA TEMPLE BACKSIDE, HOSADURGA CHITRADURGA DIST.-577 527.

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SHAMEEN UNISA AGED ABOUT 51 YEARS, CHIKAPETE ROAD, SIDDANAYAKA CIRCLE, HIRIYUR- 577 598. [RESPONDENT No.16 DELETED AS PER ORDER DATED 14.08.2025]

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RESHMA M.S. D/O LATE MAHABOOBSAB, AGED ABOUT 32 YEARS CHIKKAPETE ROAD, SIDDANAYAKA CIRCLE, HIRIYUR TALUK, C/O SYED ABDUL BASHEER, TIPPU CIRCLE, HULIYAR, CHIKANAYAKANAHALLI, TUMKUR DIST.-572 218.

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…RESPONDENTS

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(BY SRI. R. BHADRINATH, ADVOCATE FOR R1,

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SRI. HANUMANTHAPPA B.HARAVI GOWDAR, ADVOCATE FOR R5 AND R6,

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VIDE ORDER DATED 19.10.2022, SERVICE AGAINST R2 AND R4 IS HELD SUFFICIENT,

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VIDE ORDER DATED 02.02.2023, NOTICE TO R3 IS HELD SUFFICIENT, SRI.M.R. RAVINDRA, ADVOCATE FOR IMPLEADING R7 TO R15 AND R17 ON IA 1/23, VIDE ORDER DATED 14.08.2025, IMPLEADING R16 IS DELETED)

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THIS RSA IS FILED U/O XLII RULE 1 R/W SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.03.2017 PASSED IN RA NO.82/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HOSADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.04.2013 PASSED IN OS NO.168/2007 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., HOSADURGA.

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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 ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 03.03.2017 passed in R.A. No.82 of 2016 (Old R.A. No.40 of 2013) by the learned Senior Civil Judge and JMFC, Hosadurga and the judgment and decree dated 19.04.2013 passed in O.S. No.168 of 2007 by the learned Additional Civil Judge and JMFC, Hosadurga.

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For convenience, the parties referred to based on their rankings before the Trial Court. The appellant was defendant No.8, respondent No.1 was the plaintiff and the other respondents were defendant Nos.7, 9 to 12.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for declaration and permanent injunction regarding the

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suit schedule property. It is the case of the plaintiff that the plaintiff and defendant Nos.9 to 11 are the joint owners and in peaceful possession and enjoyment of the suit schedule property. It is contended that the plaintiff and defendant Nos.9 to 11 acquired the suit property by inheritance. Originally, the suit property bearing Sy.No.137 measuring 6 acre 5 guntas and another land bearing Sy.No.124 measuring 8 acres 12 guntas were owned by Syedjalal Sab, the plaintiff’s grandfather. He executed a registered Will dated 28.05.1977 bequeathing his properties to his first wife by name Hussain Bi, her son, another wife Jain Bi and the other successors of his brother by name Kalander Sab.

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Syedjalal died about 25 years back. Thereafter, khatas were entered in the names of the respective parties as per the Will. Hussain Bi had 4 acres in Sy.No.137, however, after selling 3 acres to one

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Venkatappa, she retained only one acre of land which is the suit schedule property. She died in 1987. Thereafter, the plaintiff’s father being the only successor of Hussain Bi enjoyed the suit property as an absolute owner throughout his lifetime and thereafter, after his death, the plaintiff and defendant Nos.9 to 11 acquired the suit property by way of inheritance.

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It is further contended that defendant No.7, without having any right, title or interest over the suit property, colluding with the revenue authorities, got changed the khatas in his favour and created a Will dated 20.12.1986 alleged to be executed by Mehaboob Sab S/o Peera Sab and created a Will stating that Mehaboob Sab S/o Peera Sab died on 11.08.1987. Further, defendant No.7 executed a registered sale deed in favour of defendant No.8 on 23.06.2006. The said sale deed is not binding on the

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right, title, or interest of the plaintiff over the suit property. Hence, the suit.

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Defendant No.1 filed a written statement denying the entire averments made in the plaint. It is contended that he acquired 2 acres of land in Sy. No.137 of Bokikere village for Karnataka Industrial Areas Development Board and possession certificate dated 26.08.1985 and the notification has been published in the Karnataka Official Gazette dated 27.02.1986. Since then, he is in possession of the said property and he has improved the same by forming sites and putting up industrial shed. The plaintiff, on imaginary grounds, has filed the suit. Hence, on these grounds, prays to dismiss the suit.

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Defendant No.6 filed a written statement which was adopted by defendant Nos.4 and 5. It is contended that defendant No.7 sold the suit property in favour of defendant No.8 and accordingly, he changed the

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khata as per the sale deed. Accordingly, on this ground, he prays to dismiss the suit.

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Defendant Nos.7 and 8 have filed a common written statement by denying the entire averments made in the plaint. It is contended that, defendant No.8 is the owner in possession of the suit property. Defendant No.8 purchased the suit property from defendant No.7 through the registered sale deed dated 23.06.2006 for valuable consideration without notice. He is the bona fide purchaser of the suit property. It is further contended that defendant No.7 acquired the suit property by way of a grant made by defendant No.5. Accordingly, on these grounds, prays to dismiss the suit.

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Defendant No.12 contended that he is the absolute owner of the suit property and sought counter-claim against the plaintiff and defendant Nos.9 to 11 for declaration and permanent injunction. Accordingly,

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prays to dismiss the suit and decree the

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counter-claim.

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The Trial Court, based on the pleadings of the parties, framed the relevant issues.

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The plaintiff, in support of his case, examined his power of attorney holder as PW1, examined 2 other witnesses as PW2 and PW3 and produced 16 documents marked as Exs.P1 to Ex.P16. In rebuttal, defendant No.1 was examined as DW1, defendant Nos.7 and 8 were examined as DW2 and DW3, examined 2 other witnesses as DW4 and DW5 and produced 4 documents marked as Exs.D1 to D4.

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The Trial Court, after recording the evidence, hearing on both sides and after appreciating the entire evidence on record, decreed the suit of the plaintiff with costs vide judgment dated 19.04.2013. It was declared that the plaintiff and defendant Nos.9 to 11 are the owners and in possession of the suit

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property. The defendants were permanently restrained from interfering with the peaceful possession and enjoyment of the suit property. Further, the Trial Court declared that the sale deed dated 23.06.2006 executed by defendant No.7 in favour defendant No.8 is null and void and not binding on the right, title or interest of the plaintiff and defendant Nos.9 to 11 over the suit property.

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Defendant Nos.7 and 8, aggrieved by the judgment and decree of the Trial Court, preferred the appeal in R.A. No.82/2016 on the file of the learned Senior Civil Judge and JMFC, Hosadurga.

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The First Appellate Court, after hearing the parties and appreciating the verbal and documentary evidence on record, dismissed the appeal with costs vide judgment dated 03.03.2017, confirming the judgment and decree passed by the Trial Court.

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Defendant No.8, aggrieved by the judgments and decrees passed by the Courts below, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for defendant No.8.

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Learned counsel for defendant No.8 submits that defendant No.8 is the bona fide purchaser of the suit property from defendant No.7 for a valuable consideration without notice. He submits that the plaintiff has to stand on her own legs and not the weakness of the defendants. He submits that the said cardinal principle was accepted by the Courts below while holding that the title claimed by defendant No.7 was disbelieved as not supported by any source of title. He submits that the plaintiff and the other defendants lost the title over the suit property by means of acquisition for which the compensation is already disbursed. He submits that the Courts below, without adequately appreciating

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the said aspects, have passed the impugned judgments. The impugned judgments passed by the Courts below are arbitrary and erroneous and call for interference at the hands of this Court. Accordingly, on these grounds, prays to allow the appeal.

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Perused the records and considered the submissions of the learned counsel for the parties.

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The plaintiff filed a suit for declaration and permanent injunction against the defendants regarding the suit schedule property. It is the case of the plaintiff that she and defendant Nos.9 to 11 are the joint owners in possession of the suit property. However, it is the contention of defendant No.7 that, he has acquired the same by way of grant made by defendant No.5 wherein one acre of land being kharab was left out by defendant No.2.

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The plaintiff, to prove her case, examined her power of attorney holder as PW1 who reiterated the plaint

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averments in the examination in chief and produced the documents marked as Ex.P1 to P16. The plaintiff also examined PW2 and PW3 who deposed that the plaintiff and defendant Nos.9 to 12 are the absolute owners in possession and enjoyment of the suit schedule property. In rebuttal, the defendants, to prove their defence, defendant No.1 was examined as DW1 who deposed that only 2 acres of land in Sy.No.137 was acquired for industrial purpose, 3 acres was sold in favour of Venkatappa and remaining 1 acre was retained by Hussain Bi. Defendant Nos.7 and 8 were examined as DW2 and DW3 and reiterated the written statement averments in the examination in chief. The defendants also examined DW4 and DW5, who deposed on the lines supporting defendant Nos.7 and 8.

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From the perusal of entire evidence on record, it is evident that, the question which revolves around it whether defendant Nos.7 and 8 were able to prove

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that 1 acre of land is carved out as Kharab by defendant No.2 and the same has been granted by defendant No.5 in favour of defendant No.7.

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It is pertinent to note that, DW2 and DW3, except deposing in the lines of written statement, have not produced any material evidence in support of their case.

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From the perusal of evidence of DW1, it is clear that DW1 being the Assistant Executive Engineer of defendant No.1, clearly stated in his examination in chief as well as cross examination that, only 2 acres of land in Sy.No.137 was acquired for industrial purpose and 3 acres in Sy.No.137 was sold in favour of Venkatappa and remaining 1 acre was retained by Hussain Bi. DW1 clearly admitted that land retained by Hussain Bi, as has been described in the plaint schedule, is the suit property and they are not concerned with the suit property.

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However, according to Ex.P8 the mutation register

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extract, 1 acre of land was left out and on the basis of memo of the Special Land Acquisition Officer, the mutation was effected in favour of defendant No.7. However, no document/instrument is forthcoming in support of the entries in Ex.P8.

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The Hon’ble Apex Court in the case of Dayaram and Others Vs. Dawalath Shah and Others reported in AIR 1971 SC 681 , wherein the Hon'ble Apex Court held that “ the order of a Revenue Authority in the mutation proceedings based on an untrue piece of evidence has no evidentiary value in a civil suit ”.

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In view of the exposition of law laid down by the Hon’ble Apex Court in the case of Dayaram (supra), the entries in Ex.P8 cannot be regarded as substantial evidence.

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The Courts below, considering the entire evidence on record, have rightly recorded a finding of fact that

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defendants No.7 and 8 failed to prove that 3 acres of land was acquired by defendant Nos.1 to 3 and no land was retained by Hussain Bi, and defendant No.7 had been granted the suit land by defendant No.5 after being left out by defendant No.2 and defendant No.7 failed to prove his ownership and possession over the suit schedule property, and as such, defendant No.8 did not acquire any right, title and interest over the suit schedule property and the registered sale deed dated 23.06.2006 executed by defendant No.7 in favour of defendant No.8 being not only null and void, but does not bind the right of plaintiff and defendant Nos.9 to 11.

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Both the Courts below, considering the entire evidence on record, have rightly passed the impugned judgments. The impugned judgments passed by the Courts below do not call for any interference at the hands of this Court.

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