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2008 DIGILAW 117 (KAR)

Khaja Bee v. Jamia Majeed

2008-02-15

D.V.SHYLENDRA KUMAR

body2008
Judgment :- D.V. Shylendra Kumar, J. This second appeal under Section 100 of Code of Civil Procedure by the defendant in OS No. 446 of 1975, on the file of Court of Principal Munsiff at Bellary, has a very long history behind it. The suit of the plaintiff – Jamia Masjeed, Bellary, represented by its mutavalli Khaja Mohiddin – was for a declaration of title of the Masjid in respect of the suit schedule property – an immovable property, a property said to be an open site with thatched sheds in Lalakaman area, bearing Door No. 230 (in 1925) and at present bearing Door No. 803, 804, 805 and 806 in V Ward of Bellary City Municipality, measuring east to west 50 feet, north to south 25 feet – is a property belonging to the Masjid, acquired through a gift deed of the year 1925, in favour of the Masjid by one Smt. Hayathbi, through a registered gift deed; that ever since the Masjid was in possession and enjoyment of the property, but in the year 1973, the defendant trespassed into a portion of this property and has put up a hut and started living there; that though a criminal complaint had been registered, which came to be closed, as it was held that the dispute was civil in nature and cannot constitute a criminal case and therefore thereafter the suit had been instituted for declaration of the title and for recovery of possession of the suit schedule property, as also to restrain the defendant and/or her agents/men/servants from interfering with the other portion of the suit schedule property and other incidental relief. 2. 2. The sole defendant had contested the suit, claiming that the property did not belong to the Masjid; that the gift deed is not true and admitted, but on the other hand, the suit schedule property was a property which the defendants father-in-law had purchased in the year 1937 from one Sudharshanlal; that ever since the property has been in possession and enjoyment by the defendants father-in-law, who was living in a portion and was doing business in firewood in the vacant area; that after the demise of her father-in-law, the property was being enjoyed by her husband Sarversab; that the description of suit schedule property was not same as one claimed under the gift deed of the year 1925; that the defendants husband sold half of the suit schedule property to one Kanda Siddappa through a registered sale deed dated 19.1952 and the children of said Siddappa had executed a sale deed in favour of the defendant as per the registered sale deed dated 17.3.1975, but nevertheless, the defendant and her predecessor-in-title have been in open exclusive possession of the property for more than 40 years and in this view of the matter, they have perfected her title by way of adverse possession and also therefore the plaintiff cannot claim any relief, much less declaration and possession as sought and prayed for dismissal of the suit. 3. In the light of such pleadings, the trial Court has framed the following issues and additional issues: Original issues/additional issues framed by the trial Court: 1. Whether the plaintiff proves title over the suit property on the basis of gift deed dated 26.1925? 2. Whether the plaintiff, Jamaya Masjid proves title over the entire suit property? 3. Whether the plaintiff, Jamaya Masjid proves that he is entitled for the possession of the property marked ABCD in the plaint plan? 4. Whether the plaintiff proves that he is entitled for damages of Rs.130.00 and future damages at the same rate? 5. Whether the Court fee paid is not correct? 6. Whether in-charge Muthuvalli of the Jamaya Masjid has no locusstandi to file suit on behalf of the Jamia Masjid and the resolution is not legal as alleged by the defendant in his written statement in para 11. 7. 5. Whether the Court fee paid is not correct? 6. Whether in-charge Muthuvalli of the Jamaya Masjid has no locusstandi to file suit on behalf of the Jamia Masjid and the resolution is not legal as alleged by the defendant in his written statement in para 11. 7. Whether the defendant proves that her husband inherited the plaint schedule area and her husband conditionally sold the house and the plaint schedule area to one Kandra Siddappa. Kandra Siddappas sons executed a sale deed in favour of the defendant and the defendant and her predecessors in title have been in possession of the property over 40 years and the defendant has perfected her title by adverse possession? Additional Issue No. 1(A): Whether the defendant proves that the suit is not maintainable for want of sanction from Karnataka Wakf Board as contended in para 2 of the W.S.? Additional Issues framed by First Appellate Court on remand:- 1. Whether the plaint plan is correct and it pertains to the plaint schedule property? 2. Whether the plaintiff proves that door No.230 was converted and changed to door Nos. 803, 804, 805 and 806 in the year 1925? 3. Whether the defendant proves that in the year, 1937, the open space was mentioned as 505, former No.501, measuring 6 yards x 9 yards and subsequently, a house was constructed and assessment was changed to door Nos. 804, 805 and 806? 4. Whether she further proves that the property described in the sale deeds dated 19.1952 and 17.3.1975 relate to Door Nos. 804, 805 and 806? 4. On the basis of such issues, the parties went to trial. On behalf of the plaintiff, PWs.1 to 4 have been examined. PWs.1 and 2 being persons connected with the Masjid, PWs.3 and 4 being tenants in the suit schedule property. Plaintiff produced documentary evidence as per Exs.P1 to 27. Prominent amongst them are Ex.P1 is the original gift deed of the year 1925; Exs.P2 to 16 are the municipal tax paid receipts; Ex.P17 is the demand Lice; Ex.P18 is the suit plan; Ex.P25 Commissioners report. Plaintiff produced documentary evidence as per Exs.P1 to 27. Prominent amongst them are Ex.P1 is the original gift deed of the year 1925; Exs.P2 to 16 are the municipal tax paid receipts; Ex.P17 is the demand Lice; Ex.P18 is the suit plan; Ex.P25 Commissioners report. On behalf of the defendant, apart from the defendant, who deposed as DW.1, one Rama Murthy, son of Siddappa, in whose favour the plaintiffs husband had conveyed the property has been examined as DW2, Smt. Laxmi Bai, wife of Sudarshanlal, vendor in the sale deed of the year 1937 has been examined as DW.3 and one Valisab, a neighbour of defendant to prove the possession and enjoyment of the defendant, has been examined as DW.4. The defendant has also got marked documentary evidence EXs.D.1 to 4. .5. Thelearned Judge of the trial Court, on appreciation of the oral as well as documentary evidence, .being of the view that the plaintiff-masjid was not able to establish the identity of the suit schedule property with reference to the gift deed of the year 1925 and further that the description of the property with reference to the municipal number not tallying and particularly in the wake of the Commissioner report Ex.P25, the schedule property was one bearing town Sy. Nos. 668 and 669 and not Door Nos. 804, 805 and 806, and accordingly dismissed the suit. 6. The appeal of the plaintiff to the lower Appellate Court also failed in RA No. 49 of 1979. However, the further appeal by the plaintiff to this Court met with partial success, as the matter was remanded to the lower Appellate Court for according an opportunity to the plaintiff to lead additional evidence and also to hear the Wakf Board, as by this time the wakf board had entered the scene. The result this time was also not different, as the appeal was again dismissed by the lower Appellate Court in terms of the judgment and decree dated 27.2.1996. Yet again a second appeal in RSA No. 639 of 1996 was preferred to this Court, which was again allowed and the matter yet again remanded to the lower Appellate Court in terms of the judgment dated 7.1.1998 with a specific direction to appoint a Commissioner to examine the property and thereafter to decide the appeal. Yet again a second appeal in RSA No. 639 of 1996 was preferred to this Court, which was again allowed and the matter yet again remanded to the lower Appellate Court in terms of the judgment dated 7.1.1998 with a specific direction to appoint a Commissioner to examine the property and thereafter to decide the appeal. The matter being restored in the lower appellate Court, the lower appellate Court yet again went into the matter, appointed one MS Sherieff to supervise as Court Commissioner. The lower Appellate Court mainly relying on the report of the Commissioner, rather than giving credence to the evidence that had already been led by the parties, this time allowed the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff. 7. It is the defendant, who has suffered an adverse decree for the first time in the third round before the lower Appellate Court, who is in appeal, though for the first time as appellant in the third round of second appeal litigation between the parties. .8. While admitting this appeal, this Court had formulated the following question of law as arising for determination in this second appeal: .1) "Whether the plaintiff-respondent established the identity of the property in question? 9. Though the question of law as framed is general in nature, on a perusal of the judgment of the lower Appellate Court, I find that a further question as to whether the appreciation of evidence by the lower Appellate Court and particularly in the light of the Commissioners report of the year 2002 is supportive of the findings and the conclusion reached by the learned Judge of the lower Appellate Court for reversing the judgment and decree of the trial Court, is the real question that arises in this appeal and this appeal is examined on such premise. .10. Appearing on behalf of the appellant-defendant, submission of Ms. .10. Appearing on behalf of the appellant-defendant, submission of Ms. Y. Malathi Reddy, learned Counsel is that the judgment and decree passed by the lower Appellate Court is vitiated not only for .the reason that the learned Judge of the lower Appellate Court has without any reason or even material on record, reversed a well-considered judgment of the trial Court, dismissing the suit, but also has totally misread the report of the Commissioner and the Court-below placing improper reliance on the report of the Commissioner, has resulted in the judgment and decree being passed against the defendant, though on the face of the report of the Commissioner and in the light of the sketch prepared along with the report, the lower Appellate Court should not have reversed the judgment and decree of the trial Court. 11. Having regard to the limited question that is to be examined, the other findings and evidence on record are not so much examined in this appeal, but the examination is confined to the finding of the lower Appellate Court that the plaintiff had proved its case for decreeing the suit, by placing reliance on the report of the Commissioner. The report of the Commissioner while in fact goes much beyond the instructions issued by the Court for giving a report, in the sense, the Commissioner by himself assumed the responsibility of the recording a finding and not giving a factual report, I find that the report is also vitiated and the report cannot also to be accepted for the reason that when the defendant had totally objected the report of the Commissioner and notwithstanding the Commissioner was not examined, the objections have been given a go-by even without examining the objections by the lower Appellate Court and the report of the Commissioner is highly relied upon by the leaned judge of the lower Appellate Court to reverse the judgment and decree of the trial Court. .12. Firstly, the report of the Commissioner does not necessarily support the case of the plaintiff in terms of plaint pleading, particularly the supporting document Ex.P1 under which a declaration had been sought for. The property visited by the Commissioner, in respect of which a report was available, is said to be in respect of town Sy. Nos. 668 and 669 and there is no linking of these survey numbers to the description of property under Ex.P1. The property visited by the Commissioner, in respect of which a report was available, is said to be in respect of town Sy. Nos. 668 and 669 and there is no linking of these survey numbers to the description of property under Ex.P1. The only possible link to suit schedule property and to the property visited by the Commissioner and wherein admittedly the defendant was also found in possession, albeit in a portion, is the other two tenants whom the Commissioner found were also in possession of portions of the property visited and who had exposed as PWs.3 and 4 that they were tenants under the plaintiff-masjid. Assuming that such a link is established with reference to the plaint schedule property, a property visited by the Commissioner, the defence of the defendant cannot be just ignored or the documents Exs. D1 to 3 could have been totally ignored by the lower appellate Court for disbelieving the case of the defendant. I say so for the reason that the learned judge of the lower Appellate Court has given a very categorical finding that neither the plaintiff nor the defendant placed any documentary evidence before the Court to prove that the properties which was either gifted or purchased by them respectively was renumbered from time to time and in the absence of evidence linking the property bearing town municipal Nos. 668 and 669, visited by the Commissioner, either to Ex.P1 or Ex.D1, it cannot be said either had proved the title and if so, mere report of the Commissioner that some portion of this property was in the possession .of the plaintiff is good enough to decree the suit, the same logic will be good enough to deny such declaration to the plaintiff in respect of the portion of the property which was admittedly in the possession of the defendant and as reported by the Commissioner. In fact the logic adopted by the learned Judge of the lower Appellate Court is good enough to grant declaration in favour of the defendant also in respect of the portion of the property in her possession, but the defendant having not claimed a declaration, that relief cannot be granted. However the learned Judge of the lower appellate Court could not have decreed the suit of the plaintiff in toto and in respect of the entire extent of suit schedule property. 13. However the learned Judge of the lower appellate Court could not have decreed the suit of the plaintiff in toto and in respect of the entire extent of suit schedule property. 13. The matter having been remanded twice to the lower Appellate Court for the precise purpose of adducing evidence to ascertain the factual position and by appointing a Court Commissioner, though, no doubt considerable significance is to be attached to the report of the Commissioner, as is sought to be done by the learned Judge of the lower appellate Court, it cannot be by misreading the report of the Commissioner. While the report of the Commissioner at the best supply the factual position as it prevails on the property visited and about which report is submitted, it is the duty of the Court to appreciate such evidence and to arrive at a conclusion. The index of the sketch clearly shows that in respect of the portion marked in yellow colour and measuring 7½ + 7/2 x 26 feet bound by EFGM was the portion in the possession and enjoyment of the defendant and if so, in the light of the finding of the commissioner that the boundaries of the property described under Exs.D1. The index of the sketch clearly shows that in respect of the portion marked in yellow colour and measuring 7½ + 7/2 x 26 feet bound by EFGM was the portion in the possession and enjoyment of the defendant and if so, in the light of the finding of the commissioner that the boundaries of the property described under Exs.D1. 2 and 3 tallied with the plaint schedule property also, and the case of the defendant being that the defendant had been in possession and enjoyment of the property ever since the year 1937, assuming that the plaintiff had established its right, title and interest to the suit schedule property under the gift deed of the year 1925, in respect of the portion which was found to be in possession of the defendant and the plaintiff having not established the possession was only of the recent origin, but on the other hand the defendant having cogently established that she had been in possession and enjoyment of the property claimed under Ex.D1 from the time of her father-in-law, her husband and herself, a declaration in favour of the plaintiff in respect of this portion of the property can never he granted, as even if it is to be taken that the defendant had not established the right, title and interest to this property under E.x.D1 to 3, the fact that she had been enjoying the property as her own and so also her predecessors-in-title right from 1937 and continued to remain in possession if not the entire extent, but at least to this extent as of now, it should be taken that the defendant had perfected her title by prescription even otherwise than under Exs.D1 to 3 and therefore the lower appellate Court could not have decreed the suit of the plaintiff in its entirety. 14. Insofar as the portion marked as GHIJ in green colour in the sketch, measuring 14 x 26 feet in concerned, the finding of the commissioner being that it was an encroached portion by the defendant on the municipal road, obviously that cannot be subject-matter of the suit and beyond the scope of the suit. 15. It is clear from this discussion that the suit of the plaintiff could have been decreed only in respect of the portion of the property marked by red colour in the sketch prepared by the Court Commissioner in town Sy. 15. It is clear from this discussion that the suit of the plaintiff could have been decreed only in respect of the portion of the property marked by red colour in the sketch prepared by the Court Commissioner in town Sy. No. 669 and the other portion in Sy. No. 668 is in the ownership of the plaintiff alone and not the entire extent. The suit for declaration and recovery of possession and consequential injunction in respect of the portion marked in yellow colour as described by the Court Commissioner in his report and sketch, and particularly in respect of this part of the property, the suit has to be dismissed. 9.16. Inthe result, this appeal is allowed in part and the judgment and decree passed by the lower Appellate Court is modified to the extent of decreeing the suit of the plaintiff only insofar as it relates to the right to town Sy. No. 668 and portion of the 669 marked in red colour in the sketch prepared by the Court Commissioner, measuring about 10 x 29 feet. Consequential injunction also is issued restraining the defendant from interfering with the possession and enjoyment of this property by the plaintiff. In so far as the other portion of suit schedule property in town Sy. No. 669, marked in yellow colour in the sketch, and in the possession and enjoyment of the defendant is concerned, the suit stands dismissed. 10.17. Parties to bear their respective costs. 118. Draw decree accordingly.