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2022 DIGILAW 1299 (KAR)

Basheer Ahmed v. Basheer Hussain

2022-09-28

M.G.S.KAMAL

body2022
JUDGMENT/ORDER 1. The present appeal is filed by the appellants/defendants Nos.1 to 5 aggrieved by the judgment and order dtd. 8/7/2011 passed in R.A.No.63/2008 on the file of the I Addl. District and Session Judge, Bidar (herein after referred to as 'First Appellate Court') by which the First Appellate Court while allowing the regular appeal filed by the respondents/plaintiffs set aside the judgment and decree dtd. 18/3/2008 passed in O.S.No.25/2006 on the file of the Civil Judge, (Sr.Dn.) Humanabad, camp Basavakalyan (hereinafter referred to as 'trial Court') and consequently decreed the suit declaring the plaintiffs are the owners in possession of the suit property and that deeds of sale executed by defendant No.1 in favour of defendant Nos.2 to 6 are null and void and inoperative and also granted relief of permanent injunctions. 2. The parties are referred to by their rank before the trial Court. 3. The brief facts of the case are that; the plaintiff filed the above suit seeking declaration of the ownership and permanent injunction in respect of land bearing SY.No.190/1 measuring 3 acres situated at Chitguppa village, Humanband Taluk (hereinafter referred to as 'suit land') and also for relief of declaration to the effect that registered deed of sale executed by defendant No.1 in favour of defendant Nos.2 to 6 are not binding on him on the premise that he is the absolute owner in possession of the suit land having acquired the same in terms of a grant made under the C-Form dtd. 8/12/1977 by the Tahsildar Humanabad, vide No.LND/ASM/77-78/62-60 as he was a landless person. That ever since the grant of land the plaintiff is in actual possession and enjoyment of the suit land. 4. That defendant No.1 in collusion with village accountant and other revenue officials obtained mutation of his name in the revenue records by posing himself as "Basheer S/o Hussainsab". That defendant is not the person in whose name C-Form was issued but he has submitted fraudulent application showing his father's name as Hussainsab. The true name of the father of the defendant is "Mohammadsab Chowkidar". That after obtaining the mutation entries in collusion with the revenue officers reflecting his name in the record of rights, the defendant No.1 sold away the suit land in portions. That is land measuring 1 acre 1 gunta was sold in favour of defendant Nos.2 and 3 under deed of sale dtd. 10/2/2003. That after obtaining the mutation entries in collusion with the revenue officers reflecting his name in the record of rights, the defendant No.1 sold away the suit land in portions. That is land measuring 1 acre 1 gunta was sold in favour of defendant Nos.2 and 3 under deed of sale dtd. 10/2/2003. An extent of 39 guntas was sold in favour of defendant Nos.4 and 5 under deed of sale dtd. 2/8/2003. Another extent of 1 acre was sold in favour of defendant No.6. The said deeds of sale were kept pending in the office of Sub-Registrar Humnabad. That in all the deeds of sale defendant No.1 has fraudulently shown his name as "Basheer S/o Hussainsab". That the plaintiff immediately on learning about the said fraudulent transaction obtained the copies and asked defendants not to obstruct with the peaceful possession and enjoyment of the plaintiff over the suit land and to cancel the deeds of sale executed by him in favor of defendant Nos.1 to 6. However, the defendants declined constraining the plaintiff to file the present suit. 5. On service of summons, defendants appeared through their advocates and filed written statements. Defendant No.1 in his written statement denying the plaint averments contended that he was the original grantee, pattedar and cultivator of the suit land and his name has been validly entered into the revenue records. That names Basheersab S/o. Hussainsab and Basheer S/o. Mohammad Sab appearing in the revenue records are one and the same. That defendant No.1 in exercise of rights sold the suit land to defendant Nos.2 to 6 and hence sought for dismissal of the suit. 6. Defendant No.2 and 3 in their written statement claimed that they had jointly purchased 1 acre 1 gunta of land under deed of sale and rectification deed dtd. 5/4/2005 and that they have been possession and enjoyment of the portion purchased by them as absolute owner thereof. The defendant Nos.4 and 5 in their written statement claimed that they purchased 39 guntas of land under deed of sale dtd. 25/1/2005 for valuable sale consideration and are in lawful possession and enjoyment of the suit property. Similarly Defendant No.6 field written statement claiming to have purchased 1 acre of land under deed of sale dtd. 25/1/2005 for valuable sale consideration. Hence, sought for dismissal of the suit. 7. 25/1/2005 for valuable sale consideration and are in lawful possession and enjoyment of the suit property. Similarly Defendant No.6 field written statement claiming to have purchased 1 acre of land under deed of sale dtd. 25/1/2005 for valuable sale consideration. Hence, sought for dismissal of the suit. 7. Based on the pleadings the trial Court framed following issues: (i) Whether the plaintiff proves that, he is the owner and possessor of suit land under a Government grant? (ii) Whether the plaintiff further proves that, the alleged interference of the defendants over the suit land? (iii) Whether the plaintiff further proves that, the Regd. Sale deed executed by defendant No.1 in favour of defendant No.2 and defendant No.3 dtd. 10/2/2003 of one acre one gunta and sale deeds executed by defendant No.1 in favour of defendant No.4 and defendant No.6 dtd. 2/8/2003 measuring 39 guntas and one acre respectively out of Sy.No.190/1 measuring 03 acres of Chitguppa as null and void in-effective and in-operative against him? (iv) Whether the defendant No.1 proves that, he was original grantee of suit land? (v) Whether the suit of the plaintiff is barred by under Sec. 61 of Karnataka Land Revenue Act, 1964, as alleged in para No.9 of the written statement of defendant No.1? (vi) Whether the Government of Karnataka is necessary party to the present suit as alleged? (vii) What order or decree? 8. Plaintiff examined himself as PW.1 and two other witnesses as PWs.2 and 3 and exhibited 13 documents marked as Exs.P1 to P13. Defendant No.1 examined himself as DW.1 and another witness as DW.2 and exhibited 13 documents marked as Exs.D1 to D13. 9. The trial Court answered issue Nos.1 to 6 in the negative and consequently dismissed the suit by the plaintiffs by its judgment and decree dtd. 18/3/2008. The original plaintiff is stated to have passed away on 19/5/2007, thereupon his children were brought on record. Thus, being aggrieved by the aforesaid judgment and decree of the trial Court, the legal representatives of deceased plaintiff filed appeal in R.A.No.63/2008 on the file of the First Appellate Court. Considering the grounds urged in the appeal the First Appellate Court framed the following points for its consideration; (i) Whether the plaintiff proves the title, ownership and possession over the suit property? (ii) Whether the 1st defendant proves that he is original grantee and Pattedar of the suit land? Considering the grounds urged in the appeal the First Appellate Court framed the following points for its consideration; (i) Whether the plaintiff proves the title, ownership and possession over the suit property? (ii) Whether the 1st defendant proves that he is original grantee and Pattedar of the suit land? (iii) Whether the plaintiff further proves the interference of the defendants? (iv) Whether the plaintiff further proves that the Registered Sale Deed executed by the 1st defendant in favour of the defendants No.2 to 6 are null and void and inoperative? (v) Whether the plaintiff is entitled for declaration and permanent injunction sought in the plaint? (vi) Whether the judgment and decree passed by the trial Court is erroneous, capricious and the same is not in accordance with law and thereby liable to be interfered with? (vii) What order or decree? 10. The First Appellate Court on re-appreciation of the matter answered point Nos.(i), (iii) to (vi) in the affirmative and point No.(ii) in the negative and consequently allowed the appeal of the plaintiff setting aside the judgment and decree dtd. 18/3/2008 passed by the trial Court and decreed the suit as prayed for. It is stated that original defendant passed away leaving behind defendant Nos.1(a) to 1(k) as his legal representatives. Being aggrieved by the judgment and order of the First Appellate Court, the legal representatives of original defendant filed the present appeal. 11. This Court by its order dtd. 1/12/2016 framed the following substantial questions of law for its consideration: (a) Whether the Lower Appellate Court has properly appreciated document at ex.P3 as against what was produced by defendant as Ex.D13, to ultimately arrive at the conclusion relating to grant made to the appropriate person in respect of suit property? (b) Whether in that circumstances, the document at ex.D8 would throw light on the appropriate grant as claimed under Ex.p3 and D13 respectively? 12. There is no dispute of the fact that the suit land was granted in favour of one Basheer S/o. Hussainsab in terms of C-Form dtd. 08/12/1977 issued by the Tahsildar, Humnabad. The dispute is only with regard to the identity of the said grantee namely, 'Basheer S/o. Hussainsab'. While the plaintiff is claiming to be the said 'Basheer S/o. Hussainsab', defendant No.1 equally claiming himself to be the said grantee. It is this controversy, which had let to this litigation. 08/12/1977 issued by the Tahsildar, Humnabad. The dispute is only with regard to the identity of the said grantee namely, 'Basheer S/o. Hussainsab'. While the plaintiff is claiming to be the said 'Basheer S/o. Hussainsab', defendant No.1 equally claiming himself to be the said grantee. It is this controversy, which had let to this litigation. The evidence led by the plaintiffs as taken note of by the Trial Court and the First Appellate Court would reveal that the subject land was granted to Basheer S/o. Hussainsab on consideration of he being a landless person. The plaintiff, who claims to be the said Basheer S/o. Hussainsab produced Ex.P3, the certified copy of certificate of grant dtd. 08/12/1977, which bears the name of Basheer S/o. Hussainsab in respect of land bearing Survey No.190/1. The plaintiff has produced Ex.P1, which is an application dtd. 25/5/2005 addressed to the Tahsildar, Humnabad seeking entry of his name in the revenue records. The said Ex.P1 refers an enclosure of 'C-Form zerox copy'. 13. It is the case of the plaintiff as pleaded in paragraph No.8 of his plaint that he had lost the original C-Form and that the defendant, by misusing the name of the father of plaintiff, has obtained the revenue records in his name and has illegally sold the suit property in favour of defendant Nos.2 to 6. The defendant on the other hand claimed that he is the original grantee. Though in the revenue records, the name is mentioned as Basheer S/o. Hussainsab, in other records it is shown as 'Basheer S/o. Mohammed Sab'. He contends that both are one and the same person. In the affidavit filed by the defendant in lieu of his evidence, he has described his name as Basheer and his father's name as "Mohammed Sab also known as Hussain Sab Chowkidar". In the cross examination recorded on 7/2/2008 though he has deposed that he used to sign as 'Basheer Sab' and not as 'Basheer Ahmed', when he was confronted with an application filed by him in I.A.No.2, wherein, his signature bears as 'Basheer Ahmed' that he admits the same to be his signature. He further admits that there may be same records to show the name of his father as Hussainsab @ Mohammed Sab, but, he has not produced any records to show the name of his father as 'Hussainsab' @ 'Mohammed Sab'. He further admits that there may be same records to show the name of his father as Hussainsab @ Mohammed Sab, but, he has not produced any records to show the name of his father as 'Hussainsab' @ 'Mohammed Sab'. He further admitted that his birth name is Basheer Ahmed S/o. Hussain @ Mohammed Sab Chowkidar. He also deposed that he is known as 'Basheer Sab' as well as 'Basheer Ahmed'. He has also admitted that his name is appearing in the voter card and election identity card as Basheer Ahmed S/o. Mohammed Sab. In the light of the aforesaid contention of the plaintiff disputing the defendant to be 'Basheer S/o. Hussain Sab' and admission of defendant that his name is Basheer also known as 'Basheer Ahmed' and his father's name is 'Hussain' also known as 'Hussain Sab @ Mohammed Sab Chowkidar', it becomes apparent that these two persons are completely different and distinct than one shown in the grant order. 14. At this point, as pointed by the learned counsel for the appellants/plaintiffs that the name Basheer Sab S/o. Hussain Sab @ Mohammed Sab surfaced first time in the alleged endorsement issued by the Tahsildar, Humnabad as per Ex.D8 dtd. 29/6/2000 alleged to have addressed the said endorsement to Basheer Sab S/o. Hussain Sab alias Mohammed Sab. However, the said endorsement bears No.LND/ASN/CR/2000-01 dtd. 29/6/2000. As per Ex.P13, another endorsement issued by the very same office reads that on verification of the records, there is no transaction or correspondence bearing No.LND/ASN/CR/2000-01 in the concerned file. Therefore, the origin and issuance of endorsement at Ex.D8 not only doubtful and the subsequent endorsement at Ex.P13 issued by the Tahsildar makes it clear that Ex.D8 is a brought up document. There is no much of challenge/resistance by the defendants to the endorsement at Ex.P13 which defies the very issuance of Ex.D8 and Ex.P13 has been obtained by the plaintiff. Another documents, which the learned counsel for the appellants/plaintiffs brings to the notice of this Court are Exs.P11 and P12, which are cross objections filed by the defendant in the proceedings before the revenue Court of Tahsildar, Humnabad. The said proceedings have been apparently initiated at the instance of the Revan Siddeshwar Panch Committee, Chitaguppa represented by its President, in which, the defendant's name is shown as Basheer Sab S/o. Hussain Sab @ Mohammed Sab Chowkidar. The said proceedings have been apparently initiated at the instance of the Revan Siddeshwar Panch Committee, Chitaguppa represented by its President, in which, the defendant's name is shown as Basheer Sab S/o. Hussain Sab @ Mohammed Sab Chowkidar. In that, at paragraph No.8, the defendant herein who has been arrayed as respondent No.1 is claiming to be the absolute owner/pattedar and possessor of the granted land in Survey No.190 measuring 3 acres 8 guntas. The said cross objection filed by the defendant is dtd. 29/9/2003 and he has signed as Basheer Ahmed describing himself as Basheer Sab S/o. Hussain Sab @ Mohammed Sab Chowkidar. Thus, except the aforesaid Ex.D8 and Exs.P11 and P12, there are no other records, which bears the name as Basheer Sab, Basheer Ahmed S/o. Hussain Sab @ Mohammed Sab Chowkidar. On the other hand, right from the grant order produced by the plaintiffs at Ex.P3 and by defendant at Ex.D13 and the revenue records at Exs.D1 to D7 all refers to the name as Basheer Sab S/o. Hussain Sab. Thus, Ex.D8, which is solely relied upon by the defendants relates to one Basheer Sab S/o. Hussain Sab @ Mohammed Sab Chowkidar, who is not the grantee. 15. The other contention being raised by the counsel for the appellants/defendant is that the original of Ex.D13 had been produced before the Court from the custody of the defendants. Therefore, a presumption under Sec. 114 of the Evidence Act has to be drawn in favour of the defendant to hold that he is the grantee of the subject land. It is also contended that though the plaintiff claimed to have lost the original, there is no material evidence produced by him for he having taken any action in that regard. Therefore, it is contended that these two circumstances should be held in favour of the defendant. As rightly taken note of by the First Appellate Court no doubt except stating in paragraph No.8 of the plaint regarding plaintiffs having lost the original, no other material evidence is placed on record. The plaintiffs have produced the certified copy of the grant order at Ex.P13. The defendants have produced the original grant order at Ex.D13. As rightly taken note of by the First Appellate Court no doubt except stating in paragraph No.8 of the plaint regarding plaintiffs having lost the original, no other material evidence is placed on record. The plaintiffs have produced the certified copy of the grant order at Ex.P13. The defendants have produced the original grant order at Ex.D13. Though the original grant order has come from the custody of the defendants, both the plaintiffs and defendants are relying upon the said document and there is no dispute with regard to the origin of the said grant order. The presumption to be drawn Under Sec. 114 of the Evidence Act is not a conclusive presumption. The over all facts and circumstances of the matter needs to be taken into consideration. In the cross examination of DW.1, it is suggested that the deceased plaintiff was owning a cycle shop and defendant No.1 has admitted to the same. He further admitted that defendant being the fruit hawker used to stand near the cycle shop of the sons of the deceased plaintiff. It is probably to suggest and make out a case of defendant having access to the said shop. As already noted, when the grant of land is in the name of Basheer S/o. Hussain Sab and the name of defendant being Basheer Ahmed S/o. Hussain Sab @ Mohammed Sab Chowkidar, as rightly appreciated and concluded by the First Appellate Court as well as the Trial Court, the defendant has failed to prove t he grant of land in his favour. 16. Another aspect of the matter could be seen is that subject matter of the land was granted to the landless person. Even as admitted by defendant No.1 that his father Mohammed Sab Chowkidar had been granted land in Survey No.190/6 and his father had 4 sons and the said land had been divided amongst them. The plaintiff has produced Exs.P4, P5, P6 and P7 to evidence the grant of land in Survey No.190/6 measuring 13 acres 20 guntas in the name of father of defendant and same have been divided amongst the defendant No.1 and his brothers each being entitled to 3 acres 15 guntas. There is no dispute or whisper in respect of these documents by the defendant. Even the said documents specifically refer to the name of the defendant as Basheer Ahmed S/o. Mohammed Sab Dastagir. 17. There is no dispute or whisper in respect of these documents by the defendant. Even the said documents specifically refer to the name of the defendant as Basheer Ahmed S/o. Mohammed Sab Dastagir. 17. In the light of the aforesaid material evidence available on record and in view of the admitted fact that the name of the defendant being Basheer Ahmed and his father name being Mohammed Sab @ Mohammed Sab Chowkidar, the reasoning, conclusion and findings arrived at by the First Appellate Court requires to be confirmed, as such, substantial question of law No.1 is answered in the affirmative and substantial question of law No.2 is answered in the negative in that Ex.D8 would not throw light on the appropriate grant in favour of the defendants while Ex.P3 and Ex.D13 are the grant made in the name of the plaintiff. Hence, the following: ORDER The appeal in RSA No.7345/2011 is dismissed. The judgment and order dtd. 8/7/2011 passed by the First Appellate Court in R.A.No.63/2008 setting aside the judgment and decree dtd. 18/3/2008 passed in O.S.No.25/2006 by the Trial Court and consequently decreeing the suit of the plaintiff is confirmed.