Mahaboob Vs. Maktumsab  INSC 402 (10 March 2008)
Dr. Arijit Pasayat & P. Sathasivam CIVIL APPEAL NO. 1869 OF 2008 (Arising out of S.L.P. (C) No. 2591 of 2006)
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the judgment and order dated 08.07.2005
passed by the High Court of Karnataka at Bangalore in Regular Second Appeal No.
242 of 2001 modifying the judgment and decree in part that the plaintiff is
owner and in possession only to an extent of 7.00 acres of land.
3) BRIEF FACTS:
Mahaboobsab Modinsab Agasimani, plaintiff in O.S. No. 129 of 1990 on the
file of the Principal Civil Judge, Hubli is the appellant in the above appeal.
The appellant/plaintiff filed the said suit for declaration declaring him as
the absolute owner of the suit property bearing RS. No. 93/3 measuring 7 acres
and 10 guntas situate at Palikoppa in Hubli. According to the plaintiff, he is
the owner and in possession of the suit property which came to the share of his
father in the year 1973 in their family adjustment among the brothers.
Subsequently, father of the plaintiff and others got their shares entered vide
ME No. 480. The same has not been challenged by the defendant so far. The defendant
is the owner and in possession of R.S. No.
98/2 measuring 6 acres 30 guntas since 1973. Both the lands are adjacent to
one another. Though the suit property measuring 7 acres 10 guntas, there was an
entry in the record of rights to the extent of 7 acres and 30 guntas. The
plaintiff, by filing an application to the Revenue Authority, got it rectified
as 7 acres 10 guntas. The defendant got the extent of his land entered as 7
acres instead 6 acres 30 guntas. This entry made by the Revenue Authority was
illegal and without the knowledge of the plaintiff. No notice was issued to
him. Right from the date of partition in the year 1973, defendant is cultivating
the land measuring 6 acres 30 guntas and the plaintiff is cultivating the land
measuring 7 acres and 10 guntas. Therefore, the order made by the ADLR in PH
No. 192/87 was illegal and contrary to the provisions of the Karnataka Land
Revenue Code. Therefore, certification of ME No. 781 was illegal and not
binding on the plaintiff. Though variations were made in the record of rights,
the plaintiff continued to enjoy 7 acres and 10 guntas, whereas the defendant
is in actual possession of only 6 acres and 30 guntas. Since the defendant
started denying the title of the plaintiff to the entire extent, the plaintiff
constrained to file the suit for declaration of his title.
4) Defendant resisted the suit, inter alia, contending in his written
statement that the plaintiff has wrongly described the property as 7 acres and
10 guntas. RS.No. 98 originally belonged to the father of the defendant,
Hasansab and his brothers. During 1973, there was an oral partition of RS No.
98 and accordingly M.E. No. 480 came to be certified. As per the oral
partition, RS No. 98/1 measuring 6 acres 30 guntas was given to Nabisab A
Agasimani, RS No. 98/2 measuring 6 acres 30 guntas was given to Dawalsab Agasimani
and RS No.
98/3 measuring 7 acres 10 guntas was given to father of the defendant. It
was further stated that subsequently Dawalsab Agasimani to whom RS No. 98/2 was
allotted, given up his claim in respect of that land and thus the said RS No.
98/2 was allotted to the share of defendant's father. Therefore, RS No. 98/2
also came to the share of defendant's father.
Accordingly, M.E. No. 600 came to be made on 01.05.1980. In this way,
defendant and his brothers became the joint owners of RS No. 98/2 and 98/3.
Subsequently, all the five sons of Hasansab partitioned these properties in the
year 1985. In that partition, RS No. 98/2 measuring 7 acres fallen to the share
of defendant and RS No. 98/3 measuring 7 acres fallen to the share of the
plaintiff. In this way, M.E. No. 712 came to be certified on 20.01.1985. In
short, according to the defendant, he has been the owner in possession of 7
acres in RS No. 98/2 and the plaintiff is the owner in possession of 7 acres in
RS No. 98/3.
5) On the above pleadings, plaintiff himself was examined as PW. 1 and one
Lalsab as PW.2 apart from exhibiting documents, namely, Ex.P-1 to P-16. On the
side of the defendant, his son has been examined as DW.1 and one Dawalsab
Agasimani as DW.2 apart from marking Ex.D-1 to D-16 in support of his defence.
The trial Judge, after framing necessary issues and considering the relevant
materials, decreed the suit declaring the plaintiff as the absolute owner of
suit property measuring 7 acres 10 guntas in RS No. 98/3 of Palikoppa village.
6) Aggrieved by the aforesaid judgment and decree of the trial Court, the
defendant preferred Regular Appeal No. 66 of 1994 before the First Addl.
District Judge, Dharwad. The First Appellate Court, after framing necessary
points for consideration, accepted the findings rendered by the trial Court and
dismissed the appeal on 06.02.2001. Not satisfied with the judgment and decree
of both the Courts below, the unsuccessful defendant filed Regular Second
Appeal No. 242 of 2001 before the High Court of Karnataka at Bangalore under
Section 100 CPC. The High Court, by impugned judgment dated 08.07.2005,
modified the judgment and decree of the Courts below and held that the
plaintiff is owner in possession only to an extent of 7.00 acres. Questioning
the modified decree to the extent of 10 guntas, the plaintiff, after obtaining
special leave, has filed the present appeal.
7) Heard Mr. M. Khairati, learned counsel appearing for the appellant. None
appeared for the respondent.
8) The only point for consideration in this appeal is whether the High Court
is justified in interfering with the conclusion arrived at by both the Courts
below? 9) In view of narration of the pleadings of both parties in earlier
paragraphs, there is no need to advert to the same once again. The dispute
relates to 0.10 acres or 10 guntas of land in Sy.No.98. The High Court
proceeded on the basis that it was during 1985 as per arrangement in Ex.D-11,
RS. Nos. 98/2 and 98/3 were equally divided between two brothers i.e. grandfather of the plaintiff and father of the defendant and each got 7
acres to their share, the same was intimated to the village accountant and on
that basis entry was made. In other words, the High Court based its reliance as
per Ex.D-11. Learned counsel appearing for the appellant has brought to our notice that
the High Court failed to appreciate that there has been only one partition in
the year 1973 among the brothers of the defendant and father of the plaintiff,
based on the same the plaintiff remained in possession of the property which
came in the share of his father in 1973. In other words, after partition in the
year 1973, the plaintiff continued to be in possession of 7.10 acres. Both the
trial Court as well as the First Appellate Court discussed the issue in detail
and rightly came to the conclusion that the plaintiff is the absolute owner of
7.10 acres and not 7 acres as alleged and erroneously concluded by the High
10) It is relevant to point out that issue Nos.1-3 framed by the trial Court
relate to the main question. The discussion of the trial Court on these issues
clearly shows that the document Ex.D-11 does not contain the date and as to
when the same was returned and intimated to the village accountant. On
verification of Ex.D-11, the trial Court came to the conclusion that it does
not bear even the signature and seal of the office of the village accountant of
Palikoppa. DW.2, who was examined to prove Ex.D-11, has stated that the
plaintiff has signed Ex.D-11, did not identify the signature of the plaintiff.
When the plaintiff has totally denied the execution of Ex. D-11 and more
particularly when DW.2 who was examined to prove Ex.D-11 has not identified the
signature of the plaintiff, the High Court is not justified in relying on
Ex.D-11. That being our conclusion, as rightly concluded by the trial Court,
the consequent action taken on the basis of Ex.D-11 cannot be accepted. DW.1 is
none else than son of the defendant. As rightly observed by the trial Court, he
is aged about 26 years as on February, 1994, whereas partition was taken place
in the year 1973. This shows that he was just aged about 7 years in 1973. In
such circumstances, it is difficult to believe that he was aware of the
transaction that took place in 1973. Even if we accept his statement is correct,
he admitted that as per Ex.P-1 the plaintiff's father got 7 acres 10 guntas.
The trial Court has also raised a doubt that there is nothing on record to show
that Ex.D-11 and D-13 were given to village accountant with the consent of the
plaintiff. Like that of the trial Court, the First Appellate Court raised a
doubt about the factum of 1985 partition. The Appellate Court also concluded
that as per Ex.P1 the extent of RS No. 98/3 is 7 acres and 10 guntas. In the
light of the factual conclusion arrived by the trial Court as well as the First
Appellate Court analyzing the oral and documentary evidence, we are of the view
that the High Court has committed an error in interfering on a question of fact
which was not permissible under Section 100 CPC vide P. Chandrasekharan and Others vs. S. Kanakarajan and Others, 2007 (5) SCC 669
and Basayya I. Mathad vs. Rudrayya S. Mathad in Civil Appeal No. 1349 of 2001 dated 24.01.2008 [2008
(1) Current Tamil Nadu Cases 537]. It is settled law by this Court, that, it is
impermissible for High Court to interfere on a question of fact particularly
when both the Courts below rejected Ex.D-11 as not admissible since the same
was not properly proved by the defendant. The conclusion arrived at by the High
Court is not acceptable and the decision arrived by the trial Court and the
First Appellate Court declaring the plaintiff as the owner in possession of
7.10 acres is acceptable.
11) In the light of the above discussion, the conclusion arrived at by the
High Court cannot be sustained and the same is set aside. The civil appeal is
allowed. No costs.
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