IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL No.472/2015 BETWEEN:
Sri Abdul Mazeed Aged about 79 years S/o late Abdul Basith Residing at Muthusagara Kudur Hobli, Magadi Taluk – 562120. ...Appellant (By Sri Venkatesha C a/w Sri Chennaraya Reddy S, Advocates) AND:
Sri Mohammed Haneef Aged about 78 years S/o late Abdul Basith Residing at No.292, 3rd Cross 5th Main, Kengeri Satellite Town, Bengaluru Rural District – 560060. ...Respondent (By Sri N Suresha & Sri R Chennakeshava, Advocates) This RSA is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 2.2.2015 passed in RA No.49/2007 on the file of the I Addl. District & Sessions Judge, Ramanagara, dismissing the appeal and confirming the judgment and decree dated 24.7.2006 passed in OS No.195/1999 on the file of the Prl. Civil Judge (Sr.Dn.) and Ramangaram.
This RSA coming on for admission this day, the Court delivered the following:
JUDGMENT This second appeal is filed by the defendant questioning correctness and legality of the judgment and decree dated 2.2.2015 passed in R.A No.49/2007 on the file of I Addl. District & Sessions Judge, Ramanagara, dismissing the appeal and confirming the judgment and decree dated 24.7.2006 passed in OS No.195/1999 on the file of the Prl. Civil Judge (Sr.Dn.), Ramanagara.
2. In order to avoid confusion and overlapping, the parties are referred in accordance with their ranking and status as held before the Trial Court.
3. The facts leading to this case are as under:
The respondent/plaintiff filed a suit in OS No.195/1999 on the file of the Prl. Civil Judge (Sr.Dn.), Ramanagara, seeking the relief of declaration that he is the owner of the suit schedule property, for possession of the said property and also relief of mesne profits and also for costs of the suit.
4. The plaintiff averred in the plaint that his father, Abdul Basith was the absolute owner of the suit property. On 1.9.1995, his father executed a registered settlement deed settling his properties in favour of his children. It is specifically averred in the plaint that the suit schedule property was allotted to him in the family settlement. The plaintiff further averred that the defendant had no house to stay and since the plaintiff was working at Bangalore, he permitted the defendant to occupy the suit property temporarily. The plaintiff further averred in the plaint that after retirement from service, he requested the defendant to handover vacant possession of the suit schedule property. Since the defendant resisted and was not willing to handover the possession, he was compelled to file the suit for the relief of declaration and for possession.
5. The defendant on receipt of summons, filed written statement and stoutly denied the entire averments made in the plaint. The defendant specifically contended in the written statement that his father namely, Abdul Basith had made an arrangement in favour of his children by executing a will in favour of his children on 8.6.1979. The defendant further averred in the written statement that he and plaintiff have got 1/4th share each in the suit property and the remaining property went to the share of other children. It is his specific contention in the written statement that he is in possession over the suit schedule property as an absolute owner. Based on the above set of facts, the defendant sought for dismissal of the suit.
6. The Trial Court based on rival contentions of the parties framed the following issues:
1) Does the plaintiff prove his ownership over the suit property as alleged?
2) Does the defendant prove that by virtue of revocation deed and will, he became the owner of the suit property as alleged?
3) Does the plaintiff prove that the possession of the plaintiff over the suit property is permissive possession as alleged?
4) Whether the plaintiff is entitled for the relief or declaration, possession and mesne profits as prayed?
5) What order or decree?
7. The Trial Court based on the rival contentions formulated issues and the plaintiff in support of his contention examined himself as PW.1 and got marked 11 documents as Exs.P1 to P11. The defendant in support of his contention examined himself as DW1 and three independent witnesses as DW.2 to DW.4 and relied on rebuttal evidence marked as Exs.D1 to D16.
8. The Trial Court having assessed the oral and documentary evidence on record, answered issue Nos.1, 3 and 4 in the affirmative and issue No.2 in the negative by holding that the plaintiff acquired right, title and interest based on the registered settlement deed dated 1.9.1995 as per Ex.P5. The Trial Court while appreciating the evidence on record also examined Exs.P1, P2, P3 and P4. On meticulously examining the earlier judgment passed in OS No.67/1976 and OS No.33/1982, the Trial Court was of the view that the settlement deed executed by the father of the plaintiff stood proved. The Trial Court recorded a finding that the father of the plaintiff viz: Abdul Basith, had filed a suit for revocation of settlement deed in OS No.33/1982. The said suit was dismissed on 11.2.1987. In that view of the matter, the right, title and interest of the plaintiff was adjudicated in earlier suit, which in fact was filed by the father of the plaintiff. The Trial Court also took note of the will set up by the defendant as per Ex.D1. In view of the judgment, the alleged will executed by Abdul Basith would be of no consequence. Even otherwise, the Trial Court was of the view that though the defendant has claimed right, title and interest based on the will, he has not taken any steps to prove due execution of will in accordance with law. He has not taken pain to examine the attesting witnesses. The Trial Court has taken note of admission given by the defendant that he does not know as to who are the scribe and attestors to Ex.D1. Based on the above said finding, the Trial Court has proceeded to decree the suit directing the appellant to handover the possession of the suit schedule property.
9. The appellant/defendant being aggrieved by the judgment of the Trial Court preferred RA No.49/2007.
10. The Appellate Court on re-appreciation of evidence on record, concurred with the reasoning assigned by the Trial Court and has recorded a finding that in view of the judgment and decree passed in OS No.33/1992, the father of the plaintiff, Abdul Basith, had no authority to bequeath the suit schedule property in favour of the defendant. The Appellate Court was of the view that on the strength of Exs.D1 and D4, the defendant would not acquire any right, title and interest over the suit schedule property. Having reassessed the entire evidence and meticulously examined the reasoning assigned by the Trial Court, the Appellate Court was of view of that the judgment and decree of the Trial Court does not suffer from any infirmity. The Appellate Court proceeded to dismiss the appeal.
11. The appellant/defendant being aggrieved by the judgment and decree of the Courts below is before this Court.
12. Learned counsel for the appellant/ defendant would vehemently argue that defendant’s father, Abdul Basith, during his life time, had revoked the settlement deed and in that view of the matter, Abdul Basith, had subsisting right over the suit schedule property and has accordingly made an arrangement in favour of his children by executing a will dated 8.6.1979 – Ex.D1. He would vehemently submit before this Court that both the Courts below have misread the evidence on record and as such, the same suffers from serious infirmity. In that view of the matter, learned counsel vehemently contends that both the Courts below erred in dismissing the suit and as such, the judgments and decrees of the courts below suffer from serious infirmities and the same would give raise to substantial questions of law as framed in the appeal memo.
13. Heard the learned counsel for the appellants.
14. On perusal of Judgment of Courts below, it is not in dispute that one Abdul Basith, who is the father of the plaintiff and defendant, was absolute owner of the suit schedule property. The said Abdul Basith by way of registered settlement deed allotted the suit schedule property in favour of plaintiff on 1.9.1995 and it is also borne out from the records that there was some dispute, which compelled the plaintiff to file the suit in O.S.67/1976. On the basis of the said settlement, the plaintiff had filed a suit in OS No.67/1976 in respect of agricultural lands. The said suit was decreed on 8.6.1976. Subsequently, it appears that the father of the plaintiff filed OS No.33/1982 for cancellation of settlement deed. The said suit was dismissed on 11.2.1987. In view of dismissal of OS No.33/1982, the validity of settlement deed was decided and the same has attained finality in the year 1987. Since the suit filed by Adbul Basith in OS.No.33/1982 seeking revocation of settlement deed was dismissed, Legal heirs of Abdul Basith have no locus standi to dispute the settlement deed and the same would bind them.
15. In this background, Abdul Basith had no subsisting right and hence, the question of bequeathing the suit schedule property, which was the subject matter of the registered settlement deed could not have been bequeathed. Even otherwise, a feeble attempt was made in setting up a will. But the defendant has not taken it further by proving due execution of will by adducing evidence in compliance of Section 68 of the Indian Evidence Act and Section 63 of Indian Succession Act, 1925. The Courts below meticulously examined this vital aspect and have come to the conclusion that the will cannot be looked into. Both the courts below have meticulously examined the other documents produced by the plaintiff, which would corroborate the documents produced at Exs.P1 to P4. Exs.P6 to P8 are demand register extracts. Ex.P11 is tax paid receipts. All these documents clearly indicate that the plaintiff has acquired right, title and interest based on the registered settlement deed as per Ex.P5 executed by the father of the plaintiffs. There is no rebuttal evidence adduced by the Appellant/Defendant. In that view of the matter, both the courts below on appreciation of oral and documentary evidence on record, have decreed the suit holding that the plaintiff is the absolute owner and accordingly directed the defendant to handover the vacant possession of the suit schedule property.
16. For the reasons stated supra, I am of the view that no substantial questions of law is involved in the present case on hand.
Accordingly, the appeal is dismissed. No order as to costs.
Sd/- JUDGE Bkm