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IN THE HIGH COURT 0;: KARNATAKA, BANGAL0_RE "'L--«.VT:
DATED THIS THE 1911* DAY 09 JUNE if " '
BEFORE
THE HOIWBLE MR. JUSTICE"- A B-§;)PANNA '
REGULAR SECOND APPEM,
BETWEEN:
BASHEER SAB 3/0 DADA' $AHEB'_'A _
62 YRS, 12/o GOPALPUR ROAD," ' _ i " .
CHITRADURGA --
(BY SR! 3 V TILGLJE; M519 sin NE.#:;LA'KA1§?méEé;'PUJAR, ADVS)
AND: . Z _ _
1 ISAC! Ewe s'/0 Aiimfibfiéle
SIYEARS - 2 I 'v
we _GOPA}J?UR' ROAD .
_~ *€3..H{';*§3_AxDURCs:*s TQWN
' - .. _S1NCEDEi%D_ BY ms ms
1(;».:;_ B5.i3AJAl_€. _ V V "
A S/O ISA-Q BAIG
"-44tAGs:,':'4-.';:¥EA;2s
_ RESIDING AT GOPALPUR ROAD
A CHETRAEDURGA
r3'HooBAMMA W/O ISAQ BAIG
75 YRS, R/O GOPALPUR RD
CHITRADURGA
RESPONDENTS
" ~~ {BY SR! 8 M SIDDAPPA, ADV FOR R1(A3}
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THIS RSA IS 911,29 U/8.100 cm AGAINSR
JUDGMENT AND DEGREE DATED 14.6.1996 PASC3E1"). "-INK.
R.A.NO.71/90 ON THE F'iLE OF THE CIV!Lj""'JU})CiE~.;__
CHITRADURGA, DISMISSING THE APPEAL AND CǤC}NFIRMING'''''T "
THE JUDGMENT AND DEGREE BATED 11.7.1990 PASSED' {N
O.S.N(}.114/2986 ON THE FILE OF f'RL.""-AMUNSIFF, V
CHITRADURGA.
THIS RSA comm ON FOR' P'IN EaL :1--~r:ARI1§:;-Vfiazs.
THE COURT DELIVERED THE FOLLQWING'
Junexfifig V
This appeal is t13£:* plainitflf in
its judgment dated
1 1.07.1:-$<:aA<) :1isn.¢is_e¢s€i'j' A: pr the plaintifli The p}aintiff
therefore Yam R.A.No.71/90 before the F1rs' t
Court. Appellatr: Court by its judgment
has dismissed the appeal filed by the
_ themrme is before this Court in this
_scoo1id The plaintiff was beibm the Court below
far'. a judgment to declare that the plaintiff is the
possession of the suit schedule property described
'jj schedule to the plaint. The palfics axe referred to in
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the same rank as as:-3ig11& to them before the _
the purpose of convenience and clarity.
2. The case put forth Vby’ V
purchased the schedule property’ {Size 13,
under a zegistered sale daiefi auxsum of
Rs.5,000/- and that he has: of the
said property. Vthe Medelaally
Grmup the khata on
l’7.04.I9£§4. The laying c}aim to the suit.
has the pmperfy as site bearing
‘ ‘P5<_).8 flsaeeeitiexit N<:).2'73 situated in Gopalapurm
west 23' and North to South 150' mm the
bo1.i13;iéii'iaee eaT__€fid:k:ated in the plaint. The fer
1'fiheve.s_1itv; was however, according to the plaintiff, the
eiefezidants who had no right over the pnyperty were
with the peaceful possesaittm and enjeyment.
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3. The defendants on being issued wief 5 ~
summons appeared and filed the detailed’ u u
disputing the c}a1In’ put mm by 9′
contention of the defendants”:that jag;
owner of the pm-pc11y
Village which was registered sale
deed dated 29.07.1953… The
defendant No.”1?_i A possession and
enjoymetitétttbfe’ ttfialdéii V? The sa;ui’ ploperty is
indicrateqftie me ‘:_n;_ie« eds as Sy.No.33]3P and the
defendant Ne;!. fenced the southern side of the
< suit pmvperty. The chitin over the
°»_e'eit' 'ss1;es1i;.re by the plaintifi" was disputed by the
de1eeeenes.sAt«":e_
.. At 'T Trial Court on iwticing the rival contentions put
the parties has flamed as many as nine issues fer
" Vite' cenaiderafion.
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5. In order’ to discharge the burden cast on ‘ .
by the said” issues framed’ by the ‘I’na’ 1 Count, M
examined himself as PW] and
ms 2 and 3 and marked Exs.Pl. Ek’_e .Pl(a)
Plfb). The first defendant 111111″ 51$
the Commissioner was The at
Ex3.D1 to 134 were Vteythe same, the
‘marited as Exs.C1 to C303).
The the rival eontentimzte and
the evidence’ material issues on which the
bmdgfi had the plaintiff against the plaintiff,
was heid in the afiintnativc to hold that
{he Sy.No.33[3 is that of the defendants.
_Acxx)fdi11g;1§f,-fifze suit was dixmiased. The plaintiff clam)” ing
by the same was before the First Appellate
R.A..No.7 1/ 90. The F’i:rst Appellate Court afiser re-
~.a13;;Iec:iating the evidence did not differ from the judgment
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rcndcrcd by the Trial Court and as such, dismissed’ 3:l1e
appeal. The plaintifi thcmfble, is before this C4:)uIt._…. ‘
6. This Court while flic .;
27.06.2005 framed the only sul)al;a11»A:tig3::’€;:_t;.1§:::3ti§j-igicif. la1if::f0a?b:V”
oonsfieration which wads as V. V
“Whether both the “(:x§;m§s§eé[uz§ ‘justified in
has failed to prove
thvé-A tit}: ‘ ; and consequently, the
any title to the suit
gindér ‘t1:.e”‘° Registered 5.91: Dead at
AA _____ .. e
— ‘ 11;: to consider the substantial qlwstion of law,
Sri s.v. Tilgul, learned counsel appearing for
and Sri B.M.Siddappa, learned counsel
for the respondents.
4.
8. Before oonsideling the matter .
substantial question of law raised, o1V1§”aspect”of diifiaiiifll” dd 2
which requires consideration is the}; 3 4i’r1Vf£};ai:*:5-;;J
appeal was concluded, the for
filed a memo undcr Older 23
sczeldng leave to withd:”a§§””the Qd;.~L=..%No.1 iéjdas from
which this amend application
was opposed fijdettailed objection
oentsndfilg in favour of the
msponddilfg V’§.d”dg§ncnt and decree cannot be
dilutcdat regard, the learned munsc} tbr
the mlianoc on a decision of the
‘V: Court in the case of RRATHINAVEL
Ax%§¥D;d:;ANOTHER vs. VSIVARAMAN AND OTHERS
(1999)4 sec 39 to contend that the withdrawal
A » be pcmaitted. I have perused the decision I’CI1dCl’€d
___””d«.”byVflt}1c Hmfble Supreme Court. The i-Ion’b1c Supreme Court
dd has not1ocd’ that a right is available under Older 23 ‘
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Rule 1 of CPC, the fiurtller guidelines with iegard to gra’:it_.»of
permission to withttraw is also (.’:5()1′]3idCI’cd by the .,
Supreme Court. The Hon’b1e Supreme Court has;e’tatee:I H
such withdrawal cannot be permitted: as-La Amehtttevré heihziotiiixie,
since the ugh’ ts whiell have been
either of the parties mick
withdrawal.
dawn by the Hozfble
Supreme for withdrawal is
perused, that” 1§u£”rmh by the appellant see}-ting
is3xdue’Htd”‘t}ie mason that the Triai Court has
on the gmund that the plaintiff has not
pmrperty and the defendants pn)pertu:’ s
quitevvtiéfiemnt and ae such, the plaintiff desfies in retain
.. right: to enjoy the pmpelty if such pmperty is not
the botmciaxies of the property belonging to the
H V A» ‘t On this asyect of the mauer, if the facts of the
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pmscnt case are notcioed, issue Nos.l and 3 w_;l1i_e_:~h vv”9§*I:{1feVV ~ 3
framed for considcmtion by the ‘l’nal’ H
thetneaftcr considered by the First Apjiéllatrt ‘ ”
is relating to that aspect of the. ‘F]} ‘V;g’., ]’.
well as the First Appellate
that the defendants are the
Sy.No.38[ 3. Since such rendtamd by
both the Cc:-urts was to
oontenda_¥Vthavt’_’ is pmtrhased by tha p1aintifi’
being the’/imjze’ saé ;u;]” afiotted by the Pamzhayat in
favour. of tl3¢_=;”\’cr::v11£i:;-.*;’ of plaintiff, the said’ site in any
x V’ “nnly t}é””‘i.5é§vrond the pmrpcrty belonging to the
A$y;.No.33[3. Therefore, notwithstanding the
bctcn rcntiemd by the Courts below, if the
_ia:9si. able to establish that the site is beyond the
belonging to thfi dcfiendant by such auflmcntic
or survey, it would always be open to the plainfifi’
u to enjoy the said’ pmpe-11y or if the:rc is sue!) an
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the khata was 3330 changed on 17.04. 1984. ~
of the matter, it is not in dmpum thatgnacn ” ~
mlating to the change of khata
dcfcndmts had opposed the b¥it-
rejected such contention and khata.
Though the plaisntifi mag». asficxét of the
matter, I am of fl:-.e vicw the cast:
of the dcfcndan_:s,’gu’ ‘;cc’ Eat alai é;ia:g’e:;”a11–..€’l1at was reqnimd
to be (pf VV1V;cvt:nue entries and the
idcnnfica’ finV:Vn*-::rMfV was not an issue and as such,
the same; the defendants.
V VA “pmscnt suit, the plainfifi was required in
befozm the Trial Court, since a dccmc of
{hat he is the owner of the pmpcrty had also
In that nitgald, except for the oral eantenfian
tile site in questian had been allotted to Papaiah, no
u has been produced ta establish the title of
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Papa1ah’ and the manner in which ham; K ”
Layout and a Sim had been allotted. Vin
Court has come to the oonclussitjiz.
sought for a declaratmy hgvé to title
of Papaiah. In this Icgaitiifilc noticing that
91113′ 315 the vendor of
the plainizitff ad in favour
of Papaiah, that thfi plaintiff has
not the very evidence
tendered PW3′ has been noficed by the
Court,_ fiat only admits that tltzeze is no
V’ his favour from the Panchayat for
site but has shifted his stand in his cross
PW–3 statead that Panchayat executed
‘an sale’ his favour but changed his answer and said
I .. tthare was no Iegistcmd document. But ultimately
that the panchayat ilzfcmned him that he could take
site and aooorflingly he took it anti went on paym g
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kandayam. In the }7i[!3SE’:’£l.t fascia, the vendor of t11u_4_ee;”p1«.’-¢1iV’..'”:.’_t_._L_ii’V’§” _.__ A’
hiznaclf is not slut: of his title though having 2-:1
witncas, mom partictuiarly, when stiff A
19.4.1986 claiming declaration based dig ‘£iV.1e(:c1;.f..”.;1Ic}é1imé1i{a ‘V
dated 28.6.83, the verasity was V
13. The statement ‘ii’-V1: ‘wheé%ei11 he
has stated. that the Panchfinjfit’ to rctai:n the
331431′ sittvi; afigifiafly belonged in him.
Thcmib1fi;–.n€Aj¢it:g .:§vkie11on tcndcmd on behalf of
the Lfi:e ‘Fria]V–. C£:_11ft } 1as come to the commzsion that
V’ hag to pmve the title in respect of the
‘xgaxopfarty; _ ”
.’ A éflicr aapoct whiclti also mquitt=:s to be notiow
;_i’-5 théfi… ifisue No.3, the burden had been cast. on the
V’ Lkwfenaanis to prove with mm to the cwvnemhip of the
giéfiéfiéiantfi relating to the pmpexty bearing Sy.No.33]3. The
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T1131′ Court has Iefialtncd to the sale am cgatca k ”
on by the dcfiendants and has notified
had purchased the extent of $’£:n:–.. faétitncé
sale deed. Apart fmzm the said
properties, the Trial __the documents
viz., the reports submittqi. relating to
the location of come to the
oonclusiotn V. to prove that the
location property belonging to
thcdc1:’cnVV§iia;§1tsM.V 1′
V. _ for the appellant strenuously
document namely the sale deed dated
29;7.58 by the defendants to establish their’ title
” ‘gvcr healing Sy.No.33[3 would indicata: that the
boundary indicatnd in the said document is, the
fizntmod by the Municipality. Tlmreibxe it is
” since aooomm g to the boundary umlayout lies
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29.7.58 relied on by them and ifat__aH_the emeeexweeet °
clarm’ any ng]3′ 1: even after estabiishm’
Papaiah, such site can only’. bxayvgtitdv
boundary ieeieeted in the Eby the
defendants and to that the defendants
would not have any by the
plaintiff but has failed to
estabkish is beyond the
as the present claim
made by the site number and
the a3sessmc_ tiit Trial Court as well as the First
e1i””‘t2ssessi11g the am} as well as the
available before it including the
have come to the conclusion that
the area belonging to the defendants. To
Vtextent, neither the Trial Court 1101’ the First Appellate
_ have erred in the matter. As eemiy noticed, if at all
A ” ptetuesme te establish that the Panchayat had rennet: e
i.