The court reaffirmed that ownership claims must be legally established, ruling that a sale deed cannot grant rights over land without clear evidence of title.

JUDGMENT :

(M.G.S. KAMAL, J.)

1. This appeal is by defendant No.2, being aggrieved by the judgment and decree, dated 14.10.2014, passed in R.A. No.53/2013, on the file of the Senior Civil Judge and JMFC, Hungund (for short “the first Appellate Court”), by which the First Appellate Court, while allowing the appeal filed by the plaintiffs – respondent Nos.1 and 2 herein has set aside the judgment and decree, dated 21.10.2013, passed in O.S. No.343/2013, on the file of the Civil Judge and JMFC, Hungund (for short “the trial Court”), and decreed the suit declaring that the plaintiffs being the absolute owners of the suit schedule land and the sale deed executed by defendant No.2 in favour of defendant No.1 as not binding on the suit land and has further granted the relief of permanent injunction against defendant No.2.

2. The above suit is filed by the plaintiffs contending that:

(a) Originally the land bearing Sy. No.35/1 measuring 5 acres 3 guntas belonged to plaintiff No.1. That prior to 1970, plaintiff No.1 had orally gifted a portion of the suit land in favour of Hazrat Syed Sha Mehboob Quadri Hidayatulla Hussaini Sajjada Nasheen Malkhed for the purpose of construction of house and a mosque.

(b) That on 27.08.1970, plaintiff No.1 sold an extent of 4 acre 25 guntas out of entire extent of 5 acres 3 guntas of Sy.No.35/1 in favour of defendant No.2 – appellant herein and the remaining 18 guntas of land was shown to have been retained on the eastern side of said 4 acres 25 guntas.

(c) On 06.10.1970, the plaintiffs sold further portion of the suit land i.e., out of the remaining 18 guntas in favour of Syed Sha Mahboob Quadri, under the registered sale deed. That, the remaining open land is in lawful possession of Syed Sha Mahbood Quadri. In the year 1970, the plaintiffs also constructed a Katta called as Mehboob Subhani Chilla at the eastern corner of the said land.

(d) That, the City Survey Office and the Municipality assigned the CTS No.4438/A to the suit lands and assigned CTS No.4438/B to the portion of 4 acres 25 guntas purchased by defendant No.2. Thus, two separate CTS maps were prepared by the CTS office, Ilkal.

(e) That, plaintiff No.2 is the son of Syed Sha Mehboob Quadri Hidayatulla Saheb, who after the demise of his father continued to be in lawful actual possession and enjoyment of the suit land along with his brothers.

(f) That defendant Nos.1 and 2 without having any right, title or interest over the suit land were trying to trespass into the suit land and to dig foundation pit, which was objected by the plaintiffs. At that time defendant No.1 informed that he had purchased the portion of the suit land bearing CTS No.4438/A from defendant No.2 under the registered sale deed dated18.06.1974.

(g) That defendant No.2 is the owner only in respect of CTS No.4438/B measuring 4 acres 25 guntas and he had no right over the property in CTS No.4438/A. Since based on the aforesaid documents, defendant No.1 attempted to interfere with the plaintiff’s lawful possession, plaintiff was constrained to file the above suit.

3. Written statement is filed by defendant Nos.1 and 2. Defendant No.1 contended that he is a bonafide purchaser of the property from defendant No.2 and the plaintiff had never objected for the said sale. As such he has no locus standi to file the suit.

4. Defendant No.2 in his written statement denying the plaint averments and allegations contended that the plaintiff was the owner of Sy.No.35/1 measuring 5 acres 3 guntas up to 1970 and that entire 5 acres 3 guntas of land was permitted to be used for non agriculture purposes in terms of the order dated 02.11.1971 by the Assistant Commissioner, Bagalkot, issued in the name of the then Chairman of defendant No.2. As such, plaintiff could not have sold portion of suit property in favour of Sayed Mahaboob Quadri on 06.10.1970 when the entire land was merged into non agricultural land. The sale deed dated 06.10.1970 is therefore void. It is further contended that CTS No.4438/A an