PAKEERA (MALERA) JINDA SAB vs KHAJI MOHAMMAD HUSSAIN SAB

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2024 Supreme(Online)(Kar) 37963

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2024 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 855 OF 2007 (DEC)
BETWEEN:
1. PAKEERA (MALERA) JINDA SAB S/O DODDA MADAR SAB AGED ABOUT 55 YEARS AGRICULTURIST, ARASIKERE VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001 SINCE DEAD BY HIS LR'S 1(A) SMT. GULAB JAN W/O LATE PAKKIRA JINDA SAB AGED ABOUT 60 YEARS R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, Digita lly signed DAVANGERE DISTRICT - 577001 by R DEEPA Location: 1(B) M. MADAR SAB HIGH COUR T S/O LATE PAKKIRA JINDA SAB OF AGED ABOUT 44 YEARS KARNATAKA R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001
1(C) SRI. M. SUBHAN SAB S/O LATE PAKKIRA JINDA SAB AGED ABOUT 40 YEARS R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001
1(D) SRI. M. SAYED AHAMAD S/O LATE PAKKIRA JINDA SAB AGED ABOUT 44 YEARS R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001 DEAD BY HIS LR'S
1D(I) SHAKEELA BHANU S/O LATE M. SAYED AHAMAD AGED ABOUT 35 YEARS R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001
1D(II) M. SAHEEL S/O LATE M. SAYED AHAMAD AGED ABOUT 17 YEARS R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001
1D(III) M. BABA KALANDAR S/O LATE M. SAYED AHAMAD AGED ABOUT 15 YEARS R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001
1D(IV) M. AFSANA BHANU S/O LATE M. SAYED AHAMAD AGED ABOUT 12 YEARS R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001
1D(V) M. MAHAMMED ADIL S/O LATE M. SAYED AHAMAD AGED ABOUT 10 YEARS R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 577001 APPELLANTS 1D(II) TO 1D(V) ARE MINORS REP. BY NATURAL MOTHER 1D(I)
1(E) SMT. SHEEDABANU W/O LATE MAHABUBUBHASHBENKI D/O LATE PAKKIRAJINDA SAB AEGD ABOUT 34 YEARS R/O #437. S.J.M. NAGAR KONDAJJI ROAD, 1ST CROSS DAVANAGERE TOWN DAVANAGERE DISTRICT - 577 001.
2. PAKEERA IMAM HUSSAIN S/O DODDA MADAR SAB MAJOR, AGRICULTURIST ARASIKERE VILLAGE, HARAPANAHALLI TALUK DAVANGERE DISTRICT - 570 001 …APPELLANTS (BY SRI. JAIVITTALA KOLLAR, SR. COUNSEL FOR MS. RADHA, ADVOCATE)
AND:
1. KHAJI MOHAMMAD HUSSAIN SAB SINCE DEAD BY HIS LR'S
1(A) SMT. SAFURABI W/O DECEASED KHAJI MOHAMMAD IMAM HUSSAIN @ BASHASAB AGED MAJOR OCC:HOUSE WIFE HORPETE, CHITRADURGA - 572 101
1(B) SOFIYA NIKHATH D/O LATE KHAJI MOHAMMAD IMAM HUSSAIN @
BASHASAB AGED MAJOR OCC:HOUSEHOLD
1(C) ASIFA NIKHATH D/O LATE KHAJI MOHAMMAD IMAM HUSSAIN @
BASHASAB AGED MAJOR, OCC:HOUSEHOLD
1(D) KHAJI MOHAMMED DADAPEER S/O LATE KHAJI MOHAMMAD IMAN HUSSAIN @
BASHASAB AGED MAJOR, OCC:COOLIE
1(E) ZARA NIKHATH D/O LATE KHAJI MOHAMMAD IMAN HUSSAIN @
BASHASAB AGED MAJOR, OCC:HOUSEHOLD
1(F) AZRA NIKHANTH D/O LATE KHAJI MOHAMMAD IMAN HUSSAIN @
BASHASAB AGED MAJOR, OCC:COOLIE
1(G) KHAJI MAHAMED GHOUSE PEER S/O LATE KHAJI MOHAMMAD IMAN HUSSAIN @
BASHASAB AGED MAJOR, OCC:COOLIE ALL ARE R/AT HORPETE CHITRADURGA DISTRICT - 572 101
2. PAKEERA RAHAMATHULLA S/O CHAMAN SAB MAJOR, AGRICULTURIST MANDALUR VILLAGE DAVANGERE TALUK AND DIST. - 570 001
3. PAKEERA ABDUL MAZEED S/O CHAMAN SAB MAJOR LORRY HAMALI YERAGUNTE ROAD NEW CAMP, MAIN ROAD DAVANGERE TALUK AND DIST. - 570 001
4. PAKEERA ABDUL SALAM SAB DEAD BY LEGAL REPRESENTATIVES
4(A) SMT. MAIMANBEE W/O LATE PAKEER ABDUL SALAM SAB, 42 YEARS, HOUSEHOLD
4(B) MAMTAJA D/O LATE PAKEER ABDUL SALAM SAB, 25 YEARS, COOLIE
4(C) UMAR BASHA S/O LATE PAKEER ABDUL SALAM SAB, 23 YEARS, AUTO DRIVER
4(D) IDAYATH S/O LATE PAKEER ABDUL SALAM SAB, 21 YEARS, BELADAR
4(E) HASEENA D/O LATE PAKEER ABDUL SALAM SAB, 17 YEARS, COOLIE
4(F) KOUSAR S/O LATE PAKEER ABDUL SALAM SAB, MINOR, AUTO DRIVER
4(G) APSAR S/O LATE PAKEER ABDUL SALAM SAB, MINOR, 4(H) SADDAM S/O LATE PAKEER ABDUL SALAM SAB, MINOR
4(E) TO 4(H) ARE MINORS REP. BY NATURAL MOTHER I.E., 4(A)
ALL ARE R/O YARAGUNTA ROAD NEW CAMP MAIN ROAD DAVANAGERE TALUK - 570 001.
5. PAKEER MOHAMMED KHALEEL S/O CHAMAN SAB MAJOR BUS DRIVER, MEHABOOB NAGAR
5TH CROSS, DAVANGERE - 570 001
6. PAKEERA ABDUL JABBAR S/O CHAMAN SAB, MAJOR, LORRY DRIVER YARAGUNTA ROAD, NEW CAMP MAIN ROAD, DAVANGERE- 570 001
7. PAKEERA MOHAMMED ABBAS S/O CHAMAN SAB, MAJOR, HOUSE HOLD, YARAGUNTA ROAD, NEW CAMP MAIN ROAD DAVANAGERE - 570 001. 8. SMT JEENATHABI W/O K.H. MOHAMMED HUSSAIN SAB MAJOR, HOUSE HOLD GOURI SHANKAR SAW MILL HEAD OFFICE ROAD, CHITRADURGA - 577 501.
9. PAKEERA BASHA SAB DEAD BY LR'S
9(A) IMAMBI D/O PAKEER BASHA SAB, 9(B) JAHIDA D/O PAKEER BASHA SAB
38 YEARS, COOLIE
9(C) MEHABOOB BI D/O PAKEER BASHA SAB AGED 35 YEARS, COOLIE ALL ARE R/O 1ST WARD, ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT - 570 001
10. PAKEERA SANNA MADARA SAB DEAD BY LR'S
10(A) SMT.SHARIFA BI W/O PAKEERA SANNA MADAR SAB, 65 YEARS, HOUSE HOLD 10(B) SMT FATHIMA BI D/O PAKEERA SANNA MADAR SAB
47 YEARS, COOLIE 10(C) SUBAN SAB S/O PAKEER SANNA MADAR SAB
45 YEARS, AGRICULTURIST
10(D) MADAR SAB S/O PAKEER SANNA MADAR SAB AGED 42 YEARS
10(E) RAFOQ SAB S/O PAKEER SANNA MADAR SAB AGED 38 YEARS, FRUIT MERCHANT
10(F) SMT KHURSHID BI D/O PAKEER SANNA MADAR SAB
35 YEARS, COOLIE ALL RE R/OF 1ST WARD, ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT - 583131 11. PAKEERA MAHABOOB SAB S/O IBRAHIM SAB
12. PAKEERA RAFI SAB S/O LATE IBRAHIM SAB RESPONDENTS 11 AND 12 ARE MAJORS, AGRICULTURISTS ARASIKERE VILLAGE HARAPANAHALLI TALUK - 583 131
13. HIKKAMAGERI AJJAPPA DEAD BY LRS
13(A) SMT.A.H. HALAMMA W/O AJJAPPA, 75 YEARS, HOUSEHOLD
13(B) A H MALLIKARJUNA S/O AJJAPPA, 46 YEARS, AGRICULTURIST
13(C) A H PAMPANNA S/O AJJAPPA, 44 YEARS, AGRICULTURIST ALL ARE R/O ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT - 583 131
13(D) SMT SAVITHRAMMA D/O AJJAPPA & W/O AKKANDI KOTRESHAPPA
42 YEARS, HOUSEHOLD R/O OBALAPURA VILLAGE HARAPANAHALLI TALUK - 583131
13(E) SMT EASHAKKA D/O AJJAPPA & W/O BHARMAPPA
40 YEARS, HOUSEHOLD R/O KANCHIKERE VILLAGE HARAPANAHALLI TALUK - 583131 13(F) BASAVARAJA S/O AJJAPPA
38 YEARS, LECTURER R/O ARASIKERE VILLAGE HARAPANAHALLI TALUK - 583131
13(G) SMT JATHAVVA D/O AJJAPPA &
W/O HARAPANAHALLI EESHAPPA
36 YEARS, HOUSHOLD R/O GUNDAGATTI VILLAGE HARAPANAHALLI TALUK - 583 131
13(H) KOTRAPPA S/O AJJAPPA
34 YEARS, AGRICULTURIST
13(I) EESHAPPA S/O AJJAPPA
32 YEARS, AGRICULTURIST R/O ARASIKERE VILLAGEHARAPANAHALLI TALUKDAVANGERE DISTRICT …RESPONDENTS (BY SRI. IQBAL PATEL, ADVOCATE FOR LR'S OF R1(A TO (H)
R2, R3, R5, R6, R9(A), 9(B), 9(C), R10(A) TO (F) & R11, R12, R13(A) TO (I) ARE SERVED.
V/O DATED 1.8.11 SERVICE OF NOTICE TO R7 AND R8 IS HELD SUFFICIENT)
THIS RSA IS FILED U/S. 100 R/W O 42 R 1 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 16.12.2006 PASSED IN R.A.NO. 216/02 (OLD NO. 59/01) ON THE FILE OF THE CIVIL JUDGE (SR.DN.), HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 24.3.2001 PASSED IN OS.NO. 75/1986 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, HARAPANAHALLI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This second appeal is filed by the appellants challenging the judgment and decree dated 16.12.2006 passed in R.A.No.216/2002 (Old No.59/2001) by the Civil Judge (Sr.Dn.), Harihar, confirming the judgment and decree dated 24.03.2001, passed in O.S.No.75/1986 by the Civil Judge (Jr.Dn.) & JMFC, Harapanahalli.

2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants No.1 and 2 are defendants No.4 and 5; respondent No.1 is the plaintiff and respondents No.2 to

13 are the defendants.

3. The brief facts leading rise to filing of this appeal are as under:

Plaintiff filed a suit for declaration of title and for delivery of possession. It is the case of the plaintiff that, the suit schedule properties are the agricultural lands bearing Sy.No.421 measuring 10.97 acres and another land bearing Sy.No.426 measuring 30 guntas situated at Hosakoti Village. It is the case of the plaintiff that, the father of plaintiff was a Khazi and he was performing Khazi functions at Arasikere till his death. Plaintiff's mother's name is Jahirabi, who also died about a year back at Chitradurga. Defendants are very closely associated with plaintiff's family. On 03.01.1942, the father of plaintiff had executed a registered sale deed in favour of his wife i.e., plaintiff's mother Jahirabi in lieu of her mehar. The suit schedule properties are given to the plaintiff's mother. Since from the date of mehar, the plaintiff's mother is in exclusive possession and enjoyment over the suit schedule properties. All the suit schedule properties were personally cultivated by plaintiff's mother till her death. The father of the plaintiff died about 25 years back and after his demise, his mother lived at Arasikere about 2-3 years and then plaintiff and his mother left Arasikere Village and temporarily settled at Chitradurga. Defendants' and plaintiff's family are close friends and they are closely associated with each other. At the time of leaving Arasikere, defendants' father asked the plaintiff's mother and expressed their intention to cultivate the plaint schedule lands on rental basis. As per their request, the mother of the plaintiff agreed to lease out the suit schedule properties for a sum of Rs.4,000/- and on that day kararu (Agreement) was executed by defendants' father in favour of plaintiff's mother. In the year 1969, plaintiff's mother gave the suit schedule properties to one Rehaman Sab on rent for 6 years and he agreed to pay Rs.2,000/- and on the same day kararu was executed. In the year 1980, defendants cultivated the land for 4 years and agreed to pay Rs.1,500/- rent for using the land. On that day kararu was also executed and paid Rs.5,000/- as advance amount to plaintiff's mother. The defendants are in permissive possession. The plaintiff's mother used to visit Arasikere 2-3 times in a year. The plaintiff's mother died on 05.01.1985, leaving behind the plaintiff. The plaintiff requested the defendants to vacate the suit schedule properties, but the defendants did not vacate the same. Subsequently, within a week, panchayat was held in the presence of Guruvina Kotraiah, Yellappa and one retired Deputy Tahsildar Sri. Syed Ahamed Saheb and some others were present. In the panchayat, defendants agreed that the plaint schedule lands belong to the plaintiff and agreed to pay lumpsum amount, but the plaintiff did not agreed once and demanded for the lands. Hence, the matter was not decided by the panchayath. It is contended that the defendants have no manner of right over the plaint schedule properties. The plaintiff requested the defendants to vacate the suit schedule lands, but the defendants refused to vacate the same. Hence, cause of action arose for the plaintiff to file the suit for declaration of title and possession.

4. Initially, defendant No.1 filed written statement admitting that plaintiff's father was the owner of the suit lands and defendants 2 and 3 are the brothers and defendant No.

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