- 1 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.7123 OF 2011 (DEC/INJ) BETWEEN: BABUMIYAN S/O SULEMANSAB ROZEWALE SINCE DECEASED BY HIS LRS. a. HAMIDA BEGUM W/O BABUMIYA ROZAWALA @ BABU ROZA, AGE: 82 YEARS, b. MOINUDDIN S/O BABUMIYA ROZAWALA @ BABU ROZA, AGE: 60 YEARS, c. ZAHEEDA BAGUM W/O SAHABUDDIN D/O BABUMIYA ROZAWALA @ BABU ROZA, AGE: 58 YEARS, d. ZUBEDA BEGUM W/O RIYAZ D/O BABUMIYA ROZAWALA @ BABU ROZA, AGE: 56 YEARS, e. BIBAN W/O RUKMUDDIN INAMDAR D/O BABUMIYA ROZAWALA @ BABU ROZA, AGE: 54 YEARS, f. GORIBEE AMENDMENT THE CAUSE TITLE VIDE HON’BLE COURT ORDER DATED 27.10.2021 Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 W/O AZMUDDIN D/O BABUMIYA ROZAWALA @ BABU ROZA, AGE: 52 YEARS, g. SULEMAN S/O BABUMIYA ROZAWALA @ BABU ROZA, AGE: 46 YEARS, ALL ARE R/O: KADANI VILLAGE, TQ: AND DIST: KALABURAGI. …APPELLANTS (BY SRI SHIVANAND PATIL, ADVOCATE) AND: MERAJ PATEL S/O MAHEBOOB PATEL AGE: 35 YEARS, OCC: AGRICULTURE, R/O: VILLAGE KADANI, TQ: & DIST: GULBARGA. …RESPONDENT (BY SRI VIKRAM VIJAY KUMAR, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO CALL FOR AND EXAMINE THE RECORDS IN O.S.NO.270/2006 OF THE ADDITIONAL CIVIL JUDGE (JR.DN), AT GULBARGA AND R.A.NO.66/2009 OF THE PRINCIPAL CIVIL JUDGE (SR.DN) GULBARGA, AND ALLOW THE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 08.12.2010 IN R.A.NO.66/2009 AND RESTORING THE JUDGMENT AND DECREE IN O.S.NO.270/2006 IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 3 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This appeal is arising from the judgment and decree in O.S.No.270/2006 on the file of I Additional Civil Judge, Gulbarga and the judgment and decree in R.A.No.66/2010 on the file of Senior Civil Judge, Gulbarga. 2. The suit is for declaration of title and injunction in respect of the property bearing Sy.No.237/4 measuring 5 acres 35 guntas at Kadani Village, Taluk and District: Gulbarga. The suit is decreed declaring that the plaintiff is the owner of the aforementioned property. 3. On an appeal by the defendant before the First Appellate Court, the learned Senior Civil Judge has allowed the appeal and consequently has dismissed the suit. 4. This appeal was admitted on 13.03.2012 to consider the following substantial question of law: - 4 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 (1) Whether the Judgment and Decree passed by the First Appellate Court is perverse and contrary to the pleadings and evidence available on record? 5. This Court after going through the plaint averment and evidence on record is of the view that one more substantial question of law is required to be framed. Whether the suit is maintainable in respect of Sy.No.237/4 measuring 5 acres 35 guntas in Kadani Village, Taluk and District: Gulbarga without providing the boundaries of the suit properties and without producing the certified copy of the record of right pertaining to property bearing Sy.No.237/4? 6. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 7. Learned counsel appearing for the appellants would contend that the plaintiff/original appellant had purchased the suit schedule property under the registered - 5 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 sale deed dated 31.01.1966 and since then he is in possession of the property and defendant is unconcerned to the family of the vendor and as such the First Appellate Court is not justified in reversing the well-reasoned judgment and decree passed by the Trial Court 8. It is also urged on behalf of the appellant that when the property was purchased in the year 1966, property was numbered as Sy.No.237 and though boundaries are not mentioned in the sale deed, the property is now renumbered and the property is identifiable with reference to a new number assigned to the property. 9. It is further urged that the defendant being the stranger to the family of the vendors, cannot claim any right over the property and the omission on the part of the plaintiff to mention the boundary and omission on the part of the plaintiff to produce the record of right pertaining to the suit property as on the date of the suit should not come in the way of granting a decree for declaration of - 6 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 title given the fact that original title deed of 1966 is not disputed. 10. Learned counsel appearing for the defendant- respondent on the other hand would contend that the suit is not maintainable as the boundaries of the suit properties are not furnished along with the plaint and boundaries are also not forthcoming in the registered sale deed of 1966. It is also his further submission that the record of right pertaining to the suit property as on the date of the suit is not produced. It is submitted that defendant has purchased the property from plaintiff’s brother under registered sale deed dated 14.05.1999 and plaintiff/defendant’s vendor was also the owner of the property, as such defendant has purchased 3 acres 8 guntas in Sy.No.237/3+4. 11. This Court has considered the contentions raised at the bar and perused the records. - 7 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 12. To seek relief of declaration of title in respect of the property measuring 5 acres 35 guntas, plaintiff is required to clearly mention the survey number of the property as it stood as on the date of the suit. On perusal of the plaint, it is noticed that the suit property is described as Sy.No.237 measuring 5 acres 35 guntas in paragraph No.3 of the plaint and reference is made to the sale deed of 1966 to claim title and possession of the property. However, in the prayer, plaintiff has sought declaration of title in respect of Sy.No.237/4 measuring 5 acres 35 guntas Kadani Village, Taluk and District: Gulbarga. 13. The discrepancy in mentioning these two survey numbers in the plaint is not explained. More importantly, the boundaries of the property bearing Sy.No.237 or boundaries of the property bearing Sy.No.237/4 are not mentioned. In addition to that, it is also noticed that record of right pertaining to Sy.No.237/4 or record of right - 8 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 pertaining to Sy.No.237 as on the date of the suit are not produced. 14. This Court has also perused the sale deed marked at Annexure-P3. Said sale deed is of the year 1966 and the property covered under the sale deed is described as Sy.No.237 with reference to Kasra No.486 and sale deed does not disclose the boundaries of the property. 15. It is also noticed that no survey sketch is produced to identify the location of the property bearing Sy.No.237 or 237/4 or 237/3/4. It is further relevant to note that record of right produced by the plaintiff for Sy.No.237/3/4 for the year 2005-06 i.e., the year in which the suit is filed reveals the extent of Sy.No.237/3/4 measures 6 acres 14 guntas and in the same record of right there are 2 entries. One entry in the name of Meeraja Mehaboob Sab to the extent of 3 acres 8 guntas and another entry in the name of plaintiff-Bhavasab to the extent of 5 acres 35 guntas. If both extents are added, total extent exceeds 9 acres. However, total extent - 9 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 available in the property bearing Sy.No.237/3/4 itself is 6 acres 14 guntas. 16. Under these circumstances, this Court is of the view that the Trial Court erred in granting relief of declaration of title and injunction. 17. From the records placed before the Court, it is noticed that there are too many changes in the survey number of original Sy.No.237. Those changes are not explained satisfactorily either in the plaint or in the evidence or in the form of necessary revenue records. 18. For the aforementioned reasons, the suit of the plaintiff would fail. However, it is also noticed that the plaintiff claims to have purchased the property bearing Sy.No.237 measuring 5 acres 35 guntas under the registered sale deed of 1966. Merely because there are discrepancies in recording the survey number and extent of land in the revenue records, it cannot be said that the plaintiff has no title over the property. At the same time, - 10 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 defendants also claim title over the property on the basis of the registered sale deed of 1999 albeit to a lesser extent. Defendant claims to have purchased the property bearing Sy.No.237/3+4. 19. Under these circumstances, this Court is of the view that the impugned judgments and decrees have to be set-aside and the matter has to be remitted to the Trial Court giving liberty to the plaintiff to amend the plaint to incorporate all the necessary particulars to establish his claim in respect of the suit property with proper description. Once the said amendment is carried out, pursuant to an amendment application, the defendants should be given an opportunity to file additional written statement to the amended plaint and thereafter matter has to be adjudicated afresh in accordance with law. 20. Hence, the following: - 11 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 ORDER (i) The appeal is allowed in part. (ii) The judgment and decree dated 08.12.2010 in R.A.No.66/2009 on the file of Senior Civil Judge, Gulbarga are set- aside. (iii) The matter is remitted to the Trial Court for fresh consideration in accordance with law keeping in mind the observations made above wherein this Court has granted liberty to plaintiff to amend the plaint to incorporate all necessary particulars and liberty is also granted to the defendants to file additional written statement to the amended plaint. (iv) Parties shall appear before the Trial Court on 06.06.2025 without any further notice from the Court. - 12 - NC: 2025:KHC-K:2462 RSA No. 7123 of 2011 (v) It is made clear that this Court has not expressed any opinion on the claim of either of the parties. (vi) All contentions are kept open. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP List No.: 1 Sl No.: 44