- 1 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO.1062 OF 2006 (DEC) BETWEEN: B ALLABAKASH SINCE DEAD BY HIS LRs 1(a) SMT.KULSUM BEE WIFE OF LATE B.ALLABAKASH SINCE DEAD BY HER LRs APPELLANTS Nos.1(b) to 1(g) 1(b) SMT.KURSHEED, WIFE OF P.PYAREKHAN DAUGHTER OF LATE B.ALLABAKASH AGED ABOUT 61 YEARS 1(c) SMT.MALLIKA, WIFE OF HABIBKHAN DAUGHTER OF LATE B.ALLABAKASH AGED ABOUT 59 YEARS 1(d) SRI B.AMEER SON OF LATE B.ALLABAKASH AGED ABOUT 56 YEARS 1(e) SMT.PARVEEN WIFE OF B.IQBAL PASHA DAUGHTER OF LATE B.ALLABAKASH AGED ABOUT 49 YEARS 1(f) SMT.SHAHEENA, WIFE OF HUSSAIN DAUGHTER OF LATE B.ALLABAKASH AGED ABOUT 45 YEARS Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 1(g) SRI B.DADAPEER SON OF LATE B.ALLABAKASH AGED ABOUT 42 YEARS ALL ARE RESIDING AT No.3-6-18C JVS STREET, HINDUPUR-515 201 ANANTHAPUR DISTRICT ANDHRA PRADESH. …APPELLANTS (BY SRI G S VENKATA SUBBA RAO, ADVOCATE) AND: SRI NAWAB S/O RASULLBEIG AGED ABOUT 51 YEARS PLASTIC MERCHANT NEAR MASJID ROAD, VI CROSS, GANGONDANAHALLI BANGALORE 560 019 …RESPONDENT (BY SRI SWAROOP.T FOR SRI M.C.RAVIKUMAR, ADVOCATES) THIS RFA IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 27.01.2006 PASSED IN O.S.No.5116/1995, ON THE FILE OF THE XIV ADDL.CITY CIVIL JUDGE, BANGALORE (CCH.NO.28), DISMISSING THE SUIT FOR DECLARATION AND POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 ORAL JUDGMENT Heard Sri G.S. Venkata Subba Rao, learned counsel for the appellant and Sri Swaroop T., appearing for Sri M.C. Ravikumar, learned counsel for respondent. 2. Unsuccessful plaintiff is the appellant, challenging the dismissal of his suit in O.S.No.516/1995. 3. Facts of the case for the disposal of the present appeal in brief or as under: A suit for declaration and possession came to be filed in respect of the following property by the plaintiff, hereinafter referred to as suit property: “All that piece and parcel of the immoveable property bearing Khaneshumari No.G-60, measuring 40x30 feet, situated at VIth Cross, Masjid Road, Gangondanahalli, Yeshwanthapur Hobli, Bangalore North Taluk, Bangalore, bounded on the East by : Road, West by : Property No.G-61, North by:Road, South by:Property No.G-59.” 4. Plaintiff contended that he is the owner of the suit property, having purchased it from Lakshmamma, wife of - 4 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 Venkatachala, through a registered sale deed dated 25.09.1979. It is contented that said Lakshamamma has purchased the suit property by virtue of a registered sale deed dated 16.09.1941 from her vendor Sri. B. Krishna Iyengar. 5. It is also contented by the plaintiff that plaintiff was working with M/s. Balaji Trading Company at Tharagupet till 1982 and thereafter he shifted his family to Hindupur in State of Andhra Pradesh and carrying on the business of dealer in Husk at Hindupur and used to visit the suit property often. 6. In the month of March 1993, when he visited the suit property, he noticed that the defendant had trespassed into the property and was in the process of construction of a house and the same was objected to. 7. It is the case of the plaintiff that after purchase he could not immediately construct the property in the suit land and defendants without there being any right, title or interest, started interfering with the suit property. When the same was objected by the plaintiff, defendant along with his relatives and followers trespassed into the suit property and forcibly - 5 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 constructed a house which necessitated the plaintiff to file a suit for declaration and possession. 8. Pursuant to the suit summons, defendant appeared through his Advocate and filed written statement. 9. In the written statement, he contended that he is not a necessary party to the suit and it is Rafiq Beig who purchased the property bearing No.787, situated at Gangondanahalli Village, from one Sakamma, wife of Huchappa under the sale deed dated 16.08.1990. Said Rafiq is in possession of the suit property and it is Rafiq who has constructed the house investing the huge money. Therefore, sought for dismissal of the suit. 10. Based on the rival contentions of the parties, learned trial Judge raised following issues: “1. Does plaintiff prove that he is the absolute owner of the suit schedule property? 2. Does he further prove that defendant is in possession of the suit schedule property? 3. Whether the defendant is a necessary party to the suit? - 6 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 4. Is plaintiff entitled to the relief of declaration and possession? 5. What relief ?” 11. In order to prove the case of the plaintiff, plaintiff got examined himself as P.W.1 and placed on record eight documents which are exhibited and marked as Ex.P1 to P8, comprising of copy of the notice, endorsement, encumbrance certificate, notice received from Bengaluru Mahanagara Palike, certified copy of the sale deed in respect of suit property, copy of the legal notice issued to defendant, certified copy of the sale deed of the vendor of the plaintiff. 12. As against the evidence placed on record by the plaintiff, defendant got examined himself as D.W.1 and did not place any documentary evidence and maintained that he is not in possession of the suit and not a necessary party to the suit and sought for dismissal of the suit. 13. After conclusion of recording of evidence, learned trial Judge heard the arguments of the parties and by impugned judgment dismissed the suit of the plaintiff. - 7 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 14. Being aggrieved by the same, present appeal is filed by the plaintiff on the following grounds:  The Judgment and Decree passed by the Trial Court is illegal and not sustainable in the eye of law.  The Judgment and Decree passed by the Trial Court is perverse and contrary to the pleadings, evidence and the documents produced by the Appellant.  The Judgment and Decree passed by the Trial Court is based on the extraneous and immaterial facts.  The Trial Court has contradicted in respect of its own earlier decision and grossly erred in coming to the conclusion that "INSPITE OF SUCH A SPECIFIC PLEADING BY DEFENDANT, PLAINTIFF HAS NOT TAKEN NECESSARY STEPS TO IMPLEAD SAID RAFIQ BEIG AS NECESSARY PARTY TO THE SUIT". It is submitted that the Appellant has filed I.A.No.3 under Order 1 Rule 10 to implead the said Rafiq Beig as the proposed defendant and the Trial Court has permitted the Appellant to issue notice to the proposed defendant by way of paper publication when the proposed defendant not received the Court notices. But later on the Trial Court dismissed I.A.No.3 with an observation that "I AM OF THE CONSIDERED OPINION THAT LOOKING TO THE SCOPE OF THE SUIT AND THE SPECIFIC CASE MADE OUT BY THE PLAINTIFF, THE PRESENCE OF PROPOSED DEFENDANT RAFIQ BEIG IS NOT AT ALL NECESSARY BEFORE THE COURT TO SETTLE OR ADJUDICATE THE DISPUTE IN THE - 8 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 PRESENT SUIT". Hence the Trial Court has wrongly come to the conclusion that in taking the view that he Appellant has not taken necessary steps to implead the said Rafiq Beig. On this ground alone the Judgment and Decree of the Trial Court is liable to be set aside.  The Trial Court has grossly erred in considering or in coming o the conclusion that the Respondent is not a necessary party and one Rafiq Beig is in possession of the suit schedule property as stated by the Respondent in his written statement and evidence even though the Respondent clearly admits in his statement of objections to the I.A. under Order 39 Rules 1 and 2 that he is in possession of the suit schedule property and Mr.Rafiq Beig is his vendor. It clearly shows that the Respondent has trespassed into the suit schedule property and he is liable to be handed over possession of the suit schedule property to the Appellant as he has no right, title or interest over the suit property.  The Trial Court has grossly erred in not considering the documents/title deeds produced by the Appellant to prove his title in respect of the suit schedule property even though the Respondent has not disputed the same. On the other hand the Respondent has not produced a single piece of paper to prove that he has not trespassed into the suit property. Hence the dismissal of the suit by the Trial Court though the Appellant proves his title by producing title deeds and - 9 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 connected documents is against to law and the same is liable to be set aside.  The Trial Court without considering the title deeds and other connected documents produced by the Appellant wrongly put the burden of proving title to the suit schedule property on the Appellant and on the same point the Trial Court blindly accepted the statements of the Respondent without examining the veracity of the said statements by the Respondent. Hence dismissal of the suit on this ground is liable to be set aside.  The Trial Court has erred in coming to the conclusion that the Appellant has not taken any steps for measurement and location of the suit property. It is submitted that once the Respondent has admitted that he is in possession of the property, measurement and locating the suit property does not arise as the Respondent has not disputed the measurement of the suit property. Hence the view taken by the Trial Court is erroneous and the same is liable to be set aside.  The Trial Court erroneously coming to the conclusion that the schedule mentioned in the title documents i., Ex.P-6 and Ex.P-8 produced by the Appellant does not tally with each other. It is submitted that Ex.P-8 is the title deed of the Appellant's vendor comprising of a property measuring 100 feet by 75 feet, wherein the suit property i.e., property mentioned in Ex.P-6 measures 30 feet by 40 feet, which shows that the Appellant purchased a part of his Vendor's property to - 10 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 an extent of 30 feet by 40 feet. This fact has not been examined by the Trial Court. Hence the view taken by the Trial Court is erroneous, imaginary and not in accordance with law.  The Trial Court has grossly ignored the fact and failed to recognize the sale deed i.e., Ex.P-6 as substantive document to prove the title of the Appellant to the property in question. It is submitted that Ex.P-6 being the certified copy of the sale deed (the original had been lost as per evidence adduced) the said certified copy which was admitted in evidence as Ex.P-6 should have been recognized as sufficient proof of ownership and title of the Appellant to the property in question instead of insisting kandayam and tax paid receipts.  The Trial Court has erred in not correctly applying the law on the subject to the facts and circumstances of the case.  The Trial Court has erred in drawing correct conclusions from the materials i.e., pleadings, evidence and documents produced by the Appellant on record.” 15. Sri G.S. Venkata Subba Rao, learned counsel for the appellant reiterating the grounds heard in the appeal memorandum vehemently contented that learned trial Judge failed to notice that there was a categorical admission in the form of question and answer in the cross examination of D.W.1, - 11 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 wherein defendant has admitted that he has trespassed into the suit property and constructed the house therein. 16. He also pointed out that the answer elicited in the cross-examination to the effect that D.W.1 does not know the contents of the affidavit which is filed in lieu of examination-in- chief, which would make it clear that defendant is somehow trying to avoid decreeing of the suit on the ground that his brother Rafiq is in possession of the property. 17. He also pointed out that when the construction was carried in the suit property in the month of March 1993, the same was objected to by the plaintiff and a notice was also issued by the plaintiff to the defendant vide Ex.P7. 18. Therefore, the defendant saying that he is not a necessary party would not ipso facto should not result in dismissal of the suit. 19. He further pointed out that mere non production of the revenue records by the plaintiff itself would not have been the reason for dismissing the suit of the plaintiff, especially when there is a title deed produced by the plaintiff which is - 12 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 marked at Ex.P6 and the title deed of his vendor marked at Ex.P8 and sought for allowing the appeal. 20. Per contra, Sri T. Swaroop, learned counsel representing the defendant/respondent supports the impugned judgment. 21. He would maintain that defendant has got nothing to do with the suit property which has been specifically mentioned in the written statement itself and it is Rafiq Beig who is in possession of the suit property. 22. Therefore, defendant is neither a necessary party nor a proper party to the suit and therefore dismissal of the suit is just and proper and sought for dismissal of the appeal with costs. 23. Having heard the arguments of both sides, this Court perused the material on record meticulously. 24. On such perusal of the material on record, in the light of the arguments of both sides, following points would arise for consideration. - 13 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 1) Whether plaintiff establishes that he is the owner of the suit property? 2) Whether plaintiff further establishes that there was an interference caused by the defendant and defendant trespassed into the suit property and thereby plaintiff lost the possession? 3) Whether impugned judgment is suffering from legal infirmity or perversity? 4) What order? 25. Regarding Point Nos.1 to 3. These points are taken up for consideration together in order to avoid repetition of discussion of the material facts and for convenience. 26. In the case on hand, plaintiff claims that he is the owner of the suit property by virtue of a registered sale deed marked at Ex.P6. He has purchased the same from Lakshmamma. Lakshmamma in turn had purchased the suit property from Krishnaraja Iyengar, vide Ex.P8. 27. No doubt in the sale deed marked at Ex.P6, boundaries found in Ex.P8 would not tally with each other and so also the measurements. 28. However, since the property that was purchased by the vendor of the plaintiff was a revenue site in the year 1941, - 14 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 if the plaintiff is claiming lesser measurements by the time Lakshmamma sold the property in favour of the plaintiff should not come in the way of plaintiff establishing the title. 29. Insofar as boundaries are concerned, the boundaries that were shown in the title deed of the vendor of the plaintiff did not match with the boundaries mentioned in Ex.P6. In other words, there is a variance with regard to the boundaries in Ex.P8 and Ex.P6. 30. It is to be noted that over a passage of time that is from 1941 to 1979, the boundaries could not be the same as the boundaries that prevailed in the year 1941. But, on the Eastern side and Northern side, even in Ex.P8 it is shown as road and Ex.P6 also contains there is a road existing on East and North. 31. Insofar as the West and South is concerned, what has been mentioned in Ex.P8 is the names of the owners of the property. But in Ex.P6, the site numbers namely G61 is mentioned on the Western side and G59 is mentioned on the Southern side. - 15 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 32. Possibly that somebody has developed the land over a period of time and revenue sites have been given the numbers as with the prefix of G. 33. Plaintiff’s property is also assigned as G60. No doubt, the revenue layout plan is not placed on record by the plaintiff. But the defence that is put forth before the Court is that defendant is no way connected with the property nor he is in possession of the suit property. The same has been taken note of by the learned trial judge while dismissing the suit of the plaintiff. 34. Pertinently, when there is no title at all that is pleaded and put forth before the Court by the defendant in respect of suit property and when defendant says that he is not in possession of the suit property, the suit for declaration and possession ought to have been decreed. 35. Further, there is a clear admission in the cross examination by the defendant that he has trespassed into the suit property and constructed the house therein. This is found in third page of the deposition of D.W.1. - 16 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 36. The relevant portion of the cross examination is culled out hereunder for ready reference: “Question of the counsel:- You have constructed house by tresspass into the suit property. What do you say? Answer of the witness :- yes It is false to suggest that myself and my elder brother have constructed house to dispossess plaintiff. Question of the counsel:- Plaintiff Objected while you and your brother constructing house in suit property. What do you say? Answer of the witness:- I do not know as I was not present in the suit property. I am not in possession of suit property. (Witness volunteers that his brother is in possession of suit property.) I was not in possession of suit property as on the date of fling of this suit. I was never in possession of suit property. I have not filed any affidavits before this court. I do not know the contents of my affidavit filed for chief examination. I do not know who has got this affidavit prepared, I have not given instructions to draft my affidavit for chief examination. I do not know that my brother, Rafeeq Baig has no any kind of right over suit property. The address shown in my affidavit filed for chief examination is the address referred to suit property. This address is given by my brother.” - 17 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 37. It is pertinent to note that the said answer is elicited not as a stray admission, but it was elicited in the form of question and answer. 38. Further, D.W.1 also admits in his cross-examination that he does not know who prepared the affidavit in lieu of his examination-in-chief so also he does not know the contents of the affidavit of his examination-in-chief. 39. In his cross-examination it is also elicited that he does not know from whom the suit property was purchased by the plaintiff. 40. He also admits that he is not aware of the registered sale deed dated 16.09.1941, wherein Lakshmiammal who is the vendor of the plaintiff having purchased the suit property. 41. Likewise, he also admits that he does not know that Lakshmiammal having obtained the possession of the suit property from her vendor. 42. He has denied the suggestion that his brother Rafiq Beig has no right over the suit property. Whereas, in the - 18 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 written statement, defendant has specifically stated that it is his brother Rafiq who is in the possession of the suit property. 43. In his examination-in-chief also, he has stated that he is not a necessary party and to his knowledge it is his brother Rafiq Beig who is in possession of the property having put up a valid construction thereon by investing huge money. 44. When the defendant has specifically stated that it is his brother who is in possession of the property and he has specifically answered that he has trespassed into the suit property and constructed the house, suit for declaration and possession ought to have been decreed by the trial Court. 45. However, the learned trial Judge, not noticing the title in the plaintiff and the fact that the suit was filed for both declaration and possession, dismissing the suit only on the ground that there were no revenue records that were placed on record to show the possession over the suit property, cannot be countenanced in law, especially when the plaintiff himself says that he lost the possession over the suit property in the month of March 1993. - 19 - HC-KAR NC: 2025:KHC:40354 RFA No. 1062 of 2006 46. Further, the notice issued by Bengaluru City Corporation marked at Ex.P7 is also a revenue document which could have been taken note of by the learned trial Judge before dismissing the suit of the plaintiff. 47. Under such circumstances, finding recorded by the learned trial Judge in the impugned judgment needs to be set aside and point Nos.1 to 3 are to be answered in favour of the plaintiff/appellant and accordingly they are answered. 48. Regarding Point No.4: In view of finding of this Court on point Nos.1 to 3 as above, following order is passed: ORDER (i) Regular First Appeal is allowed. (ii) Impugned judgment of dismissal of the suit passed by learned XIV Additional City Civil Judge, Bengaluru is hereby set aside. (iii) Suit is decreed as prayed for. (iv) In the facts and circumstances of the case, no order is to costs. Sd/- (V SRISHANANDA) JUDGE MR