SYED FAZAL S/O SYED ISMAIL, AND ANOTHER vs MOHAMMED MAKKI S/O ALLAH BAKSH AND ORS

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IN THE HIGH COURT OF KARNATAKA


KALABURAGI BENCH


TH
DATED THIS THE 15 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO. 200235 OF 2015

(DEC/INJ)

BETWEEN:

1. SYED FAZAL
S/O SYED ISMAIL,
AGE: 37 YEARS,
OCC: BUSINESS,
R/O RAO TALEEM,
BIDAR.

2. BILQUISH FATIMA
S/O SYED ISMAIL,
AGE: 67 YEARS,
OCC: HOUSEHOLD,
R/O. RAO TALEEM,
BIDAR.

…APPELLANTS

(BY SRI. SHARANABASAPPA K. BABSHETTY, ADVOCATE)

AND:

1. MOHAMMED MAKKI
S/O ALLAH BAKSH
AGE: 52 YEARS,
OCC: CENTERING WORK,
RAO TALEEM,
BIDAR-585401.










Digitally signed by
B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA

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2. KHURSHEED PARVIN
W/O SAYEED ABDUL KAIYUM,
AGE: MAJOR,
OCC: HOUSEHOLD,
R/O RAO TALEEM,
BIDAR-585401.

3. MD. BASHEEROUDDIN
S/O MD. ISMAILSAB HAKEEMJIWALE
AGE: MAJOR,
OCC: BUSINESS,
R/O H.NO.1-2-193,
RAO TALEEM,
BIDAR-585401.

…RESPONDENTS

(BY SMT. VAISHNAVI CHANDA, ADVOCATE FOR
SRI. RAVI B. PATIL, ADVOCATE FOR R3;
R1 & R2 ARE SERVED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THIS APPEAL AND SET-ASIDE THE
JUDGMENT AND DECREE DTD: 15/04/2015, PASSED BY THE
PRINCIPAL DISTRICT & SESSIONS JUDGE, AT BIDAR, IN R.A.
NO:139/2010 AND ALSO THE JUDGMENT AND DECREE DTD:
06/04/2006 PASSED BY THE ADDL. CIVIL JUDGE (JR DN) AT
BIDAR, IN O.S NO:13/2003.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT
The appellants filed this appeal challenging the
judgment and decree dated 15.04.2015 passed in RA
No.139/2010 by the Court of learned Principal District and
Sessions Judge, Bidar (‘ First Appellate Court ’ for short)
confirming the judgment and decree dated 06.04.2006
passed in OS No.13/2003 by the Court of learned Addl.
Civil Judge (Jr.Dn.), Bidar (‘ Trial Court ’ for short).
2. For convenience, the parties are referred to
based on their rankings before the Trial Court. Appellants
were the plaintiffs and respondents were the defendants.
3. Brief facts leading rise to the filing of this
appeal are as follows:
3.1. The plaintiff filed a suit for declaration to
declare that the suit wall is exclusively owned by the
plaintiffs and for perpetual injunction restraining the
defendants from causing illegal interference with the
peaceful possession and enjoyment of the plaintiffs over

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the suit wall. It was the case of the plaintiffs that, plaintiff
No.2 is the mother of plaintiff No.1. The plaintiffs are the
owners and possessors of the suit schedule wall. Earlier,
the father and uncle of were in possession of the suit
properties. The father of plaintiff No.1 and husband of
plaintiff No.2 passed away about twenty years back and
uncle of plaintiff No.1 passed away about fifteen years
back. The plaintiffs had succeeded to the suit house after
their demise. The names of the father and uncle of plaintiff
No.1 are appearing in the municipal records. There is a
wall constructed towards the northern side facing east-
west nearly about 50 feet and zinc sheets were put up by
the ancestors of the plaintiff which exclusively belongs to
the plaintiff. The defendants had no right, title or interest
over the exclusive wall i.e., the suit wall. The defendants
were trying to interfere with the peaceful possession and
enjoyment of the suit wall. The plaintiffs requested the
defendants not to cause any interference in the suit wall.
The defendants had denied the title of the plaintiffs over

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the suit wall. Hence, a cause of action arose for the
plaintiffs to file the suit for declaration and perpetual
injunction.
3.2. Despite granting sufficient opportunity by the
Trial Court, the defendants had not filed their written
statement. The Trial Court had taken the written
statement as not filed.
3.3. To substantiate their case, plaintiff No.1 was
examined as PW1 and marked seven documents as Exs.P1
to P7. In rebuttal, the defendant did not lead any oral or
documentary evidence.
3.4. The Trial Court, after recording the evidence of
PW1, hearing the learned counsel for the parties, framed
the following points for consideration:
“1) Whether the plaintiffs prove that the wall
situated towards northern side of his
house facing east-west is exclusively
owned and possessed by them and the
open space measuring east west 50-feet

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north-south 25-feet is common open
space between them and other house
owners?
2) Whether the plaintiffs prove that the
alleged interference by the defendants
3) To what relief the plaintiffs are entitled?
4) What order or decree?”

3.5. The Trial Court answered point Nos.1 to 3 in the
negative and point No.4 as per the final order. The suit of
the plaintiffs was dismissed vide judgment dated
06.04.2006.
3.6. The plaintiffs, aggrieved by the dismissal of suit
in OS No.13/2003, preferred an appeal in RA No.139/2010
on the file of the First Appellate Court.
3.7. The First Appellate Court, after hearing the
learned counsel for the parties, framed the following points
for consideration:
“1. Whether the plaintiff proves that there is
requirement for leading additional

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evidence as provided under order 41 rule
27 CPC as sought for under I.A. No. 5?
2. Whether the plaintiff proves that
appointment of court commissioner for
local inspection as prayed in the
application under order 26 rule 9 CPC is
necessary for deciding the appeal?
3. Whether the plaintiffs prove that they are
exclusive owners in possession of the suit
wall as shown in the map annexed to the
plaint marked as A-A, and the suit open
space measuring east-west 50 ft and
north-south 25 ft is the common open
space between the plaintiffs and
defendants and other neighboring house
owners?
4. Whether the plaintiffs are entitled for the
relief of perpetual injunction as against
the defendants in respect of suit wall and
enjoyment of common open space?
5. Whether the judgment and decree dated
06-04-2006 passed by Additional Civil
Judge Bidar in O.S. No. 13/2003 requires
any interference by this court?

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6. What order?”
3.8. The First Appellate Court, after re-appreciating
the entire evidence on record, answered point Nos.1 to 5
in the negative, point No.6 as per the final order. The
appeal was dismissed by judgment dated 15.04.2015.
4. The plaintiffs, aggrieved by the impugned
judgments and decrees passed by the Courts below, filed
this regular second appeal.
5. Heard the arguments of learned counsel for the
plaintiff and learned counsel for defendant No.3
6. Learned counsel for the plaintiffs submits that,
the suit wall is the exclusive part and parcel of the
plaintiffs’ property and the defendants have no right over
the suit wall. He submits that, to prove that the suit wall is
the exclusive wall of the plaintiffs, the plaintiffs had filed
an application for production of additional evidence before
the First Appellate Court showing the registered sale deed
of the defendant's vendor which discloses that the suit wall

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is the exclusive wall of the plaintiff. The said aspect was
not properly considered by the Courts below and
committed an error in passing the impugned judgments.
He further submits that, the plaintiffs had requested the
First Appellate Court to remit back the matter to the Trial
Court to enable the plaintiffs to file an application for
appointment of a Court Commissioner to ascertain
whether the suit wall is the exclusive part and parcel of
the plaintiffs’ property or a common wall. The First
Appellate Court had rejected the said application. Hence,
he submits that the impugned judgments and decrees
passed by the Courts below are arbitrary and erroneous.
Hence, on these grounds, he prays to allow the appeal.
7. Per contra, learned counsel for defendant No.3
submits that, the plaintiffs had filed the suit for declaration
and permanent injunction; the plaintiffs had not produced
any records to show that the suit wall is the part and
parcel of the plaintiffs’ property. She further submits that,
in a suit for declaration of title, the plaintiffs must

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establish their case independently and cannot depend on
the weakness of the defendant. She further submits that,
though the defendants had not filed written statement, the
plaintiffs must establish their case independently. To
buttress her arguments, she has placed reliance on the
judgment of the Hon'ble Apex Court in the case of Union
of India and Others Vs. Vasavi Cooperative Housing
1
Society Limited and Others . Hence, she submits that
both the Courts below have concurrently recorded a
finding of fact that the plaintiffs have failed to establish
that the suit wall is part and parcel of the plaintiffs’
property. She submits that, the impugned judgments
passed by the Courts below are just and proper, and do
not call for interference at the hands of this Court. Hence,
on these grounds, she prays to dismiss the appeal.
8. Perused the records and considered the
submissions of the learned counsel for the parties.

1
(2014) 2 SCC 269

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9. This Court, by order dated 30.05.2016 admitted
the appeal to consider the following substantial question of
law:
“Whether the lower appellate
court was justified in refusing to
admit the additional evidence
which was more crucial for the
case of the plaintiff and especially
since the defendant had not
contested the suit by filing a
written statement?”
Reg. Substantial Question of Law:
10. The plaintiff filed a suit for declaration and
perpetual injunction contending that the suit wall is a part
and parcel of the plaintiffs’ property and the defendant has
no right, title or interest over the suit wall.
11. The plaintiffs to substantiate their case plaintiff
No.1 was examined as PW1 and he reiterated the plaint
averments in the examination-in-chief and in order to
prove that the suit wall is part and parcel of the plaintiffs’

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property, the plaintiffs have produced the hand sketch
map marked as Exhibit P1; Exhibit P2 is the certified copy
of the assessment extract; Exhibits P3 to P7 are the
property tax paid receipts.
12. The defendant has not filed the written
statement.
13. Admittedly, the suit is one for declaration of title
in regard to the wall existing between the property of the
plaintiffs and the defendant.
14. The plaintiffs, in order to prove that the suit wall
is part and parcel of the plaintiffs’ property, the plaintiffs
have not produced any title deeds. In the absence of title
deeds regarding the ownership over the suit wall, the Trial
Court was justified in dismissing the suit. While dismissing
the suit, the Trial Court has made an observation that the
plaintiffs have not made any attempt to get done the
survey of the property.

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15. The plaintiffs aggrieved by the dismissal of the
suit preferred an appeal before the First Appellate Court.
16. During the pendency of the appeal, the plaintiffs
filed an application for appointing a Court Commissioner to
measure the properties of the plaintiffs and the defendant.
The said application was rejected by the First Appellate
Court. As rightly contended by the learned counsel for the
defendant that the suit is one for declaration of title over
the suit schedule property and perpetual injunction, the
plaintiffs must establish their case independently and
cannot depend upon the weakness of the defendant.
17. In view of the exposition of law laid down by the
Hon'ble Apex Court in the case of Union of India v.
2
Vasavi Co-operative Housing Society Limited ,
wherein at paragraph 15, it has been held as follows:
“15. It is trite law that, in a suit for
declaration of title, the burden
always lies on the plaintiff to make

2
(2014) 2 SCC 269

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out and establish a clear case for
granting such a declaration and the
weakness, if any, of the case set up
by the defendants would not be a
ground to grant relief to the
plaintiff.”
18. Even if an application for appointment of a Court
Commissioner is allowed, it does not support the case of
the plaintiffs, because admittedly, the plaintiffs are
claiming the ownership over the suit wall and they have
failed to produce the ownership or title deed over the suit
wall. As such, both the Courts below have rightly passed
the impugned judgment.
19. It is well settled that if the defendant has not
filed written statement, the Court is not bound to decree
the suit, unless the plaintiff establishes his case
independently. The Trial Court considering the records
produced by the plaintiffs, has rightly come to the
conclusion that the plaintiffs have failed to establish the

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title over the suit schedule property and rightly dismissed
the suit.
20. The First Appellate Court after re-appreciating
the entire evidence on record has rightly dismissed the
appeal. Both the Courts below have concurrently recorded
a finding of facts against the plaintiffs. Hence, both the
courts below were justified in passing the impugned
judgment and decree.
21. In this view of the matter, I do not find any error
in the impugned order. Hence, I declined to interfere with
the impugned judgments. Accordingly, substantial
questions of law is answered in the negative.
22. In the result, I proceed to pass the following
order:
ORDER
(i) The regular second appeal is
dismissed ;

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(ii) The judgment and decree dated
15.04.2015 passed in RA
No.139/2010 by the Court of
learned Principal District and
Sessions Judge, Bidar confirming
the judgment and decree dated
06.04.2006 passed in OS
No.13/2003 by the Court of
learned Addl. Civil Judge
(Jr.Dn.), Bidar are hereby
confirmed ;
(iii) No order as to the costs.


Sd/-
(ASHOK S. KINAGI)
JUDGE




PA,RK
List No.: 1 Sl No.: 7
Ct:pk