Bangalore District Court
Syed Budruddin Quadri vs Habeebunnissa on 11 June, 2025
1 O.S.No.25516/2008
KABC010183392008
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XLIV ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-45)
Dated this the 11th day of June, 2025
:PRESENT:
SRI. DODDEGOWDA.K, B.A.,L.L.B.,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.25516/2008
PLAINTIFF : Syed Budruddin Qadri,
S/o S.R.S. Khadri,
Aged about 32 years,
R/at No. 62, 1st Cross,
1st Main, KHR Colony,
Bangalore- 560018.
[By Sri. S.N.G. - Advocate]
Vs
2 O.S.No.25516/2008
DEFENDANTS : 1. Habeebunnissa,
D/o. Late Ibrahim Khan Sab,
Aged about 33 years,
2. Ismail Zabiulla Khan,
S/o. Late Ibrahim Khan Sab,
Aged about 30 years,
3. Moosa Kaleemulla Khan,
S/o. Late Ibrahim Khan Sab,
Aged about 28 years,
4. Rahmathulla Khan,
S/o. Late Ibrahim Khan Sab,
Aged about 25 years,
5. Rizwanulla Khan,
S/o. Late Ibrahim Khan Sab,
Aged about 23 years,
6. Meherunnissa,
W/o. Late Ibrahim Khan Sab,
Aged about 52 years,
All residing at No. 20,
1st Main Road, Guddadahalli,
Kuvempunagar, Mysore Road,
Bangalore- 560026.
7. Shameem Ahmed,
S/o. Late Abdul Azeez,
Aged about 48 years,
R/at First Floor,1st cross,
9th Pillanna Garden, 3rd Stage,
A.C. Post, Bangalore-560045.
8. Jabeen Taj,
W/o Shammen Ahmed,
Aged about 42 years,
3 O.S.No.25516/2008
(Since deceased Represented by
her Legal Heirs)
8(a) Mrs. Shabreen Taj.
D/o Shameem Ahmed,
Aged about 39 years,
Residing at No. 62, 1st Main,
1st Cross, JJR Nagar,
Bangalore-560 018.
8(b) Mrs. Yasmeen Taj,
D/o Shameem Ahmed,
Aged about 37 years
R/at No.79, 3rd Main road,
Nishani Gouse-e-Pak,
Mukaram Masjid Road Down,
Bhuwaneshari Nagar,
Sultanpalya Main Road,
Bengaluru - 560 032.
8(c) Mr. Mohammed Riaz,
S/o Shameem Ahmed,
Aged about 36 years,
R/at No.7, 8th Cross,
Vijayanagar,
Cholorapalya Magadi road,
Bangalore 560 023.
9. The Commissioner,
Bangalore Mahanagara Palike,
N.R. Square,
Bangalore- 560002.
10. The Joint Commissioner,
Bruhat Bangalore Mahanagara
Palike, 9th Cross, 2nd Block,
Jayanagar Zonal Office,
Bangalore.
4 O.S.No.25516/2008
[D1 to 5: Sri.K.R.N. - Advocate
D6: Sri.B.K.N. - Advocate
D7:Sri.T.G.B.-Advocate
D8:Sri.A.H.-Advocate
D9,10: Sri.L.N.S. -Advocate]
Date of Institution of the suit : 20-03-2008
Nature of the suit : Declaration, Possession
and Injunction
Date of commencement of : 17-10-2019
recording of the evidence
Date on which the Judgment : 11-06-2025
was pronounced
Total Duration Years Months Days
17 02 22
(DODDEGOWDA.K)
XLIV Addl.City Civil & Sessions Judge
Bengaluru City
:: JUDGMENT ::
This suit is filed for the relief of declaration to declare the sale deed dated 24.03.2006 executed by defendant No.6 in favour of defendant Nos.1 to 5 as null and void and to deliver vacant possession of a portion of the suit schedule property in the occupation of the defendant Nos.1 to 5 and consequential relief of injunction.5 O.S.No.25516/2008
2. The case of the plaintiff in nutshell as per the plaint are as follows;
The plaintiff has entered into an agreement of sale dated 12.09.2005 with the defendant No.8 Zabeentaj, in respect of the residential premises comprising of ground and first floor bearing BMP No.20 (formerly southern portion of composite property No.20)situated at 1st main road, Kuvempunagar, Hosaguddadahalli, Mysore road, Bengaluru, which is morefully described in the schedule hereunder and hereinafter referred to as schedule property. The plaintiff has issued a paper publication on 25.01.2006 calling upon the general public to file their claim, if any, within seven days. Pursuant to the said public notice, no claims were raised or forwarded by anyone from any corner and thereby the plaintiff proceeded to complete the contract by obtaining registered sale seed in his name. The plaintiff further submits that Zabeentaj, the defendant No.8 executed a deed of absolute sale on 24.04.2006 in favour of the plaintiff, which is registered in the office of sub-registrar, 6 O.S.No.25516/2008 Srirampur, Bengaluru. The plaintiff after acquiring the schedule property in the forgoing manner sought for transfer of katha to his name in the revenue records of BMP. Accordingly, the katha of the schedule property has been transferred to the name of the plaintiff and he has been paying periodical taxes to the Bengaluru Mahanagar Palike. Thus, the plaintiff has become the sole and absolute owner of the suit schedule property.
3. The defendant No.8 had acquired the schedule property under a registered gift deed dated 21.03.2005 executed by her husband Shameen Ahmmad, the defendant No.7. The defendant No.7 had acquired the schedule property under sale deed dated 16.04.1998 and khatha and other revenue entries were mutated in the name of defendant No.7. Thus, the defendant No.7 had exercised the rights of ownership as sole and absolute owner thereof.
4. Such being the case, after purchase of the schedule property by the plaintiff, when he applied for transfer of khatha to the jurisdictional revenue office, who are subordinate to the 7 O.S.No.25516/2008 defendant No.9, at that juncture the defendant Nos.1 to 5 file their objection alleging that they are possessing a sale deed in respect of schedule property. The plaintiff being shocked and surprised by the said statement, immediately applied for E.C. and obtained the certified copy of the sale deed from the office of the sub-registrar, Srirampuram and after verification it was found that the defendant No.6 has played fraud of highest order. Though she doesn't have any manner of right, title or interest over the schedule property, but has ventured to execute a fraudulent sale deed on 24.3.2006 in favour of defendant Nos.1 to 5 who are none other than her children.
5. It is submitted that the defendant No.6 who do not possess any right, title or authority to execute the sale deed dated 24.03.2006 in respect of the suit schedule property in favour of her children. While creating an encumbrance over the schedule property has colluded with the family members i.e., the defendant Nos.1 to 5 to forward an unholy claim and for unlawful gain. The act of the defendant No.6 is illegal and 8 O.S.No.25516/2008 unlawful as the same is adverse to the interest of the plaintiff who is absolute owner of the suit schedule property. The plaintiff further states that the collusive sale deed dated 24.03.2006 executed by the defendant No.6 in favour of her children i.e., defendant No.1 to 5 does not derive any title in their favour as the same has been created by collusion with an ulterior motive. Thus, the absolute sale deed dated 24.03.2006 is liable to be set aside by this court.
6. The defendant Nos.1 to 5 on the basis of the collusive and fraudulent document i.e., the sale deed dated 24.03.2006 have managed to prevail upon the tenant of the 1 st floor portion of the schedule property and enter possession of the same on 10.04.2007. The possession of the portion of the schedule property by defendant Nos.1 to 5 is illegal and unlawful, since their status is not better than that of a trespasser. The defendant Nos.1 to 5 are liable to pay damages for holding over unlawful possession of a portion of the schedule property at the rate of Rs.10,000/- per month to the 9 O.S.No.25516/2008 plaintiff.
7. The defendant Nos.1 to 5 being not satisfied with their unlawful acts referred to above have further gone to the extent of resisting for transfer of katha of the schedule property to the name of the plaintiff. Thereafter, the plaintiff filed an appeal before defendant No.10, who after verifying the records and title deeds of both side effected transfer of khata of the schedule property to the name of the plaintiff. The defendant Nos.1 to 5 who are bent upon harassing the plaintiff have submitted a recommendation letter to the defendant No.10 issued from the office of the then Chief Minister for seeking revocation of khata of the schedule property standing in the name of the plaintiff. The defendant No.10 who has already passed an order to effect transfer of khata to the name of the plaintiff has no authority to entertain the fictitious claim forwarded by defendant Nos.1 to 5. In fact the defendant No.10 has already held a detailed enquiry and effected transfer of khata to the name of the plaintiff. The defendant No.10 has no 10 O.S.No.25516/2008 jurisdiction to review his own order. The remedy open to the defendant No.1 to 5 is to approach the competent Civil Court and not before revenue authorities.
8. The plaintiff reasonably apprehends that the defendant Nos.1 to 5 may prevail upon the defendant No.10 in view of their political influence to seek revocation of khata of the plaintiff in respect of schedule property at the hands of defendant No.10. Any order passed by the defendant No.10 under duress against the plaintiff shall not be binding. Hence the present suit seeking comprehensive relief.
9. It is learnt from reliable sources that the defendant Nos.1 to 5 being armed with possession of portion of the schedule property and the collusive sale deed are making hectic efforts to alienate the schedule property to the prospective purchasers to make unlawful gains and wash off their hands as early as possible. The plaintiff has noticed inspecting of some real estate brokers to that effect. All attempts of the plaintiff to pursue the defendant Nos.1 to 5 to withdraw 11 O.S.No.25516/2008 their unholy claim to deliver vacant possession of the portion of the schedule property under their occupation and desist from alienating the schedule property went in vain. It is thus the plaintiff has no other efficacious remedy other than approaching this court for seeking a decree of cancellation of the sale deed dated 24.03.2006 and for possession of the portion of the schedule property under the occupation of defendant Nos.1 to 5 and other consequential reliefs. Accordingly, the plaintiff prays to decree the suit.
10. In pursuance of the institution of the suit and service of summons, the defendants have appeared through their counsel and some of the defendants have filed their written statement denying the averments of the plaint. The defendant No.1 to 5 have filed the following written statement;
11. At the outset, the suit filed by the plaintiff is not maintainable in law and the same is liable to be dismissed in limine. The plaintiff while filing the suit has clubbed together two different, distinct and independent causes of action i.e., first 12 O.S.No.25516/2008 cause of action against the defendant Nos.1 to 8 and 2 nd cause of action against defendant Nos.9 and 10 and such a suit is not maintainable in law. The plaintiff can file only one suit against one cause of action. It is submitted that the cause of action against the defendant Nos.1 to 8 and the cause of action against defendant Nos.9 and 10 are totally distinct, different and independent of one another and as such, the above suit filed against the defendant Nos.1 to 8 and 9 and 10 is not maintainable in law. The plaintiff ought to have filed two separate suits on the alleged facts.
12. The defendant Nos.7 and 8 are not the necessary and proper parties to the above suit as the plaintiff has not claimed any reliefs against them. The plaintiff has impleaded the defendant Nos.7 and 8 with a malafide intention and ulterior motive to help him in the above case.
13. The averments made in para No.3 of plaint are totally incorrect and baseless. The plaintiff is put to strict proof that the plaintiff on 12.09.2005 entered into an agreement of 13 O.S.No.25516/2008 purchase with Zabeentaj-the defendant No.8 in respect of schedule property and publication of notice in the news papers and all other averments made in the said paragraph. The plaintiff is put to strict proof of the allegations that the plaintiff has proceeded to complete the contract and got sale deed dated 24.04.2006 in his name and got transfer of khata to his name and paying taxes to the BMP regularly.
14. It is submitted that the plaintiff in collusion with defendant Nos.7 and 8 played fraud on defendant Nos.1 to 5. The plaintiff has fraudulently purchased the schedule property from defendant No.8 knowing fully well that the defendant No.8 was not having the mother deed of the schedule property and also knowing fully well that the defendant No.8 was not in possession and enjoyment of the schedule property. The plaintiff is not in possession of his original sale deed dated 24.04.2006. The plaintiff at no point of time was in possession and enjoyment of the suit schedule property. In fact the defendant Nos.1 to 5 are in peaceful possession and enjoyment 14 O.S.No.25516/2008 of the suit schedule property. The Bengaluru Mahanagar Palike have canceled the khata of the schedule property issued in the name of the plaintiff.
15. All other averments made in para No.4 of the plaint are totally false and baseless and plaintiff is put to strict proof of the same. The plaintiff is put to strict proof that plaintiff's vendor Zabeentaj-defendant No.8 acquired the schedule property under a gift deed dated 21.03.2005 executed by her husband Shameen Ahammed, the defendant No.7, that after acquiring the schedule property defendant No.8 had also sought for transfer of khata to her name. It is submitted that the alleged gift deed dated 21.03.2005 is a fraudulent document created by the defendant Nos.7 and 8 who are husband and wife respectively and in collusion with each other. As on the date of execution of gift deed dated 21.03.2005, neither the defendant No.7 nor the defendant No.8 was in possession of the schedule property and they were not in possession of the original title deeds pertaining to the schedule property.
15 O.S.No.25516/2008
16. The averments made in para No.5 of the plaint that the defendant No.7 had acquired the schedule property under a sale deed dated 16.04.1998 is not within the knowledge of these defendants. The defendant No.7 was not having the said original sale deed as he had parted with the same to the defendant No.6 at the time of he entering into an agreement of sale. It is submitted that the defendant No.7 by a sale agreement dated 22.10.2001 agreed to sell the schedule property to defendant No.6 for a consideration of Rs.9,65,000/- and had also received the said consideration amount in full. It is submitted that the defendant No.7 had also executed an affidavit dated 24.10.2001 stating that he has received the sale consideration amount in full from defendant No.6 and that he had handed over vacant possession of the schedule property to the defendant No.6 with original title deeds pertaining to the suit schedule property. The defendant No.7 also executed a notarized general power of attorney dated 22.10.2001 appointing the defendant No.6 as his attorney to manage the 16 O.S.No.25516/2008 schedule property and to sell it. The defendant No.6, on the basis of the above mentioned three documents sold the schedule property to her children i.e., the defendant Nos.1 to 5 under a registered sale deed dated 24.03.2006. Thus, the defendant No.6 had also put the defendant Nos.1 to 5 in peaceful possession and enjoyment of the schedule property. Right from 22.10.2001 neither the defendant Nos.7 and 8 nor the plaintiff at any given point of time are in possession and enjoyment of the schedule property.
17. The averments made in para No.6 of the plaint are incorrect and baseless and the plaintiff is put to strict proof of the same. The sale deed dated 24.03.2006 executed by the defendant No.6 in favour of defendant Nos.1 to 5 is not fraudulent document but on the other hand, the same is a genuine and a valid document and the defendant Nos.1 to 5 are in possession of the schedule property with original title deeds pertaining to the schedule property. The defendant Nos.1 to 5 are the absolute owners of the schedule property and they are 17 O.S.No.25516/2008 entitled to get the katha of the schedule property transferred in their joint names. The plaintiff has fraudulently got transferred the khata in his name and the defendant Nos.1 to 6 have challenged the said order before the defendant No.10. Thus, the khata issued in the name of the plaintiff has been canceled.
18. The averments made in para No.7 of the plaint are totally false and baseless and the plaintiff is put to strict proof of the same. There is absolutely no collusion between the defendant No.6 and defendant Nos.1 to 5. The sale deed dated 24.03.2006 is a genuine and valid document in law. The sale deed dated 24.03.2006 executed in favour of defendant Nos.1 to 5 is much earlier to the execution of sale deed dated 24.04.2006 in favour of the plaintiff and hence, the sale deed dated 24.03.2006 executed in favour of the defendant Nos.1 to 5 is binding on the plaintiff. The plaintiff has no manner of right, title, interest and ownership over the schedule property as he is not in possession of the same and therefore, he is not entitled to the relief sought for.
18 O.S.No.25516/2008
19. All other averments made in para No.8, 9, 10, 11 and 12 of the plaint are totally false and baseless and the plaintiff is put to strict proof of the same. The suit is bad in law for want of cause of action and therefore, the same is liable to be dismissed. Accordingly, the defendant Nos.1 to 5 sought to dismiss the suit with exemplary cost.
20. The defendant No.7 has filed detailed written statement denying the averments of the plaint as under;
The suit is neither maintainable under law nor on facts and therefore, the same liable to be dismissed.
21. The averments made in para No.4 and 5 of the plaint are true. The averments made in para No.6 of the plaint are not within the knowledge of this defendant, hence the plaintiff is put to strict proof of the same. The averments made in para No.7 of the plaint are true. The defendant No.7 states that the GPA obtained by the defendant No.6 on 21.10.2001 was only for the purpose of administrating the affairs of the suit schedule property. He had never given any powers or authority 19 O.S.No.25516/2008 to the defendant No.6 to alienate the suit schedule property as it was a loan transaction. It is for this reason the said GPA was prepared on a paper having nominal stamp duty. This defendant further states that at no point of time he appeared before notary public and signed the register much less on 21.10.2001.
22. The act of defendant No.6 executing the sale deed in favour of her children on the strength of the revoked GPA is collusive with ulterior motive. The defendant No.6 has no right of whatsoever in nature in respect of suit schedule property to create the encumbrance before the registering authority. The defendant No.6 is none other than his mother-in-law's cousin sister. Since this defendant was in dire requirement of money to improve his automobile business, the defendant No.6 has voluntarily offered to lend Rs.10,00,000/- by way of hand loan. However she paid only a sum of Rs.6,50,000/-. At the time of making payment, in view of the close relationship and undue influence and coercion instead of obtaining loan agreement she obtained his signature on some stamp papers and GPA without 20 O.S.No.25516/2008 disclosing its contents and this defendant executed the same out of trust and faith reposed by him on account of the close relationship. Later, she obtained the original documents of the suit schedule property on the pretext of producing the same before corporation authority to make necessary application for reduction of property tax. The defendant No.6 armed with the GPA and his original title deed leased out 1 st floor of the suit schedule property to one Kasturi Bano without the knowledge and consent of this defendant. It is at this juncture, this defendant came to know about her sinister design to knock of his property and thereafter revoked the GPA dated 24.10.2004.
23. This defendant being a law abiding citizen caused a legal notice dated 15.03.2005 calling upon the defendant No.6 to receive the said hand loan amount and re-deliver his title deeds. In the said notice, this defendant also informed the defendant No.6, with respect to revocation of the GPA dated 24.10.2001. The defendant No.6, received the said legal notice, but, did not comply with the demand made therein, nor caused 21 O.S.No.25516/2008 any reply. On the other hand, the defendant No.6 has issued rejoinder to the reply notice. In fact, in the said rejoinder, the defendant No.6 had called upon this defendant to appear before the jurisdictional sub-registrar on 25.04.2005 to execute sale deed in respect of the suit schedule property in her favour. The defendant immediately replied to the said notice on 19.04.2005.
24. The defendant No.6 instead of approaching the court of law to establish her right to seek the conveyance of the suit schedule property, on the strength of the fraudulent agreement dated 24.10.2001, has hurriedly executed an agreement of sale in respect of the suit schedule property in favour of her own children with a view to create encumbrance and forward an unholy claim. It is thus, the defendant No.6 has no right to execute the sale deed dated 24.03.2006 nor the defendant Nos.1 to 5 derive any right under the said collusive sale deed. This defendant never sold the suit schedule property to the defendant No.6 or executed the alleged agreement of sale in her favour on 24.10.2001.
22 O.S.No.25516/2008
25. The averments contained in para No.8, 9, 10, 11 and 12 of the plaint are not within the knowledge of this defendant.
26. The defendant No.7 being the absolute owner of the suit schedule property has gifted the same vide registered gift deed dated 21.03.2005 in favour of his wife, the defendant No.8 and in turn she has sold the same for valuable consideration in favour of the plaintiff vide sale deed dated 24.04.2006. After gifting the suit schedule property in favour of defendant No.8 on 21.03.2005, he ceases to have any right, title or interest over the same and the plaintiff has unnecessarily impleaded him as party to the suit. Thus, the above suit is bad for misjoinder of necessary parties and on this count the suit is liable to be dismissed.
27. All other allegations which are not specifically admitted or traversed herein are hereby denied as false and the plaintiff is put to strict proof of the same. Accordingly, the defendant No.7 prays to dismiss the suit with cost. 23 O.S.No.25516/2008
28. The defendant No.8 has filed detailed written statement as under.
The suit is not maintainable wither in law or on facts and same is liable to be dismissed in limine.
29. The averments made in para No.3, 4 and 5 of the plaint are true. The averments made in para No.6 to 12 of the plaint are not within the knowledge of this defendant. The defendant submits that after sale of the suit schedule property in favor of the plaintiff and delivery of documents and possession, she ceased to have any right over the same. In fact, this defendant is surprised to know about the clandestine deal said to have taken place between the defendant Nos.1 to 6. The defendant No.6 who has not raised her little finger against the title of this defendant ought not to have executed the said collusive sale deed in favour of her children on 24.03.2006. In fact, on the date of the execution of collusive sale deed, this defendant had acquired title to the suit schedule property on 21.03.2005 itself and khatha was standing in her name. By any 24 O.S.No.25516/2008 stretch of imagination, the defendant No.6 had no right over the suit schedule property to create encumbrance. Thus the sale deed dated 24.03.2006 is a sham document which does not create any right in favour of defendant Nos.1 to 5 and therefore the same is null and void ab-initio. Accordingly, the defendant No.8 prays to dismiss the suit with cost.
30. The defendant No.9 and 10 have filed written statement denying the averments of the plaint as under;
The suit of the plaintiff is not maintainable either in law or on facts and same is liable to dismiss in limine. The averments of para No.3 of the plaint is not within the knowledge of this defendants and therefore the plaintiff is put to strict proof of the same. As per the records maintained in the office, it is found that earlier the khata of the suit schedule property was transferred in the name of the plaintiff based on the documents produced by him. As the authority came to know regarding the dispute in respect of the title of the suit schedule property, from the objections filed by the defendant Nos.1 to 5, the said khatha 25 O.S.No.25516/2008 was revoked subsequently and the name of earlier khatedar has been retained. The averments in para No.4 and 5 of the plaint regarding acquisition of the suit schedule property by the plaintiff's vendor by way of gift deed and further acquisition of the property by the donor of the plaintiff's vendor etc., are not within the knowledge of this defendant and the plaintiff is put to strict proof of the same. It is submitted that as per the records the khata was stood in the name of Mr.Shameen Ahammad before transferring the same in the name of the plaintiff and as the dispute regarding the title has arisen, the khata in the name of the plaintiff was revoked in accordance with the procedure and thus restored the name of the original khatedar i.e., defendant No.7.
31. The averments made in para No.6 and 7 of the plaint with regard to applying khatha, filing objections by defendant Nos.1 to 5 is partially correct. The plaintiff had filed application for transfer of khata stating that defendant No.8 had executed sale deed in favour of the plaintiff as she has acquired 26 O.S.No.25516/2008 the property by way of gift deed executed by defendant No.7. The defendant Nos.1 to 5 have filed their objection stating that defendant No.6 is the GPA holder of defendant No.7 and that on the basis of the GPA, she has executed the sale deed in respect of the suit schedule property to defendant Nos.1 to 5.
32. The averments made in para No.8 of the plaint as to taking of possession of first floor by the defendant Nos.1 to 5 is not within the knowledge of this defendant.
33. The averments made in para Nos.9 and 10 of the plaint are false and frivolous. The defendant No.10 has revoked the khata in the name of the plaintiff and retained the name of the earlier khatedhar and directed all the parties to approach the court of law with regard to the title as the BBMP has no authority to decide the question of title of the property.
34. The averments made in para Nos.11 and 12 are not within the knowledge of these defendants. Accordingly, the defendant Nos.9 and 10 prays to dismiss the suit with costs. 27 O.S.No.25516/2008
35. Based on the rival pleadings of the parties the predecessor of this court has framed the following issues and additional issues;-
ISSUES
1. Whether the plaintiff proves that the sale deed dated 24.03.2006 executed by defendant No.6 in favour of defendant No.1 to 5 is null and void and not binding on the plaintiff?
2. Whether the plaintiff proves that the defendant Nos.1 to 5 are in unauthorized occupation of the suit schedule property, liable for delivery of possession in his favour?
3. Whether the defendant No.8 proves that she became the absolute owner of the suit schedule property by virtue of the gift deed dated 21.03.2005 executed by defendant No.7?
4. Whether the defendant Nos.1 to 5 proves that the gift deed dated 21.03.2005 is collusive, fraudulent and created document?
5. What order or decree?
28 O.S.No.25516/2008
ADDITIONAL ISSUES
1. Whether defendant No.1 to 5 be restrained from alienating the suit property?
2. Whether defendant No.9 be restrained from revoking the Khatha relates to suit property standing in the name of plaintiff?
36. In order to prove the case of the plaintiff, the GPA holder of the plaintiff has been examined as PW.1 and got marked Ex.P.1 to Ex.P.21 documents. On behalf of defendant Nos.1 to 5, the defendant No.5 has been examined as DW.1 and got marked Ex.D1 to Ex.D40 documents.
37. Heard the arguments of both side and perused the records.
38. Now the findings of this court to the aforesaid issues are as under:-
Issue No.1: As Negative Issue No.2: As Negative Issue No.3: As Negative Issue No.4: In the Affirmative 29 O.S.No.25516/2008 Addl. Issue No.1: As Negative Addl. Issue No.2: As Negative Issue No.5: As per the final order, for the following;-
[ :: REASONS ::
39. Issue No.1 to 4 and Addl.Issue No.1:- Since all these issues are intrinsically interconnected, they have taken up together for discussion in order to avoid the repetition of the facts and the law.
The case of the plaintiff in brief is that the defendant No.7 had purchased the suit schedule property under the registered sale deed dated 16-04-1998 and gifted the suit schedule property to his wife, the defendant No.8 herein under the registered gift deed dated 21-03-2005. Subsequently, the defendant No.8 executed the agreement of sale dated 12-09- 2005 in favour of the plaintiff and thereafter executed registered sale deed dated 24-04-2006 in favour of the plaintiff thus the plaintiff has become the owner of the suit schedule property. It is the further case of the plaintiff that though he has purchased 30 O.S.No.25516/2008 the suit schedule property the possession of a portion of the suit schedule property has remained with the defendants 1 to 5 who claims to have been in possession of the suit schedule property based on the registered sale deed dated 24-03-2006 executed by defendant No.6 in favour of the defendant No.1 to 5. It is the further case of the plaintiff that the defendant No.6 without any right, title and interest over the suit schedule property executed registered sale deed dated 24-03-2006 in favour of his children, the defendant No.1 to 5 herein, on the strength of GPA, affidavit dated 24-10-2001 and the agreement of sale dated 22-10-2001 ignoring the fact that the said GPA was subsequently revoked.
40. The defendants 1 to 5 being the contesting defendants filed detailed written statement denying the averments of the plaint contending that defendant No.7 who acquired the property by virtue of the registered sale deed dated 16-04-1998 executed an agreement of sale dated 22-10- 2001 and an affidavit dated 24-10-2001 for receipt of sale consideration amount of Rs.9,65,000/- and also executed a 31 O.S.No.25516/2008 notarized GPA dated 24-10-2001, in favour of the defendant No.6, who in turn, based on the above three documents executed the registered sale deed dated 24-03-2006 in favour of the defendant No.1 to 5 and thus delivered possession of the schedule property in favour of defendants 1 to 5.
41. It is the further case of the defendants 1 to 5 that the deed of revocation of GPA dated 04-06-2004 was held to be illegal and invalid document and the original title deeds in respect of the suit schedule property are not delivered either to the defendant No.7, 8 or to the plaintiff herein. It is the further case of the defendants that neither the defendant No.7 & 8 nor the plaintiff herein is in possession of the suit schedule property and therefore, the alleged gift deed dated 21-03-2005 is not acted upon thus the defendants 1 to 5 prays to dismiss the suit.
42. Though the defendant No.7 & 8 filed their written statement seeking dismissal of the suit, in fact, they supported the claim of the plaintiff herein. Thus, the defendants 7 & 8 have defended the execution of the gift deed dated 21-03-2005 and 32 O.S.No.25516/2008 the registered sale deed dated 24-04-2006 executed in favour of the plaintiff. The defendant No.9 & 10 being the public authority and formal parties to the suit filed their written statement defending their authority to effect katha and revocation of the katha effected in favour of the plaintiff.
43. In order to prove the case of the plaintiff, his GPA holder has been examined as PW.1. Ex.P1 is the notarized GPA under which the GPA holder is authorized to contest the suit. Ex.P2 is the certified copy of the registered sale deed dated 24-04-2006 executed by defendant No.8 in favour of the plaintiff herein in respect of the suit schedule property. Ex.P3 is the registered gift deed dated 21-03-2005 executed by defendant No.7 in favour of the defendant No.8. Ex.P4 is the proceedings held in the office of Addl. Commissioner, BBMP under which the katha which was standing in the name of plaintiff herein has been canceled. Ex.P5 is the deed of revocation under which the power of attorney dated 24-10-2001 executed in favour of the defendant No.6 was allegedly revoked. The plaintiff has also 33 O.S.No.25516/2008 produced the Encumbrance Certificates, katha certificates and extracts in the name of the plaintiff and the defendant No.7 & 8.
44. In order to substantiate the contentions raised in the written statement of defendant No.1 to 5, the defendant No.5 has been stepped into the witness box and filed affidavit by reiterating the averments of the written statement. Ex.D1 is the GPA dated 24-10-2001 alleged to have been executed by defendant No.7 in favour of the defendant No.6. Ex.D2 is the certified copy of the affidavit discloses receipt of sale consideration of Rs.9,65,000/- by the defendant No.6 from defendant No.7 herein. Ex.D3 is the registered sale deed dated 24-03-2006 executed by the defendant No.6 in favour of her children who are defendant No.1 to 5 herein. The said sale deed is in respect of the suit schedule property. Ex.D4 is the certified copy of the rental agreement dated 06-07-2007 depicts that a portion of the suit schedule property was let out. Ex.D7 is the mother deed in respect of the suit schedule property. Ex.D8 is the Rectification deed dated 08-08-1994. Ex.D9 is the 34 O.S.No.25516/2008 certified copy of the registered sale deed dated 16-04-1998 under which the defendant No.7 had purchased the suit schedule property from one Syed Mohiddin. Ex.D10 is the certified copy of the sale agreement dated 22-10-2001 alleged to have been executed by defendant No.7 in favour of the defendant No.6. In the said agreement there is a recital to the effect that the suit schedule property has been sold for sale consideration amount of Rs.9,65,000/- and the receipt of the said sale consideration amount by the vendor. Ex.D29 is the rental agreement executed by defendant No.6 in favour of the tenants in respect of a portion of the suit schedule property. Ex.D30 is the certified copy of the order dated 09-10-2010 passed in notary enquiry case of 2007. In the said proceedings the genuineness and validity of the revocation deed dated 04-06-2004 was questioned, wherein it is held that the said deed of revocation dated 04-06-2004 is nothing but a created and concocted document and thus liberty is reserved to initiate action against the defendant No.7 herein. Ex.D36 is the certified 35 O.S.No.25516/2008 copy of the declaration submitted to the bank to the effect that the original title deeds pertaining to the suit schedule property are misplaced and a public notice notifying the general public about the said misplacement was taken at the earliest. Ex.D38 is the endorsement issued by the office of the Inspector General of Registration and Stamps to the effect that the sale or purchase of the stamp papers from an unauthorized agency is against the law and the rules.
45. The suit is one for comprehensive relief of declaration of the sale deed dated 24-03-2006 executed by defendant No.6 in favour of defendant No.1 to 5 is null and void and delivery of vacant possession of a portion of the suit schedule property and consequential relief of injunction. The burden of proving the issues lies on the plaintiff. Now, with this evidence, it is to be seen whether the plaintiff is able to prove his case by preponderance of probabilities. The fact that the defendant had acquired the suit schedule property under the registered sale deed dated 16-04-1998 is not in dispute. The 36 O.S.No.25516/2008 plaintiff has placed reliance on the registered gift deed dated 21-03-2005 executed by defendant No.7 in favour of the defendant No.8. According to the plaintiff, on the strength of the said registered gift deed, the defendant No.8 has executed the registered sale deed dated 24-04-2006, in favour of the plaintiff thus, the plaintiff has become the owner of the property. Admittedly, the plaintiff has sought for cancellation of the sale deed executed by defendant No.6 in favour of defendants 1 to 5 and also sought for possession. The certified copy of the gift deed dated 21-03-2005 is marked at Ex.P3. As could be seen from page No.3 of the said gift deed there is a recital to the effect that the donee was put in physical possession of the gift deed schedule property. The plaintiff, by seeking possession of a suit schedule property admits the fact that he is not in possession of a portion of the suit schedule property.
46. The recital in the gift deed marked at Ex.P3 is contrary to the relief sought for by the plaintiff. Be that as it may, now it is to be seen whether the said gift deed is complied with 37 O.S.No.25516/2008 the essentials of the valid gift and the same is acted upon. Under Mohammedan Law, a gift is complete only after the delivery of the possession. The gift takes effect from the date on which the property is delivered to the donee, not from the date on which the declaration was made. Admittedly, the donor and donee are Mohammedans by religion. Muslims law does not presume transfer of ownership rights from donors to donee without the delivery of possession of the property. The possession of a property is necessary in order to establish a right of property in the gift because right of property is not established in a thing even merely by means of a contract i.e. declaration and acceptance.
47. In the instant case by seeking delivery of possession of a portion of suit schedule property from the defendants 1 to 5, the plaintiff categorically admits possession of the defendants 1 to 5. It is the case of the defendants 1 to 5 that the defendant No.7 has executed an agreement of sale dated 22-10-2001 by receiving sale consideration amount of Rs.9,65,000/- with 38 O.S.No.25516/2008 affidavit and also executed a notarized GPA dated 10-04-2001, in favour of the defendant No.6 authorizing him to transfer the suit schedule property and the defendant No.6 on the strength of the said three documents, executed registered sale deed 24- 03-2006 in favour of her children by delivery physical possession of the property. According to the defendants the physical possession of the suit schedule property was delivered to the defendant No.6 under the GPA dated 24-10-2001 and agreement of sale dated 22-10-2001. The plaintiff has placed reliance on the deed of revocation dated 04-06-2004 under which the GPA executed by defendant No.7 in favour of the defendant No.6 is said to have been canceled/revoked. Ex.D30 the proceedings held before the competent authority and the enquiry report does disclose that the alleged revocation deed dated 04-06-2004 is a created and concocted document. Since the said enquiry was held by the judicial authority which is competent to submit report, due weightage shall be given to the said enquiry report marked at Ex.D30. Creation of revocation 39 O.S.No.25516/2008 deed is sufficient to prove the execution of GPA. Hence, this court of the considered opinion that the plaintiff a miserably failed to prove the revocation of the GPA executed by defendant No.7 in favour of the defendant No.6 herein.
48. As per the recital in the gift deed dated 21-03-2005 possession of the gift deed schedule property was delivered to the donee, the defendant No.8 herein. Even the sale deed marked at Ex.P2 does disclose the delivery of possession to the plaintiff. But the plaintiff himself admits the possession of the defendants 1 to 5 by seeking possession of a portion of the suit schedule property, which means to say that the plaintiff and his vendor were not in possession of the suit schedule property. The plaintiff has not produced the original title deeds including the sale deed executed in favour of the defendant No.7 and the gift deed executed in favour of the defendant No.8. Absolutely there is nothing on record to show that the defendant No.8 was in possession of the suit schedule property as on the date of the sale deed dated 24-04-2006 executed in favour of the plaintiff 40 O.S.No.25516/2008 herein. The contesting defendants have produced rental agreements and other documents to show their physical possession over the suit schedule property. In other words, delivery of possession by the defendant No.7 to the defendant No.6 under the agreement of sale dated 24-10-2001 and the GPA dated 22-10-2001 is established by the defendants 1 to 5 herein. No doubt, the said GPA marked at Ex.D1 and the agreement of sale marked at Ex.D10 are the unregistered documents but they are coupled with interest followed by delivery of physical possession of the suit schedule property. The plaintiff has failed to prove the revocation of the said GPA marked at Ex.D1. As per Section 202 of the Indian Contract Act, where the agent himself has an interest in the property which forms the subject matter of the agency, the agency can not, in the absence of an express contract, be terminated to the prejudice of such interest. The Hon'ble Supreme Court in a ruling reported in the case of Suraj Lamps Industries Ltd., Vs State of Hariyana, (2012) 1 SCC 656 it is held that though the 41 O.S.No.25516/2008 GPA and the sale transactions by way of sale agreements and Wills are held to be invalid, the previous genuine sale transactions on the strength of said documents are saved.
49. It is suffice to discuss here that the sale deed executed in favour of the defendants 1 to 5 is almost one month prior to the sale deed executed in favour of the plaintiff herein. As per Section 48 of the Transfer of Property Act, each later created right shall, in the absence of special contract or reservation binding the earlier transferees and subject to the rights previously created. As per Section 48 of the Transfer of Property Act, each previously created sale deed shall be given more weightage than the later created sale deeds subject to certain exceptions. In the instant case, the sale deed executed in favour of the defendants 1 to 5 is prior to the sale deed executed in favour of the plaintiff. The plaintiff has not established the flow of title in his favour. Per contra, the defendants 1 to 5 have substantiated their defense by adducing cogent and convincing evidence to the effect that the 42 O.S.No.25516/2008 possession of the suit schedule property was delivered to the defendant No.6 under agreement of sale and the GPA dated 24- 10-2001 and the said GPA is coupled with interest thus on the strength of the said GPA, the defendant No.6 has rightly executed the sale deed in favour of her children, the defendant No.1 to 5 by delivering the possession of the suit schedule property. The defendants 1 to 5 have substantiated their case that the possession of the suit schedule property was delivered to the defendant No.6 way back in the year 2001 itself. There is a serious dispute as to the flow of title in favour of the plaintiff herein. When there is serious cloud or dispute as to the flow of title, a mere suit for cancellation of the sale deed and delivery of possession is not a remedy as the plaintiff is required to seek the relief of declaration of title, which is not done in the case on hand. Execution of gift deed by the husband if favour of his wife without possession of the doner and delivery of possession of donee cannot be termed as valid gift as delivery of possession is one among the essentials of Mohammaden gift. Hence, 43 O.S.No.25516/2008 assessed from any angle, this court is of the considered opinion that the plaintiff has failed to prove his case by preponderance of probabilities. Accordingly, the issue No.1 to 3 and Addl.Issue No.1 are answered as 'Negative'. In view of foregoing discussion, the issue No.4 is answered in the 'Affirmative'.
50. Addl.Issue No.2: This issue is with regard to transfer of katha from the name of the plaintiff. As could be seen from the order dated 30-05-2008 passed by the Addl.Commissioner, BBMP, marked at Ex.D12 the katha standing in the name of the plaintiff has already been canceled. The plaintiff has not established the flow of title in his favour. Similarly, he has failed to prove the possession of the suit schedule property. The plaintiff has not sought for relief of declaration of title, for the reasons best known to him. The revenue authorities, including the BBMP are empowered to transfer katha in accordance with law. Hence, the Addl.Issue No.2 is answered as 'Negative'. 44 O.S.No.25516/2008
51. Issue No.5: In view of the foregoing discussion on the above issues and additional issues and the findings thereon, this court proceeds to pass the following;
ORDER The suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 11th day of June, 2025.) (DODDEGOWDA.K) XLIV ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side :
PW.1 S.P.S.Khadri
45 O.S.No.25516/2008
(b) Defendant's side :
DW.1 Rizwanulla Khan
List of documents marked on behalf of :
(a) Plaintiff's side :
Ex. P. 1 General Power of Attorney
Ex.P.2 Certified copy of the sale deed dated
24-04-2006
Ex.P.3 Certified copy of the gift deed dated
21-03-2005
Ex.P.4 Order passed by the Assistant
Commissioner
Ex.P.5 Deed of revocation dated 04-06-2004
Ex.P6 Encumbrance Certificate
Ex.P7 Encumbrance Certificate
Ex.P8 Uttarapatra issued by the Bengaluru
Mahanagara Palike
Ex.P9 Certified copy of the sale deed dated
29-07-1965
Ex.P10 Certified copy of the sale deed dated 16-
04-1998
Ex.P11 Certified copy of the sale deed dated
26-10-1988
Ex.P12 Khata Certificate issued by the BBMP
Ex.P13 Khatha extract
Ex.P14 Khatha certificate issued by BBMP
46 O.S.No.25516/2008
Ex.P15 Khata Certificate issued by the BBMP
Ex.P16 Tax paid receipt
Ex.P17 Khata Certificate issued by the BBMP
Ex.P18 Khata extract issued by the BBMP
Ex.P19 Acknowledgment for khata transfer in the
name of the defendant No.1 dated 15-12-
2006
Ex.P20 Tax paid receipt
Ex.P21 Khatha extract
Defendants' side :
Ex.D1 Certified copy of the GPA dated
22.10.2001
Ex.D.2 Certified copy of the affidavit dated
24.10.2001
Ex.D.3 Certified copy of sale deed dated
24.03.2006
Ex.D.4 Certified copy of the rental agreement
dated 06.09.2007
Ex.D.5 Certified copy of the letter of the BOI.
Ex.D.6 Certified copy of the letter issued by the
BOI.
Ex.D.7 Certified copy of the sale deed dated
26.10.1988
Ex.D.8 Certified copy of the rectification deed
dated 08.081994
Ex.D.9 Certified copy of the sale deed dated
47 O.S.No.25516/2008
16.04.1998
Ex.D.10 Certified copy of the full settlement sale
agreement
Ex.D.11 Certified copy of the application filed
under RTI
Ex.D.12 Certified copy of the minutes of the
meeting held before the addl
commissioner of the BBMP.
Ex.D.13 Certified copy of the deed of revocation.
Ex.D.14 and 15 Statement of the City Bank with covering letter Ex.D.16 Statement of the ABN Amro Bank.
Ex.D.17 Certified copy of the Letter of D.1
submitted to the commissioner BBMP.
Ex.D.18 Certified copy of the letter submitted to
the Joint commissioner by the defendant.
Ex.D.19 Certified copy of the letter issued by the
SBM
Ex.D.20 Certified copy of the letter issued by the
Bangalore Institute Oncology
Ex.D.21 Legal opinion dated 23.02.2006
Ex.D.22 Certified copy of the letter of BOI
Ex.D.23 Certified copy of the Encumbrance
certificate
Ex.D.24 Letter of the defendant submitted to BOI
Ex.D.25 Letter dated 31.12.2007 submitted to BOI
Ex.D.26 Letter dated 10.01.2008 submitted to the
48 O.S.No.25516/2008
BOI by the defendant
Ex.D.27 Letter dated 22.01.2008 submitted to the
BOI by the defendant
Ex.D.28 Letter dated 09.02.2008 submitted to the
BOI by the defendant
Ex.D.29 Certified copy of the rental agreement
dated 11.08.2003
Ex.D.30 Order of the Prl.CC & SJ dated
09.09.2010 in Notary enquiry case
no.2007
Ex.D.31 Certified copy of the letter of the notary
named K.M.Sadagopan
Ex.D.32 2 LPG receipts together marked.
Ex.D.33 Subscription voucher issued by Indian
corporation Ltd
Ex.D.34and 35 Bescom and BWSSB Bills
Ex.D.36 Certified copy of declaration
Ex.D.37 Encumbrance certificate
Ex.D.38 Certified copy of the endorsement
Ex.D.39 and 40 Notarized copy of the Aadhaar card and voter ID of the D.3 in this case (originals are compared and returned back to the witness) XLIV Addl.City Civil & Sessions Judge, Bengaluru City.
49 O.S.No.25516/2008