Bangalore District Court
Tanveer Pasha vs Smt. Shameem Taj on 3 January, 2020
TITLE SHEET FOR JUDGEMENTS IN
Government of SUITS
Karnataka
Form No.9
[Civil] Title Sheet for IN THE COURT OF V ADDL.CITY CIVIL COURT
Judgment
in Suits AT BENGALURU
(CCH.No.13)
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 3rd day of January, 2020
O.S. No.8242/2013
PLAINTIFF: Tanveer Pasha,
S/o Abdul Majeed,
Aged about 31 years,
Flat No.302,
Charan Habitat Apartments
1st Main, Deena Bank Colony,
Ganganagar,
Bengaluru-32.
(By Sri.SNB/RK, Advocate)
/VS/
DEFENDANTS: 1. Smt. Shameem Taj,
W/o Syed Naveedulla,
D/o Mohammed Shafi,
Aged about 32 years
2. Mohammed Shafi,
Aged about 70 years,
Both defendant No.1 and 2
are R/at No.31, 3rd Main,
Ganganagar Extension,
Bengaluru-32.
(By Sri.RBS, advocate )
2
O.S. No.8242/2013
Date of Institution of the suit 11-11-2013
Nature of the suit Suit for declaration &
injunction
Date of Commencement of 26-07-2014
recording of evidence
Date on which judgment was 03-01-2020
Pronounced
Total Duration Year/s Month/s Day/s
06 01 22
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
:JUDGMENT:
This is a suit filed by the plaintiff against the defendants for the relief of declaration and injunction in respect of the suit schedule property along with cost of the suit.
2. The brief facts of the case are as under :-
That, the plaintiff is the absolute owner in possession of the residential property bearing Old No.9/2 and 21/1, presently bearing No.26/1-1 with BBMP PID No.98-75-26/1-1 measuring east to west 54 feet and north south 30 feet situated at 4th Main Road, Hebbal Mills, Ganganagar Layout, Bengaluru. Further it is averred that plaintiff is in possession of the schedule property since 2008, which was acquired from his father by way of registered Gift Deed dated 03/03/2007. His father Abdul Majeed was a partner of the partnership firm 3 O.S. No.8242/2013 Malik Engineering Company acquired the schedule property by virtue of registered Dissolution of Partnership Deed dated 02/01/2003 and subsequently error regarding schedule property has been rectified by way of registered deed. The Khatha extracts are standing in the name of the plaintiff. The southern portion of the property abutting the schedule property was sold to mosque and there is no dividing wall separating the schedule property from the said mosque, as such when the plaintiff tried to construct the compound wall on 03/01/2008, the defendant No.2 and their henchmen obstructed, accordingly the plaintiff filed O.S. No.25121/2008 before the 4th ACC&SJ, Mayo Hall Unit for the relief of permanent injunction and it came to be decreed on 25/08/2013. But, during the pendency of the said suit the defendant No.2 has fraudulently made Gift Deed dated 02/12/2010 in favour of defendant No.1 daughter to have unlawful gain and to cause wrongful loss to the plaintiff and thereby the 1st defendant fraudulently claiming the schedule property, is trying to alienate and thereby disturbed the peaceful possession of the schedule property. Cause of action to file the suit arose when the defendants registered the Gift Deed and attempted to alienate the schedule property on 01/10/2013. Therefore plaintiff has filed the above numbered suit to declare him as a title holder of the schedule property by canceling the aforesaid Gift Deed and to restrain the defendants from alienating the same to third party.4
O.S. No.8242/2013
3. It is contended in the written statement/additional written statement filed by the defendants that, the suit is frivolous and vexatious filed with oblique motive to harass the defendants to have unlawful gain. The plaintiff is nothing to do with the suit schedule property as he has no manner of right, title or interest over the schedule property. The plaintiff is not entitled to the relief of declaration and he has no right to seek cancellation of Gift Deed executed by the defendant No.2 father in favour of defendant No.1 daughter. The valuation made and the court fee paid by the plaintiff is not proper. There is no cause of action to file the suit and the cause of action shown in the plaint is imaginary one. Further contend that suit is also barred by law under Order 2 Rule 2 of CPC, since plaintiff had filed O.S.No.25121/2008 against the 2nd defendant only for the relief of bare injunction. The defendant No.2 has filed RFA No.329/2014 and the same is pending for consideration. The plaintiff filed the said suit for bare injunction, as such the plaintiff cannot maintain the present suit for declaration as the same is barred under Order 2 Rule 2 CPC. Further contend that the plaintiff has played fraud against the defendants by denying to marry the 1st defendant after her engagement though the same was fixed before the 2nd defendant and parents of plaintiff and relatives. The plaintiff is none other than the son of 2 nd defendant's brother Abdul Majeed and there was marriage negotiations between the plaintiff and 1 st defendant followed by engagement with lot of gifts and huge party. Further contend 5 O.S. No.8242/2013 that on account of such fraud played by the plaintiff even after engagement ceremony, the father of the plaintiff gifted the property to the 2nd defendant brother and in turn he gifted the schedule property in favour of 1 st defendant daughter. The defendant No.2 has paid consideration amount to purchase the said property and father of the plaintiff has not paid any amount. The property was purchased in the name of firm under registered sale deed dated 02/05/1975 and business was run by the company till the year 1980 and thereafter the said partnership came to be dissolved on 02/01/2003, wherein the schedule property was given to Abdul Majeed on account of the relationship, wherein plaintiff agreed to marry the 1st defendant i.e. daughter of defendant No.2. Further contend that father of the plaintiff was a student at the time of said transaction, living separately in a rented home, who has also not invested any amount in the partnership firm. The defendant No.2 by investing his own funds provided accommodation along with centering material business to the plaintiff's father. The plaintiff has fraudulently taken a decree against the 2nd defendant. The allegation regarding alienation is totally false and frivolous. So in view of the fact that plaintiff promised to marry the 1 st defendant, the schedule property was given to the plaintiff's father, as such plaintiff's father has no right to execute the Gift Deed in favour of the plaintiff. On these grounds prayed for dismissal of the suit with costs.
6O.S. No.8242/2013
4. On the basis of the above pleadings, my learned predecessor in office has framed the following issues:-
1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2) Whether plaintiff proves that the Gift Deed executed by defendant No.2 in favour of defendant No.1 vide document No.BNG(U)-
BLR(N)/1230/10-11, Book No.1, dated 02/12/2010 is by way of fraud?
3) Whether defendants prove that the suit is liable to be dismissed as the same is barred bylaw as alleged in para 19 of the written statement?
4) Whether defendants prove that the suit is not valued properly and adequate court fee is not paid as alleged in para 6 of the written statement? (treated as preliminary issue)
5) Whether plaintiff is entitled for the relief sought for?
6) What Order or Decree?
5. In order to prove his case, the plaintiff examined himself as P.W. 1 and got marked the documents at Ex.P.1 to
27. On the other hand, defendant No.1 examined herself as D.W.1. During the course of cross-examination of P.W. 1 Ex.D.1 to 9 photos are marked on behalf of defendants.
6. Heard and perused the written arguments along with the material on record.
7O.S. No.8242/2013
7. My findings on the above issues are as under:-
Issue No.1: In the Affirmative
Issue No.2: In the Affirmative
Issue No.3: In the Negative
Issue No.4: In the Negative
Issue No.5: In the Affirmative
Issue No.6: As per final order for the
following:
:R E A S O N S:
8. Issue No.1 and 2:- I take these issues together for my discussion, as the facts overlap and for the sake of convenience.
9. It is worth to note that, admittedly plaintiff has filed the above numbered suit to declare that he is the owner of the suit schedule property by canceling the registered Gift Deed dated 02/12/2010 said to have been executed by defendant No.2 in favour of defendant No.1 daughter and to restrain them from alienating the schedule property along with cost and other reliefs as the court deems fit and proper under the circumstances of the case.
10. In this regard, the plaintiff has filed an affidavit in lieu of oral evidence by reiterating entire averments of the plaint, examined himself as P.W. 1 stating that suit schedule property was being acquired by his father by virtue of registered Dissolution of Partnership Deed dated 02/01/2003 8 O.S. No.8242/2013 and Rectification Deed vide No.BK-I 3362/2007-08 and was in possession and enjoyment of the same. Further states that he became the absolute owner in possession of the schedule property by virtue of registered Gift Deed dated 03/03/2007 executed by his father and also got transferred Khatha into his name and enjoying the same without any hindrance, but on 03/01/2008 when he tried to construct a compound wall towards the southern side of the property, the defendant No.2 and his henchmen obstructed, accordingly he filed O.S. No.25121/2008 for the relief of permanent injunction and it came to be decreed on 25/08/2013. Further on 19/10/2013 again the defendants interfered with the said work/possession over the schedule property, accordingly he lodged complaint before the R.T. Nagar police. This being the fact again during the pendency of the aforesaid suit the defendant No.2 created a fake document like Gift Deed dated 02/12/2010 in favour of defendant No.1 daughter fraudulently to have wrongful gain and to cause wrongful loss to him, therefore he has filed the present suit. In order to support his oral testimony P.W. 1 got marked documents at Ex.P.1 to P.27.
11. During the course of cross-examination of P.W. 1 when a suggestion was put to the witness that the 2 nd defendant has invested the amount from the service of private firm and has educated his father, he denied as false. Further though he states that, his father, 2 nd defendant and two others have contributed to start the Malik Engineering 9 O.S. No.8242/2013 Company, but he pleads ignorance to the effect that he does not know the source of income of his grandfather and how much amount was being contributed by his father to the said company. Further when a suggestion was put to the witness that, his father was not doing the business jointly with his brothers as he got separated long back and defendant No.2 was maintaining the family, he denied as false. Again he denied the suggestion that his father has not let out the schedule property and defendant No.2 is in the possession of the same. Further deny that, as it was given to him since he promised to marry his daughter, accordingly he has gifted the schedule property to defendant No.1. Further though he admits that there was a proposal for his marriage with the 1 st defendant and also identified the persons appearing in Ex.D.1 to 9 photos confronted to him, but he denied the suggestion that there was negotiation after the said proposal. Further it has been elicited that he got married in the year 2007 as per Ex.P.18 and again contracted second marriage in the year 2012 at Hyderabad, but he denied that he is leading marital life with second wife by cheating the first lady of Mysore and the defendant No.1. Further though admits that, except in two photos in all Ex.P.19 to 24 he is appearing with wearing garland, but he has specifically denied the suggestion that as on the date of engagement of the brother of 1 st defendant only his engagement with 1st defendant was being performed as per Ex.P.19 to 24 photos and after two years 1st defendant married as per Ex.P.17 Nikanama with another person.
10O.S. No.8242/2013
12. In order to substantiate their contention the defendant No.1 examined herself as D.W.1 stating that, she is the absolute owner in possession of the suit property which was being acquired from her father by way of registered Gift Deed dated 02/12/2010, but plaintiff has played a fraud by denying to marry her even after engagement followed by lot of gifts and marriage was fixed in the presence of their parents and relatives. Further states that the property was agreed to be given to Abdul Majeed, since the marriage negotiations ended in engagement, but later on the plaintiff refused, ran away and got married elsewhere and thereby she underwent great humiliation, depression and ill health. Further on account of the said fraud played by the plaintiff her father/defendant No.2 has gifted the schedule property in her favour. Further states that defendant No.2 has paid the consideration amount to purchase the schedule property, but plaintiff's father has not paid any amount to purchased the same in the name of firm under the registered sale deed dated 02/05/1975. Further states that the partnership was dissolved on 02/01/2003 and thereby schedule property was given to Sri. Abdul Majeed on account of relationship wherein plaintiff agreed to marry her, accordingly plaintiff's father gifted the property to defendant No.2 and in turn he gifted the schedule property in her favour and she is in possession of the schedule property and plaintiff is not definite about the particulars of the property in dispute. In order to support her oral testimony no documents were marked on behalf of D.W. 1 except Ex.D.1 to D.9 marked during the course of cross-examination of P.W. 1.
11O.S. No.8242/2013
13. But in the cross-examination of D.W. 1 admits that now she got married on 14/12/2012, she does not know when the plaintiff got married. Further she has categorically admitted the fact that she has neither lodged complaint against the plaintiff for having cheated her nor produced bit of document to show that her father was the owner of the property in dispute and when he gifted the same or produced the medical records towards her ill health. Further states that initially her father executed a Gift Deed in favour of plaintiff's father, then he gifted the same in her favour, she does not know about pendency of suit before the Mayo Hall court and execution of Gift Deed by her father pendente lite. Further though she admits Ex.P.2 Dissolution of Partnership Deed, but when a question was put to the witness that the schedule property has been registered in favour of the plaintiff's father through the said document she pleads ignorance and also denied the suggestion that though there was no engagement with the plaintiff but she had created the Gift Deed in collusion with defendant No.2 father. In such circumstances based on available oral and documentary evidence this court has to see that in whose favour preponderance of probabilities lies.
14. The learned counsel for the plaintiff has filed written arguments by reiterating the pleadings, oral and documentary evidence and prayed for decreeing the suit with cost. Per contra, the learned counsel for the defendants also filed written arguments by reproducing the pleadings, oral and documentary evidence and prayed for dismissal of the suit with cost.
12O.S. No.8242/2013
15. It is pertinent to note here that, on careful evaluation of the pleadings, oral and documentary evidence as well as written arguments we can find that, so far as in respect of existence of M/s Malik Engineering Company constituted in the year 1969 amongst the late Mohammed Hasham and his four sons which was registered with Registrar of Firms as per Ex.P.27 is concern there is no dispute. It is not in dispute that the said company/firm possessed the property bearing site No.9/2 and 21/1 (formerly bearing site No.36 and 37) measuring east to west 54.6 feet and north to south 70 feet situated at 4 th main, Hebbal Mills, Bengaluru. It is also not in dispute that the said Malik engineering company came to be dissolved through Ex.P.2 registered Dissolution of Partnership Deed dated 02/01/2003 and thereby distributed the assets of the partnership firm vide schedule 'A' and 'B'.
16. It is the case of the plaintiff that he became the absolute owner in possession of the schedule property by virtue of Ex.P.1 registered Gift Deed dated 03/03/2007 executed by his father Abdul Majeed and enjoying the same, but the defendant No.2 being the father has fabricated Ex.P.10 alleged Gift Deed in favour of defendant No.1 daughter and thereby played fraud and he deny the case of the defendants as he promised to marry defendant No.1. Per contra it is the case of the defendants that since the plaintiff promised to marry 1st defendant as per Ex.D.1 to 9 photographs pertain to engagement ceremony but he did not 13 O.S. No.8242/2013 turn up accordingly the 2nd defendant gifted the schedule property in favour of defendant No.1 daughter which said to have been acquired by him from the plaintiff's father by way of oral gift/hiba.
17. As could be seen from the perusal of Ex.P.2 registered Dissolution of Partnership Deed that the parties to the said document have mutually discussed, negotiated and agreed for dissolution of partnership firm with certain conditions and also got distributed the assets of the partnership firm wherein schedule 'B' property has been alloted to the third party who is none other than father of the plaintiff by name Abdul Majeed in full and final settlement and the 2nd, 4th and 5th parties have submitted their no objections for the same.
18. Similarly out of the assets of the partnership firm the 2nd, 4th and 5th parties were being given an amount of Rs.1,00,000/- 50,000/- and 25,000/- respectively in full and final settlement to the satisfaction of their rights,claims and interest in the said firm and thereby all the parties mutually declared and confirmed their rights and aforesaid distribution.
19. It is also evident that schedule 'A' property being a portion of property bearing No.9/2 and 21/1 of Sy.No. 16 of Gangenahalli, Hebbal Mills, Ganganagar, Bengaluru to the 14 O.S. No.8242/2013 extent of east west 54 feet and north south 60 feet has already been sold in favour of Masjid and sale proceeds have been appropriated by the partnership firm agreeing to execute relevant documents in favour of the purchaser.
20. It is not in dispute that Mohammed Hasham and his wife Smt. Rahmath Bi have expired in the year 1989 and 1994 respectively. Ex.P.2 Dissolution of Partnership Deed came in to existence in the year 2003. Ex.P.3 reveals that all the parties to the Dissolution of Partnership Deed got executed Rectification Deed on 03/12/2007 in respect of the mistakes relating to assessment number and measurement crept in the said document. The parties to the suit are governed by the Mohammedan Law. So now it is clear that plaintiff's father became absolute owner in possession of the schedule property by virtue of Ex.P.2 Dissolution of Partnership Deed.
21. As could be seen from perusal of Ex.P.1 that the plaintiff Tanveer Pasha became the absolute owner in possession of the schedule property by virtue of registered Gift Deed dated 03/03/2007 executed by his father Abdul Majeed as his absolute property who acquired the same under Ex.P.2 referred supra. On perusal of Ex.P.1 makes it clear that there is specific recital in the said document for having delivered the possession of the schedule property by the donor in favour of the donee and further having acknowledged/accepted by the donee/plaintiff. It may be 15 O.S. No.8242/2013 noted that P.W. 1 has got amended the plaint schedule based on Ex.P.3 Deed of Rectification executed by all the parties/legal heirs of late Mohammed Hasham as residential property bearing No.9/2 and 21/1 presently bearing No.26/1-1, BBMP PID No.98-75-26/1-1 measuring east west 54 feet and north south 30 feet totally 1620 square feet with boundaries situated at 4th main road, Hebbal Mills, Ganganagar layout Bengaluru.
22. Further Ex.P.7 nil encumbrance certificate also reflects the nature of acquisition of the schedule property by the plaintiff. Ex.P.4 and 5 Khatha certificate and extract are standing in the name of plaintiff by name Tanveer Pasha and paying tax to the concerned authority as per Ex.P.6 tax paid receipt for the suit year. It is also evident from perusal of Ex.P.8 and 9 certified copy of the judgment and decree that suit filed by the plaintiff Tanveer Pasha as against defendant No.2 Mohammed Shafi for the relief of permanent injunction in respect of the schedule property came to be decreed on 25/04/2013. P.W. 1 has also stated before the court that again when he tried to put up construction of compound wall as per Ex.P.13 to 16, the defendants interfered with and made attempt to alienate in the month of October 2013, accordingly he lodged complaint before R.T. Nagar PS as per Ex.P.11 and 12. But, there is no effective cross-examination of P.W. 1 by the defense side on these aspects. On the other hand during the course of cross-examination of D.W. 1 has not only admitted the fact that she has not produced any 16 O.S. No.8242/2013 documents to show that her father was the original owner of the property in dispute but also pleaded ignorance in respect of execution of alleged Gift Deeds. It is evident from the perusal of Ex.P.8 copy of judgment and Ex.P.10 copy of Gift Deed that, during the pendency of the suit in O.S. No. No.25121/2008 before CCH No.21 the alleged Gift Deed dated 02/12/2010 by the defendant No.2 in favour of defendant No.1 came to be executed, which indicates that the said transaction itself is hit by the doctrine of lis-pendence. So the material on record indicates that plaintiff is able to establish his title as well as possession over the suit schedule property and alleged interference by the defendants as on the date of the suit. So now the burden lies on the defendants to show that the plaintiff failed to fulfill his promise to marry 1 st defendant, as such defendant No.2 has gifted the schedule property said to have been acquired by way of oral gift by the plaintiff's father in favour of defendant No.1 daughter.
23. It is pertinent to note here that the defendant No.1 is claiming to be the owner in possession of the suit schedule property based on Ex.P.10 certified copy of alleged Gift Deed dated 02/12/2010 and Ex.D.1 to 9 photographs alleged to have taken during the alleged engagement ceremony . It is the specific case of the defendants that since the plaintiff promised to marry 1st defendant but failed to fulfill his promise accordingly the 2nd defendant being the father who said to have acquired the schedule property by way of oral gift/hiba from the plaintiff's father has gifted the same in favour of 1st defendant daughter.
17O.S. No.8242/2013
24. In this regard if we carefully go through the contents of Ex.P.2 Dissolution of Partnership Deed as well as Ex.P10 copy of alleged Gift Deed we can find that there is no whisper for having acquired the schedule property by the defendant No.2 by way of oral gift from his brother. On the other hand as observed supra the schedule property has been allotted to the plaintiff's father out of the assets of the partnership firm and in turn he has bequeathed the same in favour of the plaintiff/son. Further Ex.P.10 does not disclose about execution of Dissolution of Partnership Firm as well as distribution of assets of the partnership firm amongst the legal heirs of late Mohammed Hasham. It is to be noticed that though the defendants are relying on Ex.D.1 to D.9 photographs contending that since the plaintiff failed to fulfill his promise as such defendant No.2 has gifted the property in dispute to his daughter, but the very execution of alleged Ex.P.10 Gift Deed has been seriously disputed by the plaintiff stating that defendants have fabricated the said documents during the pendency of suit in O.S. No. No.25121/2008 on the file of CCH No.21 and thereby played fraud. Further P.W. 1 has also relied on Ex.P.17 Nikhanama of 1 st defendant with one Syed Naveed dated 15/12/2005, Ex.P.18 Nikhanama of plaintiff with a lady of Mysore and Ex.P.19 to 25 photographs pertaining to marriage engagement belongs to the brother of 1st defendant.
18O.S. No.8242/2013
25. This being the fact it is for the defendants to prove Ex.D.1 to D.9 photographs to believe that they pertain to engagement ceremony of 1st defendant with the plaintiff in accordance with law, but defendants failed to prove the same. So though Ex.P.10 reveals that the 2 nd defendant has acquired the schedule property by virtue of sale deed dated 03/05/1975 and thereby handed over the possession to the 1st defendant donee who said to have accepted the same, but in order to substantiate their contention for having acquired the schedule property by way of oral gift absolutely no material is forth coming before this court from defendants side.
26. It is settled that the conditions for making valid oral gift under the Mohammedan law are - there should be wish or intention on the part of the donor to gift, acceptance by the donee and taking possession of the subject matter of the gift by the donee. In the case on hand the 2nd defendant would contend that the suit schedule property had been orally gifted to him by his brother Abdul Majeed, but in the absence of any proof to show that possession of the schedule property was delivered to defendant No.2 and he accepted the same, the oral gift relied by the defendants cannot be accepted as valid one as the factum of oral gift is not proved in accordance with the provisions of Section 123 and 129 of T.P. Act.
19O.S. No.8242/2013
27. Similarly, though the defendant No.1 has relied upon alleged Gift Deed dated 02/12/2010, but the defendants have neither produced the original Gift Deed nor examined any of the witnesses found thereon or produced supporting oral or documentary evidence before this court. So even otherwise if we go through the contents of Ex.P.10 certified copy of the Gift Deed furnished by the plaintiff, though it reflects regarding intention of the donor to gift the schedule property without any conditions and same has been accepted along with possession of the schedule property by the 1st defendant daughter, but execution and its genuineness has been seriously disputed by the plaintiff, as such without there being any supportive oral and documentary evidence it cannot be said that the 1st defendant or her father have actual control over the schedule property. Further there is no proof of even constructive possession of defendant No.2 donee pursuant to alleged oral gift by his brother or constructive/actual possession of defendant No.1 donee pursuant to alleged Gift Deed dated 02/12/2010 said to have been executed by defendant No.2 father as on the date of the suit. So viewed from any angle it is evident that the essential ingredients of the oral or written gift as/is understood under the Mohammedan law have not been satisfied by the defendants, which indicates that Ex.P.10 alleged Gift Deed dated 02/12/2010 has been fraudulently created by the defendants in order to have unlawful gain and to cause wrongful loss to the plaintiff, accordingly it can be held that, the same is not binding on the plaintiff and liable to be cancelled.
20O.S. No.8242/2013
28. Therefore, having regard to the facts and circumstances of the case, I am of the opinion that, plaintiff is able to prove his case to believe that he became the absolute owner in possession of the schedule property as on the date of suit and defendants interfered with peaceful possession and enjoyment over the schedule property and also made efforts to alienate. On the other hand, the defendants have failed to establish their contention reasonably probable regarding acquisition of schedule property by way of oral gift by plaintiff's father to the 2 nd defendant and in turn written gift by the defendant No.2 in favour of 1 st defendant daughter by adducing cogent oral and documentary evidence before this court. For these reasons written arguments filed by learned counsel for plaintiff holds good. On the other hand the written arguments furnished by the learned counsel for the defendants do not have weight and cannot be accepted. Hence, I answer Issue No.1 and 2 are in the affirmative.
29. ISSUE No.3 :- It is another contention of the defendants as stated in para 8 and 19 of the written statement that suit of the plaintiff is barred by the provisions of Order II Rule 2 of CPC contending that, though the plaintiff filed O.S. No.25121/2008 for the relief of permanent injunction, wherein the defendants have referred the Gift Deed dated 02/12/2010 executed by defendant No.2 in favour of defendant No.1, but plaintiff failed to claim the relief of declaration in the said suit, as such the suit is liable to be dismissed as barred by law and also limitation.
21O.S. No.8242/2013 Per contra, it is the case of the plaintiff that he filed the previous suit for the relief of bare injunction and now he has filed the present suit for declaration which is based on different cause of action, as such the suit is maintainable.
30. It is relevant to point out that, the very object of Rule 1 and 2 of Order II is to prevent multiplicity of suit i.e. a person shall not be vexed twice. But it is equally settled that the said bar has to be established by the defendants by producing certified copies of the pleadings in the earlier suit to show the cause of action relied by the plaintiff in the earlier suit with that of cause of action relied in the present suit is one and the same. In the case on hand the defendants have neither produced the pleadings of O.S. No.25121/2008 nor adduced supportive oral evidence before this court. However the material on record like Ex.P.8 copy of judgment passed by the CCH No.21 indicates that the earlier suit filed by the plaintiff was for the relief of bare injunction based on cause of action dated 03/01/2008 when the plaintiff tried to dig foundation in the schedule property defendants and his henchmen obstructed. On perusal of para 9 of the plaint in the present suit indicates that cause of action arose to file the suit when the defendants made attempt to alienate the schedule property on 01/10/2013. The plaintiff has filed the above numbered suit on 11/11/2013 based on different cause cause of action. As such, a plea of the defendants cannot be presumed so as to invoke the provisions of Order II Rule 2 of CPC, accordingly it can be held that suit of the plaintiff is not hit by the said provisions.
22O.S. No.8242/2013
31. It is worth to note that though there is no specific issue with regard to plea of limitation, but in view of the provisions of Section 3 of the Limitation Act it is the duty of the court to see that suit is in time or not. So another question that arises in this case is which article of the schedule to the Limitation Act would be applicable to the facts of the case on hand?
32. It is to be noticed that in view of my discussion made supra while dealing with issue No.1 and 2 the Gift Deed dated 02/12/2010 executed by defendant No.2 in favour of defendant No.1 daughter vitiated due to fraud played on the plaintiff and also hit by the doctrine of lis-pendence, accordingly the same is not binding on the plaintiff. So though the defendants disclosed the said fact in the written statement filed in O.S. No. 25121/2008 which came to be disposed of on 25/04/2013, but the plaintiff has filed the present suit under Section 31 of the Specific Relief Act to declare him as absolute owner of the schedule property by canceling the alleged Gift Deed dated 02/12/2010 and for injunction within three years when right to sue first accrues i.e. the defendants made attempt to alienate the schedule property and interfered with the construction work of the compound wall in the month of October 2013 as stated in Ex.P.11 and 12 copy of complaint and endorsement given by the concerned police, as such the limitation starts running from the date when the cause of action of had arisen as stated in para 9 of the plaint. Therefore the provisions of 23 O.S. No.8242/2013 Article 58 of the Limitation Act are applicable to the facts of the case on hand and not Article 59 of the schedule to the Act. Hence, I answer Issue No.3 in the negative.
33. ISSUE No.4:- The plaintiff has filed the above numbered suit for the relief of declaration to declare that he is the absolute owner of the schedule property by canceling the Gift Deed dated 02/12/2010 and injunction and also paid court fee of Rs.2,15,550/- as required under Section 38 r/w 24(b) & (d) and 26 of the Karnataka court fee and Suits Valuation Act. Accordingly valuation made and court fee paid by the plaintiff is valid and proper. Hence, I answer Issue No.4 in the negative.
34. ISSUE No.5:- In view of my discussion made supra while dealing with issue No.1 to 4, I am of the opinion that plaintiff is able to establish his title over the suit schedule property by cancellation of alleged Gift Deed dated 02/12/2010 executed by defendant No.2 in favour of defendant No.1 daughter as the same is vitiated by fraud along with possession over the schedule property and alleged interference by the defendants. Further it is evident from perusal of Ex.8 and 9 copy of judgment and decree passed by CCH No.21 in O.S. No.25121/2008 dated 25/04/2013 that the decree of prohibitory injunction restraining the defendant No.2 from interfering with the possession of the plaintiff is in force as on today subject to further orders of the Hon'ble High Court of Karnataka in RFA No.329/2014 if any. But in 24 O.S. No.8242/2013 the prayer column of the plaint has not sought the relief of permanent injunction, instead he has claimed at para iii temporary injunction against the defendants as not to alienate the same only. However, in para v of the prayer column he has sought any other reliefs as the court deems fit and proper under the circumstances of the case. So having regard to the facts and circumstances of the case the plaintiff is also entitled for the relief of permanent injunction restraining the defendants from alienating the schedule property. Consequently suit of the plaintiff is deserves to be decreed with cost. Hence, I answer issue No.5 is in the affirmative.
35. ISSUE No.6:- For the foregoing reasons, I proceed to pass the following;
: O RD ER :
The suit of the plaintiff is hereby decreed with cost.
It is declared that plaintiff is the absolute owner in possession of the suit schedule property bearing No.9/2 and 21/1 presently bearing No.26/1-1, BBMP PID No.98-75-26/1-1 measuring east west 54 feet and north south 30 feet totally 1620 square feet with schedule boundaries situated at 4th main road, Hebbal Mills, Ganganagar layout Bengaluru.25
O.S. No.8242/2013 Consequently the alleged registered Gift Deed vide No.BNG(U)-BLR(N)/1230/2010-11, Book No.I, dated 02/12/2010 executed by defendant No.2 in favour of defendant No.1 stands cancelled as vitiated by fraud.
Accordingly the office to send a copy of the decree to the officer in whose office the said alleged Gift Deed has been registered so as to make necessary note in this regard on the copy of the instrument contained in his books, after expiry of the appeal period.
The defendants are hereby permanently restrained from alienating the suit schedule property to third party without due process of law.
Draw decree accordingly.
(Typed to my dictation by the Stenographer directly on computer, corrected, signed by me and then pronounced in the open Court this the 3rd day of January, 2020.) ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Tanveer Pasha WITNESSES EXAMINED FOR THE DEFENDANTS: DW.1 : Smt. Shameem Taj
DOCUMENTS EXHIBITED FOR THE PLAINTIFFS:
Ex.P.1 Gift Deed dated 03/03/2007
Ex.P.2 Dissolution of the Partnership Deed
dated 02/01/2003
26
O.S. No.8242/2013
Ex.P.3 Certified copy of the Rectification Deed
dated 03/12/2007
Ex.P.4 Khatha certificate
Ex.P.5 Khath extract
Ex.P.6 Tax paid receipt
Ex.P.7 Encumbrance Certificate
Ex.P.8&9 Certified copy of judgment and decree passed in
O.S. No.25121/2008
Ex.P.10 Certified copy of the Gift Deed dated 02/12/2010
Ex.P.11&12 Copy of police complaint and acknowledgement
Ex.P.13&15 Three photographs
Ex.P.16 C.D
Ex.P.17 Nikhanam of defendant No.1
Ex.P.17(a) English Translation copy
Ex.P.18 Nikhanam belongs to plaintiff
Ex.P.18(a) English translation copy
Ex.P.19 to25 Marriage engagement photos belongs to brother of defendant No.1 and son of defendant No.2 (7) Ex.P.26 One C.D. Ex.P.27 Certified copy of Registration of Firm DOCUMENTS EXHIBITED FOR THE DEFENDANTS:-
Ex.D.1 to 8 Photos
Ex.D.9 One C.D
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
*****
27
O.S. No.8242/2013
Judgment pronounced in open Court vide
separate order.
O RD ER
The suit of the plaintiff is
hereby decreed with cost.
It is declared that plaintiff is
the absolute owner in possession of
the suit schedule property bearing
No.9/2 and 21/1 presently
bearing No.26/1-1, BBMP PID
No.98-75-26/1-1 measuring east
west 54 feet and north south 30
feet totally 1620 square feet with
schedule boundaries situated at
28
O.S. No.8242/2013
4th main road, Hebbal Mills,
Ganganagar layout Bengaluru.
Consequently the alleged
registered Gift Deed vide
No.BNG(U)-BLR(N)/1230/2010-
11, Book No.I, dated 02/12/2010
executed by defendant No.2 in
favour of defendant No.1 stands
cancelled as vitiated by fraud.
Accordingly the office to
send a copy of the decree to the
officer in whose office the said
alleged Gift Deed has been
registered so as to make
necessary note in this regard on
the copy of the instrument
contained in his books, after
expiry of the appeal period.
The defendants are hereby
permanently restrained from
alienating the suit schedule
property to third party without
due process of law.
Draw decree accordingly.
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU