Bangalore District Court
Mr.Syed Jameel Ahmed vs Mr.Syed Abdul Hakeem @ Salim on 9 December, 2021
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
Dated this the 9th day of December, 2021.
PRESENT: Smt.PREETHI K.P.
B.A.,LL.M.,
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.8704/2006
Plaintiff: Mr.Syed Jameel Ahmed,
Aged about 47 years,
S/o.late Alhaj Syed Mahamood Saheb,
Residing at No.6/3,
1st Floor, 4th Cross,
Lal Bagh Fort Road,
Doddamavalli,
Bangalore - 560 004.
(By Adv. Rahamathulla Shariff)
v.
Defendants: 1. Mr.Syed Abdul Hakeem @ Salim,
Aged about 49 years,
S/o.late Alhaj Syed Mahamood Saheb,
Residing at No.386,
'Krishna Apartments',
5th Cross, B.T.S.Main Road,
Wilson Garden,
Bangalore - 560 027.
2 O.S.No.8704/2006
2. Mr.T.Mohammed Hussain,
Aged about 29 years,
S/o.T.Khaja Hussain,
Shop No.3/2, Old No.6/3,
Ground Floor, 4th Cross,
Lal Bagh Fort Road,
Doddamavalli,
Bangalore - 560 004.
(D1 - Exparte
D2 by Adv. T.V.Tajpeer)
Date of institution of the suit : 28.09.2006
Nature of the suit : Specific Performance
Date of commencement of : 19.01.2011
Recording of the evidence
Date on which the Judgment : 09.12.2021
was pronounced
Total Duration: : Years Months Days
15 02 11
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
J UD GM E N T
The suit is filed by the plaintiff against the defendants
for the relief of specific performance, directing both the
defendants jointly or defendant No.1 particularly to execute
3 O.S.No.8704/2006
the sale deed in favour of the plaintiff in respect of the
schedule property by receiving sale consideration or a little
more or in the alternate, to declare that plaintiff has become a
rightful absolute owner of the suit schedule property and
permit the plaintiff to deposit sale price and to declare sale
deed 25.09.2005 is null and void, hence stands cancelled and
same is not binding on the plaintiff and for vacant possession
of the suit schedule property and to grant permanent
injunction, restraining defendant No.2 or his family members
from using the common staircase situated on the eastern side
of the suit schedule property leading to first floor, together
with the bathroom and toilet and such other reliefs.
2. The case of the plaintiff is that, property bearing
No.6/3, Old No.7/6, 4th Cross, Lal Bagh Fort Road,
Doddamavalli, Bangalore, originally belonged to the mother of
the plaintiff and defendant No.1, late Mrs.Amtul Muiz, who
died intestate, leaving behind one daughter Mrs.Rehana
Suhail and 4 sons namely, Mr.Syed Fazalur Rehman,
Mr.Syed Abdul Hakieem @ Salim, Mr.Syed Aslam Ahmed and
Mr. Syed Jameel Ahmed. Plaintiff's sister Mrs.Rehana Suhail
filed a suit for partition in O.S.No.6147/1997 on the file of
Addl. City Civil Judge (CCH-28) against all her brothers.
During the pendency of the suit, the case was compromised
between the parties by filing compromise petition.
4 O.S.No.8704/2006
Accordingly, compromise petition was allowed by an order
dated 19.11.1998 and and decree was drawn on 25.09.2000
and as per the compromise, plaintiff's sister Mrs.Rehana
Suhail opted to take her share by way of cash and give up her
right over the schedule property in favour of her brothers. As
per the compromise, the shares of each brothers were
allotted. As per the compromise decree on the file of
O.S.No.6147/1997, schedule "F" property fell to the share of
the plaintiff and schedule "D" property situated on the
western side of the schedule "F" property fell to the share of
defendant No.1 and both schedule D and F properties are
adjacent to each other, consisting of commercial structure in
the ground floor and residential structures in the first floor
with common staircase on the eastern side of the property,
with bathroom and lavatory. Plaintiff agreed to share common
conveniences of staircase, bath and lavatory with defendant
No.1 because he is his elder brother and it is to be shared
between the brothers and their respective families i.e.,
plaintiff and defendant No.1 and not with any strangers and
there was also understanding that if any of the brothers were
to sell his share, the same should be offered to the brothers
first and then to the others. Thereafter, misunderstanding
arose between plaintiff and defendant No.1 and defendant
No.1 sold his portion of the property i.e., suit schedule
property to defendant No.2 through registered sale deed dated
24.06.2005 and delivered possession of shop in the ground
5 O.S.No.8704/2006
floor. Plaintiff and his family members protested the entry of
third person in the house of a family who observes pardah
and whose family's privacy infringes, at this juncture,
defendant No.2 filed a suit in O.S.No.132/2005 on the file of
Addl. City Civil Judge (CCH-15) for the relief of permanent
injunction. Mohammedan Law directs the co-sharers and
adjacent owners to claim a right of pre-emption. The parties
to this suit are Mohammedan and also co-sharers, more than
they are enjoying common rights over staircase, bathroom
and lavatory. Plaintiff had been ready to purchase the suit
schedule property. The sale of suit schedule property by
defendant No.1 in favour of defendant No.2 is not binding on
the plaintiff. Even to this day, plaintiff was ready to purchase
the suit schedule property. If right of pre-emption is not
granted, it will affect the entire family of the plaintiff.
Defendant No.2 who has purchased the suit schedule
property with the risk of common staircase, bathroom and
lavatory of a co-sharer is not entitled to infringe the privacy of
the plaintiff and his family by using common staircase,
bathroom and lavatory, hence defendant No.2 must be
restrained permanently from using it as he is not a co-sharer
or co-owner of the property and prays to decree the suit.
3. Inspite of service of suit summons, defendant No.1
remained absent, hence he was placed exparte. In response to
6 O.S.No.8704/2006
the suit summons, defendant No.2 appeared through his
counsel and filed written statement contending that he is the
absolute owner and in physical possession of the immovable
property bearing Corporation No.3/2, Old No.7/6 and
thereafter, No.6/3, being the portion of the property in Old
No.7/6 and 6/3, measuring East to West:15 feet 6 inches and
North to South:17 feet 6 inches, totally measuring 274.56
square feet, situated at 4th Cross Road, Lalbhag Fort Road,
Bengaluru and together with common staircase, bathroom
and lavatory to be shared along with plaintiff on the south of
his property and purchased the same from defendant No.1
through sale deed dated 24.06.2005. Defendant No.2 admits
that originally the schedule property belongs to Mrs.Atmul
Muiz, who is the mother of plaintiff and defendant No.1, who
has purchased the property through sale deed dated
17.11.1955 and also admits that O.S.No.6147/1997 filed by a
daughter of Mrs.Atmul Muiz and both parties have entered
into compromise, accordingly plaintiff was alloted schedule
"F" property and defendant No.1 was allotted schedule "D"
property. Defendant No.1 is the absolute owner and he has
got every liberty and right to sell the suit schedule property
for any one of the publics and given offer to purchase the
schedule property to his family members, when plaintiff and
his family members have not shown any interest to purchase
the schedule property, defendant No.1 has given offer to the
general publics and accordingly, defendant No.2 has accepted
7 O.S.No.8704/2006
to purchase the property from defendant No.1 along with
common rights to use staircase, bathroom and lavatory.
Defendant No.1 sold suit schedule property to defendant
No.2. The defendant No.2 is having common right over the
staircase, bathroom and lavatory. The plaintiff is harassing
defendant No.2 by objecting to use the common staircase,
bathroom and lavatory, hence he filed a suit in
O.S.No.132/2005 for the relief of permanent injunction
against the plaintiff. Further contends that there is no mutual
promise and common understanding between plaintiff and
defendant No.1 to gave offer to the plaintiff and other brothers
to purchase the property, if they refuse, then it should be sold
to the outsiders. The plaintiff has not raised any objection at
the time of sale transaction. There is no direction as co-
sharers and adjacent co-owners to claim the right of pre-
emption. Defendant No.2 specifically denied all allegations
made in the plaint. Hence, prayed to dismiss the suit with
exemplary costs.
4. On the basis of the above respective pleadings, my
learned predecessor in office has framed the following
issues :-
ISSUES
1. Whether the plaintiff proves that there was
mutual understanding between him and the first
8 O.S.No.8704/2006
defendant and according to which, he has got
preemptive right of purchase over the suit
schedule property?
2. Whether the plaintiff proves that the sale deed
dated 24.6.2005 executed by the first defendant
in favour of 2nd defendant in respect of suit
schedule property is null and void?
3. Whether the plaintiff proves that he is entitled to
get the sale deed in respect of the suit schedule
property executed by the defendant in his favour?
4. Whether the plaintiff is entitled for vacant
possession of the suit schedule property?
5. Whether the plaintiff is entitled for the relief of
permanent injunction against the 2 nd defendant
as sought for?
6. What decree or order?
5. On behalf of plaintiff, plaintiff got examined himself as
PW-1 and got marked Ex.P1 to P12 and examined one witness
as PW-2. On behalf of defendants, defendant No.2 examined as
DW-1 and got marked Ex.D1 to D10.
6. The learned counsel appearing for the plaintiff and
defendant No.2 addressed arguments.
7. My findings on the above issues are as under:-
Issue No.1: In the negative;
Issue No.2: In the negative;
9 O.S.No.8704/2006
Issue No.3: In the negative;
Issue No.4: In the negative;
Issue No.5: In the negative;
Issue No.6: As per final order
for the following reasons:
R E A SON S
8. Issue Nos.1 to 3: All these issues are interlinked with
each other. Hence, I answer all these issues in common to
avoid repetition of facts and circumstances.
9. The plaintiff was examined as PW-1 and who has filed
examination-in-chief by way of affidavit by reiterating the plaint
averments and got marked Ex.P1 to P12.
10. It is the case of the plaintiff that, property bearing
No.6/3, Old No.7/6, 4th Cross, Lal Bagh Fort Road,
Doddamavalli, Bangalore, originally belonged to late Mrs.Amtul
Muiz, the mother of plaintiff, defendant No.1 and their sister
and brothers. Late Mrs.Amtul Muiz died intestate, leaving
behind one daughter Mrs.Rehana Suhail and 4 sons namely,
Mr.Syed Fazalur Rehman, Mr.Syed Abdul Hakieem @ Salim,
Mr.Syed Aslam Ahmed and Mr. Syed Jameel Ahmed. Plaintiff's
sister Mrs.Rehana Suhail filed a suit for partition in
O.S.No.6147/1997 on the file of Addl. City Civil Judge (CCH-
28) against all her brothers. During the pendency of the suit,
the case was compromised between the parties by filing
10 O.S.No.8704/2006
compromise petition. Accordingly, compromise petition was
allowed by an order dated 19.11.1998 and and decree was
drawn on 25.09.2000 and as per the compromise, plaintiff's
sister Mrs.Rehana Suhail opted to take her share by way of
cash and give up her right over the schedule property in favour
of her brothers. As per the compromise, the shares of each
brothers were allotted and as per compromise decree, schedule
"F" property fell to the share of the plaintiff and schedule "D"
property situated on the western side of the plaintiff "F"
schedule property fell to the share of defendant No.1 and both
schedule D and F properties are adjacent to each other,
consisting of commercial structure in the ground floor and
residential structures in the first floor with common staircase
on the eastern side of the property, with bathroom and
lavatory. Plaintiff agreed to share common conveniences of
staircase, bathroom and lavatory with defendant No.1 because
he is his elder brother and it is to be shared between the
brothers and their respective families i.e., plaintiff and
defendant No.1 and not with any strangers. There was also the
understanding that if any of the brother were to sell his share,
the same should be offered to the brothers first and then to the
others or outsiders. Defendant No.1 without notice and
knowledge, without making any offer of sale of suit schedule
property to the plaintiff or other brothers, sold the schedule
property to defendant No.2 through a registered sale deed
dated 24.06.2005. Though the plaintiff several times reminded
11 O.S.No.8704/2006
defendant No.1 about their mutual promise and common
understanding between the brothers that if any brother is to
sell his share it should be first offered to other brothers and in
case, they refuse to purchase, then it should be sold to
outsiders. But defendant No.1 without knowledge of the
plaintiff sold suit schedule property to defendant No.2. When
plaintiff and his family protested the entry of third person,
defendant No.1 filed compliant before the jurisdictional police
and gave a copy of sale deed of defendant No.2 and intimated
that defendant No.2 has purchased the suit schedule property.
Thereafter, defendant No.2 filed a suit for permanent injunction
in O.S.No.132/2005 before Addl. City Civil Judge (CCH-15)
against the plaintiff.
11. As per Section 101 to 114 of the Indian Evidence Act,
the burden cast upon the plaintiff to prove his case
independently by cogent evidence and plaintiff cannot take
advantage of weakness of the defendant case. Admittedly,
plaintiff and defendants belongs to Muslim community.
Plaintiff claims right of pre-emption as a co-sharer. Before
canvassing on disputed fact, let me first take up admitted facts
in the present case. It is not in dispute that originally the suit
schedule property belongs to plaintiff and defendant No.1
mother namely, Mrs.Amtul Muiz. It is also not in dispute that
O.S.No.6147/1997 was filed by sister of plaintiff and defendant
No.1 namely, Mrs.Rehana Suhail, seeking for the relief of
12 O.S.No.8704/2006
partition. It is also not in dispute that during the pendency of
the suit, the parties have filed compromise petition and settled
the matter by compromise. Four sons of Mrs.Amtul Muiz
including this plaintiff and defendants have partitioned the
property as per compromise on 19.11.1998 and decree was
also drawn on 25.09.2000. It is also not in dispute that
schedule "D" property in compromise petition allotted to
defendant No.1 share and schedule "F" property in compromise
petition allotted to plaintiff share and parties in
O.S.No.6147/1997 sought to draw final decree in terms of
compromise, decree was drawn on 25.09.2000. There is terms
in compromise petition filed in O.S.No.6147/2007 that there is
common staircase, bathroom and lavatory to be used by
defendant Nos.2 and 3 therein, who are plaintiff and defendant
No.1 in the present case. Therefore, it is an admitted fact that
schedule "D" and "F" properties are adjacent properties and
consisting of commercial structure in the ground floor and
residential structures in the first floor with common staircase
on the eastern side of the property, with bathroom and lavatory
for schedule "D" and "F" properties. Schedule "D" property in
compromise decree is a suit schedule property in the present
case. It is also an admitted fact that defendant No.1 has sold
suit schedule property in favour of defendant No.2 through a
registered sale deed dated 24.06.2005. In the present case,
plaintiff claims right of pre-emption on the ground of co-sharer
and not on the ground of vicinage. As already stated, Ex.P1
13 O.S.No.8704/2006
compromise petition filed on the file of O.S.No.6147/1997
clearly shows that the plaintiff and defendant No.1 and their
brothers have filed compromise petition before the court and
pray to draw final decree in terms of compromise petition.
Ex.P3 shows that decree was drawn in terms of compromise
petition in O.S.No.1647/1997. Plaintiff alleges that defendant
No.1 inspite of mutual understanding of right of pre-emption in
his favour in respect of suit schedule property, without
plaintiff's knowledge and notice sold the same to defendant
No.2 through registered sale deed dated 24.06.2005. Therefore,
sale deed dated 24.06.2005 is null and void and plaintiff is
entitled to repurchase suit schedule property through sale deed
as per right of pre-emption. During the course of cross-
examination, DW-1 admits that plaintiff and defendant No.1
belongs to Sunni Law. Mulla's Principles of Mohammedan Law
page 205, Section 231 is reproduced for ready reference:
"231. Who may claim pre-emption - The
following three classes of persons and no others,
are entitled to claim pre-emption, namely:-
1. a co-sharer in the property (w) (shafi-i-
sharik);
2. a participator in immunities and
appendages, such as a right of way or a
right to discharge water (y) (shafi-i_khalit);
and
3. owners of adjoining immovable property (z)
(shafi-i-jar), but not their tenants (a), nor
persons in possession of such property
without any lawful title." (b) Baillie, 481)"
14 O.S.No.8704/2006
12. Therefore, under Sunni Law the right of pre-emption
appurtains to the aforesaid persons. In the present case,
plaintiff as shafi-i-sharik i.e., as a co-sharer in the property
claiming right of pre-emption over the suit schedule property.
As per the compromise petition, though it is mentioned that in
schedule "D" property, there is common bathroom and lavatory
to be used by plaintiff and defendant No.1 herein, who are
defendant Nos.2 and 4 in O.S.No.6147/1997, but no right of
pre-emption was reserved as per the compromise petition in
respect of suit schedule property. As per the compromise
petition and decree in O.S.No.6147/1997 the properties were
divided and separated and also enjoyed by all the co-shares
individually. At this juncture, it is relevant to reproduce para
No.5 of page 3 in compromise petition on the file of
O.S.No.6147/1997 hereunder for ready reference:
"5. It is mutually agreed between the parties that
the portion of plaint schedule-A property morefully
described in the Schedule-D given hereunder in
this compromise petition shall fall to the share of
defendant No.2 and the defendant No.2 shall be
the absolute owner in possession of Schedule-D
property mentioned hereunder and shall be
entitled to deal with the same in any manner as he
likes and the plaintiff and defendants 1, 3 and 4
have given up their claim in respect of the
schedule-D property in favour of 2 nd defendant and
2nd defendant alone is the owner and in possession
of schedule-D property without any claim from
plaintiff and defendants 1, 3 and 4 or their heirs,
administrators, executors."
15 O.S.No.8704/2006
13. At this juncture, it is relevant to reproduce "D"
schedule of compromise petition hereunder for ready reference:
" SCHEDULE - D
All that piece and parcel of portion of
property bearing Old No.7/6, New No.6/3,
Lalbagh Fort Road, IV Cross, Doddamavalli,
Bangalore - 560 004, measuring East to
West:15'-6" and North to South:17'-6" bounded
on the:
East by: 4th Cross Road;
West by: Property fallen to the share of 4th
defendant (schedule-F)
North by: Main Road and
South by : Common staircase measuring 6x13'-6"
belonging to defendant Nos.2 & 4
(schedule D & F)
There is common bathroom and lavatory to be
used by defendant Nos.2 and 4."
Therefore, as per terms in compromise petition defendant No.1
is an absolute owner of suit schedule property. Plaintiff is
claiming right of pre-emption over the suit schedule property.
Under the Mohammedan Law, the person who is willing to
enforce his right of pre-emption has to make his demands after
hearing of the sale of the property concerned i.e., Talab-i-
Mowasibat or Immediate demand. Talab-i-Ishhad or
Confirmatory demand. Talab-i-Tamleek or Demand for
possession. At this juncture, it is relevant to reproduce Section
16 O.S.No.8704/2006
236 of Mulla's Principles of Mohammedan Law as under for
ready reference:
"236. Demands for pre-emption - No person is
entitled to the right of pre-emption unless -
(1) he has declared his intention to assert
the right immediately on receiving
information of the sale. This formality is
called talab-i-mowasibat (literally,
demand of jumping, that is, immediate
demand); and unless
(2) he has with the least practicable delay
affirmed the intention, referring
expressly to the fact that the talab-i-
mowasibat had already been made (a),
and has made a formal demand -
(a) either in the presence of the buyer, or
the seller, or on the premises which
are the subject of sale (b), and
(b) (b) In the presence of at least of two
witnesses (c). This formality is called
talab-i-ishhad (demand with
invocation of witnesses) (d)."
14. Therefore, as per Section 236 of Mohammedan Law,
plaintiff has to establish the right of pre-emption by complying
pre-requirements of immediate demand, confirmatory demand
in the presence of the witnesses and final demands for
possession of the property. In the present case, though
plaintiff alleges that without knowledge and notice of the
plaintiff, defendant No.1 sold in favour of defendant No.2
through a registered sale deed dated 24.06.2005 suit schedule
17 O.S.No.8704/2006
property consisting commercial structure in the ground floor
and residential structures in the first floor. Plaintiff alleges
that defendant No.2 lodged a compliant to the jurisdictional
police and in Police Station defendant No.2 gave a copy of sale
deed and intimated that defendant No.2 had purchased the
suit schedule property. Lateron, defendant No.2 also filed suit
for permanent injunction in O.S.No.132/2006 on the file of
Addl.city Civil Judge (CCH-15) Bangalore. Ex.P11 certified
copy of judgment on the file O.S.No.132/2006 clearly shows
that O.S.No.132/2006 was filed by defendant No.2 against the
plaintiff herein on 04.01.2006 seeking the relief of permanent
injunction. All these factors clearly shows that the sale of suit
schedule property was well within the knowledge of the
plaintiff, when copy of the sale deed was shown to the plaintiff
in the Police Station on the compliant lodged by defendant
No.2 against the plaintiff much before filing of this suit. As per
the requirement of Section 236 of Mohammedan Law, the
plaintiff has to establish talab-i-mowasibat and talab-i-
ishhad. Talab-i-mowasibat and talab-i-ishhad are condition
precedent to exercise right of pre-emption. Talab-i-mowasibat
should be made as soon as fact of sale known to the plaintiff.
But in the present case, admittedly defendant No.2 has shown
copy of sale deed much before filing of present suit, but
plaintiff kept quite without making immediate demand to
repurchase the suit schedule property from defendant No.1 as
per requirement of Section 236(a) of Mohammedan Law. After
18 O.S.No.8704/2006
filing of O.S.No.132/2006 by defendant No.2 against plaintiff,
present suit was filed. As per talab-i-ishhad. it is also
essential requirement that the demand should be made in the
presence of atleast two witnesses. Plaintiff on his behalf has
examined one more witness in support of his case. At this
juncture it is relevant to reproduce para No.4 of evidence of
PW-2 hereunder:
"I submit that the plaintiff came to know that the
1st defendant has sold the property in favour of 2 nd
defendant in the month of June, 2005. In the
month of July, 2005 a meeting was held between
the plaintiff and defendant in my presence. At that
time Sri.Saleem Ahmed, Sri.Syed Fazlur Rahman
and Sri.Syed Mohammed Ahmed @ Aslam were
present. The plaintiff expressed his intention and
demanded to sell the property in his favour for the
same consideration amount as purchased by the
2nd defendant. Both the defendants did not agree
for the same"
15. Under Mohammedan Law, not only it is necessary
talab-i-ishhad should be made in the presence of the
witnesses, that they should be asked to bear testimony that the
demand has been duly made. Therefore, mere presence of at
least two witnesses when talab-i-ishhad is made is not
sufficient, but they must specifically called upon to bear
witness to the demand. At this juncture, it is relevant
reproduce cross-examination of PW-2 hereunder:
19 O.S.No.8704/2006
"I came to know about the sale deed executed by
first defendant in favour of 2 nd defendant in
respect of suit schedule property when plaintiff
informed me about the same, subsequent to one
year from the date of execution of said sale deed.
Later a plaintiff and hIn the compromise meeting
plaintiff requested his brother fist defendant that
he is ready to repay the sale consideration
amount and their by asked him to compromise
the matter. I do not know the sale consideration
amount offered by plaintiff to the 1 st defendant
at that time. is brothers discussed and tried to
compromise the matter. However no
compromised was arrived between the parties,
hence plaintiff filed this suit. Even in that
compromise pertaining to suit schedule
property, discussion 2nd defendant was not
there. My chief affidavit came to be prepared at
the instance of plaintiff herein. I have not read
the said affidavit prior to putting my signature
on the same even plaintiff has not read over the
same to me. ....
In the compromise meeting plaintiff requested
his brother fist defendant that he is ready to
repay the sale consideration amount and their
by asked him to compromise the matter. I do not
know the sale consideration amount offered by
plaintiff to the 1st defendant at that time."
16. Therefore, during the cross-examination, PW-2
categorically admits that plaintiff informed him about the sale
after one year from the date of execution of sale deed.
Admittedly, defendant No.1 executed sale deed in favour of
defendant No.2 on 24.06.2005. But in evidence affidavit PW-2
20 O.S.No.8704/2006
in para 4 contends that in the month of July 2005 meeting
was held between plaintiff and defendants in his presence.
Therefore, evidence of PW-2 is totally unreliable. He himself
admitted that he does not know anything about his evidence
affidavit. Further his evidence shows that he was not a real
witness to the transaction. But he projected as a witness at
the behest of the plaintiff as an attempt to give evidence in his
favour. If PW-2 was present at the time when plaintiff made a
demand to defendant No.1 to repurchase the suit schedule
property he ought to have know the sale consideration
amount offered by the PW-1 in favour of his brother i.e.,
defendant No.1. Therefore, evidence of this witness not an
assistance to the plaintiff, but also goes against credibility of
stand taken by the plaintiff.
17. Over all evidence shows that plaintiff was aware of sale
deed much before filing of this suit and also before filing of
O.S.No.132/2006 by defendant No.2 against plaintiff on
04.01.2006. As per Section 236 of Mohammedan Law, it is
not only necessary that talab-i-ishhad should be made in the
presence of the witnesses, but they should be asked to bear
testimony to the declaration that the demand has been duly
made. Plaintiff must fully establish that there were atleast two
witnesses present on the occasion who heard the demand and
can bear witness to the fact when it is denied by the vendee.
But in the present case, there is nothing on record to show
21 O.S.No.8704/2006
that after the knowledge of sale, the plaintiff has made
immediate demand in the presence of atleast two witnesses.
18. At this juncture, I would like to rely upon the
decision reported in Sarjug Singh v. Jag Mohan Singh AIR
1919 Pat. 496 , wherein his lordships have held that, "it is
necessary under the Mohammedan law that not only his
demand should be made in the presence of the witnesses, but
there should be asked to bear testimony to the declaration
that the demand had been duly made" . The demand must be
made immediately and affirmed without delay. But in the
present case, there is nothing on record to show that in order
to perform talab-i-mowasibat i.e., immediate demand the
plaintiff had taken atleast two witnesses with him to the spot
to make demand to repurchase suit schedule property. Talab-
i-mowasibat and talab-i-isshad are condition precedent to
exercise the right of pre-emption. But plaintiff fails to prove
these mandatory requirements. There is nothing on record to
show that plaintiff made his first demand soon after the
knowledge of sale by defendant No.1. When there is sale by
defendant No.1 in favour of defendant No.2, but the plaintiff
without sufficient cause fails to claim right of pre-emption
immediately. In the absence of evidence it cannot be accepted
that plaintiff has complied the requirement of talab-i-ishhad.
Therefore, right of pre-emption deemed to have been waived
by him without comply mandatory requirement of Section 236
22 O.S.No.8704/2006
of Mohammedan Law. Merely issuing notice on 19.05.2006
much later will not establish the right of pre-emption over
suit schedule property. Learned counsel appearing for the
plaintiff has taken contention that though the property was
divided among the four brothers, but compromise petition
was not registered. Therefore defendant No.1 did not have
right to transfer the suit schedule property in favour of
defendant No.2. At this juncture, it is relevant reproduced
Section 17 of Indian Registration Act hereunder:
"17. Documents of which registration is
compulsory.--(l) The following documents shall be
registered, if the property to which they relate is
situate in a district in which, and if they have been
executed on or after the date on which, Act No. XVI of
1864, or the Indian Registration Act, 1866, or the
Indian Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or comes
into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which
purport or operate to create, declare, assign, limit or
extinguish, whether in present or in future, any
right, title or interest, whether vested or contingent,
of the value of one hundred rupees and upwards, to
or in immovable property;
(c) non-testamentary instruments which acknowledge
the receipt or payment of any consideration on
account of the creation, declaration, assignment,
limitation or extinction of any such right, title or
interest; and
(d) leases of immovable property from year to year, or
for any term exceeding one year, or reserving a yearly
rent;
23 O.S.No.8704/2006
[(e) non-testamentary instruments transferring or
assigning any decree or order of a Court or any
award when such decree or order or award purports
or operates to create, declare, assign, limit or
extinguish, whether in present or in future, any
right, title or interest, whether vested or contingent,
of the value of one hundred rupees and upwards, to
or in immovable property:] Provided that the [State
Government] may, by order published in the [Official
Gazette], exempt from the operation of this sub-
section any lease executed in any district, or part of a
district, the terms granted by which do not exceed
five years and the annual rents reserved by which do
not exceed fifty rupees.
[(1A) The documents containing contracts to transfer
for consideration, any immovable property for the
purpose of section 53A of the Transfer of Property
Act, 1882 (4 of 1882) shall be registered if they have
been executed on or after the commencement of the
Registration and Other Related laws (Amendment)
Act, 2001 and if such documents are not registered
on or after such commencement, then, they shall
have no effect for the purposes of the said section
53A.]
(2) Nothing in clauses (b) and (c) of sub-section (l)
applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock
Company, notwithstanding that the assets of such
Company consist in whole or in part of immovable
property; or
(iii) any debenture issued by any such Company and
not creating, declaring, assigning, limiting or
extinguishing any right, title or interest, to or in
immovable property except in so far as it entitles the
holder to the security afforded by a registered
instrument whereby the Company has mortgaged,
conveyed or otherwise transferred the whole or part
24 O.S.No.8704/2006
of its immovable property or any interest therein to
trustees upon trust for the benefit of the holders of
such debentures; or
(iv) any endorsement upon or transfer of any
debenture issued by any such Company; or
28
(v) [any document other than the documents
specified in sub-section (1A)] not itself creating,
declaring, assigning, limiting or extinguishing any
right, title or interest of the value of one hundred
rupees and upwards to or in immovable property,
but merely creating a right to obtain another
document which will, when executed, create, declare,
assign, limit or extinguish any such right, title or
interest; or
(vi) any decree or order of a Court [except a decree or
order expressed to be made on a compromise and
comprising immovable property other than that
which is the subject-matter of the suit or
proceeding]; or
.................
19. Originally suit schedule property belongs to plaintiff
and defendant No.1 mother Mr.Amtul Muiz, who died
intestate. Partition suit in O.S.No.6147/1997 was filed. As
already stated, during the pendcncy of the suit compromise
petition was filed by the parties. In terms of compromise,
schedule "F" property fallen to share of the plaintiff and
schedule "D" property i.e., present suit schedule property
fallen to the share of defendant No.1. Compromise was
entered in O.S.No.6147/1997 only in respect of subject
matter of the suit and no additional property was included in
25 O.S.No.8704/2006
compromise petition. In the said compromise petition, the
parties have sought to draw final decree. In terms of
compromise petition, the decree was also drawn. When
compromise was entered in O.S.No.6147/1997 only in respect
of subject matter of the suit, the registration of compromise
decree does not arise at all. At this juncture, it is relevant to
refer some of the statements made by PW-1 during the course
of cross-examination hereunder:
"It is true as per compromise decree myself and
defendant No.1, shall have to use the common
stair case. After passing of compromise decree in
the above referred suit my relations with my
other brothers and sisters are strained. I can
read and write English language. Out of four
divisions in one portion I am residing, in another
portion defendant No.2, is residing and in
remaining two portions other brothers are
residing. Myself and my brother, defendant No.1,
were using the stair case which existed as
common use. ....
It is true as per compromise decree myself
and defendant No.1, have to use the common
toilet and bathroom existed in the property. My
other brothers did not asked for defendant No.1,
to sell his property to them. It is true in the
compromise terms there is no mention in respect
of reserving any presume rights regarding asking
one brother to another in respect of alienation of
their share of property. According to witness it is
only oral understanding arrived between
brothers. I belongs to Sunni Muslim. It is true
defendant No.2, also belongs to Sunni Muslim
26 O.S.No.8704/2006
community. Defendant No.2, after purchasing
schedule property he is using that premises as
shop premises and not for dwelling."
20. Plaintiff claims that there was mutual understanding
between the plaintiff and defendants, according to which he got
right of pre-emption to purchase suit schedule property.
Admission of PW-1 in the cross-examination clearly shows that
after compromise decree, the plaintiff's relation with his
brothers and sisters are strained. As per the compromise
decree there was no right of pre-emption. There is nothing on
record to show that after compromise decree, there was a
mutual understanding between the plaintiff and defendants, in
case of sale of his property, first offer should be made to the
brothers. Therefore, when there was no cordial relationship
between the brothers, allegation of plaintiff that there was a
mutual understanding for right of pre-emption cannot be
accepted at all. PW-1 himself clearly admits that out of 4
division, in one portion he is residing and in another portion
defendant No.2 is residing and in the remaining portion his
brothers are residing. Itself shows that plaintiff and defendants
are living separately after division by enjoying the property
allotted to them by compromise decree. PW-1 also admits in
the cross-examination that his other brothers did not asked
defendant No.1 to sell his property to them and also
categorically admits that in compromise terms there is no
mention in respect of reserving any pre-emption right regarding
27 O.S.No.8704/2006
asking one brother to another in respect of alienation of their
share of property in case of sale. In Mohammedan Law, vide
Tyabjee's Principles of Muham-madan Law, paragraph 541 A,
by the word sharik co-sharer is meant "the owner of an
undivided share in the property of which subject of pre-
emption form a part of share". In the present case, the property
has been already divided between the parties by filing a
compromise petition and in terms of compromise decree also
drawn and they are enjoying the property separately. Such
being the case, the plaintiff in the present case cannot be
termed as co-sharer or shafi-i-sharik. On the other hand, even
if it is considered as right of pre-emption is incidence of
property, but plaintiff fails to prove pre-condition requirements
of pre-emption.
21. The suit schedule property consists of commercial
structure in ground floor and residential structure in first
floor with common staircase, bathroom and lavatory. It is the
case of the plaintiff that, plaintiff and defendant No.1 have
common right over staircase, bathroom and lavatory and
there was also a mutual understanding that if any of the
brothers were to sell his share, the same should be offered to
the brothers first, then to the outsiders. But during the
course of cross-examination PW.1 clearly admits that his
other brothers did not ask defendant No.1 to sell his share to
them. In order to show plaintiff had mutual understanding
28 O.S.No.8704/2006
with defendant No.1, he neither examined even one of his
brothers in support of his case for the reasons best known to
him in order to show that he has right of pre-emption. In the
absence of evidence on record, it cannot be accepted that
plaintiff had right of pre-emption. There is nothing on record
to show that plaintiff has made immediate oral demand to
defendant No.1 exercising the right of pre-emption as soon as
he became aware of sale deed dated 24.06.2005 and also fails
to show that in presence of two witnesses he made demand to
repurchase the suit schedule property from defendant No.1.
All these factors shows that plaintiff has waived in his right.
But plaintiff has not at all established right of pre-emption in
his favour in respect of suit schedule property. Inspite of
knowledge of sale deed in favour of defendant No.2 plaintiff
failed to exercise his right of pre-emption by making
immediate demand. Plaintiff has given up his claim of pre-
emption.
22. As per compromise decree, admittedly defendant
No.1 is the absolute owner and was in possession of the suit
schedule property. In the same way, plaintiff is the absolute
owner of "F" schedule property of the compromise petition.
The defendant No.1 being an absolute owner in respect of the
suit schedule property has every right to sell the same to any
person. It is already held that plaintiff fails to show that he
had right of pre-emption over the suit schedule property. As
29 O.S.No.8704/2006
per compromise decree in O.S.No.6147/1997 the property
was already divided between the parties and plaintiff and
defendant No.1 and their brothers are enjoying the properties
separately and individually. Such being the case, the plaintiff
is not a co-sharer in respect of the suit schedule property.
Therefore, it is clear that within the meaning of Mohameddan
Law the plaintiff under the circumstances of the present case
is not shafi-i-sharik. During the pendency of the suit, on
06.07.2017 plaintiff has deposited Rs.6,00,000/- (Rupees Six
Lakhs only) which is the sale consideration stated in the
registered sale deed dated 24.06.2005 executed by defendant
No.1 in favour of defendant No.2. Suit was filed on
28.09.2006. Merely because similar amount of sale
consideration was deposited by the plaintiff itself will not
entitle the plaintiff to get the sale deed from the hands of
defendant No.1. In order to get sale deed in respect of the suit
schedule property, the burden cast upon the plaintiff to prove
right of pre-emption by complying the essential conditions
under Mohameddan Law. But plaintiff fails to prove right of
pre-emption over suit schedule property.
24. The learned counsel appearing for plaintiff has
relied upon the decisions reported in AIR 2001 Supreme
Court 2611 between Smt.Mattoo Devi v. Damodar Lal (dead)
by L.Rs. And others; AIR 1956 Nagpur 243 between
Sheonandanprasad Ganeshprasad v. Kanhaiyalal
30 O.S.No.8704/2006
Ishwariprasad; AIR 2004 Karnataka 211 between Abdulaziz
Mohammad Isaq Kothiwale (since deceased by L.Rs.) v.
Ismailbeg Kashimbeg Miraz and another' AIR 1937 Allahabad
282 between Ataat Husain v. Mushtaq Ali; AIR 2016 (NOC)
514 (CAL.) between Sunita Saha v. Chandan Kumar Saha,
(2005) 6 Supreme Court Cases 614 between Narne Rama
Murthy v. Ravula Somasundaram and others; AIR 2006
Andhra Pradesh 111 between Guduru Nirmala v. Guduru
Ashok Kumar; AIR 1965 Supreme Court 314 between Sant
Ram and others v. Labh Singh and another; AIR 1986
Supreme Court 859 between Atam Prakash v. State of
Haryana and others; AIR 1972 Supreme Court 2162 between
S.K.Mohammed Rafiq (dead) by his legal representatives v.
Khalilul Rehman and another etc., and AIR 1966 Allahabad
271 between Mahboob Hasan; another v. Ram Bharosey Lal
and another; 1971(1) Supreme Court Cases 707 between
Sukhandan Singh etc. v. Jamiat Singh and others and AIR
1996 Supreme Court 196 between Bhoop Singh v. Ram Singh
and others. Perused the above said decisions. Facts and
circumstances of the aforesaid decisions and facts and
circumstances of the present case are different.
25. The registered sale deed executed in favour of
defendant No.2 by defendant No.1 was not at all denied by the
defendant No.1 by filing written statement. Suit schedule
property fallen to the share of defendant No.1 under
31 O.S.No.8704/2006
compromise decree in O.S.No.6147/1997. Being absolute
owner of suit schedule property, defendant No.1 has sold suit
schedule property in favour of defendant No.2 through
registered sale deed dated 24.06.2005. Suit schedule property
is Corporation No.3/2, Old No.7/6 and later No.6/3, situated
at 4th Cross Road, Lal Bagh Fort Road, Doddamavalli,
Bangalore-560004, under Corporation Ward No.48,
measuring East to West:15 feet 6 inches and North to
South:17 feet 6 inches, in all measuring 274.56 square feet
and bounded on the: East by 4th Cross Road; West by
property belonging to Syed Jameel Ahmed (plaintiff ); North
by Main Road and South by common staircase measuring
6x15'-6" to be used by the 2 nd defendant and plaintiff.
Together with all the ground floor and first floor structure
standing thereon. The contents of the sale deed also shows
that possession of the suit schedule property was handed
over to defendant No.2 on the date of registered sale deed.
When plaintiff fails to establish pre-emption, claim of the
plaintiff to declare that sale deed 24.06.2005 as null and void
cannot be accepted at all. Along with plaintiff, the defendant
has common right over staircase, bathroom and lavatory.
Common right has been given to both the parties for use of
staircase. In pursuance of compromise decree, defendant
No.1 is the absolute owner of the suit schedule property who
has sold the suit schedule property to defendant No.2
through registered sale deed dated 24.06.2005. Plaintiff fails
32 O.S.No.8704/2006
to prove with cogent evidence the right of pre-emption over
suit schedule property. Therefore, plaintiff is not entitle to get
sale deed from defendants in respect of the suit schedule
property. Plaintiff also fails to prove that sale deed dated
25.09.2005 is null and void. Hence, I record my answer on
Issue Nos.1 to 3 in the negative.
26. Issue No.4 & 5:-
Defendant No.1 was the absolute owner of the suit
schedule property. The right, title and possession over the
schedule property was transferred through registered sale
deed dated 24.06.2005 in favour of defendant No.2 by
defendant No.1. As per compromise decree, plaintiff and
defendant No.1 has common right over staircase, bathroom
and lavatory. Plaintiff fails to prove right of pre-emption over
the suit schedule property. When it is established that
defendant No.2 is in possession of the schedule property, he
cannot make use of the same without using the common
staircase situated on the eastern side of the schedule
property, leading to first floor together with bathroom and
lavatory. This court has already held that while answering
Issue Nos.1 to 3 plaintiff fails to prove right of pre-emption. In
the present case, the plaintiff has sought the relief of
permanent injunction to restrain defendant No.2 from using
common staircase, bathroom and lavatory in the suit
schedule property. It is already held that defendant No.2 has
33 O.S.No.8704/2006
filed O.S.No.132/2006 before the Addl. City Civil Judge,
Bengaluru and the said suit was dismissed by judgment and
decree dated 18.11.2011. Against the said judgment and
decree, defendant No.2 has preferred RFA.No.487/2012
before the Hon'ble High Court. Hon'ble High Court was
pleased to allow the appeal. At this juncture, it is necessary to
reproduce order passed by Hon'ble High Court in
RA.No.487/2012 hereunder:
"ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and decree dated
18.11.2011 passed in O.S.No.132/2006 on the
file of VIII Additional City Civil Judge
(CCH.No.10) Bengaluru City is hereby set aside.
(iii) The plaintiff is given right to access the 1st
floor through the common staircase. The
defendant is directed not to interfere with the
plaintiff in using the common staircase to go to
the first floor. The defendant has already filed a
suit for seeking relief of right of preemption
since he belongs to Muslim community the
same has to be decide by the Trial Court and
this decree is subject to the result of the suit
filed by the defendant which is pending before
the civil court."
34 O.S.No.8704/2006
The Hon'ble High Court in RFA.No.487/2012 judgment,
it was observed that defendant No. 2/appellant given right to
access the first floor through the common staircase and said
judgment had already attained finality. The plaintiff has
also sought for vacant possession of schedule property. The
possession of suit schedule property was transferred through
a registered sale deed in favour of defendant No.2. The
plaintiff fails to prove right of pre-emption, hence he is not
entitled for sale deed from defendant No.1. Therefore, the
plaintiff is not entitle for the claim of vacant possession. This
court has already been held that plaintiff fails to prove right of
pre-emption over the suit schedule property and plaintiff also
fails to establish that he is entitle to get sale deed from
defendant No.1 in respect of suit schedule property. Such
being the case, granting of vacant possession of suit schedule
property in favour of plaintiff does not arise at all. Having
considering the above aspects, this court is of the opinion
that plaintiff is not entitled for the reliefs sought for in the
present case. Hence, I record my answer on Issue Nos.4 and 5
negative.
28. Issue No.6:
In view of my discussions and findings on Issue Nos.1 to
5, I proceed to pass the following:
35 O.S.No.8704/2006
ORDER
Suit is hereby dismissed with costs. Draw decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, corrected and then pronounced by me in open court this the 9th day of December, 2021) (PREETHI.K.P) XI ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
List of witnesses examined for plaintiff:-
PW-1: Sri.Syed Jameel Ahmed PW-2: Sri.Arshad Ahmed List of documents exhibited for plaintiff :-
Ex.P1: Certified copy of Compromise Petition in O.S.No.6147/1997 Ex.P2: Certified copy of Compromise Petition in O.S.No.6147/1997 Ex.P3: Certified copy of Decree in O.S.No.6147/1997 Ex.P4: Amendment Application in O.S.No.6147/1997 Ex.P5: Certified copy of Sale Deed dated 24.06.2005 Ex.P6: Legal Notice dated 19.05.2006 36 O.S.No.8704/2006 Ex.P7: Postal Acknowledgement Ex.P8: Legal Notice dated 19.05.2006 Ex.P9: Postal Acknowledgement Ex.P10 Reply Notice dated 15.06.2006 Ex.P11 & 12: Certified copies of judgment and decree in O.S.No.132/2006 List of witnesses examined for defendants:-
DW -1: Sri.T.Mohammed Hussain List of documents exhibited for defendant:-
Ex.D1: Certified copy of Sale Deed dated 24.06.2005 Ex.D2: Katha Extract Ex.D3: Katha Certificate Ex.D4: FORM VAT-7 Ex.D5 to 8: Tax Paid Receipts Ex.D9: Electricity Bills Ex.D10: Receipts XI ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.