Karnataka High Court
Syed Sultan Mahmood @ Fairoz vs Smt Haseena Begum on 25 August, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
R.F.A. No. 489/2012 C/W R.F.A. No. 775/2010
R.F.A. No. 489/2012
BETWEEN
SYED SULTAN MAHMOOD
@ FAIROZ
S/O. LATE SYED GHOUSE
AGED 69 YEARS
NO.2, RANGAPPA LANE, OPP
FLOWER DÉCOR, SUSHILA MAIN ROAD
DODDAMAVALLI
BANGALORE - 560004 ... APPELLANT
(BY SRI. S.B. THOTAD, ADV., SRI. YOGANARASIMHA, SR.
COUNSEL FOR SRI. B.A. RAHMAN & ASSOCIATE)
AND
1. SMT. HASEENA BEGUM
DESCRIBED HERSELF AS WIFE OF
LATE MIR. MOHAMMED SALEH@ SYED IQBAL
AGED ABOUT 43 YEARS
RESIDING AT 317, NEAR GOVERNMENT URDU SCHOOL,
HULIMAGUDA POST, SHIKARIPALYA, JIGANI HOBLI,
ANEKAL TALUK,
BANGALORE DISTRICT - 5621 00.
2. SYED AEJAZ
DESCRIBED HIMSELF AS SON OF
LATE MIR. MOHAMMED SALEH@ SYED IQBAL
2
AGED ABOUT 22 YEARS
RESIDING AT 317, NEAR GOVERNMENT URDU SCHOOL,
HULIMAGUDA POST, SHIKARIPALYA JIGANI HOBLI, ANEKAL
TALUK
BANGALORE DISTRICT - 5621 00.
3. G. SYED IBRAHIM @ MOULANA
DEAD BY LR'S
3(a) FAHMIDUNNISA
W/O. G. SYED IBRAHIM MOULANA
AGED ABOUT 65 YEARS
3(b) KALEEM PASHA
S/O. G. SYED IBRAHIM MOULANA
AGED ABOUT 32 YEARS
3© KHALEEL PASHA
S/O. G. SYED IBRAHIM MOULANA
AGED ABOUT 26 YEARS
ALL ARE RESIDENTS OF 598/11
13TH CROSS, DEVRAJ URS NAGAR
OLD GUDDADAHALLI, BANGALORE - 26.
4 DR. YASEEN SHARIFF
S/O. LATE HAJI NABI SHARIFF
MAJOR, NO. 19/4, SHARIFIA HOTEL
NAWAB HYDER ALI KHAN ROAD
CITY MARKET SQUARE
BANGALORE - 560002 ....RESPONDENTS
(BY SRI. S.P. TOTAD, ADV., FOR R1, SRI. MOHAMMED
SAIFULLA KHAN, ADV., FOR R3 & R4)
R F A FILED U/S 96 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED 24.2.2010 PASSED IN O.S. NO.
16639/2001 ON THE FILE OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE, (CCH 20), PARTLY
3
DECREEING THE SUIT FOR JUDGMENT, DAMAGES AND
REJECTING THE SUIT FOR ARREARS OF RENT.
R.F.A. No. 775/2010
BETWEEN
DR. YASEEN SHARIFF
S/O. LATE HAJI NABI SHARIFF
AGED ABOUT 50 YEARS
R/O. NO.4, OLD NO. 19/4
NAWAB HYDER ALI KHAN ROAD
CITY MARKET SQUARE
BANGALORE - 2 ...APPELLANT
(BY SRI. YOGA NARASIMHA, SR. COUNSEL, SRI. R.A.
RAHMAN & ASS.,)
AND
1.SRI. SYED SULTAN MAHMOOD
ALIAZ FAIROZE
S/O. LATE SYED GHOUSE
AGED ABOUT 64 YEARS
R/O. NO. 387, 8TH CROSS
5TH BLOCK, JAYANAGAR
MARENAHALLI LAYOUT
BANGALORE - 11
2. SRI. ABDUL BASITH
MAJOR
R/O. NO. 4, OLD NO. 19/4
NAWAB HYDER ALI KHAN ROAD
CITY MARKET SQUARE
BANGALORE - 2
3. SMT. HASEENA BEGUM
W/O. LATE MIR. MOHAMMED SALEH
@ SYED IQBAL
4
AGED ABOUT 41 YEARS
4. SRI. SYED AEJAZ
S/O. LATE. MIR MOHAMMED SALEH
@ SYED IQBAL
AGED ABOUT 20 YEARS
RESPONDENTS NO.3 & 4
ARE R/AT. NO. 317, NEAR
GOVERNMENT URDU SCHOOL
HULIMAGUDA POST
SHIKARIPALYA, JIGANI HOBLI
ANEKAL TALUK
BANGALORE DISTRICT .....RESPONDENTS
(BY SRI. S.P. TOTAD, ADV., FOR R1, SRI. MOHAMMED
SAIFULLA KHAN, ADV., FOR R3 & R4)
THIS RFA FILED U/S 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 24.02.2010 PASSED IN
O.S.NO. 16639/2001 ON THE FILE OF THE XXVI ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE, (CCH 20), PARTLY
DECREEING THE SUIT FOR EJECTMENT, DAMAGES AND
REJECTING THE SUIT FOR ARREARS OF RENT.
THESE APPEALS COMING ON FOR FURTHER HEARING OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
R.F.A.489/12 c/w 775/10 These two appeals involve though not the same, but an issue regarding right, title and interest of the parties in respect of immovable property described in the schedule to 5 the plaint and the appellants in this appeal as also respondents have raised similar questions of fact and law. Therefore for convenience and to avoid any conflict in finding, both the appeals are taken up for hearing on merit and disposed of by this common order.
2. R.F.A.489/12 is by the 2nd defendant against the judgment and decree in O.S.4771/04 on the file of Additional City Civil and Sessions Judge, Bangalore, decreeing the suit as prayed for by Haseena Begum and her son-Syed Aejaz (plaintiffs), granting them 1/3rd share in the property in question.
3. R.F.A.775/10 is filed by the 1st defendant against the judgment and decree in O.S.16639/01 on the file of Additional City Civil and Sessions Judge (CCH.20), Bangalore, directing him to vacate and deliver a portion of the property in question described in the schedule to the plaint, to the 1st respondent herein-Syed Sultan Mohamood @ Fairoz. He (appellant in R.F.A.775/10) has brought into the party array Syed Sultan Mohamood @ Fairoz as 1st respondent, Abdul Basith as 2nd respondent, Haseena 6 Begum and Syed Aejaz (plaintiffs in O.S.4771/04) as respondents 3 and 4.
4. I have heard Mr.S.B.Thotad, learned counsel for the appellant in R.F.A.489/12 and Mr.Yoganarasimha, learned senior advocate for respondents 1 and 2 and Mr.Mohammed Saifulla Khan, learned counsel for respondents 3 and 4. Likewise in R.F.A.775/10, I have heard Mr.Yoganarasimha for the appellant on behalf of R.A.Rehman Associates and Mr.S.B.Thotad for the respondents. Perpused records in supplementation thereto from which the following facts emerge:
Regarding R.F.A.489/12:
a) O.S.4771/04 was filed by Haseena Begum and Syed Aejaz seeking a decree to declare that the judgment and decree obtained by Syed Ibrahim @ Moulana and Syed Sultan Mohamood @ Fairoz (defendants 1 and 2 in the suit) to divide the schedule property amongst themselves is not binding on their 1/3rd share and the purported sale of the northern half of the schedule property by the 1st defendant in favour of the 3rd defendant-Dr.Yasin Shariff (4th 7 respondent in the appeal) was not binding on them. They also sought partition of the properties to assign unto them 1/3rd share.
b) In support of the relief sought, they averred, the suit schedule property originally belonged to one Syed Ghouse who died intestate on 16.8.1961 leaving behind his sons, viz., Mir Mohamed Saleh @ Syed Iqbal, Syed Ibrahim @ Moulana and Syed Sultan Mohamood @ Fairoz. Upon his death, the sons were in joint possession. However, Mir Mohamed Saleh @ Syed Iqbal died on 16.8.1992 and his 1/3rd share devolved on them (plaintiffs). They contended, 1st plaintiff-Haseena Begum is the legally wedded wife of Mir Mohamed Saleh @ Syed Iqbal and 2nd plaintiff is his son.
c) It is alleged during the lifetime of Syed Ghouse and thereafter, the property was rented out to a tenant to run a hotel. The 1st defendant in the suit had obtained power of attorney by virtue of a deed dated 7.1.1963 from his two brothers authorizing him to manage the property. It is alleged one Haji Nabi Sharif purchased the running business in 1979 and continued it till 1987. Thereafter his son- 8
Dr.Yasin Shariff (4th respondent in the appeal) continued to be the tenant. At this juncture, Syed Sultan Mohamood @ Fairoz-2nd defendant filed suit in O.S.1614/70 which was later re-numbered as O.S.3224/82 on the file of Civil Judge, Bangalore. In the suit, he impleaded his two brothers namely Mir Mohamed Saleh (husband of 1st plaintiff) and Syed Ibrahim @ Moulana and alleged each brother was entitled to 1/3rd share in the property in question.
d) Referring to the pleadings in O.S.3224/82, plaintiffs contended upon the death of Mir Mohamed Saleh on 16.8.1992, they were not brought on record and the suit had abated against him-Syed Sultan Mohamood @ Fairoz. They contended, 1st defendant-Syed Ibrahim @ Moulana played fraud in entering into a compromise with the 2nd defendant-Syed Sultan Mohamood @ Fairoz which was accepted by the court on 23.6.1998 and in terms of it, the property was divided into two halves as delineated in the sketch annexed to the compromise petition.
e) It is further alleged, by virtue of the compromise, defendants divided the property and took for themselves 9 one half share without assigning unto them any share. On this basis they contended, the compromise is not binding on them. Further they alleged, a memo was filed stating no relief was sought against Mir Mohamed Saleh and pursued the compromise based on whihc the suit was decreed.
f) it is alleged, after the compromise, Syed Ibrahim @ Moulana (1st defendant in O.S.3224/82) sold his half portion acquired under the compromise to the 3rd defendant- Dr.Yaseen Shariff by a deed of sale dated 9.8.2001 which transaction is also not binding on them. They thus sought a decree to declare the judgment and decree in O.S.3224/82 was not binding on them; they also sought division of properties to assign to them 1/3rd share.
g) Amongst the defendants, Syed Ibrahim @ Moulana (vendor of 3rd defendant) and Syed Sultan Mohamood @ Fairoz, only the 2nd defendant, i.e. Syed Sultan Mohamood @ Fairoz contested the suit. He filed written statement in which he admitted their father-Syed Ghouse was the owner of the property in question and he died leaving behind 3 sons namely, Mir Mohamed Saleh @ Syed Iqbal, Syed 10 Ibrahim @ Moulana and Syed Sultan Mohamood @ Fairoz. He contended schedule property was not in joint possession and denied 1st plaintiff-Haseena Begum is the legally wedded wife of Mir Mohamed Saleh and disputed Syed Aejaz is his genetic son. Thus he denied plaintiffs are entitled to any share in the property in question. He contended, Haseena Begum was married to Abdul Rehman Shariff and Syed Aejaz cannot be the genetic son of Mir Mohamed Saleh. However, he admitted the schedule property was leased to Mohamed Kasim to run a hotel during the lifetime of their father and thereafter by virtue of the power of attorney given to the 1st defendant, the property was managed by him. Later Haji Nabi Shariff purchased the hotel business which was continued by his son-3rd defendant. He admitted he had filed the suit, O.S.1614/70 seeking for accounts and other reliefs which he compromised with his brother and the suit was decreed in terms of the compromise.
h) Disputing all averments in the plaint that the compromise decree was obtained fraudulently after giving 11 up Mir Mohamed Saleh from the party array and without bringing his legal heirs on record, he contended Mir Mohamed Saleh, though was his brother, had migrated to Pakistan and acquired Pakistan citizenship; thus he lost all right, title and interest in the property. In other words, surrendering Indian citizenship to acquire Pakistan citizenship was highlighted to show Mir Mohamed Saleh had no subsisting right, title and interest in the property and therefore even if plaintiffs are his legal heirs, they are noto entitled to any share. However, he ha filed an application on 13.11.1992 under Order XXII Rule 4, C.P.C. to bring them on record and notice issued to plaintiffs was duly served on them, but they remained ex parte, as recorded by the court on 8.6.1994. The case was then posted for filing written statement on 29.6.1994, but the plaintiffs did not choose to resist the suit. Therefore the compromise reported on 22.6.1998 was valid and in terms of it the property was divided.
i) To support his contention that Mir Mohamed Saleh had abandoned Indian citizenship, he pointed out that he 12 (Mir Mohamed Saleh) had entered Indian territory and exceeded his period of stay stated in the visa. Consequently in 1991 police officers from Kalasipalyam police station had taken him into custody and deported hiim back to Pakistan. Again in 1992 Mir Mohamed Saleh visited India and later died on 16.8.1992. He thus disputed Mir Mohamed Saleh had any subsisting right and urged plaintiffs have to be non-suited. He referred to O.S.16639/01 filed by him to evict the 3rd defendant from his half portion in terms of the compromise decree and contended plaintiffs ae set up by the tenant-Dr.Yasin Shariff to cause impediments. He described the suit as frivolous and the claim of the plaintiffs as untenable.
j) Based on the material propositions in the pleadings, learned trial judge framed the following issues:
1) Whether the plaintiff proves that he has validly terminated the tenancy of defendant over the schedule premises in accordance with law?
2) Whether the defendants prove that the suit is not maintainable as contended in para Nos 3 and 4 of the written statement?13
3) Whether the plaintiff proves that the defendant No.1 is in arrears of rent at the rate of Rs.6000/- for the month of September 2001, as alleged?
4) Whether the plaintiff proves that he is entitled for future damages at the rate of Rs.30,000/- per month from the defendant No.1?
5) To what reliefs the parties are entitled to?
6) What order or Decree?
In the enquiry that ensued, plaintiffs tendered evidence as PW1 and PW2 and placed reliance on 4 documents marked as Exs.P1 to P4 consisting of certified copy of plaint in O.S.3224/82, certified copy of compromise decree, certified copy of memo and certified copy of order sheet in O.S.3224/82. On behalf of the defendants, no evidence was led.
k) Learned trial judge analyzing the evidence on record, opined plaintiffs have established they are legal heirs of Mir Mohamed Saleh who was 1st defendant in O.S.3224/82 and upon his death, since they were not brought on record, the compromise decree was not binding.
He opined, the bar to set aside the order under Order XXIII 14 Rule 3-A, C.P.C., does not apply to the case at hand as plaintiffs were not aware of the compromise and the suit was maintainable. He thus set aside the compromise decree as prayed for in the suit and consequently declared the judgment and decree in O.S.3224/82 was not binding on the plaintiffs and the sale transaction between the 1st defendant-Syed Ibrahim @ Moulana and 3rd defendant- Dr.Yasin Shariff was also not binding on them. In the resultant position, learned judge decreed the suit for partition granting plaintiffs 1/3rd share.
l) Assailing the said judgment, 2nd defendant-Syed Sultan Mahomood @ Fairoz is in appeal.
5. Mr.S.B.Thotad referring to the factual matrix submits, Mir Mohamed Sale was no doubt the brother of the appellant, but as he had migrated to Pakistan, he had no right, title and interest. As he was impleaded in the suit, appellant-Syed Sultan Mahomood @ Fairoz had taken out notice and he was duly served but did not contest. Upon his death in 1982, in all fairness appellant filed the application under Order XXII Rule 4, C.P.C. to bring his legal 15 heirs (plaintiffs in the suit) on record. Upon notice being served on them, they remained absent. He read out to me the proceedings in O.S.3224/82 to show the application was filed on 13.11.1992, notice of which was served on the plaintiffs, but they remained absent consequent to which the trial court on 8.6.1994 placed them ex parte, and the application was allowed by order dated 29.6.1994, posting the case for written statement if any. Thus he submits, plaintiffs were aware of the suit, but did not participate in the proceedings and therefore memo was filed stating that Mir Mohamed Saleh had no subsisting interest and sought permission to settle the dispute amicably.
6. Learned counsel would submit, the trial court being satisfied with the terms of compromise, decreed the suit which is lawful. He thus sought the judgment and decree in O.S.4771/04 is unsustainable and requires interference.
7. Learned counsel, Mr.Saifulla Khan who appeared for respondents 3 and 4 (plaintiffs in O.S.4771/04) would submit, the defense taken by the appellant in the trial court was wholly untenable; appellant was guilty of obtaining a 16 fraudulent decree suppressing the fact that plaintiffs are legal heirs of Mir Mohamed Saleh. He submits, the suit in O.S.3224/82 was not for partition, but for accounts and the appellant has, along with the other brother-Syed Ibrahim @ Moulana, has stage-managed the compromise, depriving Mir Mohamed Saleh of a share. According to him, Mir Mohamed Saleh had visited Pakistan without surrendering Indian citizenship; he died in India and was buried in India itself. This shows he was an Indian citizen till he died. He submits appellant has made a categoric statement in O.S.3224/82 that upon the death of Syed Ghouse, the property devolves upon himself and two brothers namely, Mir Mohamed Saleh and Syed Ibrahim @ Moulana. This binds the appellant and he cannot now turn around to say that Mir Mohamed Saleh had no 1/3rd share.
8. Learned counsel submits, if as alleged, Mir Mohamed Saleh had migrated to Pakistan, appellant would not have included him and therefore the averments in the plaint are untenable. Having admitted he has filed the application to bring the plaintiffs on record as legal heirs of 17 Mir Mohamed Saleh, appellant's contention that they are not his legal heirs, is uncharitable. He assertively contends the decree in O.S.3224/82 is unsustainable as the suit stood abated for not bringing on record the legal heirs of Mir Mohamed Saleh.
9. Taking into consideration the contentions urged by both sides and reasons assigned by the learned trial judge to decree the suit, the following points need to be raised for consideration:
(I) Whether Mir Mohamed Saleh had migrated to Pakistan and abandoned Indian citizenship as on the date of filing the suit? If so, whether the legal heirs could claim a share in the property?
(II) Whether upon the death of Mir Mohamed Saleh, the suit in O.S.3224/82 had abated for not bringing his legal heirs on record?
(III) Whether the present suit filed by the plaintiffs seeking declaration that the 18 compromise decree is not binding on them, is maintainable in view of the bar in Order XXIII Rule 3(a), C.P.C.?
10. From the submissions of the learned counsel on both sides on the points in issue, it is evident both sides do not dispute Syed Ghouse died intestate leaving behind his sons, viz., Mir Mohamed Saleh @ Syed Iqbal, Syed Ibrahim @ Moulana and Syed Sultan Mahmood @ Fairoz. In O.S.3224/82, plaintiff-Syed Sultan Mahmood @ Fairoz impleaded his brothers as defendants 1 and 2 and sought a decree for accounts on the basis they were legal heirs of Syied Ghouse. He categorically averred Syed Ibrahim @ Moulana was managing the properties and he was accountable, but sought no relief against the 2nd defendant therein-Mir Mohamed Saleh; there was no reference in the plaint that Mir Mohamed Saleh had ever collected rents or was utilizing any money from the schedule property. It is also material to note, notice of the suit was issued to Mir Mohamed Saleh, but he did not appear nor filed written statement, as seen from the first judgment passed on 19 19.1.1978 by which the suit was decreed. Against it there was appeal action before the High Court and in view of the appeal having succeeded, the case was remanded to the trial court. In the fresh trial, Mir Mohamed Saleh again did not contest. Upon his death in the year 1992, appellant herein (plaintiff in the suit) filed the application under Order XXII Rule 4, C.P,C. to bring on record his legal heirs.
11. I have perused the order sheet maintained in O.S.3224/82. The recording of the learned judge on 13.11.1992 is as under:
'Adv. for plaintiff files application under Or.22 Rule 4 r/w 151, CPC.
Issue notice. Call on 24.6.1993.' Later as notice to the legal heirs was duly served but they had not appeared, on 8.6.1994 learned judge has recorded as follows:
'LR notice served. LR.1 and 2 are absent, placed ex parte. To hear LR. application, 29.4.1994.' Again on 29.6.1994 the trial court has recorded thus:
'LR.1 and 2 ex parte. IA.19 allowed. Proposed LRs. of defendant are permitted to be brought on record as D2(a) and D2(b).20
For amendment of plaint and additional w/s, 9.8.94.' On 9.8.1994 the learned judge has recorded thus:
'Defendants absent. Defendants' evidence.' The above recording clearly shows appellant-plaintiff in O.S.3224/82 had taken all required steps to get legal heirs of Mir Mohamed Saleh served, but since they failed to contest, they were placed ex parte. I am, therefore, inclined to accept the contention of Mr.S.B.Thotad that plaintiff in O.S.3224/82 had taken all required steps to get legal heirs- Haseena Begum and Syed Aejaz on record, but for reasons best known, they did not contest the proceedings and were placed ex parte. Thus the contention urged by the plaintiffs- Haseena Begum and Syed Aejaz that the suit had abated against Mir Mohamed Saleh for not bringing them on record, therefore fails and is hereby discounted. The question is, whether the subsequent compromise decree obtained is valid and binding.
12. Learned counsel for respondents 3 and 4 has brought out the memo filed in O.S.3224/82 stating Mir Mohamed Saleh has no interest in the property and 21 therefore he is giving him up. If we strictly construe the memo, it would show Mir Mohamed Saleh was deleted from the party array, but from the above proceedings, it could be seen he was not dropped from the party array. On the contrary his legal heirs (plaintiffs in O.S.4771/04) have been brought on record but did not contest the proceedings.
13. When this fact was confronted to Mr.Thotad, he would submit as Mir Mohamed Saleh had no subsisting interest in the property having migrated to Pakistan, he was not a necessary party and therefore memo was filed. He submits there was no need to file the memo, but merely because wrong memo was filed, it does not affect the decree passed in the suit. He submits, based on the material available, decision had to be taken and since his client-Syed Sultan Mahmood @ Fairoz and another brother-
Syed Ibrahim @ Mulana (2nd defendant in the suit) being sons of Syed Ghouse, were entitled to share the property and thus they entered into the compromise and the suit was decreed. Thus he supports the compromise decree. 22
14. At this stage, it is necessary to examine the grounds urged by the plaintiffs in O.S.4771/04 to get over the compromise decree. According to them, the compromise decree was obtained to defraud them and therefore it is a nullity. Mr.Saifulla Khan representing them submits, plaintiffs were not required to seek such declaration as it has been obtained after deleting Mir Mohamed Saleh and the suit was maintainable.
15. At this juncture, it is necessary to examine the effect of Order XXIII Rule 3-A, C.P.C. which reads thus:
3-A: Bar to suit: No suit shall lie to set aside a decree on the ground that the compromise on which is based was not lawful.' Under this provision, no separate suit is maintainable to challenge the compromise decree. The affected person has to apply to the court which passed the decree. Thus the question of maintainability of the suit has arisen. Mr.Thotad had assertively contended the suit was not maintainable in view of the bar for fresh suit.23
16. Learned trial judge has not framed any issue about maintainability of the suit with reference to Order XXIII Rule 3-A, C.P.C. He has framed issues first to decide whether properties are joint family properties and in view of admitted facts, held they were owned by Syed Ghouse and on his death, it devolves undoubtedly on his sons, Mir Mohamed Saleh, Syed Ibrahim @ Moulana and Syed Sultan Mahomood @ Fairoz. However, since plaintiff in O.S.3224/82 had taken the specific plea that Mir Mohamed Saleh having abandoned Indian citizenship and acquired Pakistani citizenship, lost all right, title and interest in the property in question which had remained uncontroverted, the question is, whether a separate suit to declare the decree is not binding on the plaintiffs (legal heirs of Mir Mohamed Saleh), is maintainable.
17. Learned counsel for respondents 3 and 4 (plaintiffs in O.S.4771/04) relied on the following decisions:
1) T.SESHA REDDY .vs. MANAGING COMMITTEE, JAME MASJID (AIR 2002 NOC 164 (ANDHRA PRADESH), 24
2) HANUMANTHARAYAPPA & OTHERS .vs. A.KRISHNAPPA & ANOTHER (AIR 2002 NOC 127 (KARNATAKA); AND
3) K.MOIDEEN .vs. MISS AISHA AND OTHERS (2002(1) KCCR 84).
wherein the view taken is, if compromise decree is obtained without impleading necessary parties, the decree would not be binding and it has to be set aside. But the question for consideration in this appeal is not as to the circumstances in which compromise decree could be set aside, but whether the suit was maintainable in view of the bar in Order XXIII Rule 3-A, C.P.C.
18. There is no dispute on the proposition of law laid down in the decisions cited by the learned counsel who has pressed them into service to show plaintiffs were not made parties in the suit in which the compromise decree is passed. This contention must necessarily fail as I have already noticed from the records that upon death of Mir Mohamed Saleh, his legal heirs (plaintiffs in O.S.4771/04) were brought on record and were arraigned as D2(a) and D2(b). Had they not been impleaded, their defense would 25 have been tenable. Learned counsel while analyzing the material on record, has not considered the factual aspects which show plaintiffs were duly served in the suit, but remained ex parte. The discussion of the learned judge in paragraph 13 of the judgment in O.S.4771/04 shows he was impressed by Ex.P3-certified copy of the memo in which plaintiff in O.S.3224/82 (Syed Sultan Mahomood @ Fairoz) had given up Mir Mohamed Saleh. In fact, Mir Mohamed Saleh's death was reported to court and application under Order XXII Rule 4, C.P.C. was filed which was allowed. Learned trial judge has misled himself in belief that Mir Mohamed Saleh was not party to the suit when the compromise decree was passed, and thus has committed a serious error on facts. Had the trial court recorded the finding that the suit was not maintainable in view of the bar in Order XXIII Rule 3-A, C.P.C., there was a possibility of giving finality to the issue, but he has omitted to examine the mandate of the provision which envisages 'No suit shall lie to set aside a decree on the ground that the compromise on which is based was not lawful.' 26
19. Therefore it was incumbent on the part of the learned judge to have raised the issue and answered it and since it has not been done, a fresh finding has to be recorded.
20. It is not in dispute plaintiffs had sought declaratory decree to declare the compromise in O.S.3224/82 was not binding on them. Therefore they should have substantiated from evidence and position of law that the suit was out of the purview of Order XXIII Rule 3-A, C.P.C. Nothing has been done by the plaintiffs in the trial court nor has the trial court bestowed its attention to it. In the circumstances, the question of maintainability of the suit has to be answered by the trial court. In the circumstances, the finding of the trial court that the suit was maintainable to set aside the compromise decree, is unsustainable and is accordingly set aside.
21. The next question is, whether in the facts and circumstances of the case, Mir Mohamed Saleh had any subsisting right in the property. Upon his death, whether plaintiffs even if it is proved they are his legal heirs, would 27 have acquired any right, title and interest. Necessarily the law governing Indian citizens abandoning Indian citizenship and acquiring foreign nationality resulting in their property in the country being evacuee, was the issue in limine to be considered and decided. Learned judge has neither framed such issue nor recorded any specific finding on it. Of course had an issue been framed, plaintiffs would have been called upon to establish that Mir Mohamed Saleh was an Indian citizen when he died in the country in 1992 This is relevant because the appellant-Syed Sultan Mahomood @ Fairoz (contesting defendant) has been consistently contending Mir Mohamed Saleh had migrated to Pakistan and abandoned Indian citizenship. In the absence of any issue being framed and finding on it, the question about maintainability of the suit has remained unanswered.
22. Another relevant issue to be decided by the trial court was the contention of defendants that plaintiff no.1- Haseena Begum though had married Mir Mohamed Saleh, upon his death she had married another person through whom she begot 2nd plaintiff-Syed Aejaz. Thihs issue had a 28 direct bearing on the claim advanced by them. Therefore burden was cast on the plaintiffs to establish 1st plaintiff was the widow of Mir Mohamed Saleh and continued to be so when she filed the suit, and that she had not remarried.
23. The trial court had cast burden on the 2nd defendant to prove 1st plaintiff had contracted second marriage with Abdul Rehman Shariff. Though it was improper to cast burden on the 2nd defendant, but primary burden was on the 1st plaintiff to prove that her son-Syed Aejaz (2nd plaintiff) was the son of Mir Mohamed Saleh. It is on record defendant did not tender any evidence, but that did not by itself justify decree of the suit, specially when serious questions referred to above had arisen for consideration.
24. Be that as it may, issue no.(5) framed casting burden on the defendant that notice of the earlier suit was served on the plaintiffs after the death of Mir Mohamed Saleh, needed no ocular testimony as the records of proceedings in O.S.3224/82 bears testimony to the fact that one application filed under Order XXII Rule 4, C.P.C, prior 29 notice was ordered to the plaintiffs and they wre duly served and were placed ex parte and ultimately the application was allowed on 29.6.1994, bringing them on record. Learned judge did not refer to the proceedings in O.S.3224/82 while rendition of the judgment. There was no escape for the trial court but to summon records in O.S.3224/82 because the decree passed in that suit was questioned on the ground no notice was served. As could be seen from the judgment impugned, additional issue has been framed to decide the question of maintainability of the suit under Order XXIII Rule 3-A, C.P.C. As I have stated above, learned judge has very casually dealt with this issue.
25. Taking into consideration all attending circumstances and the fact that though issues are framed, the issue referred to above having not been framed, the impugned judgment can hardly be sustained. In the interest of justice, it is necessary that the parties to the suit be given one more opportunity to support their respective contentions with a direction to the trial court to frame relevant issue. It must further be noticed, as defendant has 30 not led evidence, he must be permitted to establish his defense which will aid in deciding the rights of the parties.
26. In the result, the judgment and decree of the trial court in O.S.4771/04 dated 4.1.2012 on the file of City Civil and Sessions Judge, Bangalore, declaring the judgment and decree in O.S.3224/82 is not binding on the plaintiffs, is hereby set aside. Consequently the decree granting them 1/3rd share is also set aside. The suit is remanded to the trial court with the following directions:
I) In view of proof available that plaintiffs were duly brought on record in O.S.3224/82 as legal heirs of Mir Mohamed Saleh, thereby defeating their contention that the compromise decree in O.S.3224/82 was passed without notice to them, the trial court shall decide whether the suit to set aside the compromise decree in that suit, was maintainable in view of the bar under Order XXIII Rule 3-A, C.P.C.
II) The trial court shall frame issue placing burden on the plaintiffs to establish Mir Mohamed Saleh was an Indian 31 citizen on the date he died and upon his death, they succeeded to his estate.
III) The trial court shall also cast burden on the defendants to establish Mir Mohamed Saleh had abandoned Indian citizenship and was prosecuted by Kalasipalya police for overstaying beyond the permissible period in India in terms of the visa.
IV) The trial court shall give opportunity to the defendants to lead evidence and if plaintiffs so choose, to permit them also to lead evidence.
V) The entire case shall be considered de novo after giving opportunity to both sides to lead evidence, expeditiously in accordance with law.
Regarding R.F.A.775/10:
27. Tenant is in appeal against the judgment directing his eviction from the premises described in the schedule to the plaint in O.S.16639/01.
28. Heard learned senior advocate, Mr.Yoganarasimhaiah for the appellant and Mr.S.B.Thotad 32 for the respondent, and perused records in supplementation thereto. This appeal is linked with R.F.A.489/12 as maintainability of the suit itself has been questioned by the tenant. Mr.Saifulla Khan, learned counsel, appears for respondents 3 and 4, viz., Haseena Begum and Syed Aejaz who are on record. The factual matrix needing reference is:
a) Respondent-Syed Sultan Mahmood @ Fairoz filed suit in O.S.16639/01 seeking decree to evict the appellant and one Abdul Basith form the premises described in the schedule to the plaint on the premise appellant is a tenant under him on a monthly rent of Rs.600/-. The schedule premises previously formed the southern portion of the composite property bearing No.19/4, in Lashkar Lane, City Market Square, Bangalore, and the entire property was owned by the plaintiff and his brother-Syed Ibrahim @ Moulana. Plaintiff had filed suit for partition and as per the compromise decree, the property was divided into two halves and monthly rent payable by the tenant was apportioned to the two successors namely, plaintiff and his brother-Syed Ibrahim @ Moulana.33
b) Appellant-1st defendant was paying rents in terms of the decree. However he sublet the premises to the 2nd defendant-Syed Basith. Contending that he requires the premises for his own occupation, plaintiff terminated his tenancy and held him liable to pay damages at Rs.30,000/-
p.m. The suit was a suit simpliciter for eviction of tenant and accordingly court fee was paid.
c) Appellant-1st defendant entered contest and contended the suit is not maintainable. According to him, his father had purchased the running hotel business in the schedule premises on 23.8.1979 and with the consent of Syed Ibrahim @ Moulana, he continued to be tenant. Upon his death, appellant, his son, continued as tenant with the consent of Syed Ibrahim @ Moulana. It is averred, in the year 1993, under a written agreement, appellant effected repairs and spent Rs.2,17,000/- for improvement of the building and was therefore not liable to pay rent. It is further averred, Syed Ibrahim @ Moulana had received advance of Rs.1,80,000/- which he is retaining. He averred, there was no division of the property by metes and bounds 34 in terms of the compromise decree and hence appellant cannot be evicted from the half portion of undivided share. In this regard he contended the entire property measures 35' x 33' and has one roof, and hence his tenancy cannot be split.
d) Another defense taken is, appellant has purchased the portion fallen to the share of Ibrahim which he is holding as absolute owner and therefore plaintiff is liable to refund half advance received to him. He amended the written statement to contend when the suit for partition has been filed by Haseena Begum and her son-Syed Aejaz, the suit for eviction was not maintainable till the right, title land interest of the parties is decided.
e) Learned trial judge, based on the material proposition in the pleadings, framed the following issues:
1) Whether the plaintiff proves that he has validly terminated the tenancy of defendant over the schedule premises in accordance with law?
2) Whether the defendants prove that the suit is not maintainable as contended in para nos.3 and 4 of the written statement?35
3) Whether the plaintiff proves that defendant no.1 is in arrears of rent at the rate of Rs.6,000/- for the month of September 2001, as alleged?
4) Whether the plaintiff proves that he is entitled for future damages at the rate of Rs.30,000/- per month from defendant no.1?
5) What order or decree?
In the enquiry that ensued, plaintiff tendered evidence as PW1 and placed reliance on 13 documents including statutory notice of termination-Ex.P1, acknowledgement of service of notice at Ex.P5 and P6 reply sent by the appellant-Ex.P7, judgment and decree in O.S.3224/82- Ex.P8, sketch of the property-Ex.P9, order sheet-Ex.P10 and other documents. Appellant-defendant tendered evidence as DW1 and examined his vendor-Syed Ibrahim @ Moulana as DW2 and one Mir Iqbal Ahmed as DW3. He placed reliance on 12 documents including sale deed pertaining to purchase of the hotel business.
f) Learned trial judge analyzing the evidence opined plaintiff's evidence outweighs the defense and decreed the suit directing eviction granting 3 months time. The claim of 36 the plaintiff to recover Rs.30,000/- as damages was reduced to Rs.7,000/-.
29. Learned senior counsel, Mr.Yoganarasimha would, at the outset, question maintainability of the suit on the assertive contention that the tenancy acquired by appellant's father was in respect of the composite property which fact was not disputed; appellant being his son continued such tenancy and has been recognized as such by the plaintiff-1st respondent and his brother-Syed Ibrahim Moulana. He submits, appellant purchased half share acquired by Syed Ibrahim @ Moulana in terms of the decree in O.S.3224/82 and therefore the tenant's limited right of tenancy had translated into absolute right of ownership in respect of half portion. He submits the tenancy cannot be split and hence the suit for eviction was not maintainable. According to him, in view of the partition suit filed by Haseena Begum and her son seeking 1/3rd share the suit for eviction was not maintainable till the right, title and interest of the parties was decided. He submits, this court should take judicial notice of the fact that O.S.4771/04 filed by 37 Haseena Begum has since been decreed granting them 1/3rd share and the claim of the plaintiff-1st respondent that he is the owner of half portion in the schedule property inoccupation of the tenant, was unsustainable. He submits, the decree in O.S.4771/04 has to be put into execution dividing the property into 3 shares and then plaintiff's right should be identified, but as the property is not divided, plaintiff cannot lay claim for possession. Thus he seeks setting aside of the impugned judgment.
30. Mr.S.B.Thotad, learned counsel for the 1st respondent would contend, filing of suit in O.S.4771/04 had no bearing as the said suit was filed by persons who ha no right, title and interest in the property; 1st respondent- plaintiff had questioned relationship of Mir Mohamed Saleh through whom they claim title. In this regard, he submits the judgment and decree in O.S.4771/04 was assailed by his client in R.F.A.489/12 and the decision in that appeal is the clincher. He submits, even if we accept the contention of the appellant that Haseena Begum has right in the property ion question, appellant is bound by the judgment 38 and decree in O.S.3224/82 as he claims to have purchased half share from Syed Ibrahim @ Moulana. He submits, the suit for eviction was maintainable as plaintiff had sought to divide the property in terms of the compromise decree and to evict the appellant.
31. The contentions of both sides have received my consideration. At this juncture, it is appropriate to refer to the proceedings in R.F.A.489/12 arising out of the judgment and decree in O.S.4771/04 which has a bearing on this appeal. Hence it is clubbed, heard and disposed of by this common judgment.
32. Considering all legal and factual issues raised, the appeal has been decided on merit, setting aside the judgment and decree in O.S.4771/04 whereby the trial court had set aside the decree in O.S.3224/82. Therefore as of now there is no judgment annulling the compromise decree in O.S.3224/82. Therefore this appeal has to be decided based on facts.
39
33. The fact situation is, the judgment in O.S.3224/82 prevails and the rights of the parties have to be decided in terms thereof. The sketch prepared is part of the compromise decree indicating the portion falling to the share of the 1st respondent-plaintiff and the portion to the share of his brother-Syed Ibrahim @ Moulana. In the written statement, appellant did not contend he purchased the property from Syed Ibrahim @ Moulana, but it is brought to my notice he has purchased half share from Syed Ibrahim @ Moulana. Even assuming so, it is only to the extent of half share which Syed Ibrahim @ Moulana ad acquired in terms of the compromise decree. Thus in terms of that decree, 1st respondent-plaintiff became absolute owner of half share and a direction was issued to the tenant in the decree itself to pay rents in respect of the schedule property apportioning between the two decree holders. Thus there was already determination of tenancy and jural relationship of landlord and tenant between the 1st respondent and the appellant in respect of half portion and similarly, jural relationship of landlord and tenant between 40 Syed Ibrahim @ Moulana and the appellant in respect of another half share. Appellant having accepted this decree, cannot now wriggle out by putting a volte face to contend otherwise.
34. Thus we go on the premise 1st respondent-plaintiff was the landlord of the appellant in respect of one half share and he was paying rents. Though the property was not divided by metes and bounds, as by the judgment, tenancy was split, appellant was liable to be evicted from the half share by the landlord-Syed Ibrahim @ Moulana. The contention of Mr.Yoganarasimha that tenancy was composite and cannot be split, fails because appellant after institution of the suit claims he has purchased half share and has become owner and the rest remained tenanted portion. In this view, the owner of that portion who was declared as landlord in terms of the decree was entitled to exercise his right of ownership/lessor. In such exercise of right, he has issued notice directing the appellant to vacate. The suit for possession was therefore maintainable. 41
35. As there is no other defense urged and it is brought out that he has sub-let the premises to the 2nd defendant-Syed Basith, appellant is shown to have made unlawful gain to the detriment of the 1st respondent- plaintiff. Action is under the Transfer of Property Act and no further proof was required to be laid by the plaintiff to seek eviction except termination of tenancy, and appellant had no other option but to vacate the premises. In the circumstances, the finding of the trial court that plaintiff has established he is entitled for an eviction decree cannot be faulted and suffers from no infirmity, legal or otherwise.
36. No ground worthy of acceptance could be noticed to interfere with the finding of the trial court. In the circumstances, I find no merit in the appeal, it is dismissed. The judgment and decree in O.S.16639/01 is confirmed. However, as time granted by the trial court has expired, I grant to the appellant further extension of time by three months from today subject to the appellant paying the entire amount determined as damages, within one month. Iin the circumstances, there is no order as to costs. 42
37. At this stage, Mr.Yoganarasimha requests appellant be permitted to participate in the proceedings, if any, initiated by respondents 3 and 4 namely, Haseena Begum and her son, Syed Aejaz to assert his right that he has purchased half share in the property in question. There need not be specific order in this regard. If the appellant has acquired any right in the property, he certainly will have a legal remedy to defend.
Sd/-
JUDGE PSG/vgh*