Bangalore District Court
Sri.Moula vs Sri.Mahammad Ilyas on 27 August, 2021
1 O.S.3990/2014
IN THE COURT OF I ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU (CCH.No.2)
Present: - Sri.Sabappa, B.Com., LL.B. (Spl.)
IX Addl. City Civil & Session Judge,
C/c I Addl. City Civil & Session Judge,
Bengaluru.
Dated this the 27st day of August 2021
O.S.No.3990 / 2014
Plaintiff: Sri.Moula,
S/o. Late Ghouse Peer,
Aged about 42 years,
Karnataka Chicken Stall,
No.9, R.K.Building,
Singapura Main Road,
Bharat Nagar, M.S.Palya,
Vidyaranyapura Post,
Bengaluru-560 084.
(By Sri.V.Vijayashekara Gowda, Adv.)
- VS -
Defendant: Sri.Mahammad Ilyas,
S/o. Late Abdul Kareem Sab,
Aged about 52 years,
R/at No.58, Bharat Nagar,
M.S.Palya, Vidyaranyapura Post,
Bengaluru-560 084.
(By Sri. Syed Rasool, Adv.)
2 O.S.3990/2014
Date of Institution of the suit 04.06.2014.
Nature of the Suit (suit for pronote, Declaration & Injunction.
Suit for declaration & possession,
Suit for injunction, etc.):
Date of the commencement of 21.02.2017.
recording of the Evidence:
Date on which the Judgment was
pronounced: 27.08.2021.
Year/s Month/s Day/s
Total duration:
07 02 23
(SABAPPA)
IX Addl. City Civil & Sessions Judge,
C/c. I Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is suit for declaration and permanent injunction.
2. The brief facts of the plaintiff's case are that: He is the absolute owner in lawful possession and enjoyment over portion of the property No.9, Commercial RCC Shop No.3, Karnataka Chicken and Fish Centre, measuring to an extent of East to West 9 sft, north to south 20 sft, in all measuring 180 sft., now comes under the limits of BBMP. The same is acquired through valid registered sale deed from the defendant through his GPA holder one Azam dated 22.05.2010. It is submitted that, subsequent to the sale deed dated 22.05.2010, the plaintiff has 3 O.S.3990/2014 also obtained valid khatha from BBMP and paid taxes upto date. Thereafter, got obtained electricity connection in his name and latest electricity bill and payment receipt are produced herein. It is submitted that, on that capacity, the plaintiff became absolute owner and in possession and running his poultry business under the name and style Karnataka Chicken and Fish Stall and accordingly he got obtained BBMP sanction licence to run his above said business. Even prior to purchase of the schedule property, the plaintiff is running the very same business and after purchasing the property, he continued his very same business with above said licence and the plaintiff has also obtained permission from the Health Department of BBMP for trade licence certificate and the same has been renewed in his name under the name and style Karnataka Chicken and Fish Centre on 24.02.2010. Since the GPA holder of the defendant was looking after the said property and thereby, the plaintiff was accommodated at first instance to run his poultry business and thereafter, for valuable sale consideration, the plaintiff has purchased the property and for the occupation of the plaintiff in the schedule property, prior to execution of the sale deed, the plaintiff was paying rent of Rs.2,500/- per month and said Azam was collecting the said rent. Since 21.05.2010 said Azam has conveyed the suit schedule property in favour of the plaintiff by receiving total sale consideration of Rs.2,33,000/- and accordingly, the plaintiff became an absolute owner in respect of the schedule property.
It is submitted that, the matter stood like this, the defendant knowing fully well that, the plaintiff is the absolute owner in possession over the schedule proeprty has filed a false suit in O.S.No.7303/2010 on the file of this Court for the relief of ejectment 4 O.S.3990/2014 and damages in respect of the schedule property. In the said suit, after receipt of suit summons, the plaintiff resisted the same by filing his counter claim written statement on 16.10.2010, in view of the administrative orders of the Hon'ble High Court of Karnataka on the point of pecuniary jurisdiction, the said O.S.No.7303/2010 has been transferred to Small Causes Court at Bengaluru and the same has been renumbered as S.C.No.2293/2011. In the said counter claim, the plaintiff and his father sought for declaratory reliefs as per relief (a) and permanent injunction as per relief (b) in the said counter claim. The plaintiff prayed for declaratory reliefs as declaring that, the 2nd defendant (plaintiff) is the absolute owner in lawful peaceful physical possession and enjoyment over the counter claim suit schedule property by virtue of valid registered sale deed dated 21.05.2010 executed by the plaintiff and restraining the plaintiff (defendant herein) from interfering with the peaceful possession and enjoyment over counter claim schedule property and also paid proper Court fee.
It is further submitted that, the plaintiff and his father Ghouse Peer filed their counter claim written statement by contending that, the defendant herein have no manner of right, title, interest or possession to file and maintain the suit in question and as well as he has no right to seek any reliefs as sought in the plaint and also contended that, the defendant herein cannot seek ejectment against the plaintiff herein. During pendency of the suit, the plaintiff and his father filed an application under Sec.43 of Karnataka Rent Act, 1999 R/w Sec.151 CPC praying to stop all the further proceedings and direct both parties to approach competent Court for declaration of their rights in view of the defendants therein filed their counter claim written statement dated 16.02.2010 as the 5 O.S.3990/2014 plaintiff and his father disputed the existence of jural relationship of landlord and tenant between the defendant and plaintiff herein and also relied upon the land mark judgment of Hon'ble High Court of Karnataka reported in ILR 2003 Kar page 4255 as well as ILR 2010 Kar page 2204 and denied the ownership and right of the defendant over the suit schedule property and contended that, since the plaintiff is the absolute owner in respect of the suit property by virtue of the valid registered sale deed dated 21.05.2010 and thereby, since the question of the defendant is the landlord and the plaintiff is the tenant under him does not arise at all and also sought for dismissal of the suit by relying on the said judgments. Sec.43 of the Act clearly denotes (1) dispute of relationship of landlord and tenant wherein in any proceedings before the Court a contention is raised denial of existence of relationship of landlord and tenant between the parties itself lawful for the Court to accept the document of lease or where there is no document of lease or receipt of acknowledgement of payment of rent purported to be signed by the landlord as prima facie conveyance of relationship and procedure to hear the case.
It is further submitted that, Small causes Court after hearing on IAs filed by the plaintiff and his father held that, it is lack of jurisdiction though appreciated the provisions of law and decisions referred by the plaintiff. Since the sale consideration shown in the sale deed dated 21.05.2010 is Rs.2,33,000/- and thereby the Small Causes Judge held that the valuation of counter claim property exceeds pecuniary limits of jurisdiction of Small Causes Court and thereby the counter claim cannot be accepted. No doubt the above decisions applied to the case where the relief sought in the counter claim exceeds pecuniary jurisdiction, but the question here is 6 O.S.3990/2014 whether there are sufficient grounds to return the plaint and accordingly the said IA was rejected and suggested the plaintiff to file similar suit before the Civil Court or else represent the counter claim and to that effect passed an order as the counter claim is excluded and it is ordered to return to the defendant with a liberty to file independent suit, consequently the defendants are allowed to file afresh written statement. Since the counter claim is lack of cause title and other required pleadings as on the plaint and therefore, the plaintiff could not represent the counter claim. However, as per the orders of the small Causes Court, the plaintiff and his father filed afresh written statement on 27.07.2013. The order sheet maintained in SC 2293/2011 and other copies are produced for perusal of this Court.
It is submitted that, since the defendant has filed the above suit only in order to harass the plaintiff and his business and the plaintiff is acting upon his ownership and possession by virtue of registered sale deed dated 21.05.2010. It is submitted that, throughout the proceedings before the Small Causes Court, the defendant denied the ownership and the sale deed of the plaintiff, but he did not challenged the sale deed dated 21.05.2010. In view of the land mark judgment reported in (1995) 1 SCC 198, it is held under Article 113 and Article 59 of Limitation Act. Since the plaintiff and his father who being defendant Nos.1 and 2 in O.S.No.7303/2010 during pendency of the said suit, they have filed counter claim on 16.12.2010 by disclosing the execution valid registered sale deed by the GPA holder of the defendant Azam in respect of the suit property in favour of the plaintiff for valuable sale consideration. Thus, the plaintiff became absolute owner in possession and therefore, until and unless the defendant challenge 7 O.S.3990/2014 the sale deed, which is in force and the same is binding on the defendant as per the dictums made in the above referred decisions. Since the recitals of the documents would show that the sale deed was executed for valuable sale consideration to discharge pre existing debts and it is the registered document. Apart from the prohibition under Sec.92 of Evidence Act to adduce oral evidence to contradict the terms of the recitals therein, no issue in this behalf to voidity of the sale deed or its binding nature was arose nor findings recorded that the sale deed is void under Sec.23 of the Contract Act. The pleadings itself is not sufficient and since the appellant is seeking to have document voided or cancelled necessarily a declaration has to be given by the Court in that behalf. Until the document is void or cancelled by proper declaration duly registered document remains valid and it is binding on the party. Thus the sale deed dated 21.05.2010 executed by the defendant through his GPA holder is binding on the defendant. Hence, the defendant cannot maintain the suit in S.C.No.2293/2011 on the file of Small Causes Court, Bengaluru. The cause of action arose for the suit when the plaintiff filed suit in O.S.No.7303/2010 and when the plaintiff and his father filed counter claim written statement and when the said suit transferred to Small causes Court and when the plaintiff filed applications. Subsequently when the father of the plaintiff died on 27.01.2014 and finally on 29.03.2014 when the defendant and his men came near the schedule property by shouting on the plaintiff and tried to disturb the business of the plaintiff and when the plaintiff orally complained before Vidyaranyapura PS against the defendant. The same is still subsisting within the jurisdiction of this Court. Hence, this suit, 8 O.S.3990/2014
3. After receipt of suit summons, the defendant appeared and filed the written statement contending that, the suit is not maintainable either in law or on facts. It is submitted that, the averments made in para 2 of the plaint that, the plaintiff is the absolute owner in lawful possession and enjoyment of the suit schedule property and he is having exclusive right over the ground floor of the shop premises only with electricity and water connection, which is morefully described in the schedule and the same is hereinafter referred to as schedule property for all brevity and convenience, having acquired the same through a valid registered sale deed from the defendant through his GPA holder are false and frivolous. The defendant submitted that, the documents produced by the plaintiff in respect of the residential property bearing House No.9, situated at Chikkabettahalli Village, Yelahanka Hobli, now comes under the limits of BBMP, Benglauru measuring to an extent of East to West 9 feet and North to South 20 feet in all measuring 180 sq. feet aong with one and half squares of AC sheet roofed house with red-oxide flooring, cement and bricks used for the construction of walls, jungle wood used for the preparation of doors and windows together with all civic amenities thereof. The defendant submitted that, the plaintiff himself has stated that, the suit schedule property is a commercial RCC shop No.3, but the plaintiff has produced the sale deed in respect of residential house property bearing site No.9, it clearly goes to show that, the plaintiff himself has given contradictory statement. Hence, on this ground alone the above suit is liable to be dismissed and whereas under any circumstances, the defendant has executed any GPA in favour of Azam at any point of time, but in the registered sale deed dated 21.05.2010 executed by 9 O.S.3990/2014 Mr.Mohammad Eliaz, represented by his GPA Holder Mr.Azam in favour of Mr.G.Moula plaintiff herein, but the plaintiff has not produced the GPA, it clearly goes to show that, the said document is a concocted and created one. On this ground, the suit is liable to be dismissed.
It is further submitted that, the plaintiff stated that, subsequent to the sale deed dated 22.05.2010, the plaintiff has also obtained valid khatha from BBMP and paid taxes upto date. The original property B khatha and tax paid receipts from the year 2010 to 2014 are produced along with the plaint are all hereby denied as false and frivolous and the plaintiff is put to strict proof of the same.
The true facts of the defendant case is that, he is the absolute owner in possession and enjoyment of the entire property bearing Nos.8 and 9 situated at Chikkabettahalli Village, Yelahanka Hobli, Bengaluru North Taluk, now comes within the limits of BBMP. The defendant acquired the same through inheritance i.e., after demise of his father and mother. The defendant being the owner in possession and enjoyment of the commercial complex under the name and style of R.K.Building and there are several portions in the said building. The defendant is deriving the rents from the said commercial building by letting out the same to several tenants in respect of the portions of the building and the same is only source of living of the defendant. The defendant is paying necessary tax to the concerned authority for his ownership and enjoyment of the said property to the BBMP authorities. It is further submitted that, the defendant will produce the relevant copies of the title deeds etc., which are standing in his name I.e, khatha, tax paid receipts, building construction approved plan etc. 10 O.S.3990/2014 It is further submitted that, the plaintiff and his father approached the defendant in the month of June 2009 requesting to let out a portion of the schedule property viz., shop No.3 measuring to an extent of 9 feet x 20 feet in the ground floor of the said building on rental basis on oral terms and conditions only for a period of six months. It is submitted that, initially the plaintiff had represented that, he shall run a chicken centre and had promised that, he shall not sale any dressed chicken or do any untoward scene in the schedule premises that shall be let out to them and the plaintiffs had also represented that, they in need the said premises only for a period of six months as they were in look out for alternative place for their business and the plaintiffs were unable to continue in the said premises for more than the said period of six months for the reason of rent being high, on the said representation made by the plaintiffs, the defendant had let out the suit schedule property on a monthly rent of Rs.3,500/- starting from the month of June 2009.
It is submitted that, the plaintiff though initially paid the rents for a period of six months, the plaintiffs did not keep their words and started to dress the chicken and sell the same in the suit schedule premises and the same had created a foul/bad smell in the said complex by creating nuisance and hardship to the other tenants in occupation of other tenants in the complex. Hence, the defendant was forced and demanded the plaintiff to quit the suit schedule premises under their occupation. It is submitted that, the defendant inducted the plaintiffs as tenant to the suit schedule premises on oral rental agreement on 03.06.2009 as the plaintiffs had represented the defendant that the suit schedule premises was 11 O.S.3990/2014 required only for a period of six months as temporary until the fetch out a suitable premises within a maximum period of six months. It is submitted that, even after several requests and demands made by the defendant to the plaintiff and his father to vacate the suit schedule premises did not turn futile, moreover the plaintiff and his father stopped paying the monthly rents and had started to run their business in the name and style as Karnataka Chicken Stall. It is submitted that, the plaintiff has not evicted from the schedule premises and he has also stopped paying the monthly rents to the defendant, the plaintiff is liable to be evicted on this ground also for having defaulted in the payment of monthly rents.
It is submitted that, after expiry of the agreed period by efflux of time, there is no further written/oral contract between the defendant and the plaintiff and as such, the monthly tenancy is not renewed with the consent of defendant. The plaintiff over stayin the schedule premises and he is liable to be evicted on the ground of efflux of time. Further the defendant is no longer interested to continue the plaint schedule premises as his tenant, since the defendant himself requires the schedule premises for his own use and self occupation, for starting his own business, in order to augment the income of his family. Therefore, the defendant has determined to terminate the monthly tenancy of the plaintiff and his father and accordingly, the defendant got issued a termination notice under Sec.106 of T.P.Act on 14.05.210 both by RPAD and UCP to the address at the schedule premises, duly terminating the tenancy after the expiry of 15 days from the date of service of notice as per law and directed the plaintiff to quit, vacate and handover the vacant possession of the schedule premises to the defendant along with a demand to pay the arrears of rent due by 12 O.S.3990/2014 him. The plaintiff is liable to pay damages at the rate of Rs.5,000/- per month for their illegal occupation of the schedule premises until the date of delivery of the vacant possession of the schedule premises. Thereafter, the plaintiff has approached the defendant and has cleared the rents upto July 2010 and sought time of one month for vacating and handing over the vacant possession of the schedule shop premises to the defendant. After receipt of the legal notice, the plaintiff has obtained an alleged sale deed with the help of one stranger by creating a concocted GPA and on the strength of the said concocted GPA, the plaintiff has got created and concocted the sale deed in his favour. The copy of the said alleged sale deed produced is not relevant i.e., the alleged sale deed produced by the plaintiff is in respect of residential house property No.9, whereas the suit schedule property is a commercial one bearing property No.9, R.K. Building. Hence, the same is contradictory one. The recitals of the sale deed will not disclose how the vendor acquired the same. On this ground the suit is liable to be dismissed. It is submitted that, the documents produced along with the plaint are all created, concocted, fabricated only with an intention to suit the convenience of the plaintiff and the suit is liable to be dismissed. It is further submitted that, This defendant has not challenged the said alleged registered sale deed as the said sale deed property and the suit schedule property is different and not relevant. It is further submitted that, the plaintiff has filed the above suit with the help of created and concocted documents, it shows that, the plaintiff has not come up with clean hands and he has intentionally harassed the defendant by filing a false and frivolous suit. Hence, the suit is liable to be dismissed with cost.
13 O.S.3990/20144. Based on the pleadings of both sides, my learned predecessor-in-office has framed the following issues :-
ISSUES
1. Whether the plaintiff proves that he is the absolute owner of the suit property by virtue of the sale deed dated 21.5.2010 ?
2. Whether the plaintiff further proves his possession and enjoyment over the suit schedule property as on the date of the suit ?
3. Whether the plaintiff further proves alleged interference from the defendant ?
4. Whether the defendant proves that he is the absolute owner of the suit schedule property, he acquired the same through inheritance ?
5. Whether the defendant further proves that the sale deed obtained by the plaintiff is created and concocted ?
6. Whether the plaintiff is entitled for the relief of declaration and consequential relief of injunction as prayed ?
7. What Decree or Order ?
5. In order to prove the case, the plaintiff himself examined as PW.1 and one witness as PW.2 and got marked documents at Ex.P.1 to Ex.P.27. On the other hand, the defendant examined as DW.1 and got marked Ex.D1. To Ex.16.
6. I have heard the arguments of both sides. In addition, the counsel for the plaintiff has filed his written arguments. The counsel for defendant submitted his written arguments. Perused the entire oral and documentary evidence of both the sides.
14 O.S.3990/20147. My findings on all the issues and additional issues are as under :-
Issue No.1 & 2 :- In the affirmative,
Issue No.4 & 5 :- In the negative,
Issue No.3 & 6 :- In the affirmative,
Issue No.7 :- As per final order;
for the following :-
REASONS
8. ISSUE NOS. 1, 2, 4 & 5 : Since the facts in all these issues are interlinked to each other, I have taken them for my discussion in together.
9. The learned counsel for the plaintiff submitted the written arguments. On going through the same, it is replication of the pleadings, evidence and documents relied by the plaintiff. The defendant counsel filed the written arguments. I have gone through the same, it is also replication of the pleadings, evidence and documents of the defendant.
10. It is the case of the plaintiff that, he is the owner in possession and enjoyment of the suit schedule properties. In order to prove the same, the plaintiff adduced oral and documentary evidence. Before going to discuss about oral evidence of the parties, it is better to appreciate the admitted facts by the parties. It is undisputed fact that, the defendant filed S.C.No.2293/2011 for eviction against the plaintiff. The plaintiff appeared in the said case and contested the case. Later on, the Small Causes Court has given the decision in favour of the defendant. The same is challenged by the plaintiff before the Hon'ble High Court of Karnataka, it is pending for adjudication.
15 O.S.3990/201411. Now, I would like refer the documents relied by the plaintiff got marked at Ex.P.1 to Ex.P.9. These are the original sale deed, property extract, tax paid receipts, electricity bill and receipt. The material document placed by the plaintiff got marked Ex.P.1 is the sale deed dated 21.05.2010. This document executed by the GPA holder of the defendant by receiving the valuable consideration and put the plaintiff in possession of the suit schedule property as a owner. On the basis of the registered sale deed, BBMP recorded the katha in the name of the plaintiff. The same is reflected at Ex.P.2. The plaintiff has paid the tax to the BBMP as per Ex.P.3 to Ex.P.8. Ex.P.9 is the electricity bill and receipt. In view of the registered sale deed, the plaintiff become the owner and in possession of the suit schedule property. The sale deed is acted upon the name of the plaintiff is appeared in the BBMP records. The oral evidence of the plaintiff is also supported the documents, thereby, the presumption automatically arises the plaintiff become the owner of the suit schedule property by virtue of the registered sale deed. The remaining documents at Ex.P.16 to Ex.P.24 reveal that the plaintiff obtained licence from the Health Department and BBMP in order to run the business in the schedule premises.
12. It is the case of the defendant that, the plaintiff and one Azam are created the sale deed in order to cause the loss to the defendant. If it is so, there is no impediment on the part of the defendant to file any complaint against the GPA holder nor initiate any criminal action against the plaintiff and GPA holder. It is not done so. The same is admitted by the defendant during the course of evidence. At the same time, it is better to appreciate the documents relied by the defendant got marked Ex.D.1 to Ex.D.10.
16 O.S.3990/2014These are the certified copy of the sale deed, tax paid challan, tax paid receipts, demand register extract, licence, approved plan, EC, notice etc. The mater document at Ex.D.1 is the certified copy of the sale deed dated 08.12.1970. This document is executed by one Smt.Sabi Rabi in favour of Sri. Abdul Kareem Saheb and Smt. Haleema B. On going through the entire document, the original owner has executed the sale deed in favour of Abdul Kareem Saheb and his wife, wherein at page 4, it is mentioned that, they had site Nos.104 to 136 mentioned boundaries and out of it, site Nos.8 and 9 left. The remaining property is sold by them. Here in this case the suit schedule property is bearing No.9. This document never disclosed the actual measurement and boundaries of site Nos.8 and 9. Thereby, it is not proper to ascertain the defendant become the owner of the suit schedule property, however the document got marked Ex.P.1 reflected one Azam being the GPA holder of the defendant executed Ex.P.1, thereby, presumption automatically arises the defendant is the owner of site No.9. Moreover, the suit schedule properties is part and parcel of property No.9. The boundary mentioned in Ex.P.1 and Ex.D.1 are not tallying with each other. At the same time, it is better to appreciate the document relied by the plaintiff got marked Ex.P.10. It is the certified copy of the plaint and written statement in S.C.No.2293/2011, wherein, the plaintiff has taken the same stand as stated in the plaint. The defendant being the plaintiff in the said case, he has filed case against the plaintiff for eviction. After contesting the same, the Small Causes Court come to the conclusion, the defendant is able to prove the relationship as landlord and tenant and thereby, the defendant is directed to evict the suit schedule property. The same is challenged by the plaintiff 17 O.S.3990/2014 before the Hon'ble High Court of Karnataka in CRP No.341/2016. Thereby, the decision rendered by the Small Causes Court is not yet reached finality.
13. I would like to refer the oral testimony of the parties. It is the case of the plaintiff that, he become the owner of the suit schedule property by virtue of the sale deed. He has also got katha in his name and paying the tax to the BBMP, thereby documents clearly goes to show that, the plaintiff become the owner and in possession of suit property. This plaintiff testified by the defendant counsel by way of cross-examination. At that point of time, the plaintiff deposed that, he was inducted to the suit schedule properties as a tenant in 2001. He was doing Chicken and Fish business in the suit property. One Azam is the owner of the suit property. He has not produced any document to show Azam is the owner of the suit property. The plaintiff admitted that, the defendant had filed a suit against him before Small Causes Court for eviction order and the said suit was decreed. It is further noticed, the plaintiff's younger brother is running cyber cafe in the up stair building of the shop and the defendant is collecting the rent of the said up stair building. He further deposed that, one Azam has sold the suit property to him. The remaining suggestion put by the defendant counsel is denied by the plaintiff. It is further noticed he has not purchased property belongs to the defendant, he has purchased the property through GPA holder Azam. The entire cross-examination discloses that, the defendant counsel is not able to elicit from the mouth of the plaintiff that the plaintiff and the GPA holder of the plaintiff colluded with each other and created the sale deed.
18 O.S.3990/201414. It is pertinent to note that, for the sake of assuming the defendant GPA holder created any GPA and executed the sale deed, there is no impediment on the part of the defendant to file criminal case or issue legal notice and cancel the GPA. It is not done so. It is admitted during the course of evidence mere allegation made by the defendant that, the plaintiff and Azam created the sale deed is not holds good. Moreover, the GPA holder of the defendant has clearly stated in the sale deed, he has obtained GPA in the year 1995 from the defendant and executed the sale deed. The said document is not challenged by the defendant before the competent Court of law. Moreover, he has not taken any legal action against the GPA holder. It is presumed that, unless and until the GPA executed by the defendant is cancelled, the GPA holder is empowered to execute the sale deed in respect of the suit schedule properties on behalf of the true owner. Thereby, on the basis of the evidence and documents, I come to the conclusion the registered sale deed relied by the plaintiff is valid document in the eye of law. Moreover, it is not challenged by the defendant in the present suit by claiming counter claim and cancellation of the sale deed.
15. Now, I would like to refer evidence of PW.2, PW.2 being the close relative of the plaintiff deposed about the facts of the case stated by the plaintiff. He has also deposed that, the plaintiff is in possession and enjoyment of the suit schedule properties. The defendant's GPA holder Azam executed the sale deed in favour of the plaintiff. The plaintiff obtained katha and he is in possession and enjoyment of the suit schedule property. This PW.2 testified by the defendant's counsel, at that point of time, 19 O.S.3990/2014 PW.2 deposed that, he was aware of the suit filed in respect of the shop. He do not know the suit schedule property originally belonged to whom. He further deposed one Azam had given the suit schedule property to the plaintiff. The plaintiff is running the business in the name and style of Karnataka Chicken and Fish Stall. He was working under the plaintiff since 15 years. The property No.9, R.K. Building belong to the plaintiff. He do not know the measurement of RK building. He do not know who has put RCC mould. This evidence goes to show that, though this person is not having knowledge about the actual measurement and construction of the suit schedule properties, however, he has deposed the possession of the plaintiff over the suit schedule property by virtue of the sale deed executed by the GPA holder of the defendant one Azam. The evidence of PW.2 is also supported the case of the plaintiff.'
16. Now I would like to refer the evidence of defendant. It is the case of the defendant that, he has denied the entire plaint allegations made by the plaintiff. It is the further case of the defendant that, he is the absolute owner in possession and enjoyment of the property bearing Nos.8 and 9 situated at Chikkabettahlli Village, Yelahanka Hobli, Bengaluru North Taluk, comes within the limits of BBMP. He has acquired the same by inheritance i.e., after demise of his father and mother. He was being the owner in possession and enjoyment of the commercial complex under the name and style of R.K.Building. It is further case of the defendant that, the plaintiff's father approached him in the month of June 2009 requesting to let out a portion of the building viz., shop No.3 measuring to an extent of 9 feet x 20 feet in 20 O.S.3990/2014 the ground floor on rental basis on oral terms and conditions for a period of six months. The plaintiff initially paid the rent for a period of six months. Later on he did not keep his words and started to dress the chicken and sell the same in the suit schedule premises and the same had created a bad smell in the said complex by creating nuisance and hardship to the other tenants in RK building. Hereby, he has terminated the tenancy. It is further case of the defendant that, after expiry of the agreed period by efflux of time, he has terminated the tenancy of the plaintiff from the suit schedule properties by issuing of notice. All these facts are already discussed by the Small Causes Court in S.C.No.2293/2011. It is further case of the defendant that, he has never executed any GPA in favour of one Azam at any point of time, but in the registered sale deed dated 21.05.2010 executed by Mr.Mohammad Eliaz represented by his GPA Holder Azam in favour of the plaintiff, but the plaintiff has not been produced GPA, it clearly shows that, the said document is concocted and created one. In order to substantiate this allegation made by the defendant, he has to produce some documentary evidence. There is no documentary evidence to show the plaintiff and Azam are created the GPA and sale deed. There is no impediment on the part of the defendant to take legal action against Azam and the plaintiff for creation of GPA and sale deed. It is not done so. It is pertinent to note that, any prudent man if he is owner of the property, some one has created GPA and alienated the property, he has to take legal action against the said person, who has created documents in respect of his own property. Here in this case the defendant even after filing case before Small Causes Court, he has not made any efforts to file any criminal case against Azam and plaintiff nor he has challenged the 21 O.S.3990/2014 sale deed dated 21.05.2010. Since more than 11 years, the defendant is quite kept in respect of GPA and sale deed, it seems that, the defendant is impliedly admitted the GPA and sale deed. Thereby, the contention of the defendant, GPA and sale deed is created documents are not holds good.
17. At the same time, I would like to refer oral testimony of the defendant. He has stated the same set of facts as stated in the written statement. This defendant is testified by the plaintiff's counsel. At that point of time, the defendant admitted he knew one Mohammed Azam. He has denied about the execution of the GPA and sale deed marked at Ex.P.1. He has further admitted that, he has not challenged Ex.P.1 in any other Court except by way of defence in the present case. This goes to show that, the defendant is having knowledge about execution of the sale deed by the GPA holder inspite of it, it is not diligent to question he legality of the document. Thereby, this Court draw an adverse inference against the defendant.
18. The defendant further admitted that, he has not taken any action against Mohammed Azam for execution of the sale deed in favour of the plaintiff. It is true to suggest that, the plaintiff's name is entered in BBMP katha. He do not know what business doing by the plaintiff in the suit property. In the earlier occasion, the defendant stated that, the plaintiff was inducted in the suit schedule properties on oral lease for a period of 6 months. Later on, he has terminated the tenancy of the plaintiff over the suit schedule properties etc. This is again contradictory to the earlier pleadings and evidence by the side of the defendant. The defendant further admitted that, there is no electricity supply to the 22 O.S.3990/2014 suit premises, but the document relied by the plaintiff got marked at Ex.P.10 is falsify the case of the defendant. The defendant further admitted that, the suit schedule properties now stands in the name of the plaintiff under BBMP records. It is true that, he has filed O.S.No.7303/2010 against the plaintiff and his father. The said suit transferred to Small Causes Court, wherein, it is renumbered as S.C.No.2293/2011. On the basis of his original sale deed, he has given boundaries of the suit property in the said suit. He has denied about the boundaries shown in the said suit and present suit are not at all tallied. He further admitted that, the judgment and decree passed by the Small Causes Court is stayed by the Hon'ble High Court of Karnataka. He further admitted that, towards east of the suit property the property belongs to him, towards west Chandrashekar's property, towards north Singapur Main Road, towards South Azam's property. This goes to show that, the defendant had knowledge about the GPA holder Azam property also adjacent to the suit schedule property. He further admitted that, the property within the said boundary is in the possession of the plaintiff. He voluntarily stated that, he has let out the same to the plaintiff. He has not produced any document to show that, receipt of any rent from the plaintiff.
19. In view of the material admission on the part of the defendant, one thing is clear the suit schedule property is part and parcel of site No.9. The defendant clearly admitted in the evidence, he knew one Mohammad Azam, who is the adjacent owner of the property No.9. It is further noticed that, the defendant is not able to elicit that, one Mohammed Azam and plaintiff are created GPA and sale deed. The material admission clearly goes to show the plaintiff is in possession of the suit schedule property by virtue of 23 O.S.3990/2014 the registered sale deed. The katha is also recorded in the name of the plaintiff. Moreover, the defendant is not challenged the sale deed and katha extract stands in the name of the plaintiff before the competent authority, thereby, I come to the conclusion that, on the basis of the oral and documentary evidence adduced by the parties, the plaintiff is able to prove issue Nos.1 and 2 with cogent evidence and documents.
20. At this stage, I would like to refer Order 6 Rule 4 of CPC, wherein, it is clearly mentioned that, "in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading". Here in this case, the defendant never disclosed the particulars of misrepresentation, fraud, coercion, creation of the documents by the plaintiff and GPA Holder. When such being the case, the allegation made by the defendant that, the plaintiff and GPA holder created sale deed is not holds good. The allegation made by the defendant is not supported by any particulars as mentioned in Order 6 Rule 4 of CPC.
21. In view of the above discussion, I am of the opinion that, the defendant is unable to prove issue Nos.4 and 5 with cogent evidence and documents. Hence, I answer issue Nos.1 and 2 in the affirmative and issue Nos.4 and 5 in the negative.
22. ISSUE NOS.3 & 6: In view of the above oral and documentary evidence adduced by the parties, I am of the opinion 24 O.S.3990/2014 that, the plaintiff is able to prove the possession over the suit schedule property by virtue of documentary evidence. On the other hand, the defendant is categorically admitted during the course of evidence, the plaintiff is in possession of the suit schedule property. The name of the plaintiff is also recorded in BBMP records. Thereby, I come to the conclusion the plaintiff had made sufficient material to show that, the defendant is trying to interfere in the suit schedule property. At the same time, the plaintiff is able to prove the title to the suit schedule properties by virtue of the registered sale deed. The said registered sale deed is acted upon, it is not questioned by the defendant before the competent Court of law. Thereby, presumption automatically arises plaintiff is the owner in possession and enjoyment of suit schedule properties as on the date of the suit. It is proved by the plaintiff by oral and documentary evidence. On the other hand, the defendant is unable to prove the issue Nos.4 and 5 with cogent and documentary evidence. Hence, I answer issue Nos.3 and 6 in the affirmative.
23. ISSUE NO.7: Therefore, I am of the considered opinion that, the plaintiff is entitled for the relief as prayed for. Hence, I proceed to pass the following : -
ORDER The suit of the plaintiff is hereby decreed.
It is declared that, the plaintiff is the
absolute owner of the suit schedule
property.
25 O.S.3990/2014
It is further ordered that, the
defendant or his LRs, henchmen, PA
holder, assigns or anybody claiming
through him are hereby restrained by way
of permanent injunction from interfering
and dispossessing the plaintiff from the
suit schedule property.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcription computerised by her, corrected and then pronounced by me in the open court on this the 27th day of August 2021.) (SABAPPA) IX Addl. City Civil & Sessions Judge, C/c. I Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 : Sri. Moula. PW.2 : Sri. Nasir Khan. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF: Ex.P.1 : Sale deed dated 21.05.2010. Ex.P.2 : Property register extract. Ex.P.3 to 8 : Six tax paid receipts. 26 O.S.3990/2014 Ex.P.9 : Electricity bill with receipt. Ex.P.9(a) Ex.P.10 : Certified copy of the plaint in S.C.No.2293/2011. Ex.P.11 : Certified copy of the written statement / counter claim filed in SC No.2293/2011. Ex.P.12 : Certified copy of the application along with affidavit under Sec.43 of KR Act in SC No.2293/2011. Ex.P.13 : Certified copy of the objection filed by the plaintiff to IA in SC No.2293/2011. Ex.P.14 : Certified copy of the order sheet in SC No.2293/2011. Ex.P.15 : Certified copy of the written statement filed in SC No.2293/2011. Ex.P.16 to : Four renewed licences. 19 Ex.P.20 to : Three receipt for having paid licence renewal 22 fee. Ex.P.23 to : Five photos and negatives. 27 WITNESSES EXAMINED ON BEHALF OF DEFENDANT: DW.1 : Sri. Mohammad Illyas. DOCUMENTS MARKED ON BEHALF OF DEFENDANT: Ex.D.1 : Certified copy of the sale deed dated 8.12.1970. Ex.D.2 : Tax paid challan dated 16.03.2011. Ex.D.3 : Certified copy of the tax paid receipt dated 16.03.2009. Ex.D.4 : Certified copy of the tax paid receipt dated 05.07.2006. Ex.D.5 : Certified copy of the tax paid receipt dated 14.03.2008. 27 O.S.3990/2014 Ex.D.6 : Certified copy of the demand register extract for the year 2006-07. Ex.D.7 : Certified copy of the licence dated 05.07.2006. Ex.D.8 : Certified copy of the approved plan. Ex.D.9 : Encumbrance certificate dated 8.9.2010. Ex.D.10 : Certified copy of the notice dated 14.05.2010.
Ex.D.10 (a) & : Certified copy of UCP acknowledgement
(b) along with postal acknowledgement.
Ex.D.11 : Certified copy of tax paid receipt.
Ex.D.12 to : Certified copy of two photos with CD.
Ex.D.14
Ex.D.15 : Tax paid receipt dated 11.07.2018.
Ex.D.16 : Certified copy of judgment and decree passed
in SC No.2293/2011.
(SABAPPA)
IX Addl. City Civil & Sessions Judge,
C/c. I Addl. City Civil & Sessions Judge,
Bengaluru.