Bangalore District Court
Gaffer Khan vs Syed Akbar on 15 November, 2016
1 O.S.No:7498/2005
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 15th day of November 2016
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:7498/2005
Plaintiffs 1. Gaffer Khan, Aged about 50
years, Dead by L.Rs.
1(a) Smt.Khanarunnissa, Aged about 44
years,
1(b) Nazima, Aged about 28 years,
1(c) Naseema, Aged about 26 years,
1(d) Fathima, Aged about 24 years,
1(e) Asif Khan, Aged about 22 years,
1(f) Salma, Aged about 20 years,
Sl.No.(a) is the wife and Sl.Nos.(b) to
(f) are the children of late Gaffer Khan
and all are R/at at No.5, BTM, 1st
Stage, Bannerghatta Road,
Gurappanapalya, Bangalore-560 029.
2. Hafiz Khan, Aged about 45
years,
3. Fareed Khan, Aged about 43
years,
4. Mehaboob Khan, Aged about 40
years,
2 O.S.No:7498/2005
5. Sattar Khan, Aged about 38
years,
All are the sons of late Mastan Khan
and all are R/at No.5, BTM. 1st Stage,
Bannerghatta Road, Gurappanapalya,
Bangalore-560 029.
(By Sri. SKS, Advocate)
V/S
Defendants 1. Syed Akbar, Aged about 65 years,
S/o Late Alisab, Stone Contractor,
R/at No.4, 7th Main, Bannerghatta
Road, Gurappanapalya, Bangalore-
560 029.
2. Syed Ashraf, Aged about 60 years,
S/o Late Alisab, R/at No.7, 8th 'A'
Main, Bannerghatta Road,
Gurappanapalya, Bangalore-560
029.
3. Syed Shaffi, Aged about 55 years,
S/o Late Alisab, R/at No.217, 9th
Main, BTM 1st Stage, Opp:Akbar
Building, Bannerghatta Road,
Gurappanapalya, Bangalore-560
029.
Dead by L.Rs
3(a) Smt.Khamar Jan, Aged about 50
years,
3(b) Syed Ashfaq, Aged about 30 years,
3(c) Syed Altaf, Aged about 30 years,
3(d) Syed Mehtab, Aged about 26 years,
3 O.S.No:7498/2005
3(e) Syed Shakeel, Aged about 22 years,
3(f) Syed Akheel, Aged about 20 years,
Sl.No.3(a) is the wife and Sl.Nos.3(b) to (f)
are the children of late Syed Shaffi and all
are R/at No.217, 9th Main, BTM, 1st Stage,
Opp: Akbar Building, Bannerghatta Road,
Gurappanapalya, Bangalore-560 029.
4. Syed isaq @ Bashajan, Aged about
50 years, S/o Late Alisab, R/at
No:218, Mask Road, BTM 1st Stage,
OPP: Akbar Building, Bannerghatta
Road, Gurappanapalya, Bangalore-
560 029.
Dead by L.Rs
4(a) Smt.Asma Begum, Aged about 45
years,
4(b) Syed Alijan, Aged about 35 years,
4(c) Syed Ahmed, Aged about 32 years,
4(d) Syed Nushrat, Aged about 30
years,
4(e) Syed Mustaq, Aged about 27
years,
4(f) Parveez, Aged about 24 years,
4(g) Tabassum, Aged about 20 years,
Sl.No.4(a) is the wife and Sl.Nos.4(b) to
(g) are the children of late Syed Saq @
Bashajan, and all are R/at No.218,
Mask Road, BTM, 1st Stage, Opp:Akbar
4 O.S.No:7498/2005
Building, Bannerghatta Road,
Gurappanapalya, Bangalore-560 029.
(D1, D2 - By Sri.TSR & Sri.MUS, Advocates
(Lr.D3 by Sri.TSR, Advocate)
(LR. D4 by Sri.BVR, Advocate)
Date of Institution : 30.9.2005
Nature of Suit : For declaration, mandatory
injunction and for recovery of
possession
Date of Commencement of : 9.6.2008
evidence
Date of pronouncement of : 15.11.2016
Judgment
Total Duration : Year/s Month/s Day/s
11 1 15
(Ron Vasudev),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGEMENT
This is a suit for declaration, mandatory injunction and for recovery of possession.
2. The suit schedule property is land measuring east- west 5 feet on the southern side and 35 feet on the northern side and east-west 345 feet, out of the land 1 acre 27 guntas in Sy.No.57/1 of Gurappanapalya, Begur Hobli, Bangalore 5 O.S.No:7498/2005 South Taluk, Bangalore now known to be situating at 8th 'A' Main, BTM 1st Stage, Bangalore-29 and bounded by:
East - Road then the plaintiffs property West - Sy.No.57/3 belongs to defendants North - Sy.No.57/5A South - Private property
3. The summary of the plaint averments is that, the plaintiffs' father late Mastan Khan purchased the land measuring 1 acre 27 guntas in Sy.No.27/1 of Gurappanapalya, from it's owner Smt.Muni Akkayamma @ Dodda Kalamma under registered sale deed dt.10.1.1940 and pursuant to it katha was changed in his name and he was paying the revenue to the Government till his death. Thus from the date of purchase said Mastan Khan was in peaceful possession and enjoyment of the said land without interruption from anybody. That being so to the shock and surprise of the plaintiffs on 25.9.2005, the defendants, who are the adjacent land owners in Sy.No.57/3, situating on the western side of the plaintiffs' land encroached the suit property, which is shown in rough hand sketch as ABCD and in an over night they have constructed the compound wall without any basis nor surveying their property. When it was came to the notice of the plaintiffs on 26.9.2005 they requested them to clear the encroachment, as the defendants refused, the plaintiffs approached the Micolayout Police Station and informed about the illegal acts of 6 O.S.No:7498/2005 defendants. Then the said police advised that since it is a civil dispute they are unable to help, wherefore the plaintiffs are before this court to declare that they are the absolute owners of the encroached portion viz; the suit property which has been shown in alphabets ABCD in the suit sketch; to direct the defendants to remove the compound wall put up on the encroached portion and to deliver possession of it. In the event if the defendants fail to remove the encroachment, court has to get removed the same and deliver the possession.
4. The defendants appeared and filed their common written statement as under and summary of it is;
the contention of the plaintiffs that their father Mastan Khan purchased the land in Sy.No.57/1 measuring 1 acre 27 guntas of Gurappanapalya on 10.1.1940 may be a fact and change of katha in his name may also be true, but the real facts are that during his life time only the said Mastan Khan formed private layout in the year 1980 by laying 32 sites there and sold them to different persons, as such as of now there is no property left to the plaintiffs in the said survey number. Mere payment of revenue and continuation of RTCs in the name of said Mastan Khan is of no help to the plaintiffs. In the private layout formed by said Mastan Khan now several houses have come up and there is no vacant land available there. It is stoutly denied that the defendants are the immediate adjacent land owners on the western side of the schedule property. Infact in between the land bearing 7 O.S.No:7498/2005 Sy.No.57/3 of defendants and Sy.No.57/1 there is a road and the said road segregates both lands. The said road is called as 8th 'A' Main Road. That having last their land altogether in order to grab the land of these defendants, the plaintiffs have come up with this false suit. In the month of September 2004 sons of said Mastan Khan entered into release deed among themselves and in that release deed they have shown the eastern boundary of the schedule property as road. Infact the plaintiffs have furnished the incorrect measurement and description in the plaint schedule and they have not described the property properly, hence on this count alone the suit is liable to dismissed. The boundaries furnished are also completely wrong. There is no cause of action for the suit and the alleged one is false and invented. It is denied that in an over night i.e. on the night of 25.9.2005 the defendants have erected compound by encroaching the property of plaintiffs. That land in Sy.No.57/3 originally measured 4 acres 2 guntas and out of which NIMHANS Housing Co-operative Society has acquired 1 acre 14 guntas for forming housing layout and in remaining 2 acres 29 guntas the defendants have also formed private layout and they have sold several sites by retaining only 10 sites for their family members. Therefore there is no substance in the plaintiffs case and it is requires to be dismissed with costs.
5. Based on the said pleadings, following issues have been framed:
8 O.S.No:7498/2005ISSUES
1. Whether the plaintiffs prove that the defendants have encroached the area belonging to them as referred to in the plaint?
2. Whether the plaintiffs entitled for the declaration as sought?
3. Whether the plaintiff is entitled for the mandatory injunction as prayed?
4. To what other relief if any is the plaintiff entitled?
6. In support of their case plaintiffs examined plaintiff no.3 as PW1 and through him got marked 12 documents. On the other hand the defendants examined the defendant no.2 as DW1 and they too got marked 12 documents. During the pendency of the suit plaintiff no.1, defendants 3 and 4 died and their L.Rs are brought on record. Heard the arguments of Sri.SKS, Advocate for plaintiffs and Sri.MSU, Advocate for defendants. Perused the written arguments filed by them and the decisions relied.
7. My findings on the above points are as under:
Issue No.1 - In the negative Issue No.2 - In the negative Issue No.3 - In the negative Issue No.4 - In the negative, for the following:9 O.S.No:7498/2005
REASONS Issue no.1 to 3:
8. For the sake of convenience and to avoid repeated discussion of the very same facts and law, I have taken these three issues simultaneously.
9. On reading the plaint I feel very sad that plaintiffs have no seriousness in the matter that too when they are seeking the substantial reliefs like declaration of their title, mandatory injunction to demolish the compound put up by the defendants and for recovery of possession over a sizeable immovable property. Definitely if one reads their plaint, schedule to the plaint and the plaint rough sketch produced by them at Ex.P9 in juxta-position, they manifestly show that there is no semblance in the pleadings and the case which they seek to make out. I would explain this little more elaborately by referring to the plaint, schedule to it and Ex.P9.
10. According to the plaintiffs the suit schedule property measures East-West 5 feet on southern side and North-South 38 feet on the northern side. Surprisingly they further explain that the said property is "east-west" 345 feet, instead of saying that north-south it is 345 feet. This is the first glaring mistake which they have committed. The next fundamental defect that can be seen is that according to the plaintiffs towards east of the suit property there is a road and thereafter they possess their property and towards west 10 O.S.No:7498/2005 Sy.No.57/3 belonging to the defendants is situating. Per contra the Ex.P9 shows that land in Sy.No.57/3, which is admittedly owned by defendants, is shown towards eastern side. Therefore at the very beginning the plaintiffs have failed to make out proper case for themselves. It is unfortunate that they did not open their eyes even after the defendants filed their written statement and took a specific defence in para-6(iii), on page no.8 that they dispute the identity of the property including its boundaries and extent. Without looking into the written statement and contentions taken there the plaintiffs examined PW1 on 16.9.2011 and only after completion of his cross-exam on 2.8.2012 they (plaintiffs) filed I.A.No:14 on 4.7.2013 proposing to amend the boundaries and schedule in order to rectify the apparent error. Since by that time PW1 was already cross-examined completely, my predecessor in office by his order dt.26.11.2013 rejected the said application. Thereafter having kept quite for some time without cross-examining the DW1, suppressing the dismissal of I.A.No.14 filed earlier U/O 6 Rule 17 of CPC, again the plaintiffs filed I.A.No.15 under the very same provision seeking substantially very same relief on 27.1.2014 and on hearing both sides vide order dt.23.11.2015 this court rejected the said application also. Against the said order the plaintiffs filed W.P.No:9968/2016 on the file of Hon'ble High Court and it came to be dismissed on 3.3.2016. Thus efforts of the plaintiffs to correct their pleadings and schedule at highly belated stage was not 11 O.S.No:7498/2005 entertained by the courts as by that time right was accrued in favour of the defendants. Even ignoring this fundamental defect in the very constitution of the plaint, if I further probe into their case once again I find that they have not seriously proceeded with the matter in hand.
11. It may be noted that so far as purchasing of land in Sy.No.57/1 measuring 1 acre 27 guntas of Gurappanapalya by Mastan Khan under a registered sale deed dt.10.1.1940, which is produced at Ex.P11, the defendants have no serious grievance. What they allege is that after purchasing the said land Mastan Khan formed private layout by laying 32 sites and he has sold all the sites retaining few for his family and in that entire layout residential buildings have come up so there is no vacant land available to the plaintiffs. While making such allegations the defendants also concede that they are adjacent land holders having land in Sy.No.57/3 measuring 4 acre 2 guntas and out of it some portion is acquired by the NIMHANS Housing Co-operative Society and in the remaining portion they have also formed the private layout and sold many sites by retaining only few of them for their family. In a given situation if plaintiffs allege that the defendants have encroached their land in Sy.No.57/1, the minimum thing which they were required to be done in the matter was to get survey their land through a competent surveyor with notice to the adjacent land owners to ascertain the extent of their land and the extent of encroachment if any made by 12 O.S.No:7498/2005 the adjacent land holders. Strangely no such step was taken by them before instituting the suit. Straight away having filed this suit with rough hand sketch (Ex.P9) they gave the measurement without any basis and having filed I.A.No.2 U/O 26 Rule 9 r/w Sec.151 CPC for appointment of a court commissioner viz; the surveyor to measure the lands in Sy.No.57/1 and Sy.No.57/3, they sought to prove their case. The said I.A. was contested by the defendants and on hearing both sides my predecessor in office by his order dt.27.3.2006 dismissed the same. There is no material on record to show that the plaintiffs either challenged the said order or as observed in the said order they moved this court again for appointment of survey commissioner to survey their land at the end of trial. Therefore there is no credibly acceptable document to show that the alleged encroached portion viz; the suit property is part of Sy.No.57/1.
12. The written arguments filed by the plaintiffs reveal that they tried to make out a case for themselves by contending that entire extent of Sy.No.57/3 is already acquired by BDA, so whatever land available there belongs to them. With that intention in their mind they cross- examined DW1 and tried to prove that the suit property belongs to them. I afraid a civil court cannot form an opinion and declare title of the plaintiffs to an immovable property based on the weakness of defendant to establish his title over such property. I am making this observation based on the decisions reported at AIR 2009 SC 2966 (T.K.Mohammed 13 O.S.No:7498/2005 Abubucker (D) Thr.L.Rs & Ors. Vs P.S.M. Ahamed Abdul Khader & Ors.) and (2014) 2 SCC 269 (Union of India and others Vs Vasavi Cooperative Housing Society Limited and others). In the said cases, Hon'ble Apex Court held that in a suit for declaration of title and possession burden is on the plaintiff to make out his title and entitlement to possession and he cannot succeed on any alleged weakness in the title or possession of defendant. It is also observed that the plaintiff has to establish his case irrespective of whether the defendants prove their case or not. In the absence of establishment of his own title by plaintiff, he has to be non- suited even if title set up by the defendants as found against them is not proved. This analogy was drawn on the reason that weakness of a case set up by defendant cannot be a ground to grant relief to plaintiff.
13. Mere producing of record of rights, index of lands and RTCs at Ex.P2, P3, P7 and P8 in no way help the plaintiffs to prove their title to the schedule property. Nevertheless the said documents reflect the name of Mastan Khan in respect of land in Sy.No.57/1 measuring 1 acre 27 guntas, plaintiffs cannot imagine to succeed since as admitted by PW1 himself their father has formed private layout and sold several sites to different persons etc., would indicate that the plaintiffs have no-longer in possession of entire extent of Sy.No.57/1 and more so when that land has come within the limits of Bangalore City Corporation, the continuation of pahani as per Ex.P7 and P8 in the name of 14 O.S.No:7498/2005 Mastan Khan has no significance. As per the tippani sheet of Sy.No.57/1, 57/3, 57/5A produced at Ex.P4 and Moola Tippani of said land produced at Ex.P5 towards east of Sy.No.57/1 the land in Sy.No.57/3 is situated and not vice versa, as shown in the plaint schedule. When allegation of encroachment is made it is not the rough hand sketch or suit sketch or hand sketch which would come to the help of plaintiffs rather a public document like survey sketch prepared by competent authority, is an essential requirement. Thus it is needless to say that the rough sketch/suit sketch marked as Ex.P9 lands the plaintiffs no- where. With such private document no substantial reliefs can be sought.
14. For the first time in his examination in chief without the supporting pleading at Para-6 PW1 deposed that the suit property measures north-south 345 feet and towards southern side it is east-west 5 feet and north-south 38 feet. That kind of evidence without supporting pleading is inadmissible in evidence. Even PW1 gone to the extent of saying that the eastern road, which is described in the plaint schedule as 8th 'A' Main Road is part of their property and it is situating in Sy.No.57/1. Regarding this also there is no precise pleading, therefore the said evidence is also liable to be ignored. On page no.8 and 9 of his cross-examination dt.2.8.2012 PW1 was not able to reply properly what extent of land is now available to them after formation of roads, cross roads, reserving land for burial ground and formation 15 O.S.No:7498/2005 of sites. With that kind of incomplete and inconsistent approach plaintiffs rushed to the court seeking the relief of declaration, mandatory injunction and for recovery of possession. At the end of para-17 on page no.9 PW1 stated that his father (Mastan Khan) was also aware of the encroachment but he did not inform them. No-doubt there is no evidence on record to show when the Mastan Khan died so as to compute the period of limitation, but the said evidence definitely indicate that the cause of action pleaded in Para-6 of the plaint is imaginary and it has no nexus to the case in hand. Having pleaded the arising of cause of action on 25.9.2005, which is bit unbelievable, for the simple reason that it is humanly impossible to built compound wall all along 235 feet length in one over night, the plaintiffs filed this suit on 30.9.2005. So in my opinion the cause set out in the plaint for filing this suit is not genuine, rather an invented one. In para-18 of his cross-exam PW1 was not able to reply atleast whether his father had got surveyed that land before he formed private layout. It is unnecessary to say that to prove an encroachment of an immovable property it is the documentary evidence that is required and not the oral evidence.
15. In their evidence through DW1 defendants have set out something new which was not pleaded. Their pleading and oral evidence of DW1 as can be seen in para-5 and 6 of his chief are quite contrary to each other. Even the defendants have also not produced evidence to show that 16 O.S.No:7498/2005 compound wall was constructed by them in 1978 itself. However for that reason it cannot be said that, the said admitted compound wall was built on 25.9.2005. I again say that weakness of the defendants is not a trump card for the plaintiffs to imagine their success. With the photographs produced at Ex.P10 and Ex.D2 to D11 one cannot decide the encroachment or the otherwiseness of it. The Ex.D1 is the release deed executed by some of the plaintiffs in favour of their own brothers and description of road towards eastern side of that property does not lead to an inference that there is no land belonging to the plaintiffs beyond that road. All these ambiguities could have been solved by surveying the land, which the plaintiffs did not resort to either before the suit or during the pendency of it. As a result their allegation of illegal encroachment remained as an allegation.
16. In their written arguments defendants urged that suit is bad for non-joinder of necessary parties as plaintiffs have not pleaded all their brothers and sisters. According to me the said defence cannot be entertained at the stage of arguments. Such kind of defence has to be taken at the earliest point of time, so I have not given importance to the same. In the decision reported at AIR 1992 DELHI 197 (M/s Seemax Construction (P) Ltd., Vs State Bank of India and another Hon'ble Court held that a plaintiff who approaches the court must disclose all the necessary facts and in the event if there is suppression, such suit is liable to be dismissed without going into the merits. In another decision 17 O.S.No:7498/2005 reported at 2008 AIR SCW 340 (Bogidhola Tea & Trading Co.Ltd., & Anr., Vs Hira Lal Somani) Hon'ble Court held that even if a defendant fails to file the written statement or where the defendant is set at exparte, court is not bound to pass decree without calling upon the plaintiff to prove his case or without considering the point of limitation. Having gone through the decisions referred above, relied by the defendants, and the discussion made by me in the foregoing paragraphs I have no other option except to hold that plaintiffs have miserably failed to show that suit property is part of Sy.No.57/1, consequently their prayer for declaration of their title to the same is liable to be rejected. If that conclusion is arrived, it goes without saying that they are not entitled for further reliefs of mandatory injunction to demolish the said compound and the recovery of possession. Accordingly I answer all these issues in the negative.
Issue No.4:
17. In view of the negative findings on issue no.1 to 3 it is only a formality to say that plaintiffs are not entitled for any of the reliefs as prayed for. Accordingly, I proceed to make the following:
ORDER Suit is dismissed.
Parties shall bear their own costs.18 O.S.No:7498/2005
Draw decree accordingly.
(Dictated to the Judgement Writer, transcription computerized, then corrected and pronounced by me in open court this the 15th day of November 2016) (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.
List of witnesses examined for the plaintiffs side:
PW1 Fareed Khan List of documents exhibited for the plaintiffs side:
Ex.P1 Extract of record of rights Ex.P2 Index of lands Ex.P3 Aakar Bandh Ex.P4 Aakar Bandh Ex.P5 Moola Tippani Ex.P6 Receipt Ex.P7 RTC Ex.P8 RTC Ex.P9 Rough sketch Ex.P10 Photograph Ex.P11 Sale deed dt.27.1.1941 Ex.P12 Certified copy of the pahani
List of witness examined for the defendants side:
DW1 Syed Ashraf List of documents exhibited for the defendants side:
Ex.D1 Release deed dt.28.9.2004
Ex.D2 to 12 Photos and CD
(Ron Vasudev),
III Addl. City Civil & Sessions Judge,
Bengaluru.