Bangalore District Court
Mohd.Dastagir vs A.Nagendran on 30 January, 2016
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 30th day of January 2016
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:9580/1997
Plaintiff Mohd.Dastagir, Aged about 76 years,
S/o Late Hajee Md.Imam Saheb, No.62/1,
Bedarahalli "D" Street, Williams Town,
Bangalore-560 046,
Since deceased by his L.Rs.
1(a) Azeema Bi, Aged about 68 years,
W/o Late Md.Dastagir,
1(b) Mohammed Abdul Wajeed, Aged
about 50 years,
1(c) Mohammed Nazeer @ Javeed, Aged
about 47 years,
1(d) Mohammed Ameen, Aged about 44
years,
1(e) Mohammed Farook, Aged about 40
years,
1(f) Mohammed Imam @ Naveed, Aged
about 37 years,
1(g) Mohammed Alijauhar @ Mohammed
Fareed, Aged about 34 years,
1(a) is the Wife and 1(b) to 1(g) are Sons
of Late Mohammed Dastagir and all
2 O.S.No:9580/1997
residing at No.62/1, D Street, Baidarhalli,
Benson Town Post, Bangalore-560 004.
(By Sri.AK, Advocate)
Vs
Defendants 1. A.Nagendran, Aged about 67 years,
S/o Arjun Madhan, Railway
th
Employee, Door No.142, 8 Cross,
Near Manjusha Electronics, Kengeri
Satellite Town, Upanagar,
Bangalore-60.
2. Mohammed Saleem, Aged about 46
years, S/o M.S.Mohammed
Fakhruddin, "Sangam Enterprises",
No.43, 7th Cross, Sampige Road,
Malleshwaram, Bangalore-560 003.
(D1 by Sri.AK, Advocate)
(D2 by Sri.VPG, Advocate)
Date of Institution 20.12.1997
Nature of suit Declaration, Possession,
Mandatory injunction &
Permanent injunction
Date of commencement of 5.4.2006
evidence
Date on which the judgment was 30.1.2016
pronounced.
Total Duration: Years Month Days
19 01 10
(RON VASUDEV),
III Addl.City Civil & Sessions Judge,
Bengaluru.
3 O.S.No:9580/1997
JUDGMENT
This is a suit for declaration, possession, mandatory injunction and for permanent injunction.
2. The suit schedule property is property bearing No:6 and 7 formed in sy.no.24/3 situating at Valagerahalli, Kengeri Hobli, Bangalore South Taluk formed by The Malleshwaram Tailoring Co-Operative Society Ltd., and bounded by ;
East - Others property West - Road North - Site No.8 South - Site No.5 and measuring East to West 42 feet and North to South 60 feet.
3. In substance of the plaintiff's case is that; he is the sole and absolute owner of the property in site no.6, 7 and 8 formed in sy.no.24/3 of Valagerahalli, Kengeri Hobli, Bangalore South Taluk having acquired the same by way of HIBA (oral gift) dt.7.2.1990. The aforesaid property was orally gifted by one Syed Abdul Rehman S/o Syed Abdul Razack on the aforesaid day to him. Infact the said Syed Abdul Rehman was member of The Malleshwaram Tailoring Co-Operative Society Ltd., and he had purchased the said sites under registered sale deed on 26.3.1981 and he was put in possession of the same. That the plaintiff has produced the tax paid receipts and other documents to show that property was sold to Syed Abdul Rehaman and he was in 4 O.S.No:9580/1997 possession. That subsequent to HIBA he is in possession and enjoyment of the schedule property and he is paying taxes to the concerned authority. Now on the guise that defendant no.2 has executed the alleged registered sale deed on 21.9.1992 in favour of the defendant no.1, both the defendants are trying to trespass into the suit property, which is part of three sites that were orally gifted to him. That the defendants have no manner of right, title and interest in the suit property, inspite of it on 10.1.1996 the defendant no.1 with active support of defendant no.2 illegally trespassed into the suit property and put up construction there. Immediately he filed complaint in the jurisdictional police station and they have initiated action against the defendants. Despite that the defendants are bent upon to carry out the construction work to deprive his legitimate right and interest in the schedule property. Therefore the plaintiff prays to declare that he is the absolute owner of the schedule property comprising of site no.6 and 7 only; to further declare that sale deed dt.21.9.1992 executed by defendant no.2 in favour of defendant no.1 is not binding on him; to direct them to deliver the vacant possession of the suit property; for mandatory injunction to remove the illegal construction put up in the schedule property at the cost of defendant no.1 and in the event if it is not cleared within stipulated time, to enable him to demolish the illegal structures at his cost and to recover the same from defendant no.1 and for permanent injunction to restrain the defendants from interfering in his lawful possession and enjoyment of the schedule property.
5 O.S.No:9580/19974. The defendant no.1 appeared and filed written statement. The summary of it is as under:
that this defendant is the owner in actual possession of site no.6 and 7 formed in sy.no.25 of Valagerahalli, Kengeri Hobli, Bangalore South Taluk having purchased them under registered sale deed dt.21.9.1992 for valuable consideration from defendant no.2 and all the property records are standing in his name. That the defendant no.1 has constructed a residential house by spending more than Rs.4 to 5 lakhs and is residing with his family. Unnecessarily the plaintiff has filed this suit in order to harass this defendant. The contentions of the plaintiff that he is the absolute owner of the sites 6, 7 and 8 formed in sy.no.24/3 of Valagerahalli under HIBA and he was in possession of the same etc., are denied and he shall be put to strict proof of the same. The source of acquisition of the plaintiff is not properly forthcoming. When the plaintiff claims his title over the plaintiff measuring 42 feet x 60 feet with boundaries shown in the plaint, he has to prove the same, whereas the site no.6 and 7 purchased by defendant no.1 formed in sy.no.25 of Valagerahalli measures East to West 42 feet, North to South 60 feet and it is bounded by East - private property, West -Road, North -Site No.8 and South
- Road. The plaint allegations show that the plaintiff has no clear case and he is not sure about his acquisition of property. Further contention of the plaintiff that Syed Abdul Rehaman purchased the site no.6, 7 and 8 of sy.no.24/3 from The Malleshwaram 6 O.S.No:9580/1997 Tailoring Co-Operative Society Ltd., under registered sale deed and he was put in possession of the same and later he orally gifted the said sites to the plaintiff etc., are all denied. It is further denied that the defendant no.2 has instigated this defendant no.1 to put up construction illegally in the suit property and police have initiated action against this defendant. Infact the defendant is constructing within his property by obtaining necessary sanction, therefore on these grounds and other grounds the defendant no.1 prays to dismiss the suit with costs.
5. The defendant no.2 appeared but he has not taken interest to contest the suit.
6. Based on the said pleadings my predecessor in office has framed the following issues:
ISSUES
1. Whether plaintiff proves that he is the absolute owner of sites bearing No.6, 7 and 8 formed in sy.no.24/3 of Valagara Village?
2. Whether plaintiff proves that he acquired the said property way of Hiba (oral gift) from Syed Abdul Rehaman?
3. Whether defendant proves that he is the absolute owner in possession of site no.6, 7 formed in sy.no.25 of Valagara village for 7 O.S.No:9580/1997 having purchased the said sites under a registered sale deed dt.30.9.92?
4. Whether plaintiff is entitled to recover the possession of the schedule from the defendant?
5. Whether plaintiff is entitled to the relief of mandatory injunction directing the defendant no.1 to deliver vacant possession by demolition the illegal construction?
6. Whether plaintiff is entitled to the relief of permanent injunction?
7. Whether plaintiff is entitled to the reliefs as sought?
8. What decree or order?
7. In support of his case plaintiff examined himself as PW1 and got exhibited Ex.P1 to P31. During the pendency of the suit plaintiff died, his L.Rs were brought on record. Among them one of the L.R was examined as PW2 and Ex.P32 and P33 were marked through him. On the other hand the defendant no.1 examined himself as DW1 and got marked Ex.D1 to D13. When the matter was set for arguments, even after availing enough time no arguments were addressed by the plaintiffs, whereas the defendant no.1 filed his written arguments. There was no representation for the defendant no.2.
8 O.S.No:9580/19978. My findings on the above issues are as under:
Issue No.1 - In the negative Issue No.2 - In the negative Issue No.3 - In the affirmative Issue No.4 - In the negative Issue No.5 - In the negative Issue No.6 - In the negative Issue No.7 - In the negative Issue No.8 - As per final order for the following;
REASONS
9. Issue No.1 to 3:
On going through these issues definitely one will have glimpse that answering of issue no.1 and 2 substantially answer the issue no.3 and discreet discussion of them will overlap the discussion of very same fact and law, hence for the sake of brevity I have taken these issues simultaneously.
10. It is a simple case of the plaintiff that he acquired title to the three sites bearing no.6, 7 and 8 of sy.no.24/3 of Valagerehalli by way of oral gift and his predecessor had purchased them under registered sale deed. He has furnished the boundaries of the site no.6 and 7 with their measurement in the plaint schedule and alleges that the defendant no.1 has encroached the schedule property consisting of said two sites no.6 and 7 of sy.no.24/3, consequently he is before this court 9 O.S.No:9580/1997 praying for the reliefs as mentioned above. Per contra alleging that he is in possession of site no.6 and 7 formed in sy.no.25 of Valagerehalli, the defendant no.1 contends that he purchased those two sites under registered sale deed from defendant no.2 and accordingly he asserts his title over the same. Thus from this pleading it can be seen that both parties are asserting their claim over site no.6 and 7 of Valagerehalli but according to the plaintiff they are part of sy.no.24/3, whereas according to the defendant no.1 who is the only contesting party, they are part of sy.no.25. The one more distinction is as per the plaintiff towards South of the site two sites, site no.5 is situating, but as per the defendant road is lying to the south of his two sites, therefore obviously before finding out whether plaintiff is able to prove his title by way of HIBA, court has to examine whether there is any material to show that site no.6, 7 and 8 were formed in sy.no.24/3 of Valagerehalli. Surprisingly, with pain I would say that the very additional documentary evidence placed by PW2 cuts the plaintiff's case at its root itself. The said additional documentary evidence is none other than the documents obtained by PW2 under RTI Act from The Malleshwaram Tailoring Co-Operative Society Ltd., marked at Ex.P32 (consisting of seven sheets) and letter of the Liquidation Officer dt.1.4.2013 at Ex.P33. These two documents would go long way in destabilizing the plaintiff's case. They would tell a horrifying story that The Malleshwaram Tailoring Co-Operative Society Ltd., Malleshwaram completely mismanaged its affairs, against it's bye-laws and the constitution.
10 O.S.No:9580/1997It went on taking the lands from the farmers and without converting them into non-agriculture and lying plots in an approved manner, formed the sites as per the wish of some of the directors and went on alienating them by executing GPA. As observed by the Liquidation Officer, accounts were not properly maintained by the society and lands were not purchased through registered sale deeds, but only on the basis of GPA lands were taken over by the Secretary and other office bearers of the society and by laying sites there without following any due process, receiving the amount from the members they distributed them. In nutshell it can be said that there is a wholesome irregularity and illegality in the management and administration of the said society as a result several persons belonging to the society alienated the sites to different persons conferring no valid title to the sites so transferred. Therefore considering all these things and on the report of the Auditors, the Government decided to liquidate the society and it appointed the liquidator. When that is the state of affairs, any amount of oral and documentary evidence produced by the plaintiff or his heirs would not come to their rescue. Admittedly there is no piece of legally acceptable document which credibly shows that site no.6, 7 and 8 were laid by The Malleshwaram Tailoring Co-Operative Society Ltd., in sy.no.24/3. This is because unless the location of the property is proved with its boundaries, it is difficult to imagine the title of the plaintiff and granting of reliefs. In this regard I may lay my hand on the decision reported at ILR 2005 KAR 884 (T.L. Nagendra 11 O.S.No:9580/1997 Babu vs Manohar Rao Pawar). In the said decision our Hon'ble High Court held that in a suit for declaration and for permanent injunction proof of identity of property with credible evidence is essential to grant the relief as prayed for. In this case Ex.P32 and P33 are more than enough to show that there was no proper layout, there was no approval from the competent authority, and far from that lands were not converted into non-agriculture and the office bearers laid the sites and distributed them to whom so ever they like even without executing proper documents.
11. No-doubt in this case plaintiff has produced the certified copy of the sale deed executed by said The Malleshwaram Tailoring Co-Operative Society Ltd., in favour of his predecessor in title / Syed Abdul Rehaman at Ex.P22 and also Patta receipt at Ex.P3 with encumbrance certificates at Ex.P4 to P7 with his representation dt.17.1.1998 at Ex.P8, but it cannot be said with authenticity that sites sold by the said society were formed in sy.no.24/3. Along with Ex.P22 it was incumbent on the part of the plaintiff to produce the approved layout plan to prove the location of alleged sites that were purchased by his predecessor.
12. No-doubt in Ex.P22 it is recited that as per the sketch site no.6 to 8 have been formed in sy.no.24/3 of Valagerehalli and they were allotted to Syed Abdul Rehaman, but no reason is forthcoming from the plaintiff or from his L.Rs why they withheld the said sketch. Moreover under the said sale deed site no.6 to 8 12 O.S.No:9580/1997 were together measured East-West 42 feet, North-South 90 feet and they were commonly bounded by East- Property of others, West - Road, North - A road bearing no.9 and South - Road bearing no.5. Of these three sites eventually plaintiff asserts his claim in this case in respect of site no.6 and 7 only with measurement East-West 42 feet, North-South 60 feet with Eastern and western boundaries like in Ex.P22, however towards North he refers to site no.8 and towards south he says that there is site no.5. One can understand if he alleges that towards south- site no.8 is situating as it is not part of the suit property, but it cannot be accepted that site no.5 comes to the south of schedule property. I would demonstrate this with the cross-examination of PW1. On Page no.9 of his cross-exam at the end of unnumbered Para-2 stating the description of the schedule property PW1 give new twist by saying that the said site no.5 has now become road. This afterthought explanation cannot be accepted directly in the cross-exam. There was no corresponding explanation in this regard in his examination in chief. This is a very crucial fact which would again demolish his case further.
13. His whole cross-examination shows that this PW1 as well as DW1 are fighting in respect of the very same property with one alleging that it is part of sy.no.24/3 and another one alleging that it is part of sy.no.25, of Valagerehalli. DW1 has also produced original registered sale deed executed by his vendor and got it marked at Ex.D36 dt.21.9.1992 and it recites that said sites 6 and 7 are bearing khatha no.159/2 and they are part of 13 O.S.No:9580/1997 Valagerehalli village. To substantiate the Ex.D3 the DW1 has produced the possession certificate at Ex.D1, again issued by the very The Malleshwaram Tailoring Co-Operative Society Ltd. on 18.8.1984 in favour of his vendor in respect of site no.6 and 7 of sy.no.25 with the boundaries described in para-3 of his written statement. Further he has also produced encumbrance certificate at Ex.D2 to show that site no.6 and 7 were also laid in sy.no.25. There are two more encumbrance certificates at Ex.D4 and D5, they too show the transaction in respect of site no.6 and 7 of sy.no.25. Apart from that DW1 has produced the endorsement issued by Chief Officer, Town Municipality, Kengeri at Ex.D6 stating that site no.6 and 7 of sy.no.25, khata no.159/2 possess new khata no.516 and also the boundaries of the said two sites. There is one more endorsement and it is produced at Ex.D7. The demand register extract produced at Ex.D8, tax paid receipts and development charges receipts produced at Ex.D9 to D11 and also the approved map at Ex.D12 and license issued by Kengeri Town Municipality at Ex.D13 show that it is this DW1, who is in possession of the site no.6 and 7 of sy.no.25 and he has constructed building there with prior approval of the competent authority. Therefore if plaintiff or his L.Rs would stake their claim over the very same property alleging that they are part of sy.no.24/3, they having approached the court seeking substantial relief of declaration, mandatory injunction to demolish that building and for recovery of possession besides the relief of permanent injunction to protect their possession (regarding this 14 O.S.No:9580/1997 last relief one has to think twice as plaintiff was admittedly out of possession of schedule property as on the date of suit), it is for him to show that he has got some semblance of right.
14. Leaving aside all these things even if his contention is accepted for the time being that site no.6 and 7, which are in possession of defendant no.1, are part of sy.no.24/3, things will not stop there, instead the plaintiff would be expected to show that there was a valid HIBA from his predecessor, which vests in him the right, title, interest and possession over the suit property. In this regard I have gone through the provisions of MAHOMEDAN LAW written by learned author MULLA, titled as Principles of MAHOMEDAN LAW. In his book at Sec-138 to 172 the learned author deals with the HIBA. As per Sec.147 writing is not essential for the validity of a gift of an immovable or movable property, but as per Sec.149 three essentials have to be met to constitute a valid gift. The said three essentials are, firstly there must be a declaration of gift by the donor, secondly an acceptance of the gift either express or implied by or on behalf of donee and thirdly delivery of possession of the subject matter of the gift to the donee. In the case of possession of immovable property, as contained in Sec.152, unless the donor physically departs from the premises with all his goods and chattels and the donee formerly enters into possession, gift will not be completed. As held in Ratanlal Bora v Mohd. Nabluddin (1984) 2 An. W.R.201 referred by the learned author Mulla in Sec.147 of the said book in order to hold that the valid gift deed was made by the donor, it 15 O.S.No:9580/1997 must be shown that the donor either in the presence of witnesses or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering such possession as the property is capable of to the donee who accepted the gift. It is inconceivable that a declaration of gift can be made unilaterally by a Mohammadan without making a public statement of the gift. Declaration of a gift for the purpose of law has a definite connotation in the sense that a person making a gift, must declare by some means to give public notice that he gifted the property to the donee and divested himself of the ownership of the property. It is unknown to law that a Mohammadan can make an oral gift within the confines of his houses and without the presence of anybody else and canvass the plea that making such a declaration allegedly by the gift, the valid requirements of a gift are satisfied. If evidence is lacking on any of the requirements of a valid gift, law cannot presume that a valid gift has been orally made by a Mohammadan in favour of the donee.
15. So from the plain reading of said observation, delivery of possession of suit property by Syed Abdul Rehman in favour of deceased plaintiff is basic requirement in addition to the declaration of gift by the said donor and acceptance of it by the donee viz; the deceased plaintiff. In this connection I have gone through the crucial document viz; the so-called declaration on Rs.10/- stamp paper made by the said Syed Abdul Rehaman which is marked as Ex.P1. As could be seen from the said alleged 16 O.S.No:9580/1997 deed of Hiba, no-doubt declaration of Hiba under Mahomedan Law is required to be in writing, the said Syed Abdul Rehaman made that alleged declaration in writing in the presence of two witnesses and as recited by it the said donor put the donee in possession of the sites bearing No.6, 7 and 8 formed in sy.no.24/3 of Valagerahalli and handed over all the prior title deeds, possession certificate etc. Regarding which Term No:5 and 6 of alleged deed of declaration are relevant. It is interesting that notwithstanding such declaration, neither PW1 nor PW2 produced the original title deed or possession certificate. They have not stated why they are unable to produce them. Infact in his plaint PW1 alleged that he has handed over original Hiba to the police department for investigation and it is with them, having made such statement he produced it at Ex.P1. If one looks at his inability to produce the original documents, which he allegedly received from the donor, one has to doubt the further contents of Ex.P1 that this PW1 was really put in possession of the said property consisting of three sites. As held in the decision cited above the factum of delivery of possession has to be established with convincing evidence. But no attempt is made in that regard. The Ex.P2, P8 to P22 viz; the representations given to the Secretary, Village Panchayath, etc., will not help the PW1 in any manner. He has not examined either of the two witnesses cited in the Ex.P1 to prove the genunity of Ex.P1. The fact that northern and western boundary wrongly written as site no.9 and site no.5 in the Ex.P1 create a serious doubt in it's honest execution and 17 O.S.No:9580/1997 acting upon of it. I again say that in Ex.P22 northern boundary is shown as road no.9 and southern boundary is shown as road no.5, whereas in the Ex.P1 northern boundary is shown as site no.9 and southern boundary is shown as site no.5. Therefore it is more than enough to reject his claim that he took possession of gifted property. Even otherwise there is no document, which evidences or confirms the alleged gift of 7.2.1990. In other words there is no document to show that subsequent to 7.2.1990 the PW1 enjoyed the schedule property as donee. For the foregoing discussion viewed from any angle I have no hesitation to say that there is no case for the plaintiff. Per contra by producing the original title deed and possession certificate the defendant no.1 has shown that he is in possession of site no.6 and 7 of sy.no.25 of Valagerehalli. Accordingly I answer issue no.1 and 2 in the negative whereas issue no.3 in the affirmative.
16. Issue No.4 to 7:
Since all these issues nevertheless are separately framed covering the various reliefs he has prayed in the suit, in the light of the findings on the previous issues, I have taken these issues simultaneously.
17. Once it is held that plaintiff has failed to prove the issue no.1 and 2 which decide the fate of the suit and moreover when the findings on issue no.3 went against him, it is too much for him to expect any relief. It is surprising that while alleging encroachment of suit property plaintiff also seeks the relief of 18 O.S.No:9580/1997 permanent injunction to protect his possession, which is quite unimaginable so holding that he does not deserve any relief, without spilling any more ink, I answer all these issues in the negative.
18. Issue No.8:
In the result, I proceed to make the following:
.
ORDER Suit is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in open court, this the 30th day of January 2016) (RON VASUDEV), III Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witness examined for the plaintiffs side:
PW1 Mohammed Dastagir PW2 Mohammed Ameen
List of documents exhibited for the plaintiffs side:
Ex.P1 Original declaration of Hiba dt.7.2.90
Ex.P2 Tax paid receipt dt.5.1.93
Ex.P3 Receipt
Ex.P4 to 7 Encumbrance certificates
Ex.P8 Notice dt.17.1.98
Ex.P9 Postal acknowledgement
Ex.P10 Postal acknowledgement
19 O.S.No:9580/1997
Ex.P11 & 12 Certified copy of the notice
Ex.P13 & 14 Certified copy of the postal acknowledgement Ex.P15 Postal receipt Ex.P16 Certified copy of the notice Ex.P17 Certified copy of the postal acknowledgement Ex.P18 Certified copy of the letter 23.10.92 Ex.P19 & 20 Certified copy of the RPAD receipt acknowledgement Ex.P21 Certified copy of the UCP Ex.P22 Certified copy of the police complaint Ex.P23 & 24 Photos Ex.P25 Certified copy of the police complaint Ex.P26 Certified copy of the acknowledgement Ex.P27 Certified copy of the letter Ex.P28 Copy of sale deed Ex.P29 Copy of complaint Ex.P30 & 31 Photos Ex.P32 Certificate of Registration Ex.P33 Letter of Liquidator dt.1.4.2013 List of witness examined for the defendant/s side:
DW1 A.Nagendran List of documents exhibited for the defendant/s side:
Ex.D1 Possession certificate
Ex.D2 Encumbrance certificate
Ex.D3 Sale deed
Ex.D4 & D5 Encumbrance certificates
Ex.D6 Endorsement dt.12.6.2000
Ex.D7 Endorsement by Kengeri Municipality
Ex.D8 Assessment extract
Ex.D9 to 11 Tax paid receipts
Ex.D12 Plan
Ex.D13 Building license
(RON VASUDEV),
III Addl. City Civil & Sessions Judge,
Bengaluru.