Bangalore District Court
Mohd. Dastagir vs Smt.Geethalakshmi W/O Nagaraj on 22 March, 2016
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 22nd day of March 2016
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:7669/1994
PLAINTIFF/S: MOHD. DASTAGIR, Aged about 76
years, (Senior Citizen), S/o Late Hajee
Md. Imam Saheb, No.62/1,
Bedarahalli, 'D' Street, Williams Town,
Bangalore-560 046.
Since deceased by his LRs
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 Ali Jauhar @
Mohammed Fareed, Aged about
34 years,
2 O.S.No:7669/1994
All are sons of late Mohammed
Dastagir and all are residing at
No.62/1, D Street, Baidarahalli.
(By Sri.AK., Advocate)
Vs.
DEFENDANT/S: 1. Smt.Geethalakshmi W/o Nagaraj,
2. Smt.Gayathri, Major, W/o Nataraj,
Both residing at No.539/28, Railway
Station Road, (Parallel Road),
Yeshwanthpura, Bangalore-22.
3. Marappa, Major, S/o not known to
the plaintiff, Site Broker, Residing at
House Built on site 53, in Survey
No.25, Opp: Santhosh Bar next to 30
feet road, next to Shankarappa's Ittige
Goodu, Upanagar, Kengeri Satellite
Town, Bangalore-60.
4. Rajanna, Lorry Owner, Site broker,
Maruthi Krupa, ESI Road, Kengeri,
Bangalore-60.
5. Suresh, Pawn Broker
6. Suwalal Jain, Pawn Broker,
Both residing at No.225, Shucoor
Circle, Kengeri, Bangalore-60.
7. K.S.Mohammed Ismail, K.G.N.
Traders, No.6, Sultan Palya, Near
St.Maical High School, R.T. Nagar
Post, Bangalore-32.
(D1 & D2 by Sri.MMS, Advocate)
(D3 to7- Suit is dismissed )
3 O.S.No:7669/1994
Date of Institution : 24.12.1994
Nature of Suit : Declaration, Possession
and for Permanent injunction
Date of commencement
Of evidence : 6.11.2002
Date of pronouncement
Of judgment : 22.3.2016
Total Duration: Year/s Month/s Day/s
21 2 28
(Ron Vasudev),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit for declaration, possession and for permanent injunction.
2. The suit schedule property is site no.53 and 54 of sy.no.25 consisting of a constructed house situating at Valegerahalli, Kengeri Hobli, Kengeri Satellite Town, Kengeri, Bangalore-60 and bounded by:
East - Site No.55 of plaintiff West - Private property North - Site No.59 and 60 of plaintiff South - Road in all measuring East-West 60 feet and North - South 40 feet.4 O.S.No:7669/1994
3. In nutshell the plaintiff's case is that, his wife Smt.Azeema Bee purchased the suit property under registered sale deed dt.19.3.1981 from Malleshwaram Tailoring Co- operative Ltd., Society, Bangalore and she was in possession and enjoyment of the said property. Later she orally gifted the said property to him on 30.10.1984(wrongly mentioned as 1994) and delivered possession. Thus plaintiff submits that he became the absolute owner and in possession of the schedule property. That his wife Smt.Azeema Bee had constructed house in the said property and on receiving the gift, he engaged a watchman to look after the said property, however during the Cauvery riots in 1992 the said watchman went away to Tamilunadu without informing the plaintiff. When matter stood thus on 5.5.1993 plaintiff had been to the schedule property and saw the defendant no.1 and 2 in possession of the same. He also noticed the construction put up by the said defendants in collusion with other defendants. On enquiry the defendants stated that the said property belongs to them. Therefore regarding their illegal acts plaintiff filed complaints on 5.5.1993 and on 1.6.1994 in the jurisdictional police station alleging their illegal trespass. The concerned police registered the case at Crime No: 150/1993 and investigation is in progress. Since the defendants did not heed to the request to quit and vacate the schedule property, he caused legal notice to them on 10.11.1994 calling upon them to vacate. The said notice was served on defendant no.3 and 4, whereas others avoided to receive them. That the defendants have no manner of right, 5 O.S.No:7669/1994 title or interest over the schedule property or any part of it. Wherefore alleging that cause of action for the suit arose on 5.5.1993 and on 1.6.1994 and also when he caused legal notice on 10.11.1994, the plaintiff prays for judgment and decree to declare that he is the absolute owner of the schedule property; to direct the defendants to deliver possession of it and for permanent injunction to restrain them or anybody claiming under them from interfering in his possession.
4. The defendant no.1, 2, 5 and 6 appeared and filed common written statement denying the substantial plaint averments as false, frivolous and vexatious. Further they contend that sites no.53 and 54 were formed in sy.no.24/3 and 25 of Valegerahalli, Kengeri Hobli, Bangalore South Taluk and they were allotted to one Nanajundappa S/o K.C.Kavalappa @ A.K.Kavalappa by way of issuing possession certificate which came to be registered on 22.2.1984. Later the said Nanjundappa on account of his financial need and as he was unable to manage the said property, sold it to Smt.Geethalakshmi W/o Nagaraj and Smt.Gayathri W/o Nataraj (the defendant no.1 and 2) and after obtaining necessary sanction from Kengeri Town Municipality, vendees constructed a residential building and on 26.8.1992 they let out the same to defendant no.3 on a rent of Rs.100/- and advance amount of Rs.1,000/-. As on today the said defendant no.3 is in possession of the schedule property and he is paying rent to the defendant no.1 and 2. In view of the aforementioned facts 6 O.S.No:7669/1994 the contention of the plaintiff that his wife purchased the suit property under registered sale deed and she orally gifted it to him and delivered possession etc., are denied and they are not within their knowledge. Thus they submit that plaintiff must be put to strict proof of his claim. They further allege that one M.S.Mohd.Fakruddin, Secretary of the Malleshwram Tailoring Co-Operative Society Ltd., Bangalore is the close relative of this plaintiff and it appears that in order to cause wrongful loss to the defendant no.1 and 2, the plaintiff might have concocted the documents in collusion with the said person. It is denied that Smt.Ameena Bee was enjoying the schedule property at any point of time and she orally gifted it to the plaintiff and put him in possession. It is further denied that Smt.Ameena Bee had put up some construction in the said property and after receiving the gift the plaintiff engaged a watchman to look after it and he ran away during 1992 during the Cauvery dispute. It is specifically contended that till 1992 the said property was vacant land and construction begun only in the month of August 1992 by defendant no.1 and 2. Without prejudice to the above since vendor of defendant no.1 and 2 was in possession of the schedule property from the year 1983 and later these defendant no.1 and 2 came in possession of it after purchasing the same in 1992, they have perfected their title by way of adverse possession and thus plaintiff has no semblance of right in the schedule property. That the defendant no.4 to 6 are not necessary parties and they are nothing to do with the schedule property, therefore suit is bad for mis-joinder and non-joinder 7 O.S.No:7669/1994 of necessary parties. There is no cause of action for the suit and alleged one is false and invented. Thus on these grounds and other grounds the defendant no.1, 2, 5 and 6 have prayed to dismiss the suit with costs.
5. During the pendency of the suit, plaintiff died and his L.Rs are brought on record. In the mean while the defendants 1 and 2 filed additional written statement contending that BDA has acquired 1 acre 35 guntas in sy.no.25 and 2 acre 37 guntas in sy.no.24/3 of Valegerahalli, Bangalore south Taluk along with neighbouring lands for the purpose of Jananbharathi Layout by issuing preliminary notification on 19.1.1989 and final notification on 19.1.1994. Thereafter Land Acquisition Officer has passed the award on 6.5.1996 and on 22.7.1997 acquiring sy.no.24/3 and sy.no.25 on different dates. In response to the said notifications the defendants 1 and 2 have approached the BDA to regularize their possession over the schedule property and to drop the acquisition proceedings. In view of these things it can be said that Smt.Ameena Bee had no right, title or interest in the schedule property so as to gift the same orally in favour of plaintiff and the plaintiff has not derived any title from her. Since the BDA is not a party to the suit, it suffers from non-joinder and necessary parties. Wherefore on these additional grounds the defendants 1 and 2 have prayed to dismiss the suit once again.
8 O.S.No:7669/19946. The defendant no.3 and 4 as well as defendant no.7 who came to be impleaded later are placed exparte.
7. Based on the said pleadings my predecessors in office have framed the following issues and additional issues:
ISSUES
1. Whether the plaintiff proves that he is the absolute owner of schedule sites and he has been in possession and enjoyment of suit properties?
2. Whether the plaintiff proves that the defendants trespassed into the schedule sites and constructions put up therein are unauthorized and defendant no.1 is in possession?
3. Whether defendants prove that Smt.Geethalakshmi and Smt.Gayathri have been in possession and enjoyment and they have perfected their title by adverse possession and the plaintiff has no right whatsoever to question the possession and rights of owner?
4. Whether the plaintiff is entitled to declaratory relief?9 O.S.No:7669/1994
5. Whether the plaintiff is entitled to ask for possession of the suit schedule properties?
6. Whether the plaintiff is entitled for permanent injunction as prayed for?
7. To what relief the parties are entitled to?
8. What order or decree?
ADDITIONAL ISSUES:
1. Whether the defendants prove that the suit schedule survey number land has been acquired by the Government under the provisions of LA Act?
2. Whether the suit is bad for non-joinder of necessary parties?
8. In support of his case during his life time plaintiff examined himself as PW1 and got marked 8 documents. Later the L.Rs who came on record examined L.R.No.1(d) as PW2 and got marked Ex.P10 to P13. On the other hand the defendant no.1 examined herself as DW1 and defendant no.2 examined herself as DW2. They examined one Krishnamurthy as DW3. In all 34 documents are marked on their behalf. When the matter had reached the stage of argument, L.Rs of the deceased plaintiff filed memo not pressing the suit against 10 O.S.No:7669/1994 defendant no.3 to 7. The same was allowed and suit against said defendants was dismissed. Infact the defendant no.3 and 4 were set exparte from the beginning itself. Thus it can be said that now the dispute in respect of the schedule property is between the L.Rs of the deceased plaintiff on one side and defendant no.1 and 2 on the other side. Heard the arguments of Sri.AVSP, Advocate for the plaintiffs and Sri.MNB, Advocate for defendant no.1 and 2. Perused the written arguments submitted by them as well as the decisions relied.
9. My findings on the above issues are as under:
Issue No.1 : In the negative Issue No.2 : In the negative Issue No.3 : Struck down Issue No.4 : In the negative Issue No.5 : In the negative Issue No.6 : In the negative Issue No.7 : In the negative Addl. Issue No.1 : In the affirmative Addl. Issue No.2 : In the affirmative Issue No.8 : As per final order, for the following:
REASONS Issue No.1 to 3:
10. Since these issues are interwoven, in order to avoid plausible repeated discussion of the very same facts and law, I have taken them simultaneously.
11 O.S.No:7669/199411. On going through the arguments canvassed by the parties, I fully agree with the written submission of plaintiffs' counsel Sri.,KVSP that a party has to stand or fall on the strength or weakness of his own case and he cannot bank upon the weakness of the other side. It is also true that especially when plaintiff comes to the court alleging the infringement of his civil rights and seeks relief like declaration of his title in respect of an immovable property and further relief of recovery of possession, and issues are framed throwing burden on him to prove his allegations, it is certainly for him to prove his each and every element of allegation, before the court can turn to the defendants to ask them to prove their defence. In other words plaintiff has to stand or fall on the strength or weakness of his own case, he cannot imagine to succeed on the weakness of the defendant.
12. Apart from that every case poses to the court distinct facts and there cannot be two identical cases in their entirety so as to decide on the strength of precedents altogether. What I mean to say is that every case has to be weighed and decided on the basis of the pleadings and evidence made available by the parties in it. Only on the reason that in one set of circumstances, Hon'ble Apex Court and High Courts lay down some ratio in some case without examining whether such circumstances exists in a given case, trial courts are not expected to blindly follow the precedents and apply them without thinking far reaching consequences that would follow.
12 O.S.No:7669/1994This is what precisely the Hon'ble Supreme Court said in the case of Narmada Bachao Andolan Vs State of M.P. reported at AIR 2001 SUPREME COURT 1989 relied by Sri.KSVP, Advocate. In the said case at Head Note-'G' illustrating on the doctrine of precedent, Hon'ble Apex Court was pleased to observe that, " the court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact situation of the decision on which reliance is placed, as it has to be ascertained by analyzing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgement of Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper".
13 O.S.No:7669/1994I think the above observation of the Hon'ble Supreme Court is an eye opener to the trial courts and it has to be followed in it's true spirit so that a lis can be resolved effectively and conclusively based on the facts it presents and not on the basis of decisions rendered in different context. The purpose of referring to the said observation and making so much of discussion is that L.Rs of the plaintiff have produced the hosts of decisions whereas the defendant no.1 and 2, who are the only contesting defendants, have produced the certified copies of the judgment and decree of O.S.No:7668/94, O.S.No:7667/94 and O.S.No:9580/97 wherein this very plaintiff had approached the City Civil Courts, Bangalore alleging more or less the very same cause of action, which is narrated in the present case, and relying on the oral gifts made by his wife, but was unsuccessful in all the three cases. The said judgments and decrees are marked at Ex.D29 toD33. With this preliminary observation now I will turn to the case in hand.
13. Hear is a case where the deceased plaintiff alleges that his wife purchased the suit property consisting of two vacant sites under registered sale deed and later she orally gifted to him as per their personal law and by virtue of that gift he became the absolute owner of the suit property wherein they have allegedly constructed a residential building in the portion of it. He further alleges that now that property is illegally occupied by the defendants and accordingly he seeks for declaration of his title and for recovery of possession. Per 14 O.S.No:7669/1994 contra the defendant no.1 and 2 allege that they together purchased the said sites under registered sale deed and it is they who have constructed the building there. Thus what can be gathered is that so far as identity of the schedule property is concerned there is no dispute between the parties. As an alternative plea the defendants have also set up a plea of their title by way of adverse possession, keeping this point in mind my learned predecessor has framed issue no.3 covering the same. It is unnecessary to say that unless the plaintiff is able to prove his case, it would be incorrect to look into the pleas that are canvassed in the written statement. In this context I have gone through the evidence of deceased plaintiff and his L.Rs again and again. It is once again emphasized that plaintiff is seeking to declare his title to the suit schedule property on the basis of oral gift made by his wife and not on the basis of sale deed allegedly executed in her favor. This is the clinching point which largely decides the case in hand. Incidentally court has to examine flow of title and possession before it examines the validity or otherwiseness of the oral gift under the personal law of the plaintiff. But unfortunately the quality of evidence, let alone its quantity, is very poor. I must vouch that there is no proper attempt by the deceased plaintiff or by his L.Rs to stand to their case. Let me have a cursory look at the documents relied by the plaintiff. The Ex.P1 is the certified copy of the registered sale deed dt.18.3.1981 executed by the Secretary of Malleshwaram Tailoring Co-operative Society Ltd., alienating site no.53, 54 and 55 of sy.no.25 for consideration of 15 O.S.No:7669/1994 Rs.4,000/-. The Ex.P2 is the alleged declaration written on Rs.10/- stamp paper on 30.10.1984 stating that Smt.Azeema Bee, the wife of plaintiff made that declaration stating that she is orally gifting the sites purchased under Ex.P1 and three more sites bearing no.37, 38 and 39 of sy.no.49/1 of T.Dasarahalli Extension, Yeshwanthpura Hobli in favour of this plaintiff. In the said declaration on Page No.3 at Para-5 it is stated that donor is already put the donee in possession of said properties and it is attested by two witnesses and it is executed before a Notary. The Ex.P3 is the Patta Receipt Book issued by the Village Accountant of Kengeri Hobli regarding the sites purchased under Ex.P1. The Ex.P4 is the letter of the plaintiff to the Chief Officer, Town Panchayath, Kengeri to effect khata in his name. The Ex.P5 is the copy of the legal notice issued to the defendants. The Ex.P6 to P8 are other correspondences and representations of plaintiff to the Secretary, Village Panchayath,Kengeri, Commissioner, TMC, Rajarajeshwarinagar, Bangalore and The Deputy Commissioner, Bangalore alleging the illegal acts of the defendants herein. The Ex.P9 is a letter dt.1.4.2013 by the Liquidation Officer of Malleshwaram Tailoring Co-operative Society Ltd. The Ex.P10 is the certificate of registration of the society, the Ex.P11 is the order passed by the Additional Registrar of Co-operative Societies liquidating the said Malleshwaram Tailoring Co-operative Society Ltd. The Ex.P12 is the copy of the resolution dt.12.12.1982 passed by the said society and Ex.P13 is a portion of the Audit Report. The discreet reference to each document produced by the 16 O.S.No:7669/1994 deceased plaintiff and his L.Rs show that they have no such formidable case.
14. Had it been the case of declaration of title based on the sale deed executed in favour of Smt.Azeema Bee certainly things could have been bit more convincible, but by coming up with the so-called oral gift deed, I would say that, the deceased plaintiff has weakened his own case. When the deceased plaintiff sets up the oral gift deed, it is incumbent on his part to prove the essentials of valid oral gift under the provisions of MAHOMEDAN LAW. To know about the oral gift which is known as HIBA under the personal law of Mahomedans, one has to refer to the book written by learned Author MULLA titled as MAHOMEDAN LAW. Therein explaining the circumstances the learned author writes that writing is not essential for the validity of a HIBA of an immovable property or movable property however three essentials have to be invariably established to hold such HIBA as valid and legal. The said three essentials are that there must be a declaration of gift by the donor, the acceptance of said gift either express or implied by or on behalf of donee and lastly delivery of possession of subject matter of the gift to the donee. It is also stated that incase of possession of an immovable property unless the donor physically departs from the premises with all his goods and chattels and the donee formerly enters into possession of such property, HIBA will not be completed. To ascertain these 17 O.S.No:7669/1994 things one can refer to the Sections:138 to 172 of the said book.
15. Here in this case the alleged oral gift is between the wife and the husband. No-doubt there is no necessity for the donor to lift her bags and baggages and deliver possession to her husband by placing him in actual possession of the said property, yet to prove the factum of possession credible evidence is to be placed as an edifice of a valid gift. I am sorry to say that in the case in hand though the deceased plaintiff produces the certified copy of the sale deed executed in favour of his wife by the Malleshwaram Tailoring Co-operative Society Ltd., as admitted by him on Page no.8 of his cross-exam, society has issued possession certificate to his wife since they have lost it, he is unable to produce the same. Even he went on to say that he gave complaint for having lost that document, but in this case he has not produced the copy of the said complaint or the acknowledgement given by the concerned police as it is produced in another case. This is how he shirks away from producing the document which is the very foundation of delivery of possession of three sites allegedly purchased by his wife Smt.Azeema Bee under Ex.P1. The non- production of possession certificate and his alleged story of misplacing of it and non-producing of document to prove filing of complaint having lost it has to be seen in the back ground that the said Secretary of the society viz; M.S.Mohd. Fakruddin is his cousin and from the said society he purchased six sites 18 O.S.No:7669/1994 and his wife Smt.Azeema Bee purchased another 6 sites. This only shows a malady that was prevailing in the administration of the said society, which led to its liquidation as evidenced by Ex.P9 to P12. The order at Ex.P11 is self-explanatory and it sets out that, the said society indulged in land dealing against it's byelaws and lands were purchased from the land holders without any valid title deeds and by laying flats indiscriminately, were distributed to the kith and kins of the Directors, who were managing the said society then. Noticing all those illegalities as could be seen from Ex.P9 and P11, the said society was liquidated with previous approval of the government. The purpose of referring to the said proceedings is that mere production of certified copy of the sale deed by deceased plaintiff, which is standing in the name of his wife on it's own do not prove the title to the suit sites. Whenever an immovable property is transacted delivery of possession of the said property from the vendors to the vendee is an essential ingredient. If it is not accomplished there would not be a valid sale transaction. Here is a case the deceased plaintiff has no possession certificate to prove the delivery of possession of three sites by the society to his wife. Perhaps for the said reason he has no documents from the Village Panchayath or from the CMC, Kengeri to prove his alleged possession before his alleged dispossession in 1993. On the other hand by producing the possession certificate and the khatha extracts of Village Panchayath and CMC, the defendants have shown that earlier their vendor was in possession and now they are in 19 O.S.No:7669/1994 possession of the said properties. In so far as their possession is concerned it is not in dispute as admittedly suit is for recovery of possession also. Only what I want to highlight is the possession of their vendor before he executed the sale deed in their favour. For this I refer to the documents relied by them.
16. Among the documents produced by them, the important one is Ex.D23. It is the receipt issued by the Malleshwaram Tailoring Co-operative Society Ltd., dt 23.2.1983 having received Rs.4,052/- from Nanjundappa towards site no.53 and 54. It shows that the defendants' vendor was also the member of the said society and from him also the amount was collected by the society. Then the next document is possession certificate produced at Ex.D9, issued to the said Nanjuandappa on 22.2.1984. It shows that site no.53 and 54 in sy.no.24/3 and 25 were allotted to him and possession was delivered to him. It is true that the defendants have not produced the registered document i.e. the sale deed executed in favour of their vendor by the society though it is stated in the possession certificate, however the further documents viz; the tax paid receipts dt.9.4.1992 produced at Ex.D10, again which is in the name of Nanjundappa shows that he was paying tax to the Kengeri CMC much earlier to the date of suit. The khata extracts produced at Ex.D11 and D12 issued for the years 1982-83 to 1992-93 and 1983-84 respectively, which are in the name of Nanjaundappa, reveal that even before filing of 20 O.S.No:7669/1994 this suit, sites no.53 and 54 measuring 40 feet x 50 feet were stood in his name and he was paying taxes to the said authority. One cannot doubt these documents since as on the date of those documents there was no suit pending in the court touching to this suit property. Admittedly the suit in hand was filed on 24.12.1994. One can understand if the documents come into existence during the pendency of the suit, in addition to these documents the defendants have also produced the registered sale deed executed by their vendor on 18.7.1992 at Ex.D16 with the application made by them for effecting khata and change of khata in their names which is evidenced by Ex.D14 and Ex.D15. These documents are dt.27.7.1992 and 24.4.1993. The Ex.D13 is the tax paid receipt dt.24.4.1993 paid in the name of defendant no.1 and 2. So from these documents which have their source from the public office, one has to believe their contents. The purpose of referring to the said documents which evidence the possession of defendants vendor Nanjundappa and after execution of sale deed their possession show that in the year 1982-83 itself the defendants vendor had constructed AC sheet residential building in site no.53 and 54 and he was enjoying it and after alienating the said property, he delivered possession to the defendants 1 and
2. This fact rules out the genunity of Ex.P2 altogether. If really Smt.Azeema Bee was in possession of the said sites so as to orally gift to her husband on 30.10.1984, these documents of defendants could not have come into existence. Surprisingly without producing the documents from the competent authority 21 O.S.No:7669/1994 to prove his possession plaintiff comes up with patta receipt book / Ex.P3, which is meant for agriculture lands and not for sites. It is meaningless to contend that Village Accountants can issue patta book for sites.
17. In the written arguments alleging that by managing the CMC authorities the defendants have got up the documents, in the very next breath by referring to the decisions reported at AIR 2003 KAR 434 in the case of Kenchawwa Vs. Amogonda and others and ILR 1999 KAR 1524 in the case of A.V.Rangacharya & Anr. Vs Pillanjinappa & Anr., the L.Rs of the deceased plaintiff contended that since their documents like sale deed/Ex.P1 and patta receipt book/Ex.P3 are public documents and since their genunity is not attacked they expect the court to act upon them. While making such submission they forget that the very same principle also applies to the documents produced by the defendants. As held in the Kenchawwa's case unless the contrary is proved, court cannot disbelieve the khatha extract, khatha certificate and tax paid receipts produced by the defendants. Once this conclusion is arrived, the story set up by the deceased plaintiff that himself and his wife constructed in site no.53 and later his wife orally gifted to him and delivered possession as per their personal law is liable to be rejected out rightly. The cross-examination of PW1 shows that he has no piece of document to prove the construction made either by his wife or by him. On the contrary the contents of Ex.P1 show that the said society which indulged 22 O.S.No:7669/1994 in illegal activities of forming layouts without approval and selling them indiscriminately to whomsoever it liked and selling more than one site to one family, strangely put a condition in the sale deed that the vendee has to construct in the site after obtaining necessary sanction from the competent authority. In that context to prove the construction if any made by him, the deceased plaintiff or his L.Rs ought to have produced some credible documents, but no such documents are forthcoming from them.
18. The way the arguments is canvassed by the L.Rs of the plaintiffs show that instead of proving their case on the strength of their own pleadings and evidence, rather they try to make out a case for themselves on the weakness of the defendants, which is impermissible in law. When they say that their sale deed is reliable, without producing its original much less the possession certificate, they contended that Ex.D16 is not reliable which is also a registered document and which is not set aside by the competent court. By referring to the decision reported at 2012(3) KCCR 2395 in the case of Smt.Shakunthalamma Vs Smt.Koushalya and Others, it was contended that once they prove their title and since their relief takes care of the Ex.D16 they need not seek for it's cancellation. If the same yardstick is applied to Ex.P1 by referring to the documents relied by the defendants, again the plaintiffs will be in troubled water. It is true that in the decision reported at AIR 2008 SC 901(1) in the case of Gurunath 23 O.S.No:7669/1994 Manohar Pavaskar and Ors Vs Nagesh Siddappa Navalgund and Ors, 2009 SCC Online Kar 10 in the case of Boramma Vs Srinivasa, ILR 2006 KARNATAKA 3018 in the case of Avvamma Vs The State of Karnataka, by its Secretary and Others and 2013(4) KCCR 3190 in the case of M.Honnappa and another Vs Dundamma, the Hon'ble Courts held that revenue documents cannot be equated with title deeds and they do not prove the title of a person and it is also stated that based on vardi title to an immovable property cannot be changed etc., one should not forget that the benefit of presumption of possession available with the khatha extracts and khatha certificates of Nanjundappa, which came into existence decade earlier to the suit and considerably earlier to the alleged HIBA, stands fotified. That is why at the beginning of my discussion I said that every case has to be decided based on the facts it presents and not on the basis of the decisions rendered in different context.
19. It is true that to prove the sale deed examination of attestor is not required as held in the decision reported at ILR 2008 KARNATAKA 923 in the case of Smt.V.Aruna Vs Smt.Gowramma and Others and there can be no ambiguity on it. It is also true that evidence, proceedings and judgement of criminal courts have no probative value while deciding the civil dispute as held in the decision reported at AIR 2015 SC 3389 in the case of K.Nanjappa (Dead) by LRs Vs R.A.Hameed alias Ameersab (Dead) by LRs. and another, so for that matter I 24 O.S.No:7669/1994 would say that I have not given importance to the deposition of Haji Mohaad Imamsab, complaint filed by the deceased plaintiff to the Sub-Inspector of Police, Kengeri, endorsement issued by the said police and the deposition of Firoz Shariff and Mohammed Dastagir in the said criminal case and judgment in CC No:6217/95, which are produced at Ex.D1 to D6 respectively. Similarly I have not given importance to Ex.D29 to D33, the judgements of civil courts rendered in different suits, no matter those suits were also filed by the very deceased plaintiff based on the very same cause of action, but in respect of other sites which he allegedly purchased or which he got them under oral gift from his wife like in this case and was unsuccessful in all those suits.
20. Having made this much deliberation on the documents produced by the either side I will now turn to the oral evidence of PW1 and PW2 to find out atleast will they able to convince the court through their oral evidence. With pain I must say that even the said evidence is not up to the mark. In the cross-examination of PW1 it was demonstrated that he did not get khata in his name or in the name of his wife Smt.Azeema Bee and their family is allotted 12 sites from the society as Secretary is their relative. When Ex.D11 and D12 show the existence of AC sheet house in site no.53 and 54 in 1982-83 itself in the name of Nanjundappa, the PW1 stated that they constructed house in the year 1989, but he has no documents to show that he purchased the construction 25 O.S.No:7669/1994 materials. When he fairly conceded that Secretary is his relative, PW2 denied it. Therefore even their oral testimony does not inspire confidence in the mind of court to accept the plaintiff's case from any angle. For the foregoing discussion notwithstanding the fact that the oral gift among Mohammedans need not be through a written document much less through a registered document as observed by the learned Author Mulla and also in the decision reported at AIR 2000 KARNATAKA 318 in the case of G.Mujeer Ahmed and another Vs Mohammed Zafrulla relied by the L.Rs of the deceased plaintiff, yet they fail to prove the valid execution of HIBA.
21. When the plaintiff has come to the court seeking to declare his title, I fail to understand why issue no.3 was framed, which deals with the title of the defendants 1 and 2 and also their alternative plea of adverse possession. Of-course court could have resorted to it had the deceased plaintiff was successful in proving the issue no.1 and 2 thrown on him. Therefore holding that issue no.3 is redundant and it requires to be struck down, I strike it down. If this conclusion is reached I think the decisions reported at 2006 AIR SCW 4368 in the case of T.Anjanappa and Ors Vs Somalingappa and Anr, AIR 2008 SC 346 in the case of Annakili Vs A.Vedanayagam and Ors, AIR 2003 SC 3907 in the case of Deva (dead) thr. LRS Vs Sajjan Kumar (dead) by L.Rs, 2008 AIR SCW 5682 in the case of Kurella Naga Durva Vidya Bhaskara Rao Vs Galla Jani Kamma alias Nacharamma and 2007 SCC Online KAR 365 in 26 O.S.No:7669/1994 the case of Consolidated Coffee Limited, South Coorg District Vs M.Satish, which are with reference to the plea of adverse possession have no bearing in this case. The contention of the L.Rs of the plaintiffs that defendants cannot take pleas which are mutually destructive as held in the decision reported at 2015(4) AKR 505 in the case of Smt. Annapurnamma Vs Smt.Sarojamma will also not come to their rescue. For the foregoing discussion I am fully convinced that the deceased plaintiff and his L.Rs have miserably failed to prove the issue no.1 and 2 whereas issue no.3 is struck down by exercising the power vested in this court U/O 14 Rule 5 of CPC. Accordingly I answer issue no.1 and 2 in the negative and strike down issue no.3.
Additional issue no.1 and 2:
22. Since these two issues are co-related, I have taken them for simultaneous discussion.
23. By filing additional written statement the defendant no.1 and 2 contended that since during the pendency of the suit sy.no.25, which came to be acquired by the BDA for the purpose of formation of Jnanabharathi Layout and award was also came to be passed by the competent authority, suit is not maintainable in the absence of said BDA as a party. But in the written arguments expanding the said submission it was argued that Malleshwaram Tailoring Co-operative Society and their vendor Nanjundappa are also necessary parties and in their 27 O.S.No:7669/1994 absence matter cannot be decided effectively. In order to prove that BDA is a necessary party, the defendants have placed some documents on record. I have gone through them. As rightly pointed out by the defendants the certified copy of the awards of sy.no.24/3 and sy.no.25 produced at Ex.D17 and D18 show that by following the provisions of Land Acquisition Act, the BDA acquired both survey numbers vide award dt.6.5.1996 and 22.7.1997 respectively. Admittedly the suit sites are part of sy.no.25. When the whole land is acquired, one can imagine the fact of suit sites which are part of it. As could be seen from the award the said acquisition was objected by the defendant no.1 and she submitted a representation and regarding which an acknowledgement was issued by the BDA which is produced at Ex.D22. The one more document viz; the award notice produced at Ex.D19 shows that having acquired the entire sy.no.25, the LAO issued notice to the defendants 1 and 2 to receive compensation in respect of the portion of property held by them. In pursuance to the award passed, mutation was also effected as evidenced by Ex.D20, which is the certified copy of the M.R.No:5/2000-01. In addition to that the RTCs produced at Ex.D7, D8, D21 and D28 of sy.no.24/3, 25 show that no-longer the said properties either belong to the original owner or to the parties to the suit. The name of the BDA is shown in Column No:9 and 12(2) of RTCs indicating that the BDA is the rightful owner of the said property now.
28 O.S.No:7669/199424. Regarding the said further development, the L.Rs of the plaintiff referred to the decision reported at ILR 2008 KAR 923 in the case of Smt.V.Aruna Vs Smt.Gowramma and others and canvassed that even if the BDA has acquired that land, since this dispute is between the two private individuals, the said acquisition will not have any impact on the suit in hand. According to me the said submission cannot be accepted for the simple reason that the subsequent development which makes this suit redundant will fetch nothing to the parties. When there is no iota of evidence to show that either the deceased plaintiff or the L.Rs of the deceased plaintiff ever approached the BDA for cancellation of notification or to drop the acquisition proceedings, now they cannot contend that they can establish their rights. At any rate with the findings on issue no.1 and 2 having gone against the plaintiff, nothing survives for considering their plea. In the absence of BDA if the title to the schedule property is declared, that will not confer any valid title to the plaintiff wherein now the BDA has it's title and interest. It must be borne in mind that in the present suit in addition to seeking declaration of title, the deceased plaintiff is also seeking for possession that cannot be resorted without hearing the affected party i.e. the BDA. Even if holding that BDA is not necessary party, the title is declared and possession is ordered to be delivered to the L.Rs of the plaintiff, it is nothing but indirectly setting aside the award passed by the competent officer to the extent of suit property, to which the jurisdiction of this court does not extend. In other words any 29 O.S.No:7669/1994 legality of the notification and acquisition proceedings can be challenged only before the Hon'ble High Court. Wherefore I hold that the BDA is a necessary party. In so far as Malleshwaram Tailoring Co-operative Society Ltd., and Nanjundappa are concerned, as it is afterthought the same cannot be considered. In the decision reported at 2004 AIR SCW 1842 in the case of Shipping Corporation of India Ltd., Vs Machado Brothers & Ors, Hon'ble Apex Court had an occasion to consider whether a suit can be held infructuous on account of subsequent events? Answering that point in the affirmative Hon'ble Court held that suit can be dismissed if such events makes it infructuous. For the foregoing discussion I answer both issues in the affirmative.
Issue No.4 to 7:
25. As could be seen from all these issues, they deal with the reliefs to be granted to the plaintiff, I have taken them at a time.
26. With the negative finding on issue no.1 and 2, it is only a formality to say that the plaintiff is not entitled for the relief of declaration of title and the further relief of recovery of possession. Regarding the further consequential relief of permanent injunction, I wonder whether can such a relief be granted when admittedly plaintiff is out of possession as on the date of suit itself. So with regard to the last prayer I need not say much. But before parting with the final findings on the 30 O.S.No:7669/1994 issues in hand I would like to touch upon the other grounds that are canvassed by the L.Rs of the deceased plaintiff.
27. It was strangely contended that since the plaintiff has died and his wife Smt.Azeema Bee is brought on record as plaintiff no.1(a), the Ex.P2 may not be of much importance. I really surprised by the said line of argument. When the suit itself is based on Ex.P2 viz; the alleged HIBA, death of plaintiff and substituting of his L.Rs will not take away the nature of the case and its substance and court cannot declare the title based on the alleged sale deed held by Smt.Azeema Bee, which is produced at Ex.P1. It was canvassed that since the said sy.no.25 came under the jurisdiction of Kengeri Town Municipal Council and later in the limits of BBMP and on account of Akrama-Sakrama Scheme, the plaintiffs are unable to get khata in their name, when the question of khata of the defendants came, they allege that by managing the Village Accountant they have obtained those documents. This is how some diametrically opposite arguments were canvassed by the plaintiff. Their written arguments that society could not execute sale deed for more than 3000 sites etc, would show the magnitude of mis-management committed by the society. In a given situation court cannot give its stamp of approval to such ill-deeds. The entire written arguments of the plaintiffs show that they are somehow trying to make out a case for themselves on the weak lings of defendants. Even a question was also raised whether the defendants are bonafide 31 O.S.No:7669/1994 purchasers? when there is no such case. Therefore viewed from any angle I do not find any substance in the written arguments as well as pleadings and evidence made available.
Therefore I have no other option except to answer all these issues in the negative.
Issue No.8:
28. In the result, I proceed to make the following:
ORDER Suit is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then signed and pronounced by me in the open court on this the 22nd day of March 2016) (Ron Vasudev), III Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on behalf of plaintiff/s:
PW1 Mohammed Dastagir PW2 Mohammed Ameen
List of documents marked on behalf of plaintiff/s:
Ex.P1 Certified copy of the sale deed 19.3.81
32 O.S.No:7669/1994
Ex.P2 Certified copy of the declaration 30.10.94
Ex.P3 Certified copy of the Patta book
Ex.P4 Certified copy of the letter 6.11.97
Ex.P5 Legal notice 12.11.94
Ex.P6 Notice given to Village Accountant 23.1.93
Ex.P6(a) Certified copy of the postal acknowledgement
Ex.P7 Certified copy of the notice to Village Accountant
Ex.P8 Certified copy of the application to D.C. 28.11.94
Ex.P9 Letter to plaintiff 1.4.13
Ex.P10 Certificate of Registration 20.10.64
Ex.P11 to P13 Documents produced by Malleshwaram Society List of witnesses examined on behalf of defendant/s:
DW1 Geethalakshmi DW2 Gayathri DW3 P.R.Krishnamurthy
List of documents marked on behalf of defendant/s:
Ex.D1 Certified copy of the deposition in CC.6217/95
Ex.D2 Certified copy of the complaint
Ex.D3 Certified copy of the endorsement by police
Ex.D4 Certified copy of the deposition of Firoze Shariff in
C.C.6217/95
Ex.D5 Certified copy of the deposition of plaintiff in
C.C.6217/95
Ex.D6 Certified copy of the judgment in C.C.6217/95
Ex.D7 & 8 RTC extracts
Ex.D9 Possession certificate
Ex.D10 Tax paid receipt
Ex.D11 & 12 Assessment Register Extracts
Ex.D13 Tax paid receipt
Ex.D14 Khatha endorsement
Ex.D15 Assessment extract
Ex.D16 Sale deed 18.7.92
Ex.D17 Copy of award 6.5.96
Ex.D18 Copy of award 22.7.97
Ex.D19 Notice 20.10.97
Ex.D20 Mutation extract
33 O.S.No:7669/1994
Ex.D21 RTC extract
Ex.D22 BDA acknowledgement
Ex.D23 Receipt
Ex.D24 Lease agreement
Ex.D25 Certified copy of the order sheet in O.S.9633/04 Ex.D26 Certified copy of the plaint in O.S.9633/04 Ex.D27 Certified copy of the valuation slip Ex.D28 Phani copy Ex.D29 Certified copy of the judgment in O.S.7668/94 Ex.D30 Decree in O.S.7668/94 Ex.D31 Certified copy of the judgment in O.S.7667/94 Ex.D32 Certified copy of the decree Ex.D33 Certified copy of the judgement in O.S.9580/97 Ex.D34 Certified copy of the decree in O.S.9580/97 III Addl.City Civil & Sessions Judge, Bengaluru.