Bangalore District Court
Nishat Farooki vs Md Ahsan M Farooki on 9 February, 2024
1
O.S.No.8805 / 2015
KABC010242002015
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY (CCH-28)
Present: SMT SHAINEY K.M., LL.M.,
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 9th day of February, 2024
O.S.No. 8805 / 2015
Plaintiff:- Smt. Nishat Farooki,
W/o Badruddin @ Masood,
Aged about 42 years,
R/a No.7, P.No.66/1,
Saraipalya Main Road, Thanisandra,
Dr. S.R.Karanth Post,
Bengaluru - 560 077.
(By S.J.Kumar, Advocate)
-Vs.
Defendants:- 1. Sri. Md.Ahsan M. Farooki,
S/o Abdul Mabood,
Aged about 45 years,
R/a No.6, Saraipalya Main Road,
Thanisandra, Dr. S.R.Karanth Post,
Bengaluru - 560 077.
2. Sri. Abdul Mabood,
S/o Late Basharath Hussain,
Aged about 82 years,
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O.S.No.8805 / 2015
R/a No.6, P.No.66/1,
Saraipalya Main Road, Thanisandra,
Dr. S.R.Karanth Post,
Bengaluru - 560 077.
(By Sri. Syed Khaleel Pasha, Advocate
for D.1)
(By Sri. CVR, Advocate for D.2)
Date of Institution of the 16.10.2015
suit
Nature of the suit Declaration & Permanent
Injunction
Date of the commencement
of recording of the evidence 14.12.2017
Date on which the 09.02.2024
judgment is pronounced.
Total duration. Year/s Month/s Day/s
08 03 23
JUDGMENT
1. This is a suit for declaration of title and further declaration to declare the power of attorney dated 30.11.2005, Gift deed dated 24.10.2011, and Rectification deed bearing document No. BNS-1- 108304/2011-12 are not binding on the plaintiff and consequential relief for permanent injunction.
2. The brief facts of the plaintiff's case are as under:-
2.1 It is averred that the plaintiff had purchased the property 3 O.S.No.8805 / 2015 bearing No.7, situated at Thanisandra Village, consisting of two squares AC sheet house, vide registered sale deed dated 14.01.1999 from one Narayanaswamy. The plaintiff herein having purchased the above said site bearing No.7, vide registered sale deed dated 14.01.1999, got her name mutated in the revenue records maintained by CMC, K.R.Puram, Bengaluru. The plaintiff after purchasing the site bearing No.7 along with 2 squares AC sheet house, had put up construction of 7 squares residential building in the year 2007.
2.2 It is averred that the plaintiff is residing in the said house bearing property No.7, which is described as item No.1 in the suit schedule. She is the absolute owner of the property bearing No.7, khatha No.917, situated at Thanisanra Village, measuring 4365 sq. ft. of Thanisandra Village, K.R.Puram, in which there was 9 squares building. The plaintiff had purchased item no.2 the property bearing site No.1, khatha No.1116/1 of Thanisandra Village, vide registered sale deed dated 23.03.2001 from K.Padmanabhaiah and it is registered as Document No.12592/2000-01.
2.3 It is averred that after purchasing the property, she got transferred the revenue records of the property to her name. The 4 O.S.No.8805 / 2015 plaintiff also has constructed two storied building in site No.1, consisting of 4 shops and a house on the hind side of the shops on ground floor and three residential tenements in the 1st floor measuring in all 20 squares. She has let out two shops and all the residential units located in item No.2 of the schedule property.
These properties are self-acquired properties of the plaintiff. The plaintiff was serving as a Teacher at Gorakhpur of Uttar Pradesh and then she shifted to Bengaluru prior to her marriage. The plaintiff is residing in the address shown in the cause-title of the plaint.
2.4 It is averred that the plaintiff is a homemaker and settled at her matrimonial house. Suit properties are self acquired property of the plaintiff and has developed the said properties from the advance amount received from her tenants of item No.2 of schedule property. It is alleged that the defendants have no right, title and interest over the schedule properties. 2.5 It is averred that when things stood thus, the defendant No.1 herein started to harass the plaintiff compelling her to convey the schedule properties to his name, however, She refused to do so. So, she was assaulted and abused by defendant No.1. The plaintiff has lodged a police complaint with the jurisdictional police 5 O.S.No.8805 / 2015 station over the highhanded arbitrary act of the defendant No.1. The defendant No.1 was called upon to the jurisdictional police station and was admonished for his action. The defendant No.1 being not able to get the document of conveyance in his favour through the plaintiff, he colluded with the defendant No.2 and has fabricated a power of attorney dated 30.11.2005 said to have been executed by plaintiff authorizing the defendant No.2 as an agent to act on her behalf in accordance with the terms and conditions stated therein.
2.6 It is averred that the defendant No.2 fabricated power of attorney dated 30.11.2005 has executed a gift deed dated 24.10.2011 to the defendant No.2. Gift deed dated 24.10.2011 and GPA dated 30.11.2005 are not binding on the plaintiff. The gift deed was executed by defendant No.2 in favour of defendant No.1 with a sole intention of knocking off the valuable property of the plaintiff. The plaintiff has also came to know about the rectification deed dated 15.12.2011. Rectification deed was registered as Document No. BNS-1-108304/2011-12 in the Office of the Sub- Registrar, Banasawadi, Bengaluru.
2.7 It is averred that on 17.01.2012, defendant No.1 was distributing the copies of the gift deed to the plaintiff's tenants who 6 O.S.No.8805 / 2015 are residing in item No.2 of the schedule property. The plaintiff immediately issued a paper publication in the daily newspaper "SALAR DAILY" dated 22.01.2012 bringing to the knowledge of the general public not to transact with the defendant No.1 in respect of suit schedule properties as he had fabricated and forged the documents to create title in his favour based on the fabricated documents. The plaintiff questioned the defendants regarding the gift deed and the highhanded action of them in fabricating the same to create title in favour of defendant No.2. The defendant No.2 gave an evasive reply and supported the documents that was created by him. The defendant No.2 also assaulted the plaintiff for questioning his actions. 2.8 It is averred that the plaintiff left with no other alternative, has lodged a complaint dated 24.01.2012 with Hennur police station against the defendants, which was registered as Crime No.21/2012 for the offence punishable under Sections 468, 471 & 403 r/w Section 34 of IPC. Investigating Officer has submitted charge sheet against the defendants in CC No.4548/2013 for the offences punishable under Sections 468, 471, 472, 420, 403 & 120-B of IPC. In said case, the trial has to commence before the 4th ACMM, Bengaluru.
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O.S.No.8805 / 2015 2.9 It is averred that during the course of investigation in above criminal case, the Investigating Officer has sent the disputed gift deed dated 24.10.2011 and GPA dated 30.11.2005 to the State Forensic Science Laboratory along with specimen signatures of the plaintiff to test the genuineness of the complaint of the plaintiff. The Forensic Science Laboratory has submitted a report dated 05.12.2012 to Investigating Officer. The report clearly establishes that there has been fabrication of documents by the defendants under the gift deed dated 24.10.2011 and GPA dated 30.11.2005. It is contended that plaintiff has not executed gift deed to 1 st defendant nor GPA in favour of defendant No.2. The forensic report clearly shows that the plaintiff has not executed the power of attorney, based on which gift deed in question. 2.10 It is averred that the defendant No.1 having found that the plaintiff had initiated a criminal proceedings against him and his father, has filed a suit in O.S.No.25164/2012 for a decree of permanent injunction. The defendant No.1 has clandestinely fabricated khatha extract pertaining to the suit schedule properties behind the back of the plaintiff. The defendant No.1 is claiming title of schedule properties on the strength of the gift deed and same has been pleaded by him in the previous suit. The plaintiff has 8 O.S.No.8805 / 2015 contested the above suit and filed written statement. 2.11 It is averred that the plaintiff has let out shops, houses constructed over item No.2 of the schedule property on rent to the tenants and has been exercising rights of ownership. The plaintiff is residing in item No.1 of the schedule property. Hence, this suit for declaration of title and to declare that the above deeds are not binding on the plaintiff and consequential relief of permanent injunction.
3. The defendants have put their appearance before this Court through their Counsels, however, they did not contest the suit nor filed written statement.
4. The plaintiff was examined herself as Pw.1, and Ex.P.1 to Ex.P.30 were marked as exhibits in evidence and closed her evidence. Counsel for defendants has partly cross-examined Pw.1. On 12.12.2023, the further cross-examination of Pw.1 was taken as closed. Despite sufficient adjournments, the defendants neither adduced defence evidence nor submitted documents.
5. Heard arguments of the Counsel for the plaintiff. The Counsel for plaintiff has filed a memo with certified copy of judgment and decree passed in O.S.No.25164/2012 on the file of 72nd Addl. City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru 9 O.S.No.8805 / 2015 (CCH-73), dated 30.07.2021. Perused the material placed on record, now following points arise for consideration for the disposal of the case.
POINTS
1. Whether plaintiff proves that she is the absolute owner of the suit schedule properties?
2. Whether plaintiff further proves that the GPA dated 30.11.2005, are forged and fabricated and in view of same, the Gift deed bearing dated 24.10.2011 and Rectification deed bearing Document No.BNS- 1-108304/2011-12 are not binding on her?
3. Whether plaintiff proves the alleged interference of the defendants in respect of the schedule properties?
4. Whether plaintiff is entitled for the relief sought for in the suit?
5. What order or decree?
6. My answer to above points are as under:-
Point No.1 to 4 : In the affirmative.
Point No.5 : As per final order for the
following:
REASONS
7. Point No.1 to 4:- For sake of convenience and to avoid
repetition of facts, these points are discussed together as 10 O.S.No.8805 / 2015 hereunder:
8. This is a suit for declaration of title and consequential relief of permanent injunction. The plaintiff also has sought for further declaration to declare that the gift deed, GPA and rectification deed are not binding on the plaintiff and same are forged documents. Defendants No.1 & 2 are brother and father of the plaintiff herein.
9. It is the burden of the plaintiff to establish that she is the owner of the suit schedule properties. It is the specific plea of the plaintiff that she has purchased item No.1 & 2 of the schedule properties on 14.01.1999 and 23.03.2001, respectively. To prove her title over the schedule properties, the plaintiff has relied on Ex.P.27 & Ex.P.28, the registered sale deeds executed by Narayanaswamy and K.Padmanabhaiah respectively. To prove her contention, the plaintiff has filed affidavit evidence and examined herself as Pw.1. She has reiterated the averments made in the plaint in her evidence.
10. As stated above, the plaintiff has produced the registered sale deed dated 14.01.1999 executed by Narayanaswamy in favour of plaintiff as per Ex.P.27. Aforesaid Narayanaswamy has executed the registered sale deed in respect of site No.7, khatha 11 O.S.No.8805 / 2015 No.917 i.e., item No.1 in favour of plaintiff, under a registered sale deed for a sale consideration of Rs.1,17,000/-. Another sale deed-Ex.P.28 in respect of item No.2 of schedule property clearly discloses that on 23.03.2001, the plaintiff has purchased the property from K.Padmanabhaiah for a valid consideration amount of Rs.60,000/-. Based on these sale deeds, khata and revenue records of the properties transferred to the name of the plaintiff and her name has been shown as owner or occupier in column No.4 of the Form-B Property Register Extract issued by BBMP as per Ex.P.1.
11. It is not in dispute that the plaintiff is the absolute owner of the schedule properties. It is not in dispute that the plaintiff has purchased the schedule properties. It is not in dispute that the sale deeds have been executed in favour of plaintiff herein. Ex.P.3 to Ex.P.8 and Ex.P.10 to Ex.P.14 are the tax paid receipts for the period 2008-2009 to 2013-2014 in respect of item No.1 of the schedule property. The plaintiff has paid property tax in respect of item No.1 of the schedule property regularly from 2008 to 2014.
12. Ex.P.9 is the Form-B property register extract in respect of item No.2 of the schedule property and name of plaintiff has been mentioned as owner or occupier of the property in column No.4 of 12 O.S.No.8805 / 2015 this document. The name of the plaintiff has been entered in this document as owner as per Rule 11 of the Taxation Rules 2008 of BBMP Rules. The plaintiff has paid property tax to BBMP in respect of item No.2 of the schedule property from 2008 to 2013 and it is evident from a perusal of Ex.P.10 to Ex.P.14, respectively.
13. All these title deeds and revenue records and also tax paid receipts placed on record clearly reveals that the plaintiff had purchased these properties and she became the owner of the properties by virtue of the registered sale deeds-Ex.P.27 & Ex.P.28, respectively.
14. It is the case of the plaintiff that the defendants have fabricated the GPA, gift deed and rectification deed and they got transferred the properties without the knowledge of the plaintiff.
On 24.01.2012, the plaintiff has lodged a complaint with the Police Inspector, Hennur police station and through Assistant Commissioner of Police, K.R.Puram Sub-Division, Banasawadi, Bengaluru, as per Ex.P.15. In said complaint, it has been alleged that the defendant No.2, who is none other than the plaintiff 's father who was staying at her home has played fraud and later on, he hatched a criminal conspiracy at the instigation of defendant No.1 (brother) to knock off of the valuable property of the plaintiff. 13
O.S.No.8805 / 2015 Upon receiving the complaint from plaintiff, the police have registered a case against the defendants in Crime No.21/2012 for the offences punishable under Sections 468, 471 & 403 r/w Section 34 of IPC as per Ex.P.16-First Information Report and proceeded with investigation. Investigating Officer has disputed documents to Forensic Science Laboratory and he submitted charge sheet against the defendants for the offence punishable under Sections 468, 471, 472, 473, 420, 403 & 120-B of IPC after collecting opinion of handwriting expert.
15. The charge sheet is part and parcel of Ex.P.16. The First Information Report in Crime No.21/2012, charge sheet submitted by Investigating Officer and the report submitted by State Forensic Science Laboratory in above criminal case were collectively marked as Ex.P.16. The gift deed in question executed by defendant No.2 in favour of defendant No.1 acting as GPA Holder of plaintiff herein has been marked as Ex.P.17. Ex.P.18 is the certified copy of the entire order sheet in respect of CC No.4548/2013 on the file of IV Addl. Chief Metropolitan Magistrate, Bengaluru City. The entire order sheet of the above case, charge sheet submitted by Investigating Officer, First Information Report in Crime No.2/2012, plea recorded by the Court, charge recorded 14 O.S.No.8805 / 2015 by the Court and all connected documents, statements of witness in respect of the above criminal case have been collectively marked as Ex.P.20.
16. The plaintiff has rented out property situated in item No.2 to one Mustak Ahmed as per Ex.P.21. This agreement of rent has been executed between landlord and tenant on 25.09.2012. Ex.P.22 is another rent agreement dated 01.05.2014 executed between plaintiff herein and A.M.Mohammed Ali in respect of Shop No.1, 66/1, situated in item No.2 of the schedule premises. Ex.P.23 is the rental agreement dated 04.03.2014 executed between plaintiff herein and Rafakat Hussain Khan. Ex.P.21 to Ex.P.23 are the rental agreements executed by plaintiff herein in respect of schedule property to different tenants in respect of Shops situated in item No.2 of the schedule premises.
17. All these rental agreements clearly discloses that the plaintiff being landlord in respect of item No.1 & 2 and let out these properties on rent. Ex.P.29 is the registration certificate of establishment - Form 'C' issued by Government of Karnataka, Department of Labour, and a perusal of the same discloses that the plaintiff's husband S.Badruddin Qaudri is running a real-estate business in Shop No.4 of item No.2 of the schedule property and 15 O.S.No.8805 / 2015 on perusal of Ex.P.30 reveals that the plaintiff is running a footwear shop in Shop No.3 of item No.2 of the schedule property.
18. The material placed on record and documents placed by plaintiff including gift deed, GPA, rectification deed including police complaint and charge sheet filed by Investigating Officer in above criminal case clearly discloses that the defendants herein have created the document in question in order to usurp property belonging to plaintiff and they are interfering with the plaintiff's peaceful possession and enjoyment of the schedule property. As far, the defendants have not made any claim in the suit.
19. The defendants had filed a suit in O.S.No.25164/2012 before 72nd Addl. City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru City (CCH-73), for permanent injunction and declaration to title against the plaintiff herein. However, same came to be dismissed on 30.07.2021. In this case, the defendants have not adduced rebuttal evidence to establish that the alleged gift deed or GPA or rectification deed are all genuine documents. It is not the case of the defendants that the plaintiff and her tenants are not in possession of the schedule premises. Moreover, the defendants have not contested the suit nor they filed written statements.
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O.S.No.8805 / 2015
20. Ex.P.16 FIR, ExP:19 and 20, the Charge sheet and charge framed by the court in CC no. 4548-2013 and the expert's opinion would clearly demonstrate that the signature found on GPA in question is not that of the plaintiff. It is clear from the report of Expert that the signature on GPA 30.112005 is forged one. Based on said GPA, defendant no.2 has executed the Gift deed and Rectification Deed in question in favor of 1 st defendant. Therefore, these documents are not binding on the plaintiff and it is the duty of the court to send a copy of he decree to the officer concerned in whose office the instrument has been so registered and such officer shall note on the top of the instrument containing the book the fact of cancellation.
21. Under sec 31 (2) of Act, legislature conferred the power on the Court to send a copy of the cancellation decree to the officer in whose office the instrument has been registered and such office shall note on the copy of the instrument contained in his books, the fact of its cancellation. It is evident from the provision under sec 31 (2) that the power of nullifying the effect of registration is conferred only on the court.
22. The positive evidence adduced by plaintiff has remained unchallenged and uncontroverted. Above all, the defendants have 17 O.S.No.8805 / 2015 not even cross-examined Pw.1. There is no reasons to doubt the oral and documentary evidence placed on record. Hence, point no.1 to 4 are answered in the affirmative.
23. Point No.5:- For the reasons discussed in connection with Points No.1 to 4 and findings given thereon, this Court proceeds to pass the following:
ORDER The suit filed for declaration and permanent injunction is hereby decreed with costs.
It is hereby declared that the plaintiff is the absolute owner in lawful possession and enjoyment of the schedule properties.
It is hereby declared that the GPA dated 30.11.2005, Gift Deed dated 24.10.2011 bearing document No. BNS-1-06546/2011-12 stored in Book No.1 C.D No. BNSD 122 and Rectification Deed document No. BNS-1-108304/2011-12 in the Office of the Sub-Registrar, Banasawadi, Bengaluru are not binding on the plaintiff.
The defendants are hereby restrained by way of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
A copy of the decree be sent to the Sub-
Registrar, Banasawadi, as contemplated under sec. 31 (2) of Specific relief Act, to make 18 O.S.No.8805 / 2015 necessary endorsement of cancellation of GPA and Gift Deed dated, Rectification Deed bearing document No. BNS-1-108304/2011-12.
Issue intimation to the Sub-Registrar,
Banasawadi, Bengaluru.
Draw decree accordingly.
(Dictated to the Stenographer Grade - I, transcribed and typed by him, corrected, signed and then pronounced by me in the Open Court, on this the 9th day of February, 2024) (SHAINEY K.M) XIV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:-
Pw.1 : Smt. Nishat Farooki
DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 'B' Property register extract.
Ex.P.2 CC of Rectification of Gift Deed dated 15.12.2011.
Ex.P.3 to P.5 3 Property tax receipts dated 10.01.2012.
Ex.P.6 Property tax receipt dated 11.01.2012.
Ex.P.7 & P.8 2 Property tax receipts dated 07.10.2015.
Ex.P.9 'B' Property register extract dated 09.10.2015.
Ex.P.10 to 13 4 Property tax receipts dated 17.01.2012.
Ex.P.14 Property tax receipt dated 07.10.2015.
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O.S.No.8805 / 2015
Ex.P.15 CC of complaint dated 24.01.2012.
Ex.P.16 FIR in Cr.No.21/2012.
Ex.P.17 CC of Gift Deed dated 24.10.2011.
Ex.P.18 CC of order sheet in CC No.4548/2013. Ex.P.19 CC of charge sheet in CC No.4548/2013. Ex.P.20 CC of charge in CC No.4548/2013.
Ex.P.21 Rental agreement dated 25.09.2012 executed between Smt.Nishat Farooki and Mustak Ahmed. Ex.P.22 Rental agreement dated 01.05.2014 executed between Smt.Nishat Farooki and Mohammed Ali. Ex.P.23 Rental agreement dated 04.03.2014 executed between Smt.Nishat Farooki and Rafiq Hussain Khan.
Ex.P.24 Rental agreement dated 07.05.2015 executed between Smt.Nishat Farooki and Smt.Shad Taj. Ex.P.25 Rental agreement dated 08.08.2016 executed between Smt.Nishat Farooki and Javid Khurshid. Ex.P.26 Rental agreement dated 29.04.2015 executed between Smt.Nishat Farooki and Smt.Waheeda. Ex.P.27 Original registered sale deed dated 14.01.1999 executed between Narayanaswamy and Smt.Nishat Farooki.
Ex.P.28 Original registered sale deed dated 23.03.2001 executed between K.Padmanabhaiah and Smt.Nishat Farooki.
Ex.P.29 Trade License issued in the name of S.Badruddin Qaudri (Husband of Smt.Nishat Farooki) in respect of Shop No.4.
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O.S.No.8805 / 2015 Ex.P.30 Trade License issued in the name of Smt.Nishat Farooki in respect of Shop No.3.
WITNESSES EXAMINED FOR THE DEFENDANTS:-
- NONE -
DOCUMENTS MARKED FOR THE DEFENDANTS:-
- NIL -
(SHAINEY K.M) XIV Addl. City Civil & Sessions Judge, Bengaluru.
21 O.S.No.8805 / 2015