Bangalore District Court
Razia Begum vs Pyari Jan on 28 February, 2023
KABC0A0043962011
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU.
(CCH-75)
Dated this 28th Day of February 2023.
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G. B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 26750/2011
PLAINTIFF RAZIA BEGUM
W/o Late Syed Mehboob,
D/o LATE Mohammed Abbas,
R/O MS PALYA EXTENSION OF SY.NO.
563 JARAKABANDE KAVAL VILLAGE
YELAHANKA HOBLI BANGLAORE
NORTH TALUK
:Rep by Sri. Shanmukhappa,Advocate.
KESVY & Co.,
V/s
DEFENDANTS: 1 PYARI JAN
W/o Late Sheikh Baba
Aged about 87 years
2 MAQBOOL JAN
Aged about 65 years,
(DEAD)
2
O.S.No. 26750/2011
3 SARDAR
Aged about 63 years
4 PYARI JAN
Aged about 56 years,
5 KHURSHEED
Aged about 57
6 NAWAB JAN
Aged about 55 years,
(DEAD)
7 Sri.Fardah Jan,
Aged about 47 years
8 Smt. Shataj
Aged about 45 years,
9 SAJID
Aged about 44 years
10 Smt. Mumtaj
Aged about 43 years,
Defendants 2 to 10 are children of late Sheikh Baba Saheb.
All are residents of Mohammed Sab Palya,
Yelahanka hobli,
Bengaluru North Taluk.
Represented by their GPA Holder Sri. Ayub Jan,
S/o late Shaik Baba,
Aged about 54 years,
R/at No.14, Arab Lane,
'B' street, Richmond Town,
Bengaluru-560 025.
11 Sri. Khalid
S/o Mohammed Yar Khan,
3
O.S.No. 26750/2011
Aged about 35 years,
R/at No. 15, 1st Steet,
'E' Main, Behind Binny Mill,
Ganganaghar,
Bangalore-560 032
12 Sri. S.R.Rama Rao,
S/o S.r.Rangachary,
Agd about 63 years,
13 Smt. S.R. Sathya,
W/o S.R.Rama Rao
Aged about 56 years,
Defendants 12 and 13 are R/at No.
44, 2nd Main Road, Balaji Layout,
Vidyaranyapura, Bangalore-560 097.
14 Smt. Jaffrim Akthar,
Aged about 45 years,
D/o C.G.Muthanna,
R/at No.145, 3rd cross,
R.K. Gardens, R.M.V. 2nd Stage,
Bangalore-560 054.
15 Mr. Samee Khan,
Aged about 39 years,
R/o No. 176, 3rd cross,
Balaji Layout, Vidyaranyapura,
Bangalore-560 097.
Defendants 1,3 to 5, 7 to 10-Exparte
D11: Mohammed Nasirudhin-Advoate
D12,13 & D15: B.L.Kumar, Advoate
D16: Kumar Laveesh Associates.
Date of Institution of the suit 12/10/2011
Nature of the Suit (Suit on pro-note, DECLARATION AND
4
O.S.No. 26750/2011
suit for declaration and possession,
PERMANENT INJUNCTION
suit for injunction, etc.)
Date of the commencement of
12/11/2021
recording of the Evidence.
Date of pronouncement of Judgment 28/02/2023
Total duration Year/s Month/s Day/s
11 04 16
JUDGMENT
Plaintiff has filed the instant suit for declaration, perpetual prohibitory injunction and cost. FACTS OF THE CASE:
2. Plaintiff's father Mohammed Abbas purchased the suit 'A' schedule property under registered sale deed dated:
28.12.1971. After purchase he permitted his daughter, the plaintiff and her husband to put up construction in a portion of suit 'A' schedule property which is morefully described in the schedule 'B'. Accordingly, plaintiff and her husband put up construction in the suit 'B' schedule property and residing therein. In the year 1992 plaintiff renovated the house by spending Rs. 5 to 6 lakhs. Plaintiff contends that she and her family members have been in possession of the suit B schedule property since 4 decades without any obstruction 5 O.S.No. 26750/2011 from anybody. She contends that 11th defendant filed HRC No.287/2010 against her by contending that he purchased the suit 'A' schedule property under the registered sale deed dated: 30.04.2005 and she is in possession of the house existing in the suit 'B' schedule property as tenant under him on payment of monthly rent of Rs. 2,750/-. In the said HRC petition, the 11th defendant has stated about decree passed in O.S.No. 234/1981 which was confirmed in RFA No.289/1992. Plaintiff contends that she is not a party to the above proceedings. Inspite of the orders passed in the above proceedings she and her family members have been in possession of the suit 'B' schedule property since more than 4 decades. Defendants 1 to 10 who were not in possession of suit 'A' schedule property executed sale deed dated: 30.04.2005 in favour of 11th defendant . On the basis of the said sale deed and the orders passed in O.S.No. 234/1981 and RFA 289/1992 11th defendant claiming ownership over the suit 'A' schedule property and by falsely contending that she is in possession of the suit 'B' schedule property as a tenant under him filed HRC No.287/2010. Plaintiff contends that there is no relationship of land-lord and tenant between 6 O.S.No. 26750/2011 defendant No.11 and her. The sale deed dated: 30.04.2005 executed by defendants 1 to 10 in favour of defendant No.11 is not binding on her. She contends that defendant No.11 is to be restrained from interfering with her possession and enjoyment of the suit A and B schedule properties and/or alienating or creating charge over the said properties. On these and other grounds stated in the plaint, plaintiff prays to decree the suit .
3. During the pendency of the suit plaintiff impleaded defendants 12 to 16 by contending that defendant No.11 executed sale deeds in their favour in respect of portions of suit 'A' schedule property
4. Defendants 11, 12 and 16 resisted the suit by filing separate written statements . They contend that suit 'A' schedule property originally belonged to Shaikh Baba, the paternal uncle of plaintiff. Plaintiff's father Mohammed Abbas by playing fraud on his brother Shaikh Baba got the sale deed dated: 28.12.1971 in his favour in respect of suit 'A' schedule property. After came to know about fraud played by Mohammed Abbas, Shaik Baba filed O.S.No. 234/1981 against Mohammed Abbas for the cancellation of above said 7 O.S.No. 26750/2011 sale deed. After full dressed trial, the said suit was decreed.
Against the said judgment, plaintiff's father Mohammed Abbas filed RFA No.289/1982. The Hon'ble High Court of Karnataka, has dismissed the said appeal on 1.6.1992 by confirming the judgment passed in O.S.No. 234/1981 and directed Shaik Baba to refund the sale consideration of Rs. 1,000/- to plaintiff's father Mohammed Abbas with interest at the rate of 6% per annum. As per the order passed by the Hon'ble High Court of Karnataka on 20.08.1992 Shaik Baba deposited a sum of Rs. 1,180/- in the City Civil Court, Bengaluru. Plaintiff's father Mohammed Abbbas did not challenge the judgment of the Hon'ble High Court of Karnataka in RFA 289/1992. Therefore, the said judgment reached finality. Defendants 12 and 16 contend that after dismissal of RFA No.289/1992 Ayub John, S/o Shaik Baba converted suit 'A' schedule property for non-agricultural purpose. After conversion 3 sites ie., Site No.65/A, 65/B and 65/C were formed in the suit 'A' schedule property. After formation of sites Ayub John as attorney holder of all the legal heirs of Shaik Baba sold site No.65/C in favour of defendant No.11 by executing sale deed dated: 30.04.2005. Defendant 8 O.S.No. 26750/2011 No.11 in turn sold the said site in favour of Jaffrim Akthar by executing sale deed dated: 13.3.2008. The said Jaffrim Akthar sold the said site in favour of Bhaskar Srikanth by executing the sale deed dated: 12.12.2008. The said Bhaskar Srikanth sold the said site in favour of defendant No.16 by executing sale deed dated: 10.04.2014. Since the date of purchase defendant No.16 is in possession of site No.65/C. Defendants 12 and 16 contend that Ayub Khan, S/ o Shaik Baba as attorney of all the legal heirs of Shaik Baba sold the site No.65/B in favour of defendant No.11 by executing the sale deed dated: 30.04.2005. Defendant No.11 sold the said site in favour of Jaffrim Akhthar under the registered sale deed dated: 13.06.2008. The said Jaffrim Akhthar sold the said site in favour of defendant No.12 and his wife, ie., defendant No.13 by executing the sale deed dated: 19.05.2010. Since the date of purchase, defendants 12 and 13 have been in possession and enjoyment of site No.65/B. Defendant No.12 contends that after purchase of site No.65/B he and his wife enclosed it with compound wall. On 31.1.2013 plaintiff and her men made attempts to demolish the compound wall. Therefore, he and his wife 9 O.S.No. 26750/2011 defendant No.13 filed O.S.No. 983/2013 seeking the relief of injunction against plaintiff and her son. Defendants 11, 12 and 16 contend that Ayub Khan, S/o Shaikh Baba as attorney holder of all the legal heirs of Shaikh Baba executed sale deed dated: 13.04.2015 in favour of 11th defendant in respect of site No.65/A. In the said site, a residential house is existing. 11th defendant has given the said house to plaintiff on rent. In this regard, rent agreement dated:
9.5.2006 was made. Defendant No.11 and 12 contend that except residential house existing in the suit B schedule property plaintiff is not in possession of any other portion of suit 'A' schedule property or suit 'B' schedule property. They contend that as per the judgment passed in O.S.No. 234/1981 and RFA 289/1992 plaintiff's father Mohammed Abbas would have no manner of right, title, interest or possession over the suit 'A' schedule property. They contend that when plaintiff's father was not having right, over the suit 'A' schedule property he can't permit the plaintiff to put up construction in a portion of said property. Defendant No.11 contends that he filed HRC No.287/2010 to evict plaintiff from the house existing in the suit 'B' schedule property.10
O.S.No. 26750/2011 Plaintiff by filing objection would contend that there is no jural relationship of land-lord and tenant. On 3.9.2013 the Small Causes Court passed an order directing the parties to approach Civil Court. As per direction given in HRC No. 287/2010 he filed O.S.No. 193/2014 against the plaintiff seeking the relief of declaration and possession and the said suit is pending for consideration. Defendants 11,12 and 16 denied that as owner plaintiff is in possession of suit 'A' and 'B' schedule properties. They contend that plaintiff has no manner of right, title and interest over the said properties. The frame of the suit is defective. In view of plaintiff is not having any right, over the suit 'A' and 'B' schedule properties, she is not entitled for any of the reliefs prayed for. On these and other grounds stated in the written statement defendants 11,12 and 16 pray to dismiss the instant suit.
5. After service of summons, defendants 1,3 to 5, 7 to 10 not appeared before the court in person or through counsel. Therefore, they have been placed exparte. Defendants 2 and 6 died before filing the instant suit.
6. Based on the above pleadings on 08.02.2021 the following Issues were formulated 11 O.S.No. 26750/2011
1. Whether the plaintiff proves that, she is not a tenant of 1st defendant in respect of suit property?
2. Whether the plaintiff proves that, the sale deed dated:30/04/2005 executed by defendants 1 to 10 in favor of 11th defendant is not binding on her?
3. Whether the 11th defendant proves that, the suit is not maintainable?
4. Whether the 11th defendant proves that, the valuation made by the plaintiff is incorrect and the Court fee paid is insufficient?
5. Whether the plaintiff is entitled for the relief of declarations and injunctions?
6. What order or decree?
7. On behalf of plaintiff, her son Syed Khader was examined as PW1. He produced documents marked at Ex.P.1 to Ex.P.10. Defendant No.11 was examined as DW.1. He produced documents marked at Ex.D. 1 to 9. Defendants 12 and 16 neither lead oral evidence nor produced documentary evidence.
12
O.S.No. 26750/2011
8. Heard the arguments of Ld. Counsel for plaintiff and 11th defendant .
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: In the Negative
Issue No.4: In the Negative
Issue No.5: In the Negative
Issue No.6: As per final order
for the following:
REASONS
10. ISSUE NO.1 to 3 :- For convenience and to avoid repetition of facts and evidence these 3 issues are taken together for consideration.
11. PW.1 Syed Khadar, the son and attorney holder of plaintiff in his examination in chief has reiterated and reaffirmed the plaint averments. Plaintiff has produced t Ex.P. 1 GPA, Ex.P 2 sale deed dt: 28.12.1971, Ex.P 3 judgment in O.S.No. 234/1981, Ex.P 4 judgment in RFA No.289/1982, Ex.P 5 and 6 sale deeds dated: 30.04.2005, Ex.P 7 and 8 petition and objections in HRC No. 287/2010, Ex.P 9(1to 5) electricity bills and Ex.P 10(1 to 6) 6 LPG receipts. 13
O.S.No. 26750/2011
12. 11th defendant who was examined as DW.1 in his examination in chief has reiterated and reaffirmed the averments of written statement. He produced Ex.D. 1 Certified copy of sale deed dated: 30.04.2005, Ex.D. 2 betterment charges paid receipt, Ex.D. 3 katha certificate, Ex.D. 4 katha extract, Ex.D. 5 tax paid receipt, Ex.D. 6 to 8 petition, objection and order in HRC No. 287/2010 and Ex.D. 9 plaint in O.S.No. 193/2014.
13. In the instant case, there is no dispute that the suit 'A' schedule property ie., land in Sy.No. 56 belonged to Shaik Baba, the paternal uncle of plaintiff; on the basis Ex.P2 sale deed dated: 28.12.1971 plaintiff's father Mohammed Abbbas claimed right, title and interest over the said property, therefore his brother Shaikh Baba filed O.S.No. 234/1981 for cancellation of Ex.P 2 sale deed by contending that it was obtained by fraud; the said suit was decreed by passing Ex.P 3 judgment and Ex.P 2 sale deed was cancelled; against Ex.P 3 judgment, plaintiff's father Mohammed Abbas filed RFA No. 289/1982 and the Hon'ble High Court of Karnataka has dismissed the said RFA by passing Ex.P 4 judgment; plaintiff's father did not challenge Ex.P 4 judgment therefore, it 14 O.S.No. 26750/2011 reached finality. In view of Ex.P 4 judgment passed in RFA No. 289/1982 reached finality and Ex.P 2 sale deed was cancelled, plaintiff's father Mohammed Abbas would not have any kind of right, title and interest over the suit 'A' schedule property. When plaintiff's father Mohammed Abbas would not have any manner of right, title and interest over the suit 'A' schedule property he cannot permit the plaintiff or her husband to put up construction in the said property.
14. In the plaint and PW.1 in the evidence has baldly stated that Mohammed Abbas permitted plaintiff and her husband to put up construction in a portion of suit 'A' schedule property. Plaintiff has not stated in which year Mohamed Abbas permitted her and her husband to put up construction in the suit 'A' schedule property. Further in the plaint and PW.1 in the evidence has stated that in the year 1992 plaintiff constructed RCC building in the suit 'A' schedule property by spending Rupees 5 to 6 lakhs. As already stated above, in the year 1992 plaintiff or her father had no manner of right, title and interest over the suit 'A' schedule property. The contention of plaintiff that despite she was not having any right over the suit 'A' schedule property 15 O.S.No. 26750/2011 she constructed RCC house by spending Rupees 5 to 6 lakhs cannot be accepted. PW.1 in the cross-examination has stated that except the documents produced before the court, plaintiff is not having any document to prove construction of RCC house in the year 1992. Ex.P 9( 1 to 5) Electricity bills, Ex.P 10 (1 to 6) LPG gas bills are of the year 2006 and there onwards. Thus, there is no cogent and convincing oral or documentary evidence to prove that plaintiff is in possession of suit 'B' schedule property since 1992 or prior to that. Thus, there is zero evidence on record to prove that in the year 1992 plaintiff had any kind of right, title or interest over the suit 'A' or 'B' schedule properties and she constructed RCC building in the suit 'B schedule property by investing rupees 5 to 6 lakhs.
15. In para No.3 of the plaint, plaintiff has contended that she is in possession of suit 'A' schedule property as absolute owner. Plaintiff has not stated how she became absolute owner of the said property . In the instant case, plaintiff has also not sought the relief of declaration to declare that she is the owner of suit properties. She cleverly sought 16 O.S.No. 26750/2011 the relief of declaration to declare that she is not a tenant under the 11th defendant in respect of the schedule property.
16. Section 34 of Specific Relief Act deals regarding declaratory decrees and it reads thus:
34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
17. As per section 34 of Specific Relief Act any person entitle to any legal character or to any right as to any property can file a suit for declaration. In this case, as I have already stated above, plaintiff is not claiming declaration of her legal character or right over the suit properties. She is seeking the relief of declaration to declare that she is not the tenant of the suit properties. Section 34 of Specifc Relief Act would not 17 O.S.No. 26750/2011 permit to seek such type of negative declaration. Therefore, the relief of declaration to declare that plaintiff is not a tenant of 11th defendant is not maintainable.
18. A perusal of Ex.D 1 sale deed dated: 30.04.2005 would show that defendants 1 to 10, the legal heirs of Shaikh Baba executed the said sale deed in favour of 11th defendant in respect of suit 'A' schedule property. It is needless to say that a person having an interest over the property can seek the relief of declaration to declare a document which affects on her right. Plaintiff is not having any kind of right, title and interest over the suit 'A' schedule property . Therefore, she has no locus standi to seek the relief of declaration to declare that Ex.D. 1 sale deed is not binding on her. In veiw of the above, I hold that 11th defendant has proved that the instant suit for declaration to dclare that plaintiff is not a tenant under the 11th defendant and Ex.D. 1 sale deed dated:
30.04.2005 is not binding on her is not maintainable. In view of the above, I answer Issue No.1 and 2 in the Negative and Issue No.3 partly in affirmative.
19. ISSUE NO.4:- Admittedly plaintiff is not a party to Ex.D. 1 sale deed dated: 30.04.2005. She sought the relief of 18 O.S.No. 26750/2011 declaration to declare that the said sale deed is not binding on her. In view of plaintiff is not party to the said sale deed the valuation made by her for the relief of declaration u/s 24 of KCF & SV Act is proper and court fee paid at Rs. 25/- each for the relief of declarations is sufficient. Plaintiff has sought 2 reliefs of injunctions and paid court fee of Rs. 25/- each by making valuation u/s 26(c) of KCF&SV Act is also proper. In view of the above, I hold that 11 th defendant failed to prove that the valuation made by plaintiff is incorrect and the court fee paid is insufficient. Accordingly, I answer Issue No.4 in the Negative.
20. ISSUE NO.5:- In view of my finding on Issue No.1 to 3 plaintiff is not entitled for the relief of declarations. Plaintiff has neither pleaded nor established any kind of right, title and interest over the suit properties. Therefore, she is not entitled to seek the relief of injunction restraining 11th defendant from alienating the suit 'A' schedule property.
21. Admittedly, plaintiff is in possession of house existing in the suit 'B' schedule property . 11th defendant filed HRC No. 287/2010 for eviction by contending that plaintiff is in possession of the said house as a tenant under 19 O.S.No. 26750/2011 him. A perusal of Ex.P. 7 petition in HRC No. 287/2010 , Ex.P 8 objection filed by plaintiff in the said petition and Ex.D. 8 the order passed in the said petition would show that in HRC petition plaintiff denied the relationship of land-lord and tenant. After hearing arguments on both side, the Small Causes court passed Ex.D. 8 order directing the parties to approach civil court for determination of their rights over the house existing in the suit 'B' schedule property. After passing of Ex.D. 8 order, plaintiff filed O.S.No. 193/2014 for the relief of declaration and possession of the house existing in the 'B' schedule property. Ex.D. 9 is the copy of the plaint of O.S.No. 193/2014. Admittedly, the said suit is pending for consideration.
22. From the documents available on record, it is evident that before filing the instant suit, 11 th defendant filed HRC No.287/2010 to evict the plaintiff from the house existing in the suit 'B' schedule property in accordance with law. In para No.15 of the plaint, plaintiff has stated that the cause of action for the suit arose on 22.11.2010 on which day 11 th defendant filed HRC No.287/2010 against her. Filing a petition for eviction to take the possession of the suit property 20 O.S.No. 26750/2011 would not amount to interference . In the plaint plaintiff has nowhere stated that 11th defendant made attempt to evict her from the house existing in the suit 'B' schedule property otherwise than in due course of law. Thus there is no cause of action for the plaintiff to seek the relief of injunction restraining 11th defendant from interfering with her possession and enjoyment of the house existing in the suit 'B' schedule property. In view of the above, I hold that due to want of cause of action plaintiff is not entitled for the relief of perpetual prohibitory injunction against 11 th defendant . In view of the above, I answer Issue No.5 in the Negative.
23. ISSUE NO.6:- In view of my reasons and findings on above Issues I pass the following:
ORDER Plaintiff's suit is dismissed with cost to be paid to defendant No.11.
***** (Dictated to the Judgment Writer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 28th day of February, 2023.) Digitally signed by MOHAMMED MOHAMMED MUJEER MUJEER ULLA C G Date: 2023.03.01 ULLA C G 17:50:35 +0530 (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 21 O.S.No. 26750/2011 ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFFS:
PW1 Sri. Syed Khader LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:
Ex.P.1 GPA
Ex.P.2(1&2) Certified copy of sale deed dated: 28.12.1971
Ex.P.3 Certified copy of judgment in O.S.No. 234/1981
Ex.P.4 Certified copy of judgment & decree in RFA.No.
289/1982
Ex.P. 5 Certified copy of sale deed dated: 30.04.2005
Ex.P.6 Certified copies of sale deed dated: 30.04.2005
Ex.P. 7 Certified copy of petition in HRC No.287/2010
Ex.P.-8 Certified copy of objections in HRC No.287/2010
Ex.P.9 (1to5) 5 electricity bills
Ex.P.12 (1-6) 6 LPG receipts
LIST OF WITNESS EXAMINED FOR DEFENDANTS-
DW.1 Sri. Khalid LIST OF DOCUMENTS MARKED FOR DEFENDANTS-
Ex.D. 1 Certified copy of Sale Deed dt 30.04.2005
Ex.D. 2 Betterment charges paid receipt
Ex.D. 3 Katha certificate
Ex.D. 4 Katha extract
Ex.D. 5 Tax paid receipt
Ex.D. 6 Certified copy of petition in HRC No.287/2007
22
O.S.No. 26750/2011
Ex.D. 7 Certified copy of objection in HRC No.287/2007 Ex.D. 8 Certified copy of order in HRC No.287/2007 Ex.D. 9 Certified copy of plaint in O.S.No. 193/2014 (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (CCH - 75)