Bangalore District Court
Smt. Zeenatunnissa vs Smt. Yasmeen Sultana on 29 September, 2016
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in
Suits (R.P.91)
IN THE COURT OF THE XLIII ADDL. CITY CIVIL
& SESSIONS JUDGE, BENGALURU. (CCH 44)
Dated: This the 29th day of September, 2016
PRESENT
Sri. V.H. WADAR, B.A., LL.B.,
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU, (CCH-44).
O.S. No.11101/1998 C/w. O.S.No.3869/2006,
O.S.No.7973/2006 AND Ex.No.3390/2013
O.S.No.11101/1998
PLAINTIFFS : 1. Smt. Zeenatunnissa,
Since dead on 10/05/2008
L.Rs. already on record
2. Smt. Bibi Jan
Since dead on 24/10/2008
L.Rs. already on record
3. Mushtaq Ahmed Sharieff
Aged 39 years
4. Muneer Ahmed Sharieff
Aged 37 years
2
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Both sons of late Ahmed Sheriff
5. Sadiya Begum
Aged 20 years
6. Zikrur Rehman Shariff
Aged about 18 years
Children of Alla Bakash,
All R/at No.40/1 Cockbund Road,
Shivajinagar, Bengaluru-51.
(By Sri M.K. Mokbool Khan,
Advocate)
VS.
DEFENDANTS : 1. Smt. Yasmeen Sultana,
Aged about 32 years
2. Javeeria Nushrath,
Aged about 19 years
3. Saira Ishrath,
Aged about 18 years
4. Fathima Barkath,
Aged about 14 years
1st is the wife, rest of them are
daughters of Zafurulla Khan,
4th is minor represented by her
father Zafrulla Khan
All R/at No.13, New Gangamma
Chari Street, Mothinagar,
Bengaluru-2
3
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
5. Bangalore City Corporation
By its Asst. Revenue Officer,
Shivajinagar Range,
Bengaluru
(D1 by Sri LCK, D2 by Sri MA
D3 by Sri SAZ, Advocates)
Date of Institution of the suit: 10/09/1998
Nature of the Suit (Suit for
pronote, suit for declaration and Suit for Declaration
possession, Suit for injunction,
etc,) :
Date of the commencement of 12/12/2003
recording of the Evidence:
Date on which the Judgment was 29/09/2016
pronounced:
Total Duration : Year/s Month/s Day/s
18 00 19
O.S.No.3869/2006
PLAINTIFFS : Smt. Javeria Nusrath,
D/o Zafrulla Khan, major,
No.8, 1st Cross,
Someshwaranagar,
Bengaluru-560 011.
(By Sri Riyaz Ahmed Shariff,
Advocate)
VS.
DEFENDANTS : 1. Smt. Zeenathunnissa
W/o late Ahmed Shariff
4
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Aged about 65 years,
Residing at a portion of property
No.40/1, Cockburn Road,
Bengaluru-51
Since Deceased by her L.Rs.
1(a) Smt. Yasmeen Sultana
D/o late Ahmed Shariff,
Aged about 46 years
W/o Zafrullah Khan,
No.8, 1st Cross,
Someshwaranagar, Jayanagar 1st
Block, Bengaluru-560 011.
1(b) Mr.Muneer Ahmed Shariff
S/o Ahmed Shariff (Late),
No.39 (Portion), Cockburn Road,
Bengaluru-560 051.
2. Mr. Allah Bakash,
S/o not known to the plaintiff,
Aged about 55 years
Residing in a portion of property
No.40/1, Cockburn Road,
Bengaluru-560 051.
(D1(a) by Sri A.B.
D1(b) & D2 by Sri SAP, Advocates)
Date of Institution of the suit: 22/04/2006
Nature of the Suit (Suit for
pronote, suit for declaration and Suit for Declaration and
possession, Suit for injunction, Injunction
etc,) :
Date of the commencement of 20/11/2010
recording of the Evidence:
Date on which the Judgment was 29/09/2016
pronounced:
5
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Total Duration : Year/s Month/s Day/s
10 03 07
O.S.No.7973/2006
PLAINTIFFS : 1. Smt. Yasmine Sultan,
W/o Zafrulla Khan,
Aged about 41 years
2. Ms. Javeeria Nusrath,
Aged about 27 years,
3. Ms. Saira Isharth,
Aged about 23 years
4. Ms.Fathima Barkath,
D/o Mr. Zafarulla Khan,
Aged about 20 years
All are R/at No.8, 1st Cross,
Someshwaranagar,
Jayanagar I Block,
Bengaluru-560 011.
(By Sri M.Syed, Roohulla,
Advocate)
VS.
DEFENDANTS : 1. Mrs. Zeenathunnissa
W/o late Ahmed Shariff
Aged about 65 years,
2. Mr.Muneer Ahmed Shariff
S/o Late Ahmed Shariff,
Aged about 43 years
3. Mr. Zikur Rehman Shariff
S/o Allah Baksh
6
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Aged about 20 years
4. Ms.Sadiya Begum
D/o Allah Baksh,
Aged about 21 years
5. Mr. Allah Bakash,
Aged about 50 years
Father's name not known
All Residing No.39, Cockburn Road,
Shivajinagar,
Bengaluru-560 051.
(By Sri SAP, Advocate)
Date of Institution of the suit: 05/09/2006
Nature of the Suit (Suit for
pronote, suit for declaration and Suit for Declaration
possession, Suit for injunction,
etc,) :
Date of the commencement of 04/12/2009
recording of the Evidence:
Date on which the Judgment was 29/09/2016
pronounced:
Total Duration : Year/s Month/s Day/s
10 00 24
Execution No.3390/2013
Decree Holder : Smt. Javeria Nusarath,
D/o Zafrulla Khan,
No.15, New Gangammachari Street
Mothinagar, Bengaluru-560 002
7
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
VS.
Judgment Debtor: Smt. Javeen Khan,
W/o Mohammed Illiyas,
R/at No.40/1, Cockburn Road,
Bengaluru-560 001
Objectors : Zeenathunnisa
Since deceased by L.Rs.
1. Yasmeen Sultana
D/o Amhed Sharieff
No.8, 1st Cross, Someshwaranagar,
Jayanagar I Block,
Bengaluru-560 011.
2. Muneer Ahmed Sharieff
S/o Late Ahmed Sharieff
R/at No.40, 40/1, Cockburn Road,
Bengaluru
(V.H. WADAR)
XLIII Addl. City Civil & Sessions Judge,
BENGALURU, (CCH-44).
COMMON JUDGMENT
Plaintiffs in O.S.No.11101/1998 have filed suit for
declaration declaring that the alleged declaration oral gift dated
8
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
15/12/1995 executed by plaintiff No.1 deceased Zeenatunnissa
in favour of defendant No.1 is null and void and not binding
upon the plaintiffs, to declare that the sale deed dated
04/03/1997 executed by defendant No.1 in favour of her
children defendant Nos.2 and 3 is null and void and does not
bind upon the plaintiffs and other reliefs as Court deems fit.
2. The brief facts of the plaintiffs' case is that
plaintiff No.1 deceased Zeenatunnissa and plaintiff No.2 Bibi
Jan had purchased the suit schedule house property bearing
Corporation No.40 situated at Cockburn Road, Shivajinagar,
Bengaluru under registered sale deed dated 02/02/1971.
Plaintiff Nos.1 and 2 are owners in actual possession and
enjoyment of the above said suit schedule property, which is
morefully described in the schedule. The khatha of the suit
property was standing in the name of first plaintiff and first
plaintiff was paying the tax in respect of suit schedule
property.
9
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
The plaintiffs contend that defendant No.1 concocted a
spurious document as Gift alleged to be executed by plaintiff
No.1. In pursuant to the said gift deed, the defendant No.5
Corporation has entered the name of the defendant No.1.
The xerox copy of the said gift deed and khatha extract are
produced for perusal. The plaintiffs have contended that they
had issued legal notice on 03/04/1997 to first defendant, after
they came to know about the above said concocted gift deed.
The said notice duly served upon the defendant No.1. The
defendant No.1 has not replied to said notice.
The plaintiffs have taken contention that plaintiff No.1 is
a pardhanishi, illiterate lady, she is not having worldly
knowledge, the alleged declaration of oral gift (Hiba) dated
15/12/1995 is unjust, unfair and is illegal, same is bad
U/Sec.16, 17, 18 and 19 of the Indian Contract Act. The
signature in the said document is not of the first plaintiff.
Further plaintiffs contend that without admitting the said
signature on the declaration dated 15/12/1995, the same was
10
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
not explained nor the contents were informed to the first
plaintiff. The defendant No.1 in collusion with her husband
forged the said document of declaration taking the advantage
of illiteracy and pardha lady, defendant No.1 had got up the
said declaration, hence not binding upon the plaintiffs.
Further plaintiffs contend that defendant No.1 has no right,
title or interest over the suit schedule property had executed
sale deed in favour of her minor children defendant Nos.2 and
3. Hence defendant Nos.2 and 3 have not acquired any right,
title or interest over the suit property.
The plaintiffs submit that plaintiff Nos.1 and 2 are the
absolute owners of the suit schedule property. Second plaintiff
has not executed any gift or made any declaration of gift in
favour of defendant No.1. Such being the true facts,
declaration of oral gift by plaintiff No.1 in favour of defendant
No.1 is null and void and does not bind upon the plaintiffs.
The plaintiffs contend that defendant No.1 has not derived
any right, title or interest over the suit schedule property
11
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
through said declaration and she cannot transfer legitimate
right, interest and title to defendant Nos.2 to 4 by executing
sale deed in favour of them. The plaintiffs contend that
defendant No.5 had entered the name of defendant No.1 on
the basis of the forged declaration of gift, inspite of objections
filed by the plaintiffs and khatha has been transferred in the
name of the defendant No.1. Hence plaintiffs have filed the
present suit for declaration.
3. The defendants appeared through their counsel
and defendant No.1 filed written statement denying all the
averments made in the plaint except admitting that plaintiff
Nos.1 and 2 had purchased suit schedule property on
02/02/1971 under registered sale deed and admitting the fact
that defendant No.1 had executed sale deed in favour of
defendant Nos.2 to 4 who are minors at the time of sale deed
and also admits that khatha had been transferred in the name
of defendant No.1 as per the gift deed and in view of the sale
deed khatha had transferred in the name of her minor
12
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
daughters. The defendants denied that plaintiff No.2 is owner
of the suit schedule property along with plaintiff No.1. Further
defendants denied that the alleged oral gift i.e., Hiba is void,
created and forged document and also denied that said gift is
void U/Sec.16 to 19 of Indian Contract Act and also denied
that defendant No.1 has not acquired valid title over the suit
schedule property under the oral gift executed by plaintiff
No.1 in favour of defendant No.1, hence the title has not been
passed to minor children of the defendant No.1. Defendant
No.1 contends that plaintiff No.1 had executed valid oral gift
in favour of the defendant No.1 in respect of the suit
schedule property.
Suit of the plaintiffs is bad for non-joinder and mis-
joinder of necessary parties and also there is no cause of
action to file the present suit. The suit is not properly valued
and court fee paid is insufficient. Hence the suit of the
plaintiffs may be dismissed with costs.
13
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
4. Defendant No.5 Bengaluru City Corporation
filed written statement contending that after obtaining legal
opinion from the panel, the name of defendant No.1 came to
be entered to the suit schedule property and in view of the
sale deed executed by defendant No.1 in favour of her minor
children, the suit schedule property is entered in the name of
her minor children. Further defendant No.5 Corporation
contends that it will follow and adhere the final decree and
order being passed by this Court and this defendant No.5 is
ready to abide by the same according to the order of this
Court.
5. Based upon these rival pleadings of the parties,
following issues have been framed:-
1. Whether the plaintiff proves that the gift deed
dated 15/12/95 executed by plaintiff No.1 in
favour of defendant No.1 is concocted and
obtained by playing fraud and therefore null
and void?
2. Whether the sale deed dated 28/2/95 executed
by defendant No.1 in favour of defendant No.2
is null and void and the same was obtained
fraudulently?
14
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
3. Whether the plaintiff entitled to the relief of
declaration sought?
4. Whether the khatha in respect of suit property
liable to be revoked?
5. What decree or order?
Addl. Issues:-
1. Whether the suit is bad for mis-joinder and
non-joinder of parties?
2. Whether suit is valued properly and C.F. paid is
sufficient?
6. Power of attorney holder of plaintiff No.1 is
examined as P.W.1, Exs.P.1 to P.15 got marked and closed
plaintiffs' side. General Power of Attorney holder of
defendant Nos.1 to 4 is examined as D.W.1, Exs.D.1 to D.45
got marked and closed defendants' side.
7. The plaintiff in O.S.No.3869/2006 has filed
the suit against the defendants for declaring that the plaintiff
is the absolute owner of the suit schedule property and direct
15
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
the defendants to deliver vacant possession of the suit
schedule property and for mesne profits.
8. The brief facts of the plaintiff's case is that
plaintiff is the absolute owner and land lady of property
bearing No.40/1, Cockburn Road, Bengaluru having purchased
the same under registered sale deed dated 04/03/1997 along
with her two minor sisters and after purchase the plaintiff and
her sisters got changed khatha into their name and they are
paying corporation taxes. Hence they are lawful owner of the
suit schedule property. The plaintiff further submits that
defendant No.1 is tenant under the plaintiff and her sisters, as
they are landladies in respect of suit property. Defendant No.2
is in occupation of portion of the schedule property as sub-
tenant without the written consent from the plaintiff.
Plaintiff contends that she had filed HRC No.199/1999
on the file of Chief Judge, Court of Small Causes, Bengaluru
for eviction U/Sec.21(i)(h) of Karnataka Rent Control Act,
1961. As per the new H.R.C. Act of 1999, U/Sec.43(2) of the
16
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
said Act, the petition was disposed off on 17/06/2002 and it is
directed to approach the competent Court which having
jurisdiction for declaration of the plaintiff's right. Hence
petition is ordered to be closed accordingly.
The plaintiff contends that defendant No.1 is tenant on
monthly rent of Rs.1,000/- and first defendant has not paid
arrears of rent from 01/06/1997 till this day. The plaintiff has
got issued legal notice on 17/11/1998 which personally served
on the first defendant and first defendant has sent untenable
reply. After the termination of notice, first defendant has to
pay damages by way of mesne profits. Hence the suit is for
declaration that the plaintiff is absolute owner of the schedule
property and for possession directing the defendants to
deliver vacant possession of the schedule property. The
cause of action arose on 07/01/1999 and also on the
termination of tenancy by the end of November 1998. Hence
this suit.
17
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
9. The defendants appeared through counsel and
filed their written statement contending that the suit of the
plaintiff is not maintainable either in law or on facts. Hence
the suit of the plaintiff may be dismissed with costs. The
defendants have denied the entire plaint allegations. The
defendants have denied that plaintiff is owner of the suit
schedule property bearing No.40/1, Cockburn Road,
Bengaluru along with her sisters and also denied that plaintiff
and her sisters had purchased the suit schedule property on
04/03/1997 which is null and void. Khatha of the suit schedule
property was obtained in the name of the plaintiff on the basis
of fraudulent sale deed playing fraud on the Corporation.
Further defendants contend that there is no relationship of
landlord and tenant and there is no jural relationship between
the plaintiff and defendants. Second defendant is not sub-
tenant of the first defendant.
The defendants contend that suit schedule property was
one of the items in the partition suit bearing
18
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
O.S.No.7913/1995 pending in this Court. 1st defendant and
late Bibijan questioned the title of the schedule property that
was claimed by the vendor of the plaintiff Yasmeen Sulthana.
The said suit is pending. The said facts are not pleaded in
this suit. Plaintiff has suppressed the said suit bearing
O.S.No.11101/1998 pending on the file of this Court.
Plaintiff had filed a case against defendant No.2 bearing
O.S.No.2091/2003 pending on the file of this Court. The said
suit was also for eviction of defendant No.2. The suit was
stayed U/Sec.10 of C.P.C. This fact is also suppressed by the
plaintiff. Title of the vendor of the plaintiff is questioned in
O.S.No.11101/1998 and plaint copy is enclosed with this
written statement.
The defendant No.1 also questioned title of the plaintiff
and her vendor in Ex.No.306/1999. First defendant has also
prayed for declaring the oral gift, i.e., Hiba in favour of
Yasmeen Sulthana as null and void in O.S.No.11101/1998.
The title of the plaintiff is also questioned in
19
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
O.S.No.2835/1998. Thus the plaintiff is aware that her title is
also questioned in the year 1998-99. Hence suit of the
plaintiff is barred by limitation.
The defendants have contended that defendant No.1 is
not a tenant under the plaintiff and there is no rent
agreement in between plaintiff and defendant No.1 that
defendant No.1 has to pay Rs.1,000/- to plaintiff. There is no
question of defendant to pay any rent claimed by the plaintiff,
as she is not the landlady of the suit schedule property. The
notice issued by the plaintiff is false, as there is no tenancy
between the plaintiff and defendant No.1. Hence question of
termination of tenancy does not arise. The plaintiff is not the
landlady or she is the owner of the schedule property. She
cannot seek declaration and possession of the schedule
property. There cannot be any enquiry in mesne profit under
Order 20 Rule 12 of C.P.C. The plaintiff has suppressed the
material facts and not come with clean hands. The schedule
20
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
given is totally incorrect and not identifiable. Hence the suit
of the plaintiff may be dismissed.
The suit is bad under Order 2 Rule 2 of C.P.C. and on
that ground also plaint has to be rejected. The suit of the
plaintiff is bad for non-joinder of necessary parties, as alleged
suit schedule property had given to Zikrur Rehman Sharieff
and Sadiya Begum under oral gift Hiba on 07/01/2001 by the
first defendant and late Smt.Bibijan, that subsequently the
confirmation of Hiba was registered and hence the suit is bad
for non-joinder of necessary parties. The suit of the plaintiff
is estopped.
The plaintiff had filed suit bearing O.S.No.7973/2006
against Zikrur Rehman Sharieff and Sadiya Begum challenging
the oral gift gifted in their favour by the defendant No.1 and
said suit came to be dismissed. This fact is not pleaded in the
plaint and suppressed the material facts. There is no cause of
action to file the suit. Hence suit of the plaintiff be rejected
under Order 7 Rule 11 of C.P.C.
21
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
10. Based upon these rival pleadings of the
parties, following issues have been framed:-
1. Whether plaintiff proves that she is an absolute
owner of suit property?
2. Whether plaintiff proves that defendant No.1
was tenant in suit property on monthly rental
of Rs.1,000/-?
3. Whether plaintiff proves that defendants have
not paid the rent from 1/6/1997?
4. Whether plaintiff proves that defendant No.2 is
sub-tenant under defendant No.1?
5. Whether plaintiff is entitled for mesne profits?
6. Whether defendants are liable to hand over the
possession of suit property to plaintiff?
7. Whether defendant prove that the suit is bad
for non-joinder of necessary parties?
8. Whether defendant proves that the suit is
barred by limitation?
9. Whether plaintiff proves the existence of land
lord and tenant relationship between herself
and defendant No.1?
10. Whether plaintiff is entitled for the reliefs
sought for?
11. What order or decree?
22
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
11. The power of attorney holder of plaintiff is
examined as P.W.1 and Exs.P.1 to P.21 got marked and
closed plaintiff's side. Defendant No.1 (b) is examined as
D.W.1, defendant No.2 is examined as D.W.2 and Ex.D.1 to
D.12 got marked and closed defendants' side
12. The plaintiffs have filed this suit
O.S.No.7973/2006 for declaration declaring that the gift
deed dated 18/10/2012 registered as No.3544/02-03 of Book
1 before Sub-Registrar, Bengaluru and No.3546/02-03 of Book
1 before Sub-Registrar, Bengaluru is null and void and not
binding on the plaintiffs.
13. The brief facts of the plaintiffs case is that the
plaintiffs are the absolute owners in exclusive possession and
enjoyment of all the piece and parcel of property bearing
No.40, old No.29, Corporation Division No.69 and ward No.79
situated at Cockburn Road, Civil Station, Bengaluru measuring
east to west 42 feet and north to south 21 feet having
acquired same under registered sale deed dated 08/05/2002
23
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
from one Musthaq Ahmed Shariff for valuable consideration
and their name has been entered in the revenue records.
Further plaintiffs contend that plaintiff No.2 and her sisters
plaintiff Nos.3 and 4 had purchased suit property baring
No.40/1, Corporation Ward No.69, Division No.79 situated at
Cockburn Road, Civil Station, Bengaluru measuring east to
west 71½ feet and north to south 26 feet under registered
sale deed dated 04/03/1997 from plaintiff No.1. Khatha had
been transferred in the name of plaintiff Nos.2 to 4 and sale
deed and khatha had produced for kind perusal. Second
defendant Muneer Ahmed Sharieff is tenant in the shop
premises bearing No.40 under plaintiff No.1. Defendant No.1
is tenant in the premises bearing No.40/1 under second
plaintiff who had sub-let suit premises to defendant No.5.
Plaintiffs have filed suit for eviction against the
defendants which is pending for consideration. The petition in
HRC 199/1999, plaint in O.S.No.4421/1999, plaint in SC
No.34/2003 and plaint in O.S.No.475/2003 are produced for
24
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
kind perusal. Plaintiffs contend that defendants have hatched
plan to concoct the documents in the matter of the plaintiffs'
right, title and ownership over the property and had got up
the documents styled as gift deeds and one of such gift deed
dated 18/02/2002 alleged to had executed by the first
defendant in favour of defendant Nos.3 and 4 without having
any right, title or interest over the property. Stamp duty paid
for getting the said document registered is a sum of
Rs.2,059/- only. Another gift deed dated 18/10/2002
executed by the first defendant in favour of second defendant
and stamp duty paid is Rs.2,059/- only. The plaintiffs contend
that defendant No.2 is workman under the first defendant and
5th defendant and other defendants with active collusion with
first defendant had got up said false, forged and fabricated
documents without there being any right, title or interest over
the suit schedule property. All the defendants had hatched a
plan just to overcome the HRC proceedings pending against
them. The plaintiffs contend that there are so many cases
25
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
pending against the plaintiffs and defendants before this
Court, other Courts and before Hon'ble High Court of
Karnataka and in Ex.No.306/1999 the learned Chief Judge of
the Small Causes Court had allowed the petition on merits and
ordered for delivery of possession against first defendant after
she contested and the first defendant had preferred RFA
before Hon'ble High Court of Karnataka bearing No.98/2006
and same is pending before the Hon'ble High Court of
Karnataka. Hence plaintiffs have challenged the gift deed
executed by defendant No.1 in favour of defendant Nos.2 to 4
and filed suit for declaration and for cancellation of the
alleged gift deeds and seeking possession from the
defendants.
The plaintiffs contend that they had filed Criminal Case
before Indiranagar PS which is registered in Crime No.176/03,
the said case was pending before 10th Additional Metropolitan
Magistrate at Mayo Hall and the said case withdrawn on
22/07/2006 and filed the present suit against the defendants.
26
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Hence the suit of the plaintiffs is well within time. Cause of
action arose on 22/07/2006 when the criminal case
withdrawn. Hence this suit.
14. The defendants appeared through counsel and
filed written statement denying all the averments made in the
plaint contending that suit of the plaintiffs is not maintainable
either in law or on facts of the case, the same is devoid of
merits. The defendants have contended that suit is barred by
limitation. The plaintiffs had knowledge of the oral gift made
by defendant No.1 on 07/01/2001. So also plaintiffs had
knowledge of registration of the document bearing
No.3544/02-03 and 3546/02-03, in the year 2002. Hence
plaintiffs ought to have filed this suit within 3 years from the
date of the knowledge as per Part 3 Articles 56 to 59 of
Limitation Act. Hence the suit of the plaintiffs is barred by
limitation.
27
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
There is no cause of action to file the present suit. The
plaint is liable to be rejected for non-disclosure of the cause of
action. Hence suit is liable to be dismissed on this count only.
The suit of the plaintiffs is also hit by Order 2 Rule 2 of
C.P.C. The defendants contend that vendor Mustaq Ahmed
Sharieff had no exclusive right to sell the suit schedule
property bearing No.40, old No.29 in favour of the plaintiffs.
Hence plaintiffs are not the owners of the suit schedule
property. The said sale deed dated 08/05/2002 is based on
fraudulent document. The plaintiffs have got khatha changed
under the said sale deed. Hence plaintiffs cannot claim any
right under the said khatha obtained on the basis of
fraudulent document and it will not give any title to the
plaintiffs. Hence the defendants have denied the allegation
made in para 1 of the plaint in total. Further defendants
contend that plaintiff No.1 had no absolute right to sell the
suit schedule property bearing No.40/1, old No.29 measuring
71½ feet towards east to west and 26 feet towards north to
28
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
south in favour of plaintiff Nos.2 to 4. The defendants have
taken another contention that defendant No.2-Muneer Ahmed
Sharieff is not tenant in shop premises bearing No.40, the said
defendant came in occupation of the said shop under
inheritance from his father, as first wife of father of defendant
No.2 had given the property to her husband deceased Ahmed
Sharieff and after his demise defendant No.2 inherited the
property. Plaintiffs had filed suit bearing O.S.No.475/2003
alleging that defendant No.2 Muneer Ahmed Sharieff was a
tenant and also filed S.C.No.34/2003 by the plaintiff. Both the
cases have dismissed. Hence principle of res-judicata and
principle of estoppel is applicable.
The defendants have contend that first defendant is not
tenant of house premises bearing No.40/1 situated at
Cockburn Road, Shivajinagar, Bengaluru and she had not let
out the same to fifth defendant.
The plaintiffs have suppressed the earlier suits, that are
HRC 199/1999 and 462/1998, those suits are dismissed.
29
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Hence there is no relationship of landlord and tenant as
alleged by the plaintiffs. There is no contract of agreement
between the first defendant and second plaintiff.
The defendants have pleaded the genealogy of their
family that propositus of the family deceased Ahmed Sharieff
had two wives by name defendant No.1 Zeenatunnissa and
deceased Bebijan. The said Ahmed Sharieff had no issues
and he found the 5th defendant near a garbage bin and he
brought said defendant No.5 and he claims that defendant
No.5 is adopted son of deceased Ahmed Sharieff. Later on
Ahmed Sharieff had two children through first wife and two
children through second wife. They further contend that first
plaintiff had forged, fabricated and created declaration of gift
in her favour alleged to be executed by defendant No.1 and
thereafter plaintiff No.1 had sold suit schedule property in
favour of plaintiff Nos.2 to 4 on the strength of oral gift which
is a created document and also pleaded that plaintiffs have
30
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
filed so many cases against the defendants, all are came to be
dismissed.
Defendants have taken contention that plaintiffs have
filed Execution Petition No.306/1999. Against the order,
defendants have preferred RFA No.98/2006 before Hon'ble
High Court of Karnataka, which has set aside the order passed
in the above said execution petition and other allegations are
denied by the defendants. Further defendants contend that
suit of the plaintiff may be dismissed under Order 7 Rule 11 of
C.P.C., as there is no cause of action.
15. Based upon these rival pleadings of the parties,
following issues have been framed:-
1. Whether the plaintiffs prove the Gift Deeds
dated 18/10/2002 bearing registration
No.3544/02/03 and 3546-03 are not binding on
the plaintiffs?
2. Whether the suit is properly valued and court
fee paid is sufficient?
3. What order or decree?
Addl. Issues:
31
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
1. Whether the 2nd defendant proves that the
suit of the plaintiff is barred by limitation?
16. The General Power of Attorney holder of
plaintiffs is examined as P.W.1 and 2 witnesses are examined
as P.Ws.2 and 3, Exs.P.1 to P.32 got marked and closed
plaintiff's side. Defendant No.2 is examined as D.W.1 and
Exs.D.1 to D.14 got marked and closed.
17. The decree holder Javeria Nusarath has filed
this Execution Petition No.3390/2013 (Old
No.306/1999) to execute the decree passed in HRC
No.463/1998 against the judgment debtor.
18. After issuing the delivery warrant, the
objector/applicant-Zeenatunnissa had filed application i.e.,
I.A. under Order 21 Rule 97 to 101 read with Section 151 of
C.P.C. along with affidavit. The objector has contended that
she is the owner of the suit schedule property. The decree
holder has filed objection to the above application and also to
32
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
the application filed U/Sec.151 of C.P.C. to recall the delivery
warrant issued in the matter.
19. The decree holder Javeria Nusrath had filed
this petition on the basis of the decree obtained in HRC
No.463/1998 dated 14/10/1998 to issue delivery warrant for
possession of the suit schedule property. When the delivery
warrant was issued, present application came to be filed by
the applicant/objector -Zeenatunnissa under Order 21 Rule 97
to 101 of C.P.C. to allow the application and to dismiss the
execution petition and also to recall the delivery warrant. The
applicant/objector - Zeenatunnissa contends that the
application may be allowed, as she is owner in actual
possession and enjoyment of the suit property and dismiss the
execution petition. She has also contended that she had let
out the same to one Iyub Hussain about 8-9 years back and
she is collecting rents from him. She further contends that
mother of the decree holder Yasmeen Sulthana is the
daughter of objector Zeenatunnissa. She had created a false
33
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
oral gift and got transferred the khatha in her name and
thereafter she had sold the property to decree holder and her
sisters. Thereby she has attempted to take possession of the
suit property and she had filed HRC No.463/1998 and took
exparte order. Now she is attempting to take possession by
taking delivery warrant. Further objector-Zeenatunnissa has
stated that she came to know from her children that father of
the decree holder had collected some anti-social elements and
rowdies and he is making attempts to take delivery of the
property on the basis of the Court order. After verification she
came to know about the proceedings. Under these
circumstances, objector-Zeenatunnissa and second wife of
husband of the objector Bibijan have filed O.S.No.11101/1998
on the file of City Civil Court challenging the oral gift and
transfer of khatha in the name of mother of the decree holder
and same is pending. Further objector-Zeenatunnissa
contends that mother of decree holder Yasmeen Sulthana and
Jubeda Begum, daughter of second wife of husband of
34
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
objector had filed suit bearing O.S.No.7913/1995 for partition
in the suit property and other properties. The mother of the
decree holder has not pleaded the facts that she was owner of
the suit schedule property bearing No.40/1 through oral gift.
But this fact has not been pleaded in O.S.No.7913/1995. The
decree holder has no right over the suit property. She is not
the landlady and she has no right to file eviction petition much
less to seek possession of the property. Now they are trying
to misuse the delivery warrant with the help of rowdy
elements. Hence filed this application and she has also filed
another application to recall the delivery warrant issued in the
matter.
20. The decree holder has filed objections
contending that the application is not maintainable and she
contends that she is the absolute owner of the suit schedule
property. The objector/applicant-Zeenatunnissa has no
manner of right, title or interest over the suit property. It is
false to say that suit has been filed by her and this decree
35
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
holder has no knowledge about the partition suit pending in
any Court. She has further stated that the person in
occupation has not filed any application, i.e., judgment
debtor. Nowhere in the affidavit the applicant/objector-
Zeenatunnissa has claimed that she is in possession of the suit
schedule premises. Under these circumstances, the application
may be dismissed with costs.
21. The objector/applicant-Zeenatunnissa is
examined as P.W.1 and Exs.P.1 to P.8 got marked and closed
applicant's side. The decree holder/respondent examined
through her power of attorney holder as R.W.1 and Exs.R.1 to
R.29 got marked.
22. After hearing the arguments, the then Hon'ble
Chief Judge, Court of Small Causes, Bengaluru has rejected
the application filed by Zeenatunnissa under Order 21 Rule
97 to 101 of C.P.C. Aggrieved by the order passed by the
then Hon'ble Chief Judge, Small Causes Court, Bengaluru, the
applicant/objector had preferred RFA No.98/2006 before
36
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Hon'ble High Court of Karnataka. The said RFA came to be
allowed by setting aside the order passed by the Chief Judge,
Small Causes Court and matter is remanded back with a
direction that the suits pending between the parties shall be
clubbed and dispose of by common order. Hence the matter
was remanded back.
23. After receiving the record, the parties have not
adduced further evidence.
24. The points that arise for my consideration in
Ex.3390/2013 are as follows:-
1. Whether objector-Zeenatunnissa
proves that she is owner of the
suit schedule property?
2. What order?
25. The plaintiffs in O.S.No.11101/1998 have
moved the application before Hon'ble High Court of Karnataka
U/Sec.24 of C.P.C. praying that O.S.No.11101/1998 pending
37
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
on the file of Additional City Civil Judge (CCH-29) Mayo Hall,
Bengaluru and Execution Petition No.306/1999 pending on the
file of Chief Judge, Small Causes Court, Bengaluru be
transferred to this Court. The said application is allowed.
Execution Case No.306/1999 pending on the file of Chief
Judge, Small Causes Court is withdrawn and transferred to
City Civil Court, Bengaluru. O.S.No.11101/1998 is pending on
file of Additional City Civil Judge at Mayo Hall, Bengaluru and
O.S.No.3869/2006 is pending on the file of this Court, i.e.,
City Civil Judge, CCH-44. Direction is given by the Hon'ble
High Court of Karnataka to Principal City Civil Judge, to
withdraw the suits and assign the withdrawn suits to the
Court wherein other suit is pending and simultaneously assign
the Execution Case to the Court to which, the withdrawn suit,
i.e.,O.S.No.11101/198 or 3869/2006 is assigned. As per the
order of the Hon'ble High Court of Karnataka, the withdrawn
case has assigned to this Court. Hence O.S.No.11101/1998,
O.S.No.7973/2006 and Execution Case No.306/19990 are
38
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
transferred to this Court. Files taken on the board. Execution
Case No.306/1999 is renumbered as Execution No.3390/2013
after receiving the file to this Court. All the matters riped for
arguments. At the time of arguments as per the direction of
the Hon'ble High Court of Karnataka, this Court has clubbed
O.S.No.3869/2006, O.S.No.7973/2006 in O.S.No.11101/1998
and Execution Case No.3390/2013 also clubbed in
O.S.No.11101/1998, as the learned counsels for the parties
have no objection.
26. Heard the arguments on both sides.
27. My findings on the above Issues are:-
O.S.No.11101/1998:-
Issue No.1: In the negative
Issue No.2: In the negative
Issue No.3: In the negative
Issue No.4: In the negative
Addl. Issue No.1: In the negative
Addl. Issue No.2: In the affirmative
39
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Issue No.5: As per final order
O.S.No.3869/2006:-
Issue No.1: In the affirmative
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: In the affirmative
Issue No.7: In the negative
Issue No.8: In the negative
Issue No.9: In the negative
Issue No.10: In the affirmative
Issue No.11: As per final order
O.S.No.7973/2006:-
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Addl.Issue No.1: In the negative
Issue No.4: As per final order
40
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Execution No.3390/2013:-
Point No.1: In the negative
Point No.2: As per final order
for the following :-
REASONS
28. Issue No1 in O.S.No.11101/1998:- Before
going into the merits of the case, it is necessary to better
understand the relationship of the parties. The propositus of
the family of the plaintiffs and defendants was Haji Ahmed
Shariff who died on 14/01/1995. The said Haji Ahmed Shariff
had two wives i.e., plaintiff No.1-Zeenatunnissa (in
O.S.No.11101/1998) and plaintiff No.2 Bibijan (in
O.S.No.11101/1998. Zeenatunnissa had two children by name
Yasmeen Sulthana-defendant No.1 in O.S.No.11101/1998 and
plaintiff No.4 Muneer Ahmed Shariff. Defendant No.1-
Yasmeen Sulthana had three daughters, i.e., defendant No.2
Javeria Nushrath, defendant No.3-Saira Ishrath and defendant
41
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
No.4-Fathima Barkath. Second wife of Haji Ahmed Shariff had
two children i.e., plaintiff No.3-Mushtaq Ahmed Shariff and
Jubeda Begum. The so called adopted son of deceased Haji
Ahmed Shariff by name Allah Baksh had two children, plaintiff
No.5-Sadiya Begum and plaintiff No.6-Zikrur Rehman Shariff.
These are the legal heirs and legal representatives of
deceased Haji Ahmed Shariff. Hereinafter plaintiffs are
referred as plaintiffs and defendants are referred as
defendants for the sake of convenience in other cases also.
29. It is an admitted fact that plaintiff Nos.1 and 2
had jointly purchased the property bearing No.40, Cockburn
Road, under registered sale deed dated 02/02/1971 for
valuable consideration. It is an admitted fact during the
course of evidence that said property was bifurcated as
property No.40 and 40/1 on 16/11/1992, the transfer of
khatha certificates are produced by the defendants and
property No.40 had fallen to the share of Bibijan-second
plaintiff and property No.40/1 had fallen to the share of
42
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
plaintiff No.1-Zeenatunnissa. As per the partition or
bifurcation, khatha had been entered in the names of
respective parties of the properties and they had paid tax to
the Corporation. The relationship of the parties as stated
above, is not in dispute. It is undisputed fact that plaintiffs
have filed so many cases against the defendants and
defendants have also filed cases against the plaintiffs. The
proceedings before Court are not in dispute.
30. The plaintiffs contend that defendant No.1 is
daughter of the plaintiff No.1. Defendant No.1 along with her
husband had created a false, fabricated and forged document
oral Hiba alleged to be executed by the plaintiff No.1 in favour
of defendant No.1. Hence the said Hiba, i.e., oral gift is not in
accordance with law and same is null and void. On the other
hand, defendants contend that defendant No.1 is natural
daughter of plaintiff No.1. She was residing with the plaintiff
No.1 at the relevant point of time and plaintiff No.1 had
executed the oral gift in favour of the defendant No.1. Hence
43
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
khatha had been transferred in the name of defendant No.1
and defendant No.1 had executed regular sale deed in favour
of her minor daughters-defendant Nos.2 to 4. Hence the
personal law of the parties, i.e., Mohammedan law is
permitted to give oral gift by the plaintiff No.1 in favour of
defendant No.1. Plaintiffs contend that it is a fraudulent,
misrepresentation and forged document. Plaintiff No.1 has not
put her signature on the oral gift-Hiba.
31. The plaintiffs have also taken contention that
oral gift-Hiba dated 15/12/1995 is otherwise unjust, unfair
and is illegal and same is bad U/Sec.16 to 19 of Indian
Contract Act. The signatures found on the oral Hiba are not
the signatures of the plaintiff No.1. The declaration dated
15/12/1995 is also bad in law. Hence they filed this suit for
declaration and revocation of the khatha entered in the name
of defendant No.1, in turn in favour of defendant Nos.2 to 4
as per the sale deed executed by defendant No.1 to them.
44
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
32. The power of attorney holder of the plaintiff
No.1 is examined as P.W.1 and got marked Ex.P.1 to P.15.
Plaintiffs have produced the oral gift, i.e., declaration alleged
to be made by plaintiff No.1 on 15/12/1995. The said
declaration discloses that plaintiff No.1 had made oral gift-
Hiba on 15/12/1995 in favour of defendant No.1. The said
document is marked at Ex.D.45 and plaintiffs have produced
the said document and marked at Ex.P.5 and Ex.D.28. These
documents are oral gift. For the sake of convenience I will
refer Ex.D.45-oral gift.
33. The plaintiffs contend that plaintiff No.1 had
not gifted the suit property in favour of defendant No.1 and
plaintiff No.2 had not consented to the said Hiba gift made by
the plaintiff No.1. Hence Ex.D.45 is forged, fabricated and
concocted document.
34. Plaintiffs have taken specific contention that
defendant No.1 along with her husband had created Ex.D.45
oral gift declaration made on 15/12/1995. Hence it is plaintiff
45
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
No.1 who was well acquainted with the facts of the case, i.e.,
fraud and cheated the plaintiff No.1 by making
misrepresentation by the defendant No.1 and her husband.
But plaintiff No.1 has not entered into witness box to
substantiate her pleadings about the fraud played upon her
and the misrepresentation made by defendant No.1 to the
plaintiff No.1. Hence it is settled principle of law that the
person who is well acquainted with the facts of the case,
especially in respect of fraud, misrepresentation forged
documents, he or she, himself or herself has to depose the
facts of the case by entering into the witness box. But the
plaintiff No.1 remained absent. She was not subjected for
cross-examination to elicit the truth of the facts. Hence an
adverse inference U/Sec.114 of Indian Evidence Act can be
drawn against plaintiff No.1. Plaintiff No.1 intentionally has
not entered into witness box and she is not subjected to
cross-examination. Hence the contention taken by the
46
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
plaintiffs in respect of fraud is not substantiated by the
plaintiffs.
35. P.W.1 the power of attorney holder of plaintiff
No.1 during the course of cross-examination, he admits that
plaintiff No.1 had given oral evidence in Execution Petition
No.306/1999. I have perused the oral evidence of plaintiff
No.1 who had given her oral evidence before the Chief Judge,
Small Causes Court, Bengaluru as P.W.1. She was hale and
healthy. She has not come before this Court and had not
adduced oral evidence and not subjected to cross-
examination. This fact clearly goes to show that plaintiff No.1
might have executed oral gift in favour of defendant No.1.
That is why she has not appeared before this Court. If she
would have appeared before Court, the truth would have been
elicited. Hence an adverse inference drawn against her.
36. P.W.1 who is power of attorney holder of
plaintiff No.1 was not well acquainted with the facts and
circumstances of the case of the plaintiff No.1 in respect of
47
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
creation or existence of Ex.D.45-declaration of oral gift. Hence
the evidence of P.W.1 in respect of evidence on Ex.D.45 is a
hearsay evidence. Hence plaintiffs have not established and
proved that defendant No.1 colluding with her husband had
created a document.
37. Another contention of the plaintiff No.1 is that
defendant No.1 along with daughter of second wife of her
husband, Jebeda Begum had filed suit bearing
O.S.No.7913/1995 interalia claiming partition and separate
possession of 4/13 share in the suit property bearing No.40/1.
By the time suit was filed, the alleged Hiba was executed. As
far as Hiba is concerned, the plaintiffs, i.e., defendant No.1
and Jubeda Begum who had filed the suit had not pleaded this
fact. I have perused the materials placed on record. Plaintiffs
have deleted the suit property bearing No.40/1. Hence the
said contention of the plaintiffs has no force at all and another
circumstance is that declaration of oral gift was made on
48
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
15/12/1995 after filing the said suit. Hence the said
contention of the plaintiffs has no force at all.
38. Plaintiffs contend that the signatures found on
Ex.D.45 are not the signatures of plaintiff No.1. Learned
Advocate for the plaintiffs has argued that said Ex.D.45 is a
forged one and defendants have not proved it. The
contention of the learned Advocate for the plaintiffs is that the
said document-Ex.D.45 is concocted, obtained by playing a
fraud and this issue can be sub-divided into 5, i.e.,
1. Whether the defendant proves that Ex.D.45
executed and signed by plaintiff No.1?
2. Whether plaintiff No.1 had the authority to give
the property solely?
3. Whether the document dated 15/12/1995 is a gift
deed?
4. What is the nature of document? What is its
validity?
5. Whether same has been proved legally?
These questions are raised by the learned counsel for
the plaintiffs. It is the case of the plaintiffs that defendant
49
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
No.1 along with her husband had played fraud upon the
plaintiff No.1. But as I have discussed in supra, plaintiff No.1
has not entered into witness box and not stated about the
fraud played by the defendant No.1 on the plaintiffs. Plaintiffs
have to plead in their plaint in particulars in respect of fraud.
The particulars of fraud have not been pleaded by the
plaintiffs.
39. As could be seen from the records and the
evidence of P.W.1 and D.W.1 it goes to show that property
bearing No.40 had jointly purchased by plaintiff Nos.1 and 2.
This fact is not in dispute. But this property was bifurcated
into two portions and property No.40 had fallen to the share
of plaintiff No.2 and property No.40/1 had fallen to the share
of plaintiff No.1-Zeenatunnissa. Hence Zeenatunnissa is the
absolute and sole owner of suit property bearing No.40/1 and
she had right to alienate the property or gift the property, as
it is her self acquired property. Plaintiffs themselves claim
that document dated 15/12/1995 is not a gift, but it is a
50
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
declaration. So it is a valid document, as the signatures found
on Ex.D.45 are tally with the admitted signatures of plaintiff
No.1. Learned counsel for the plaintiffs has relied on the
ruling reported in AIR 1957 Allahabad 119 (Bhagwan Din
vs. Gouri Shankar and another) wherein their Lordships
have held that:
"Comparison of signatures by Court
itself - Permissibility - Court not to base its
conclusion solely on such comparison -
Execution of document -Denial - Burden of
proof.
It is no doubt open to court to express
its own opinion about the identity or
otherwise of a disputed handwriting or
thumb-impression but it would not be safe
to base a conclusion entirely on such a
comparison."
With great respect the principle laid down by their
lordships is not applicable to the present case on hand, as the
defendants have preferred Writ Petition No.31677/2016
51
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
before Hon'ble High Court of Karnataka against the order
passed on I.A.No.5/16 under Order 26 Rule 10A of C.P.C. in
O.S.No.11101/1998. Their Lordships have dismissed the said
Writ Petition holding in para No.7 as under:
"The instant application is filed by the
petitioner, i.e., defendant No.1 at the time
when the matter was posted for oral
arguments. In the earlier proceedings in
Execution No.306/1999, Executing Court has
opinioned that the signature was that of first
respondent i.e., plaintiff. The said finding is
affirmed by this Court in the writ petition. The
trial court has held that this aspect has not
been denied by the petitioners. In view of
the fact that there are no variations in
signatures and findings recorded by the
Executing Court has been affirmed by this
Court and attained finality, in my view, there
is no error in rejecting the instant
application."
Hence it clearly goes to show the signatures found on
Ex.D.45 are the signatures of plaintiff No.1.
52
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
40. The Executing Court means Hon'ble Chief
Judge, Court of Small Causes had also given finding in the
order passed on I.A. under Order 21 Rule 97 to 101 read with
Section 151 of C.P.C. Hon'ble Chief Judge, Court of Small
Causes had opined that signature found on Ex.D.45 and
admitted signatures of plaintiff No.1 on vakalath and other
documents are identical and tally with each other. Hence
plaintiffs have utterly failed to prove that defendant No.1
colluding with her husband had created, forged and fabricated
the document-Ex.D.45.
41. Another circumstance in favour of the
defendants is that at that time there was no dispute between
the plaintiffs and defendants. Plaintiff No.1 is residing with
defendant No.1. The finding given on I.A. under Order 21
Rule 97 to 101 read with Section 151 of C.P.C. clearly goes to
show that evidence of plaintiff No.1-Zeenatunnissa reveals
that plaintiff No.1 was residing with defendant No.1. This is
another circumstance which goes in favour of the defendants.
53
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
The defendants have produced check leaf of Amanath Co-
operative Bank dated 15/11/1996 at Ex.D.40, application for
Savings Bank Account at Ex.D.43 where the account of
plaintiff No.1 and account of defendant No.1 are joint. The
said account is still in joint. It clearly goes to show that
plaintiff No.1-Zeenatunnissa has executed a declaration-
Ex.D.45.
42. I have perused Ex.D.45-declaration made by
plaintiff No.1 before Notary. The signatures found on Ex.D.45
are tally with the admitted signatures of plaintiff No.1.
43. Learned Advocate for the plaintiffs has placed
reliance on the ruling reported in AIR 1960 Supreme Court
100 (Narayan Bhagwantrao Gosavi Balajiwale vs.
Gopal Vinayak Gosavi and others), in Head Note B it is
held that:
"(B) Evidence Act (1 of 1872), S.101,
S.102, S.103, S.104 -Burden of proof -
Meaning of -Question of burden of proof
54
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
looses its importance when both sides have
let in evidence.
The expression "burden of proof" really
means two different things. It means
sometimes that a party is required to prove
an allegation before judgment can be given
in its favour; it also means that on a
contested issue one of the two contending
parties has to introduce evidence. The
burden of proof is of importance only where
by reason of not discharging the burden
which was put upon it, a party must
eventually fail. Where, however, parties
have joined issue and have led evidence and
the conflicting evidence can be weighed to
determine which way the issue can be
decided, the abstract question of burden of
proof becomes academic."
44. The burden on the donee who has to prove
that plaintiff No.1 had gifted the suit property is in favour of
defendant No.1. It is an admitted fact that plaintiff No.1 and
55
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
defendants are residing jointly. To substantiate this fact
defendants have produced voters list and also passbook
where passbook standing jointly in the name of plaintiff No.1
and defendant No.1. The signatures of plaintiff No.1 as I
have already discussed in supra, are found one and the same.
Hence defendants have proved and established that Ex.D.45
declaration of gift made by plaintiff No.1 is valid in the eye of
law.
45. The learned Advocate for plaintiffs has relied
upon the decision reported in AIR 2010 SC 211 (Abdul
Rahim and others vs. SK.Abdul Zabar and others)
regarding validity of gift under Mohammadan Law. In para-10
it is held as under:-
"10. A gift indisputably becomes
complete when a person transfers with
immediate effect the ownership of his
movable or immovable property to another
person, and that other person himself or
someone else with his consent takes
56
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
possession of the property gifted. Under
Mohammadan Law it is a contract which
takes effect through offer and acceptance.
The conditions to make a valid and
complete gift under the Mohammadan Law
are as under:
(a) The donor should be sane and
major and must be the owner of the
property which he is gifting.
(b) The thing gifted should be in
existence at the time of hiba.
(c) If the thing gifted is divisible, it
should be separated and made distinct.
(d) The thing gifted should be such
property to benefit from which is lawful
under the Shariat
(e) The thing gifted should not
accompanied by things not gifted; i.e.,
should be free from things which have not
been gifted.
(f) The thing gifted should come in
the possession of the donee himself, or of
his representative, guardian or executor.
57
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
These conditions are fulfilled by the defendant No.1.
Hence plaintiffs have failed to prove that said declaration of
gift-Ex.D.45 is fabricated and created one.
46. The learned Advocate for the defendants
placed reliance on the ruling reported in (2014) 10
Supreme Court Cases 459 (Rasheeda Khtoon (Dead)
through Legal Representatives vs. Ashiq Ali, S/o
Lieutenant Abu Mohd.), in Head Note A it is held as
under:-
"A. Family and Personal Laws - Muslim
Law - Gift - Oral gift of immovable property
(house) - Validity - Essential requisites - (1)
Declaration of gift by donor;(2) acceptance of
gift, express or implied, by donee; and (3)
delivery of possession by donor and taking of
actual or constructive possession of gifted
property by donee - If these requisites are
shown to have been satisfied, gift would be
valid."
58
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
The principle laid down by Their Lordships is amply
applicable to the present case, as declaration-Ex.D.45 has
fulfilled all these conditions.
The learned Advocate for the defendants has also
placed reliance on the ruling reported in AIR 1972 Patna
279 (Syed Md. Saleem Hashmi vs. Syed Abdul Fateh
and others). In Head Note it is observed as under:
"Mohamedan Law - Oral gift -
Essentials -Delivery of possession, what
constitutes.
Mohamedan law permits an oral gift, but
to make a gift valid the following three
essentials must co-exist: (i) a declaration of
gift by the donor,(ii) acceptance of the gift
express or implied, by or on behalf of the
donee, and (iii) delivery of possession of the
subject of the gift by the donor to the donee.
Delivery of possession need not in all cases be
actual. It should be delivery of such
59
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
possession as the subject of the gift is
susceptible.
Mere fact that the donor continued to
live in the house is not enough to hold that
there was no delivery of possession."
The principle laid down by Their Lordships is amply
applicable to the present case. In this case also plaintiff No.1
had made a declaration of gift, same was accepted by
defendant No.1 and possession was delivered symbolically
and further their Lordships have held that mere fact that the
donor continued to live in the house is not enough to hold
that there was no delivery of possession. Hence the principle
laid down by their Lordships is amply applicable to the present
case on hand.
47. The plaintiffs have failed to prove that Ex.D.45
gift deed dated 15/12/1995 is concocted and obtained by
playing fraud. Hence I answer issue No.1 in the 'negative'.
60
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
48. Issue No.2 in O.S.No.11101/1998 and Issue
No.1 in O.S.No.3869/2006:-
Plaintiffs contend that defendant No.1 is not the owner
of the suit schedule property. Hence she has no right, title or
interest to execute sale deed in favour of defendant Nos.2 to
4 and defendant Nos.2 to 4 have not acquired rights over the
suit schedule property under the sale deed. The defendants
contend that plaintiff No.1-Zeenatunnissa was absolute owner
of the suit schedule property bearing No.40/1 and she was
staying with the defendants during the period of execution of
the declaration dated 15/12/1995 and Zeenatunnissa had
executed a declaration on 15/12/1995 and gifted the suit
schedule property to defendant No.1. As I have already
discussed supra while discussing issue No.1, that
Zeenatunnissa-plaintiff No.1 was absolute owner and she had
gifted the property in favour of her daughter-defendant No.1,
defendant No.1 had executed sale deed in favour of her minor
daughters defendant Nos.2 to 4. Hence defendant No.1 has
61
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
rightly transferred the legal rights in favour of defendant
Nos.2 to 4. The defendants have produced two sale deeds at
Ex.D.5 and D.6 executed by defendant No.1 in favour of
defendant Nos.2 to 4. The said sale deeds are registered sale
deeds and defendant No.1 was absolute owner of the suit
schedule property on the basis of the gift deed. Defendants
have produced documents to show that khatha was entered in
the name of defendant Nos.2 to 4 and they are paying tax to
the Corporation. Hence plaintiffs have failed to prove that
sale deed dated 28/02/1994 executed by defendant No.1 in
favour of defendant No.2 is null and void. On the other hand
defendants have established and proved that it is a valid sale
deed executed by defendant No.1 in favour of defendant
No.2. Hence I answer issue No.2 in O.S.No.11101/1998 in the
'negative' and issue No.1 in O.S.No.3869/2006 in the
'affirmative'.
49. Additional Issue No.1 in O.S.No.11101/1998:-
The defendants have taken formal contention that the suit of
62
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
the plaintiffs is bad for non-joinder and mis-joinder of the
parties at para 14 of the written statement. The defendants
have not pleaded how the suit is hit by principles of mis-
joinder and non-joinder of the parties. I have perused the
materials placed on record. It is an admitted fact that plaintiff
Nos.1 and 2 had jointly purchased the suit schedule property
and plaintiff No.1 contends that she had not executed a gift
deed in favour of defendant No.1. If that be the case, then
defendant No.1 is proper and necessary party. After
execution of the gift deed as alleged by defendant No.1,
defendant No.1 had executed sale deed in favour of her minor
daughters defendant Nos.2 to 4 and they are also parties in
the proceedings. Hence the defendants have not specifically
pleaded and contends that suit of the plaintiffs is bad for non-
joinder for not arraying the specific parties and also not
included the properties and parties. Hence I answer additional
issue No.1 in O.S.No.11101/1998 in the 'negative'.
63
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
50. Additional Issue No.2 in O.S.No.11101/1998:-
It is admitted fact that plaintiff No.1 deceased Zeenatunnissa
and plaintiff No.2 deceased Bibijan had jointly purchased the
suit schedule property and it is also admitted fact during the
course of evidence that suit property was divided into two
parts. Property No.40 had fallen to the share of plaintiff No.2
deceased Bibijan and property No.40/1 had been allotted to
plaintiff No.1 deceased Zeenatunnissa and I have perused the
valuation slip. Plaintiffs have filed suit for declaration. Hence
valuation made by the plaintiffs is proper and correct and also
Court fee paid on it. Hence I answer additional issue No.2 in
O.S.No.11101/1998 in the 'affirmative'.
51. Issue Nos.3 and 4 in O.S.No.11101/1998
discussed jointly:- Plaintiffs have utterly failed to prove that
plaintiff Nos.1 and 2 are the owners of the suit schedule
property and khatha in respect of the suit property is liable to
be revoked. I have discussed the details in respect of the title
of the suit property and khatha entered in the name of
64
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
defendants in supra while discussing issue No.1. Hence
plaintiffs have failed to prove that they are entitled to
declaration as prayed for and also not entitled to revoke the
khatha. Hence I answer issue Nos.3 and 4 in
O.S.No.11101/1998 in the 'negative'.
52. Issue Nos.1 and 2 in O.S.No.7973/2006:-
Plaintiffs have failed to prove that plaintiff No.1 -
Zeenatunnissa is absolute owner of the suit schedule
property. Hence plaintiff No.1 has no right, title or interest to
execute gift deed dated 18/10/2002 in favour of plaintiff No.4-
Muneer Ahmed Shariff by plaintiff No.1 (defendant No.1 in
favour of defendant No.2 in O.S.No.7973/2006). Plaintiff No.1
has no right, title or interest to executed gift deed in favour of
plaintiff No.4-Muneer Ahmed Shariff as on the date of
18/10/2002 plaintiff No.1 was not the owner of the suit
schedule property. Hence the said gift deed executed by
plaintiff No.1-Zeenatunnissa in favour of plaintiff No.4-Muneer
65
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Ahmed Shariff is not binding on the defendant No.1-
Yasmeen Sultana.
53. Defendant No.1 along with other defendants
had filed suit for cancellation of the gift deed. The court fee
paid by the plaintiffs is proper and correct. Hence I answer
issue Nos.1 and 2 in O.S.No.7973/23006 in the 'affirmative'.
54. Additional Issue No.1 in O.S.No.7973/2006:-
Plaintiff No.4-Muneer Ahmed Shariff (defendant No.2 in
O.S.No.7973/2006) contends that suit of the plaintiff is barred
by limitation as gift deed registered on 18/10/2002, as
defendants have filed the suit in the year 2006. The
defendants ought to have filed the suit within 3 years from
the date of registration of the gift deed. Hence suit is barred
by limitation. The defendants (plaintiffs in O.S.No.7973/2006)
have contended that they had come to know about the
existence of gift deed in the name of fourth plaintiff Muneer
Ahmed Shariff in the year 2003. Hence defendants had filed
complaint before Indiranagar police station which was
66
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
registered in Crime No.176/2003 and same is pending before
10th Additional Metropolitan Magistrate at Mayo Hall. The said
complaint was withdrawn on 22/07/2006. Hence filed the
present suit and cause of action arose on 22/07/2006 after
withdrawing of criminal case. The cause of action arose on
22/07/2006. The suit of the defendants is well within time.
This fact is not disputed by the plaintiffs. Proceedings are
pending between the plaintiffs and defendants from 1998 till
today and the plaintiff No.1 has no right to execute a gift
deed in favour of defendant No.2 on 18/10/2002. When the
plaintiff had no right to execute the gift deed as on the date
of gift deed, she was not the owner of the suit property.
Hence the gift deed executed by plaintiff No.1 is void and not
valid in the eye of law. The defendants have rightly
contended that initially they have moved complaint before
Indiranagar police station and the said case was withdrawn on
22/07/2006. Hence the suit of the defendants is well within
time after withdrawing the criminal case, defendants have
67
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
filed the present suit for cancellation of the gift deed. Hence
the suit of the defendants is well within time. Hence I
answer additional issue No.1 in O.S.No.7973/2006 in the
'negative'.
55. Issue Nos.2 to 5 and 9 in O.S.No.3869/2006
discussed jointly:- These issues are interconnected with
each other. To avoid repetition of the facts and evidence, I
have discussed the above issues jointly.
56. Defendant No.2 had filed suit for declaration
that she is absolute owner of the suit schedule property and
direct the defendants to deliver vacant possession of the
schedule property. Defendant No.2 contends that plaintiff
No.1-Zeenatunnissa is tenant under defendant No.2, as
defendant No.2 is landlady. Allah Baksh is tenant under
plaintiff No.1 and they had failed to pay rent. Plaintiff No.1
has failed to pay rent of Rs.1000/- from 01/06/1997 till today.
Hence defendants got issued legal notice on 17/11/1998 and
also prayed for mesne profits.
68
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
57. Plaintiff No.1-Zeenatunnissa and Allah Baksh
have filed written statement denying the title of the defendant
No.2 and also denied there is relationship of plaintiff and
defendants as tenant and landlady and also challenged the
sale deed dated 04/03/1997 in favour of defendant No.2
executed by defendant No.1. They have also contended that
plaintiff No.1 and other plaintiffs have filed suit bearing
O.S.No.11101/1998 against the defendants challenging the
title of the defendants and also plaintiffs have taken
contention that plaintiff No.1 had questioned the title of the
defendant No.2 and vendor of defendant No.2, i.e., defendant
No.1 in Execution No.306/1999. Hence the question of arrears
of rent from the plaintiff No.1 and Allah Baksh does not arise.
I have already discussed in supra while discussing issue No.1
in O.S.No.11101/1998 and has come to conclusion that
defendant No.1 is absolute owner of the suit schedule
property by way of gift deed-Ex.D.45 and defendant No.1 had
executed regular sale deed in favour of her minor children-
69
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
defendant Nos.2 to 4. Hence defendant No.2 is absolute
owner of the suit schedule property.
58. Defendant No.2 contends that plaintiff No.1 is
in possession of the suit schedule property as a tenant and
Allah Baksh is tenant under plaintiff No.1. Defendant No.2
has not produced materials on record to show that plaintiff
No.1 and Allah Baksh are tenants in the suit schedule
property. It is an admitted fact that plaintiff No.1 is
grandmother of defendant No.2 and erstwhile owner of the
suit schedule property. It is also admitted fact that plaintiff
No.1-Zeenatunnissa is mother of the defendant No.1 Yasmeen
Sultana who is vendor of defendant No.2. Defendant No.2 has
failed to prove and establish that plaintiff No.1-Zeenatunnissa
and Allah Baksh are the tenants under defendant No.2. No
materials are forthcoming. Hence defendant No.2 has failed to
prove that plaintiff No.1-Zeenatunnissa (defendant No.1 in
O.S.No.3869/2006) and Allah Baksh (defendant No.2 in
O.S.No.3869/2006) are due rent from 01/06/1997 till today.
70
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Hence defendant No.2 is not entitled to arrears of rent from
01/06/1997 till today and also not entitled to mesne profits.
Defendant No.2 fails to prove the existence of landlady and
tenant relationship between herself and plaintiff No.1. Hence
I answer issue Nos.2, 3, 4, 5 and 9 in O.S.No.3869/2006 in
the 'negative'.
59. Issue No.7 in O.S.No.3869/2006:- Plaintiff
No.4 (defendant No.2 in O.S.No.3869/2006) contends that
suit is bad for non-joinder of necessary parties contending
that defendant No.2 is within knowledge that alleged suit
property had given to Zikrur Rehaman Sheriff-plaintiff No.6
and Sadiya Begum-plaintiff No.5 in O.S.No.11101/1998 who
are children of Allah Baksh, adopted son of Haji Abdul Shariff
under the oral gift deed 07/01/2001. Hence they are proper
and necessary parties. The said contention has no force, as
plaintiff No.1 is not the owner of the suit schedule property on
07/01/2001. Hence the above said Zikrur Rehaman Shariff
and Sadiya Begum are not the proper and necessary parties.
71
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Hence I answer issue No.7 in O.S.No.3869/2006 in the
'negative'.
60. Issue No.8 in O.S.No.3869/2006:- Plaintiff
No.4 contends that suit is barred by limitation, as defendant
No.2 was in knowledge that plaintiff No.1 Zeenatunnissa had
gifted the suit property to Zikrur Rehman Shariff-plaintiff No.6
and Sadiya Begum-plaintiff No.5 on 07/01/2001 and this suit
is filed in the year 2006. Hence the suit is barred by limitation
and also suit of the defendant No.2 is liable to be rejected
under Order 7 Rule 11 of C.P.C. as there was no cause of
action. I have already discussed in supra while discussing
issue No.1 in O.S.No.11101/1998 that plaintiff No.1 is not
owner of the suit schedule property as on 07/01/2001 when
the oral gift gifted the property in favour of plaintiff No.5 and
6. Hence suit of the defendant No.2 is well within time. The
contention raised by the plaintiff No.4 has no force at all.
Hence I answer issue No.8 in O.S.No.3869/2006 in the
'negative'.
72
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
61. Issue No.10 in O.S.No.3869/2006:- Defendant
No.2 had filed this suit for declaration that she is absolute
owner of the suit property and prayed to direct the
defendants to deliver vacant possession of the schedule
property and enquiry for mesne profits under Order 20 Rule
12 of C.P.C. Defendant No.2 had established and proved that
her vendor defendant No.1 was absolute owner of the suit
property on the basis of declaration of gift -Ex.D.45.
Defendant No.1 had executed regular sale deed in favour of
defendant No.2. Hence defendant No.2 has proved and
established title over the suit schedule property and defendant
No.2 is entitled to possession of the suit schedule property as
prayed for. Hence I answer issue No.10 in O.S.No.3869/2006
in the 'affirmative'.
62. Point No.1 in Execution No.3390/2013
(Ex.306/1999):- The parties are referred as referred in this
execution petition for the sake of convenience. Decree holder
Javeria Nusrath had filed HRC No.463/1998 before Hon'ble
73
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
Chief Judge, Court of Small Causes. The said HRC petition
came to be allowed and decreed in favour of Javeria Nusrath.
Hence she had filed Execution Petition against judgment
debtor and Executing Court had issued delivery warrant.
Meanwhile the applicant/objector-Zeenatunnissa had filed I.A.
under Order 21 Rule 97 to 101 read with Section 151 of C.P.C.
contending that decree holder has filed HRC No.463/1998
against unknown and fictitious person and had obtained
exparte decree and also obtained delivery warrant. At that
point of time the applicant/objector-Zeenatunnissa came to
know about the proceedings. Hence she filed the application
contending that she is original owner of the suit schedule
property and her daughter defendant No.1 Yasmeen Sultana
had forged, created and fabricated document named and
styled as declaration of oral gift colluding with her husband.
She never gifted the suit property to her daughter Yasmeen
Sultana. Hence she is owner in actual possession and
enjoyment of the suit property. Further objector has taken
74
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
contention that she had filed O.S.No.11101/1998 challenging
the oral gift gifted by her. Hence Execution petition may be
dismissed.
63. Decree holder contends that she is owner of
the suit schedule property by way of sale deed executed by
her mother Yasmeen Sultana who was owner of the suit
schedule property on the basis of Hiba oral gift and she had
filed HRC No.463/1998. The said case came to be decreed.
After evidence of applicant and after evidence of decree
holder through power of attorney holder, the I.A. was
disposed off holding that Zeenatunnissa-the applicant has no
right, title or interest, as she had executed declaration of oral
gift in favour of vendor of decree holder. Hence the
application was rejected. Aggrieved by the said order the
applicant-Zeenatunnissa had preferred RFA No.98/2006
before Hon'ble High Court of Karnataka. Respondent
appeared in the said RFA and matter was remanded directing
the parties to club all the proceedings pending in between
75
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
them in a single case, as the parties and properties are one
and the same and also directed the Hon'ble Principal City Civil
Judge to transfer all the cases to one Court. The matter
received, parties have not adduced oral evidence. Hence
closed their side. At the time of arguments
O.S.No.3869/2006, O.S.No.7973/2006 and this Execution
No.3390/2013 were clubbed with O.S.No.11101/1998 and
passed this common Judgment.
64. After remand of the matter, the objector and
decree holder have not adduced oral evidence. On going
through the oral evidence of the parties, the
objector/applicant-Zeenatunnissa has failed to prove that she
is owner in actual possession and enjoyment of the suit
schedule property. The signatures of Zeenatunnissa-
applicant found on Ex.D.45-declaration of gift Hiba dated
15/12/1995 and the admitted signatures on vakalath of
Zeenatunnissa are one and the same. I have placed reliance
on the orders passed by the Hon'ble High Court of Karnataka
76
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
in RFA No.31677/2016 wherein in para 7 the Hon'ble High
Court of Karnataka has held as under:-
"The instant application is filed by the
petitioner, i.e., defendant No.1 at the time
when the matter was posted for oral
arguments. In the earlier proceedings in
Execution No.306/1999, Executing Court has
opinioned that the signature was that of first
respondent i.e., plaintiff. The said finding is
affirmed by this Court in the writ petition. The
trial court has held that this aspect has not
been denied by the petitioners. In view of the
fact that there are no variations in signatures
and findings recorded by the Executing Court
has been affirmed by this Court and attained
finality, in my view, there is no error in
rejecting the instant application."
The signatures found on Ex.D.45 declaration of gift-
Hiba dated 15/12/1995 are proved by the defendants as they
are signatures of Zeenatunnissa. Hence the decree holder has
77
O.S.11101/1998 C/w O.S.3869/2006,
O.S.7973/2006 & Ex.3390/2013
proved and established that she is owner of suit schedule
property. Hence the objection filed by the objector/applicant-
Zeenatunnissa is deserves to be rejected and point No.1 is
Execution No.3390/2013 is answered in the 'negative'.
65. Issue No.5 in O.S.No.11101/1998 Issue
No.11 in O.S.No.3869/2006, Issue No.3 in
O.S.No.7973/2006 and Point No.2 in Execution
3390/2013:- For the reasons discussed above and in view
of findings given on the above issues, I proceed to pass the
following:-
ORDER
The suit O.S.No.11101/1998 is hereby dismissed.
No order as to costs.
The suit O.S.No.3869/2006 is partly decreed declaring that plaintiff is absolute owner of the suit schedule property.
78O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 Defendants are directed to deliver vacant possession of the suit property to plaintiff within 3 months.
Plaintiff is not entitled to mesne profits.
No order as to costs.
The suit O.S.No.7973/2006 is decreed declaring that the gift deeds dated 18/10/2002 registered as No.3544/02-03 of Book 1 and No.3546/02-03 of Book 1 before Sub-Registrar, Bengaluru are null and void and not binding on the plaintiffs.
No order as to costs.
Execution Petition No.3390/2013 (Ex.306/1999) is allowed.
Issue delivery warrant of the schedule property in favour of decree holder.
(Dictated to the Stenographer, computerized by her, corrected and then pronounced by me in Open Court on this the 29th day of September, 2016.) (V.H. WADAR) XLIII Addl. City Civil & Sessions Judge, BENGALURU, (CCH-44).
79O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 SCHEDULE IN O.S.No.11101/1998 All that piece and parcel of land with the buildings, tenements and all other here determents thereon with all fixtures there to commonly called and known as and bearing corporation No.40 (oldNo.29) situated in Cockburn Road, Civil Station, Bengaluru delineated and marked as A, B, C, D, E, F in the plan hereto annexed bounded on the East by premisesno.13, Slaughter House Road 'D' Street, and premises No.39,Cockburn Road, on the West by Cockburn Road, on the North by cross land and premises New No.39, Cockburn Road, on the South by premisesNo.41, Cockburn Road and measuring on the east 47 feet (21'+M+26') or thereabouts, on the West 47 feet and thereabouts, on the North 71 ½ feet (47.1/2'+M+29') or thereabouts and on the South by 71.1/2 feet or thereabouts.
SCHEDULE IN O.S.No.3869/2006 Residential premises in a portion of the property bearing No.40/1, Cockburn Road, Shivajinagar, Bengaluru-51, bounded on the East by : Private property 80 O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 West by : Property bearing No.40/1 North by : Passage and South by : Private property Measuring 12 x 14 feet.
SCHEDULE IN O.S.No.7973/2006 All the piece and parcel of the southern portion of the premises No.40 and 40/1, Cockburn Road, Shivajinagar, Bengaluru, having a residential Commercial building therein bounded and measuring on the:
East by : Property of Zikrur Rahman & Sadiya Begum on that side 20 feet West by : Cockburn Road on that side 20 feet North by : Common passage on that side 42 feet 6 inches South by : Private property on that side measuring 42 feet 6 Inches All the piece and parcel of the southern portion of the premises No.40 and 40/1, Cockburn Road, Shivajinagar, Bengaluru, having a residential building therein bounded and measuring on the:
East by : Private property on that side 26 feet West by: Property of Muneer Ahmed Sheriff and common Passage on that side measuring 26 feet 81 O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 North by: Private property on that side measuring 29 feet South by: Private property on that side measuring 29 feet ANNEXURE O.S.No.11101/1998 List of witness examined for the plaintiff/s:-
P.W.1 : Muneer Ahmed Sheriff List of witness examined for the defendant/s:-
D.W.1 : Zafrullah Khan List of documents marked for the plaintiff/s:-
Ex.P.1 : GPA
Ex.P.2 : Certified copy of registered sale deed dated
19/12/1970
Ex.P.3 : Encumbrance certificate
Ex.P.4 : Assessment extract
Ex.P.5 : Certified copy of declaratory affidavit
Ex.P.6 : Certified copy of plaint in O.S.No.7913/1995
Ex.P.7 : Paper publication
Ex.P.8 : Sale deed
Ex.P.9 : Copy of legal notice dated 03/04/1997
Ex.P.10 : Declaratory affidavit -oral gift by way of HIBA
Ex.P.11 : Certified copy of deposition of Zeeneethunnisa
Ex.P.12 : Pilgrim Pass
Ex.P.13 : Certified copy of Judgment in O.S.No.6083/2003
Ex.P.14 : Certified copy of Judgment in O.S.No.7913/1995
82
O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 Ex.P.15 : Certified copy of orders of Hon'ble Supreme Court.
List of documents marked for the defendant/s:-
Ex.D.1 : GPA Ex.D.1 : Certified copy of order passed in Ex.306/1999 Ex.D.2 & : Certificates issued by BBMP D.3 Ex.D.4 : Notice issued by BBMP Ex.D.5 & : 2 sale deeds D.6 Ex.D.7 : Settlement deed Ex.D.8 : Encumbrance certificate Ex.D.9 : Tax paid receipt Ex.D.10 & : Khatha certificates 11
Ex.D.12 to : Depositions in HRC EP.306.99 D.14 Ex.D.15 & : Certified copy of Judgment and decree in D.16 O.S.No.6083/83 Ex.D.17 : Certified copy of order sheet of O.S.No.7913/95 Ex.D.18 : Certified copy of plaint in O.S.No.7973/06 Ex.D.19 : Certified copy of objection of defendant in O.S.No.7913/95 Ex.D.20 : Certified copy of sale deed Ex.D.21 : Certified copy of tax paid receipt Ex.D.22 : Certified copy of certificate Ex.D.23 to : Tax paid receipts D.27 Ex.D.28 : Certified copy of Declaratory affidavit Ex.D.29 : Certified copy of voters list Ex.D.30 : Certified copy of rent note Ex.D.31 : Certified copy of lease deed Ex.D.32 : Tax paid receipt 83 O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 Ex.D.33 : Certificate Ex.D.34 : Khatha extract Ex.D.35 : Voters list Ex.D.36 : Certified copy of orders in HRC 800/01 Ex.D.37 : Endorsement in O.S.No.4302/91 Ex.D.38 : FIR Ex.D.39 : PCR copy Ex.D.40 : Certified copy of cheque Ex.D.41 & : Certified copy of Specimen signature card D.42 Ex.D.43 : Application to open joint account Ex.D.44 : Certified copy of passbook Ex.D.45 : Original of Ex.D.28 O.S.No.3869/2006:-
List of witness examined for the plaintiff/s:-
P.W.1 : Zafrullah Khan List of witness examined for the defendant/s:-
D.W.1 : Muneer Ahmed Shariff D.W.2 : Allah Bakash
List of documents marked for the plaintiff/s:-
Ex.P.1 : GPA
Ex.P.2 : Certified copy of order passed in HRC 800/2001
Ex.P.3 : Certified copy of plaint in O.S.No.7913/1995
Ex.P.4 : Certified copy of order passed in EP.306/99
Ex.P.5 : Certified copy of order sheet in O.S.No.7973/06
Ex.P.6 : Certified copy of plaint in O.S.No.7973/06
84
O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 Ex.P.7 to : 4 certified copy of tax paid receipts P.10 Ex.P.11 : Certified copy khatha certificate Ex.P.12 : Tax paid receipt Ex.P.13 : Khatha extract Ex.P.14 : Khatha certificate Ex.P.15 : Certified copy of sale deed Ex.P.16 : Certified copy of tax paid receipt Ex.P.17 : Certified copy of khatha certificate Ex.P.18 : Office copy of legal notice Ex.P.18(a) : One RPAD receipt Ex.P.19 : Reply Ex.P.19(a) : Postal cover Ex.P.20 & : Judgment and decree passed in O.S.No.7913/95 P.21 List of documents marked for the defendant/s:-
Ex.D.1 : Certified copy of order passed in RFA98/2006 Ex.D.2 : Certified copy of sale deed Ex.D.3 : Certified copy of order sheet in HRC 199/1999 Ex.D.4 : Certified copy of plaint in O.S.No.11101/1998 Ex.D.5 : Certified copy of HIBA Ex.D.6 : Certified copy of plaint in O.S.No.7913/95 Ex.D.7 : Certified copy of marriage certificate Ex.D.8 & : Certified copies of Passport D.9 Ex.D.10 : Certified copy Judgment in O.S.No.6083/2003 Ex.D.11 : Certified copy of gift deed Ex.D.12 : Certified copy of I.A. in O.S.No.7913/1995 85 O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 O.S.No.7973/2006:-
List of witness examined for the plaintiff/s:-
P.W.1 : Zafrulla Khan P.W.2 : J.B.Narayana P.W.3 : K.T.Srinivasa Murthy
List of witness examined for the defendant/s:-
D.W.1 : Muneer Ahmed Shariff List of documents marked for the plaintiff/s:-
Ex.P.1 : Power of attorney
Ex.P.2 : Certified copy of sale deed dated 8/5/2002
Ex.P.3 : Tax paid receipt
Ex.P.4 : Khatha certificate
Ex.P.5 : Khatha extract
Ex.P.6 : Certified copy of sale deed dated 4/3/1997
Ex.P.7 : Certified copy of orders passed in HRC 800/2001
Ex.P.8 : Certified copy of complaint filed in PCR
No.78/2006
Ex.P.9 : Certified copy of application filed U/o.26 R.97
C.P.C. in Ex.306/99
Ex.P.10 : Certified copy of khatha endorsement
Ex.P.11 : Tax paid receipt
Ex.P.12 : Khatha certificate
Ex.P.13 : Khatha extract
Ex.P.14 : Record of BBMP
Ex.P.14(a) : Certified copy of Judgment in O.S.No.7913/1995 Ex.P.15 : Death certificate of Bibijan Ex.P.16 : Deposition of Muneer Ahmed in 86 O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 O.S.No.7913/1995 Ex.P.17 : Letter dated 23/11/2011 Ex.P.18 : Deed of gift dated 17/10/2002 Ex.P.19 : Gift deed dated 18/10/2002 Ex.P.20 : Letter issued by Asst. Revenue Officer Ex.P.21 : Declaratory affidavit - oral gift HIBA Ex.P.22 : Declaratory affidavit - oral gift HIBA Ex.P.23 : Deed of declaration Ex.P.24 : Tax paid receipt Ex.P.25 : Khatha extract Ex.P.26 : Khatha certificate Ex.P.27 : Tax paid receipt Ex.P.28 : Khatha extract Ex.P.29 : Khatha certificate Ex.P.30 : Deposition of Allah Baksh in O.S.No.7913/95 (Ex.P.17 renumbered by consent) Ex.P.31 : Deposition of Musthaq Ahmed (Ex.P.18 renumbered by consent) Ex.P.32 : Certified copy of Civil Revision Petition No.214/06 (Ex.P.19 renumbered by consent) List of documents marked for the defendant/s:-
Ex.D.1 : Copy of application
Ex.D.2 : Application U/S 6(1) & 7(1) of the Right to
Information Act 2005
Ex.D.3 : Letter of BBMP
Ex.D.1 : Signature of Yasmin Sultana
Ex.D.2 : Objection of the defendant to I.A. in
O.S.No.11101/1998
Ex.D.3 : Certified copy of PCR No.44/2003
Ex.D.4 : Certified copy of plaint in O.S.No.7913/1995
Ex.D.5 : Certified copy of declaratory affidavit
Ex.D.6 : Certified copy of memo in HRC 199/99
Ex.D.7 : Certified copy of objection to Memo in HRC
87
O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 199/99 Ex.D.8 : Certified copy of order sheet in HRC 199/99 Ex.D.9 : Certified copy of memo in HRC 199/99 Ex.D.10 : Certified copy of objection in HRC 199/99 Ex.D.11 : Certified copy of sale deed dated 18/12/1970 Ex.D.12 : Invitation of gift ceremony Ex.D.13 : Sketch Ex.D.14 : C.D. of HIBA ceremony Execution No.3390/2013 List of witness examined for the Applicant:-
P.W.1 : Zeenatunnissa List of witness examined for the Decree holder:-
R.W.1 : Zafrullah Khan List of documents marked for the Applicant:-
Ex.P.1 : Copy of order sheet in O.S.No.11101/1998
Ex.P.2 : Copy of plaint
Ex.P.3 : Copy of order sheet in HRC 463/1998
Ex.P.4 : Copy of summons
Ex.P.5 : Certified copy of memo filed in HRC 462/1998
Ex.P.6 : Certified copy of plaint in O.S.No.7913/1995
Ex.P.7 : Copy of application in HRC 199/1999
Ex.P.8 : Certified copy plaint in O.S.No.11101/1998
88
O.S.11101/1998 C/w O.S.3869/2006, O.S.7973/2006 & Ex.3390/2013 List of documents marked for the Decree holder:-
Ex.R.1 & : Tax paid receipts R.2 Ex.R.3 : Power of attorney Ex.R.4 : Certified copy of sale deed Ex.R.5 : Khatha endorsement Ex.R.6 to : 4 tax paid receipts and declaratory affidavit sworn R.10 to by Zeenatunnissa Ex.R.11 : Voters list Ex.R.12 : Rent note Ex.R.13 : Lease deed
Ex.R.14 to : Copy o complaint with acknowledgement and R.16 paper publication Ex.R.17 : Tax paid receipt Ex.R.18 : Khatha certificate Ex.R.19 : Assessment extract Ex.R.20 : Copy of voters list Ex.R.21 : Certified copy of order in HRC 800/2001 Ex.R.22 : Copy of suit register extract Ex.R.23 : Copy of FIR Ex.R.24 : Copy of complaint in PCR 44/2003 Ex.R.25 : Cheque Ex.R.26 & : Bank Identity Cards R.27 Ex.R.28 : Account opening form Ex.R.28(a) : Signature of Zeenatunnissa Ex.R.29 : Postal acknowledgement Ex.R.29(a) : Signature of Zeenatunnissa (V.H. WADAR) XLIII Addl. City Civil & Sessions Judge, BENGALURU, (CCH-44).