Bangalore District Court
Mohammed Zakir Hussain vs M.Nazzr Hassain on 6 June, 2018
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (C.C.H.No.8)
Dated this the 6th day of June 2018
PRESENT: Sri.K.B.PATIL, B.Com.,LL.B.,(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.5755 of 2000
Plaintiff/s: Mohammed Zakir Hussain,
S/O Late M.Mohammed Saheb,
Aged about 39 years,
Muslim, Residing at No.29, 30th Cross,
B.G.Layout, Tilaknagar,
Jayanagar,
Bengaluru-41
(Sri. Mohan Das Shetty.T, advocate for
Plaintiff
Vs.
Defendant/s: 1. M.Nazzr Hassain,
S/O Late M. Mohammed Sahib,
aged about 50 years,
Muslim, Coffee planter,
Arehally post, Belur Taluk,
Hassan District,
Hassan-573101
2. Mohammed Younus,
S/O Late M. Nazeer Hussain,
aged about 20 years,
Muslim, Coffee planter,
Arehally post, Belur Taluk,
Hassan District,
Hassan-573101
(D.1- Sri.S.A.S advocate
D.2- M.M.G, advocate )
2 OS.No.5755 of 2000
Date of the institution of suit: 24.8.2000
Nature of the suit: Permanent injunction
Date of the commencement of 7.10.2009
recording of evidence:
Date on which the judgment was 6.6.2018
pronounced:
Total duration Year/s Month/s Day/s
17 09 12
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
Initially, the present suit is filed by the plaintiff against the defendants for the relief of permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and subsequently, plaintiff got deleted the said relief and sought for mandatory injunction against the defendants directing the defendants to deliver the vacant possession of the suit schedule property to the plaintiff and other reliefs.
2. The case of the plaintiff that the plaintiff is the full and absolute owner of property bearing No.29 situated at 30th Cross, Bannerghatta Layout, Corporation Division, No.60, Madiwala Range, Tilaknagar, Bengaluru-
3 OS.No.5755 of 200041 which is morefully described in the schedule having acquired the same under HIBA dated 20.12.1999. On the basis of HIBA, the katha was changed in his name in BBMP records. Plaintiff has paid taxes to the BBMP with respect to the suit schedule property. The 1st defendant was the owner of the property. The plaintiff and the 2nd defendant are the brothers. The plaintiff is in possession of the property since 20 years. Another brother of the plaintiff Zahid Hussain along with 1st defendant had jointly executed an agreement to sell both the properties. There were civil litigations against them. Subsequently, the dispute between them is settled due to the intervention of Masjid-Jamaeet Patwagaram. The copy of the letter issued to the Revenue Officer, Jayanagar, Bengaluru is produced. Thus, both the brothers of the plaintiff namely M.Nazir Hussain and M.Zahid Hussain have executed HIBA in respect of their respective portions and the cases pending between them were settled and respective cases were withdrawn. The plaintiff is continuing in possession of the suit schedule property and was obtained electricity connection to the said schedule property. The defendants has issued a legal notice issued on 27.6.2000, calling upon the plaintiff to vacate the premises. The defendant No.2 is the son of 1st defendant. The plaintiff is the absolute owner of the suit schedule property. He is in physical possession and enjoyment of the suit schedule property. The defendants have no right to interfere with their possession. Plaintiff has filed the present suit for 4 OS.No.5755 of 2000 injunction against the defendants restraining the defendants or anybody claiming under the defendant from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property. This Court was pleased to direct the defendants to maintain status-quo in respect of the suit schedule property. The plaintiff was in possession of the property on the date of filing the present suit. During the pendency of the present suit, the defendants have in utter violation of the Court order took forcible possession of the suit schedule property and let out the same to tenant. The defendants are not entitled for possession obtained by force. It is very much necessary to pass an order of mandatory injunction in favour of plaintiff and against the defendants directing the defendants or anybody claiming to deliver the vacant possession of the suit schedule property in favour of the plaintiff.The plaintiff was in possession of the suit schedule property on the date of filing the present suit. The defendants have no right to take the forcible possession of the suit schedule property from the plaintiff. The act of the defendants is illegal and opposed to law. Hence, the plaintiff is entitled for mandatory injunction against the defendants. The plaintiff is having prima facie case and balance of convenience is lies in favour of the plaintiff. If the mandatory injunction is not granted, plaintiff will be put to great hardship . On 21.8.2000 when the defendants came to the suit schedule property along with some subordinates and tried to dispossess the plaintiff 5 OS.No.5755 of 2000 from the suit schedule property and tried to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The defendants have no right to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Even they have not obtained any order from any competent Court. They have no right to take the forcible possession. The plaintiff approached the jurisdictional police. They have advised the plaintiff to approach civil Court since it is a civil matter. The plaintiff has no other alternative, he has filed the suit for injunction. The cause of action arose on 20.12.999, 9.3.2000, 27.6.2000, 6.8.2000, 21.8.2000 within the jurisdiction of this Court. Hence, prayed for decree the suit.
3. In response to the summons issued in this case, defendant No.1 and 2 appeared through counsel and filed written statement in detail contending that the suit is not maintainable either in law or on facts and the same is liable to be dismissed. The plaintiff is not the owner of the entire property bearing No.29 situated at 30th Cross, Bannerghatta Layout, Corporation Division No.64, Madiwala Range, Tilaknagar, Bengaluru. The 1st defendant is the absolute owner in possession and enjoyment of the suit schedule property. The defendants submits that at no point of time, the suit schedule property was acquired by the plaintiff under HIBA dated 20.12.1999 and at no point of time, the 1st defendant has given the suit schedule property to the 6 OS.No.5755 of 2000 plaintiff under HIBA. The documents produced by the plaintiff is all got up from BBMP. The defendant No.1 has let out schedule property to a tenant one Mr. Mohammed Arif on a monthly rent of Rs.1,750/- and the said rental agreement was produced. The defendant No.1 is also paying taxes of the suit schedule property to the BBMP. At no point of time, the plaintiff was in possession and enjoyment of the suit schedule property. The 1st defendant was absolute owner and in possession and enjoyment of the suit schedule property. And copy was produced The legal notice issued to the defendants has no sanctity in the present suit. It is true that the 2nd defendant is the son the 1st defendant, but it is denied that the plaintiff is the absolute owner in physical possession and enjoyment of the suit schedule property. The defendant No.1 is the rightful owner of the suit schedule property and has every right, interest over the suit schedule property. Since the defendants are the absolute owner of the suit schedule property and the question of dispossessing and interfering with the plaintiff does not arise as the plaintiff has no locus stand over the suit schedule property. The defendants have every right to defend their right over the suit schedule property by virtue of concocted documents. Suit schedule property was purchased from Smt. D.V.Kamala Gowda by the 1st defendant N.Nazir Hussain by virtue of registered sale deed dated 1.12.1975 registered in the office of Sub Registrar , Jayanagar, Bengaluru. As stated above, 1st defendant along with his brother Zahid Hussaian jointly 7 OS.No.5755 of 2000 purchased the entire property, No.29 for valuable consideration under registered sale deed dated 1.12.1975. At the time when the defendant No.1 and his brother Zahid Hussain purchased the entire property No.29, the said property measures east to west 36.1/8 feet and north to south 60 feet bounded on the east by Site No.30, west by site No.28, north by road and south by vacant land. At the time when the said property was purchased by defendant No.1 and his brother Zahid Hussain, it was a vacant site. Thereafter, the defendant No.1 and his brother Zahid Hussain have put up construction towards the southern side of the said property and were residing together. Defendant No.1 further contended that at that time, the mother of defendant No.1, plaintiff and Zahid Hussain was alive and at her request, Zahid Hussaian took one shop in Avenue road belonging to the family and in lieu of the same, gifted one northern portion of the property, which was a vacant site with one square building measuring east to west 36- 1/8feet and north to south 30 feet with east by property No.30, west by property No.28, north by property gifted to the plaintiff by Zahid Hussaian and south by road i.e., the suit schedule property. Zahid Hussaian also executed a declaratory affidavit dated 16.6.1999 in respect of the property gifted to the plaintiff. Thereafter, the BBMP has bifurcated the katha of the portion of the property gifted by Zahid Hussaian in the name of the plaintiff and the katha of the property retained by the plaintiff i.e., the suit schedule property was transferred in the name of the plaintiff. The 8 OS.No.5755 of 2000 plaintiff is in possession and enjoyment of the portion of the property No.29 gifted by Zahid Hussaian and not at all in possession of the suit schedule property and the same is retained by the plaintiff and the suit schedule property was in possession of the defendant No.1 till 25.12.2000 and this defendant was in possession of the same. Thereafter, the defendant No.1 has let out the suit schedule property to the tenant by name Sri.A.Mohammed Arif S/O Abji Miyean on a monthly rent of Rs.1,750/- pursuant to the rental agreement dated 26.12.2000. Since then Sri.A.Mohammed Arif is in possession and enjoyment of the suit schedule property. Thereafter, the defendant No.1 had entered into an agreement of sale with the Sri.A.Mohammed Arif agreeing to sell the schedule property. Thereafter, Sri.A.Mohammed Arif filed a suit in O.S.No.16037/2000 on the file of Addl.City Civil Judge, Mayo Hall, Bengaluru (SCCH No.29_ and obtained a decree for specific performance of the agreement and the Court has executed ha sale deed in favour of Sri.A.Mohammed Arif. The defendant No.1 submits that the plaintiff has created a forged HIBA by forging the signature of the defendant No.1 and has filed the present suit in respect of the suit schedule property. The 1st defendant at the time filing the suit and now at present, it belongs to Sri.A.Mohammed Arif, who is the absolute owner in possession of the suit schedule property. The 1st defendant submits that the plaintiff has no manner of right, title, interest possession in respect of suit schedule property and as such the suit is liable to be dismissed. The 9 OS.No.5755 of 2000 plaintiff has no manner of right, title and interest in respect of the suit schedule property. All other averments are specifically denied and plaintiff has no locusstandi over the suit schedule property as the defendant No.1 is the absolute owner in possession and enjoyment of the suit schedule property and thus the suit is liable to be dismissed in limine. Hence, prayed for dismiss the suit.
4. Subsequent amendment of para No.6(a) and (b) was included by the plaintiff and the defendant No.1 has filed additional written statement contending that the defendant No.1 and 2 are the father and son. Defendant No.1 is the absolute owner of the suit schedule property and the defendant No.2 has no connection in respect of the suit schedule property and as such the defendant No.2 is not a necessary and proper party to the present suit. Hence, liable to be dismissed for mis-joinder of necessary party. The plaintiff has filed the above suit for permanent injunction against the defendants restraining the defendants or anybody claiming under the defendants either from entering into the suit schedule property or from interfering with the peaceful possession and enjoyment of the suit schedule property and this Court was pleased to direct the defendants to maintain status-quo in respect of the suit schedule property and that the plaintiff was in possession of the property on the date of filing the present suit and during the pendency of the present, suit, the defendants have in utter violation of the Court order took forcible possession of 10 OS.No.5755 of 2000 the suit schedule property and let out the same to tenant and that the defendants are entitled for possession obtained by force and it is very necessary to pass an order of mandatory injunction in favour of the plaintiff against the defendants directing the defendants or anybody claiming under the defendants to deliver vacant possession of the suit schedule property in favour of the plaintiff are all denied and false. he plaintiff was in possession of the suit schedule property on the date of filing the present suit and also denied the contents of para No.6(a). He further contended that that take forcible possession of the suit schedule property from the plaintiff. It is pertinent to note that the plaintiff has now sought for relief of possession of the suit schedule property from the defendants and as such the plaintiff has to pay Court fee on the market value of the suit schedule property about Rs.75,00,000/- and unless and until the plaintiff pays the Court fee on the market value of the suit schedule property, the plaintiff is not entitled for any relied claimed by the plaintiff in the present and the plaint is liable to be dismissed. It is purely a question of law and the same has to be decided before pronouncing judgment and other issues by considering the same as a preliminary issue. This defendant has not executed any HIBA in favour of the plaintiff at any point of time and the alleged HIBA dated 21.12.1999 relied upon by the plaintiff is a created, concocted and forged document by the plaintiff with dishonest intention to knock of the valuable property belonging to the defendant by adopting illegal 11 OS.No.5755 of 2000 means and also to cause wrongful loss to the defendants. As already stated above, this defendant is the absolute owner in possession of the suit schedule property having acquired the same under registered sale deed Thereafter, the defendant has old the portion to one Sri.A.Mohammed Arif S/O Abjimiyan, residing at No.29, 30th "A" Cross, Tilaknagar, Bengaluru pursuant to the judgment and decree in O.S.No.16097/2003 on the file on the XIII Additional City Civil Judge, Mayo Hall, Bengaluru, CCH No.29, since then the said Sri.A.Mohammed Arif is in possession of the said portion of the schedule property. The katha of the said portion of the schedule property stands in the name of Sri.A.Mohammed Arif at the office of BBMP and Sri.A.Mohammed Arif is paying taxes in respect of the portion of the schedule property to the BBMP exercising his right of ownership. Sri.A.Mohammed Arif is in possession of the portion of the schedule property and as such Sri.A.Mohammed Arif is a necessary and proper party to the suit. The plaintiff after having full knowledge of the same has not chosen to implead Sri.A.Mohammed Arif as a party in the present suit. Hence, the suit is liable to be dismissed for non joinder of necessary party. Based on a forged HIBA dated 21.12.1999, the plaintiff had illegally got the katha of the portion of the schedule property transferred in his name and the same is pending consideration by BBMP. Thus the plaintiff has no manner of right, title, interest and possession whatsoever in respect of suit schedule property 12 OS.No.5755 of 2000 and as such the suit liable to be dismissed in limine. Hence, prayed for dismiss the suit.
5. On the basis of the above facts, the following issues and additional issues having been framed:-
1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property on the date of the suit?
2. Whether he further proves that the defendants are interfering with his possession of the suit schedule property?
3. Whether he is entitled to the injunction prayed for?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that during the pendency of the suit, he has been illegally dispossessed by the defendants?
2. Whether the suit is bad for the non-joinder of necessary party?
3. Whether the plaintiff is entitle for the mandatory injunction?
4. Whether the defendants prove that the suit schedule property has been sold in favour of one Sri.A.Mohammed Arif in pursuance of the decree passed in O.S.No.16037/2003 on the file of Additional City Civil Court, Mayo Hall, Bengaluru and he is in possession of the same?
13 OS.No.5755 of 20006. In order to prove the case of plaintiff's case, the plaintiff himself examined as P.W.1 and got examined one more witness as P.W.2 and got marked Ex.P.1 to P.18. On behalf of defendant, defendant No.1 himself is examined as D.W.1 and two documents marked on their behalf as per Ex.D.1 to Ex.D.12.
7. Heard arguments.
8. In view of subsequent events, Issue No.1 and 2 not survived for consideration.
9. My answers to the above issues are as follows:-
Issue No.1:` Does not survive for consideration Issue No.2: Does not survive for consideration Issue No.3: In the negative Addl.Issue No.1: In the negative Addl.Issue No.2: In the affirmative;
Addl.Issue No.3 In the negative;
Addl.Issue No.4: In the affirmative'
Issue No.4: As per final order for the following
reasons:
14 OS.No.5755 of 2000
REASONS
10.Additional Issue No.1 to 4: All these issues are interlinked with each other. Hence, I answer all these issues in common to avoid repetition of facts.
11. Initially the present suit was filed by the plaintiff only for the relief of permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
Subsequently, plaintiff got amended the plaintiff and got deleted the relief sought for initially and included para No.6(a) and (b) and sought for mandatory injunction against the defendants to hand over actual vacant possession of the suit schedule property. The plaintiff is claiming title over the suit schedule property on the basis of HIBA dated 20.12.1999 alleged to have been executed by the 1st defendant in favour of the plaintiff and on that basis, he is claiming that he is the absolute owner and in possession of the suit schedule property as on the date of filing the present suit. However in the present case, the 1st defendant has denied the title of the plaintiff over the suit schedule property. He denied that he is executed an alleged HIBA dated 20.12.1999 with respect to suit schedule property in favour of the plaintiff with respect to the suit schedule property. The defendant No1. further contended that that the northern portion of the suit schedule property, which is half share in the entire property No.29 was gifted by the 15 OS.No.5755 of 2000 Zahid Hussain in favour of the plaintiff on 16.6.1999 and in lieu of the said property at the advise of their mother, the 2nd defendant has taken share belongs to family situated at Avenue road, Bengaluru. The defendant No.1 claiming that as on the date of filing the present suit, plaintiff was not in possession of the suit schedule property and the defendant being the owner in possession of the suit schedule property has let out the same to one Sri.A.Mohammed Arif and subsequently he has sold the property in favour of Sri.A.Mohammed Arif and under the law the said Sri.A.Mohammed Arif is in possession and enjoyment of the suit schedule property. Katha was also changed in his name and he is paying taxes to BBMP with respect to the suit schedule property.
12. Plaintiff in support of his case, he himself is examined as P.W.1 filed his affidavit reiterating the contents of the plaint and got marked Ex.P.1 to P.18 and got examined one witness as P.W.2 Abdul Hameed alleged to be the brother of the attesting witness of Ex.P.1. Ex.P.1 is the unregistered HIBA dated 8.12.1999, Ex.P.2 is the katha endorsement, Ex.P.3 is the katha certificate, Ex.P.4 is the katha extract, Ex.P.5 to P.8 are electricity bills and receipts, Ex.P.9 is the letter issued by Maszid-I-Jammat Patwagaran, Ex.P.10 is the tax paid receipt, Ex.P.11 is the legal notice dated 27.6.2000, Ex.P.12 is the reply notice dated 6.8.2000, Ex.P.13 to 16 are the postal covers, Ex.P.17 16 OS.No.5755 of 2000 is the cheque alleged to have been issued by the defendants, Ex.P.18 is the vakalath executed by defendant No.1.
13. Plaintiff is cross-examined by the defendants counsel in detail. The plaintiff is claiming title over the suit schedule property on the basis of the alleged HIBA as per Ex.P.1. The defendant No1. is denied the title of the plaintiff over the suit schedule property and also 1st defendant has denied that he has executed any HIBA or gift deed as per Ex.P.1 in favour of the plaintiff with respect to the suit schedule property. Under these circumstances, only the suit filed by the plaintiff for the relief of mandatory injunction is not maintainable and the defendant No.1 has specifically denied the title of the plaintiff over the suit schedule property. The suit of the plaintiff is only for the relief of mandatory injunction or possession without claiming declaration of his title over the suit schedule property is not maintainable. It is also pertinent to note that defendant No.1 in the present case denying his signature on Ex.P.1 alleged to have been HIBA executed by defendant No.1 in favour of the plaintiff in respect of suit schedule property. In the present case, plaintiff has not made any attempts to prove the signatures of the 1st defendant on Ex.P.1 i.e., HIBA alleged to have been executed by the 1st defendant in favour of the plaintiff. When the 1st defendant is denying his signature on Ex.P.1 and also he was denying the title of the plaintiff over the suit schedule property unless the HIBA is proved by the plaintiff 17 OS.No.5755 of 2000 and also proved that on the basis of the said HIBA, he has become the absolute owner of the suit schedule property, plaintiff is not entitled for the relief sought for in the present case. As already stated above without the relief of declaration, only for the relief mandatory injunction as sought for by the plaintiff against the defendants, the suit itself is not maintainable. The HIBA i.e., gift is defined under Sec.201 of Mohammedan Law as under:-
" (1) A gift is a transfer of property or right by one person to another in accordance with the provisions of this chapter and includes ;
(a) a hiba an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return and
(b) an ariat, the grant of some limited interest in respect of the use or usufruct of some property or right (2) where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called "Sadagah"
The conception of the term "gift" as used in the Transfer of Property Act is somewhat different from its use in Mohammedan Law. The term "Gift has been defined in the T.P.Act as follows:-
"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee, and accepted by or on behalf of the donee."18 OS.No.5755 of 2000
The Provisions of the T.P. Act relating to gifts (Sec.s122 to 128) do not affect any rule of Mohammedan Law. As to the applicability of Mohammedan Law of gifts to Mohammedens."
" As per the conditions for valid gift, " the three conditions which are necessary for a valid gift under the Mohammedan Law are the following:-
(1) manifestation of the wish to give on the part of the donor;
(2) acceptance of the donee, either expressly or impliedly; and (3) taking of possession of the subject matter of the gift by the donee, either actually or constructively."
If these conditions are complied with the gift is complete. According to Muslim Law, it is not necessary that there should be deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered. But if the deed is merely a memoranda of an already effected gift, then it stands on a separate footing."
14. In the light of the above discussions and now this Court is of the opinion to consider whether Ex.P.1 is a valid HIBA as contemplated under Mohammedal Law. In Ex.P.1 no date of execution is mentioned in the entire document. However page No.9, it is stated that acceptance of HIBA of the suit schedule property by Mohammed Zakir Hussain S/O Late M.Mahmood Saheb in favour of his eldest brother Mr.M.Nazir Hussain on Wednesday, 8th December 1999.
19 OS.No.5755 of 200015. Only from this endorsement, it has to be considered that the said document was executed on 8.12.1999. Plaintiff is claiming that the said HIBA was executed by the 1st defendant in favour of the plaintiff on 20.12.1999 with respect to the suit schedule property. But there is no reference that on 20.12.1999 the said document was executed by the 1st defendant in favour of the plaintiff. However from Notary by name S.Venkatachalapathy, D.No.269, 9th Main, 2nd Cross, Vijayanagar, Bengaluru, who has attested the Ex.P.1 has signed and put a date as 20.12.1999. Only on this ground, it cannot be said that the 1st defendant has executed Ex.P.1 in favour of plaintiff on 20.12.1999 in the presence of the said Notary Public. Apart from this, plaintiff during cross-examination has clearly admitted that defendants signed Ex.P.1 in the house situated at suit schedule property. Thereafter, he took Ex.P.1 to the Notary and got attested and also clearly admitted that the defendants not appeared before the Notary. Under these circumstances, in view of the above said admission of P.W.1, it cannot be said that Ex.P.1 was executed by the 1st defendant in favour of the plaintiff on 20.12.1999 in the presence of Notary Public S.Venkatachalapathy. As already discussed above, HIBA is an oral gift deed under Mohammeden Law. It is not necessary that there should be registered deed of gift in order to make valid gift. But if the document is executed, then it should be a registered and if the deed is merely memoranda of an already effected gift, then it stands on a 20 OS.No.5755 of 2000 separate footing. It is held in AIR 1975 A.P. page 273 between Chota Uddandu Sahib and Masthan Bi. In the present case on perusal of Ex.P.1, it is clear that there is no recital that prior to the date of Ex.P.1, the oral gift was made and Ex.P.1 is only a memoranda of an already effected gift. On the contrary, the specific case of the plaintiff that on the date of Ex.P.1 itself, 1st defendant has executed HIBA in respect of suit schedule property in favour of the plaintiff. Under these circumstances, in view of the above decisions, the unregistered gift will not create any right over the suit schedule property in favour of the plaintiff. Ex.P.1 is not a memoranda of an already effected gift. In view of the above discussions, this Court is of the opinion that Ex.P.1 is not a valid HIBA or gift as contemplated under Mohammedan Law. Apart from this as already stated above, the present suit is filed by the plaintiff only for the relief of mandatory injunction, though he has filed initially the suit for only for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and subsequently, he got amended the plaint on the ground that during pendency of the suit, the defendants are forcibly dispossessed him and took possession of the suit schedule property and let out the tenants and he sought for mandatory injunction directing the defendants to hand over the actual vacant possession of the suit schedule property. Under these circumstances, when the defendants are denying the title of the plaintiff over the suit schedule 21 OS.No.5755 of 2000 property and also denying the execution of Ex.P.1 by the 1st defendant in favour of the plaintiff, suit filed by the plaintiff only for the relief of mandatory injunction is not maintainable without claiming the relief of declaration of his title over the suit schedule property.
16. In order to prove the HIBA, plaintiff got examined one witness P.W.2, who alleged to be the brother of the attesting witness by name Mohammed Inayathulla, he identified the signature of his brother as Ex.P.1(d). He identified the signatures of the defendant No.1 on Ex.P.1 and signature of plaintiff as per Ex.P.1(a) and ()b). He identified the signature of the son of the 1st defendant as Ex.P.1(c). During cross-examination of P.W.1, when it was suggested that defendant No.1 has already executed a gift deed in favour of the plaintiff with respect to his half portion of property No.29 and Ex.D.1 was confronted and got marked by defendant. The P.W.1 has stated that the said document was signed by defendant No.1. But he has clearly admitted that the 2nd defendant has not signed on Ex.P.1 as consenting witness . The signatures of defendant No.1 and 2 were not marked through P.W.1. On the other hand, P.W.2 has identified the signature of plaintiff, defendant No.1 and defendant No.2 on Ex.P.1. When P.W.1 himself has stated that defendant No.2 has not signed on Ex.P.1. He identifying the signature of defendant No.2 on Ex.P.1 by P.W.2 does not arise. It is also pertinent to note that P.W.1 during cross-examination has clearly admitted 22 OS.No.5755 of 2000 that Sri.A.Mohammed Younnis is another attesting witness to Ex.P.1. He can examined himself as a witness to prove Ex.P.1. But the plaintiff has not made the said Mohammed Inayathulla as a party in the present case in order to prove Ex.P.1. He has clearly admitted Zakir Hussain has not signed Ex.P.1 as a witness. The said Zakir Hussain is the owner of the another part of property No.29, who has executed HIBA in respect of his property in favour of the property . P.W.2 has not at all stated that he was present before the Notary Public at the time of attestation of Ex.P.1. It is also pertinent to note that P.W.2 was claiming that he was present on the date of Ex.P.1. He has not signed the same as the attesting witness . No explanation is given in that regard either by P.W.1 or P.W.2 as to why P.W.2 has not signed on Ex.P.1, though he was claiming to be present on the date of Ex.P.1 also. Considering over all evidence produced by the plaintiff, this Court is of the opinion that the plaintiff has failed to prove that 1st defendant has executed HIBA in favour of plaintiff with respect to the suit schedule property as per Ex.P.1. Apart from this, during cross-examination, P.W.1 has stated that civil litigation as claimed by the plaintiff in his plaint is the suit for specific performance filed by his father on the basis of GPA alleged to have been executed by the 1st defendant and Zakir Hussain in respect of entire property. In that regard, he has filed the suit in the year 1997 on the file Mayo Hall Court. In that regard, no pleading is made by the plaintiff and no evidence is produced by the plaintiff in the present 23 OS.No.5755 of 2000 case when there was a dispute with respect to suit schedule property between the plaintiff and the 1st defendant and his brother Zakir Hussain prior to filing the present suit and also prior to the date of Ex.P.1, it cannot be accepted that out of love and affection, 1st defendant has executed gift deed in favour of the plaintiff as stated in Ex.P.1. Prior to the date of Ex.P.1 itself, there was ill-will between the plaintiff and the 1st defendant with respect to suit schedule property. Under these circumstances, the claim of the plaintiff that out of love and affection, the 1st defendant has executed HIBA as per Ex.P.1 in favour of plaintiff with respect to suit schedule property in the year 1997 cannot be accepted. In view of the above discussions, since the plaintiff has failed to prove his title over the suit schedule property on the basis of Ex.P.1 and also in view of the fact that the plaintiff has not sought for relief of declaration of his title over the suit schedule property, the suit of the plaintiff is not maintainable and hence, the plaintiff has failed to prove that he is entitled for mandatory injunction directing the defendants to hand over possession of the suit schedule property in favour of the plaintiff.
17. As stated above, the plaintiff initially has filed the present suit only for the relief of permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Subsequently, plaintiff has amended the plaint, deleted the relief of permanent injunction and sought 24 OS.No.5755 of 2000 for mandatory injunction directing the defendants to hand over the possession of the suit schedule property in favour of the plaintiff and got impleaded para No.6(a) and (b) in the plaint. In short, plaintiff is contending that after filing the present suit and after obtaining the status-quo order by the plaintiff in the present case, the defendants are forcibly dispossessed the plaintiff from the suit schedule property. But the plaintiff in amended portion of his plaint or in his evidence stated that has to be date on which, the defendants are forcibly dispossessed the plaintiff from the suit schedule property. P.W.1 during cross-examination has clearly admitted that he cannot say exact date on which, the defendants have dispossessed the plaintiff from the suit schedule property. It is also pertinent to note that has the prudent man, plaintiff has not taken any action against the defendants for the alleged dispossession of the plaintiff from the suit schedule property after filing the present suit. There is no explanation as to why he has not taken any action in that regard against the defendants. Even immediately after the alleged dispossession, the plaintiff has not approached the Court and reported the same to the Court by filing an application for violation of the status-quo order. In the absence of any such action that would have been taken by prudent man in the similar suit, the contention of the plaintiff that during pendency of the suit, defendants have dispossessed the plaintiff from the suit schedule property. It is also pertinent to note that in the amended plaint itself, the plaintiff has contended that after 25 OS.No.5755 of 2000 dispossessed the plaintiff forcibly from the suit schedule property, they have let out the same to some person. The defendants in their amended written statement have contended that the defendant No.1 is in possession of the suit schedule property as absolute owner and he let out the same to one Zakir Hussain and subsequently the said Mohammed Zakir Hussain has taken sale deed through Court in respect of the suit schedule property. Thereafter, plaintiff filed application under Order 1 Rule 10 of CPC as per I.A.No.6. The said application was rejected by this Court by order dated 20.7.2010. The said order was not challenged by the plaintiff till today. As the plaintiff himself has contended that after dispossessing the plaintiff from the suit schedule property, the defendants have let out the same to some tenant and defendants in the amended written statement, they have contended that they have let out the same to Sri.A.Mohammed Arif. The said Sri.A.Mohammed Arif is a necessary party in the present case. However, the application filed by the plaintiff in I.A.No.6 under Order1 Rule 10 of CPC was rightly or wrongly rejected by this Court by the then officer of this Court and the plaintiff has not challenged the said order till today. Under these circumstances, the said Sri.A.Mohammed Arif , who was in possession of the suit schedule property, katha was changed in his name as admitted by P.W.1 during cross-examination and also it is clear from the documentary evidence produced by the defendants in the present case. The said Sri.A.Mohammed Arif is a necessary party to the present 26 OS.No.5755 of 2000 suit and the suit is bad for non-joinder of necessary party also. The defendants in their written statement have contended that the Sri.A.Mohammed Arif filed a suit in O.S.No.16037/2003 in Mayo Hall Court for the relief of specific performance of contract and obtained decree and sale deed through Court in his name with respect to suit schedule property. But the said contention is not correct. DW.1 during cross-examination has admitted that the said Sri.A.Mohammed Arif filed the suit for partition and the said suit was ended in compromise and final decree was passed in the said suit and the said decree was registered and the said document was got marked by defendants in the present case as per Ex.D.8. Admittedly, the Sri.A.Mohammed Arif is not in any way concerned to the family of plaintiff and defendants. O.S.No.16037/2003 was the suit for partition filed by Sri.A.Mohammed Arif against the 1st defendant and the said suit was ended in compromise and final decree was passed in favour of Sri.A.Mohammed Arif and the same was registered as per Ex.D.8. Whether the claim made by the Sri.A.Mohammed Arif in O.S.No.16037/2003 for partition was valid or not cannot be considered by this Court at this stage. However on the basis of Ex.D.8, the said Sri.A.Mohammed Arif has came in possession of the suit schedule property as absolute owner on the basis of final decree, which was registered as per Ex.D.8. Though the contention taken by the defendants in the present case that the said suit for the relief of specific performance of contract and the Court has executed sale 27 OS.No.5755 of 2000 deed in favour of Sri.A.Mohammed Arif is not proper and without any evidence and the evidence produced by the defendants as per Ex.D.8 discloses that the said suit was for partition. Only on that ground, it cannot be said that the plaintiff is entitled for the relief as sought for in the present case. In view of the fact that P.W.1 has admitted during cross-examination and also in the amended pleadings, he has admitted the litigation in O.S.No.16037/2003 between Sri.A.Mohammed Arif and the 1st defendant and also in view of the documentary evidence produced by the defendants as per Ex.D.8 to 12, it is clear that the said Sri.A.Mohammed Arif is in possession of the suit schedule property claiming title over the same on the basis of Ex.D.8. Under these circumstances, this Court is of the opinion that the suit of the plaintiff only for the relief of mandatory injunction without seeking relief for declaration, suit is not maintainable. Plaintiff failed to prove that during pendency of the suit, the defendants has illegally dispossessed the plaintiff from the suit schedule property. It is also clear and above discussions, the suit is bad for non-joinder of necessary parties. It is also clear from the evidence produced by both the parties that Sri.A.Mohammed Arif in pursuance of decree passed in O.S.No.16037/2003 has become the absolute owner of the suit schedule property and he is in possession of the same. Hence, I answer Additional Issue No.1 in negative, Additional issue No.2 in affirmative, Additional Issue No.3 in negative and Additional Issue No.4 in affirmative.
28 OS.No.5755 of 200018. Issue No.3: In view of the discussions made above, in view of the subsequent amendment of plaint by the plaintiff from the relief of permanent injunction to the mandatory injunction and also in view of the fact that this Court has come to the conclusion that the plaintiff has not entitled for the mandatory injunction as sought for, the plaintiff is not entitled for permanent injunction as sought for in the present suit, which was deleted subsequently. Hence, I answer Issue No.3 in negative.
19. Issue No.4: In view of my findings on the above issues and additional issues and discussions made above, I proceed to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
{Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this 6th day of June 2018.} (K.B.PATIL) XI Addl. City Civil Judge Bangalore city.29 OS.No.5755 of 2000
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.Mohammed Zakir Hussain P.W.2 Sri.Abdul Hameed
List of documents exhibited for plaintiff:-
Ex.P.1 HIBA dated 20.12.1999
Ex.P.2: Katha endorsement
Ex.P.3: Katha certificate in respect of suit schedule
property
Ex.P.4: Katha extract in respect of suit schedule
property
Ex.P.5 and 6: Electricity bill and receipt
Ex.P.7 and 8: Tax paid receipt
Ex.P.9: Letter dated 10.11.199 issued by Maszid
Jamaad
Ex.P.10: Bank challan for having paid tax
Ex.P.11: Legal notice dated 27.6.2000
Ex.P.12: Reply notice
Ex.P.13 to 16: Postal covers
Ex.P.17: Cheque
Ex.P.18: Vakalath of defendant No.1 and 2
List of witnesses examined for defendant/s:
D.W.1 Mohammed Nazir Hussain List of documents exhibited for defendant/s:
Ex.D.1: Xerox copy of HIBA
Ex.D.2: Written statement in O.S.No.5755/2000
Ex.D.3: Office copy of letter
Ex.D.4: Office copy of letter dated 24.5.2000
30 OS.No.5755 of 2000
Ex.D.5: Office copy of letter dated 16.5.2001 Ex.D.6: Office copy of letter dated 26.6.2001 Ex.D.7: Office copy of letter dated 29.8.2001 Ex.D.8: Certified copy of final decree in O.S.No.16097/2003 Ex.D.9: Encumbrance certificate Ex.D.10: Katha extract Ex.D.11: Katha extract Ex.D.12: Tax paid receipt XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY