Karnataka High Court
Niaz Ahmed vs Dilshad Begum on 10 March, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.16500 OF 2017 (GM-CPC)
BETWEEN:
1. Niaz Ahmed,
S/o. Late Aleem Ahmed
Aged about 51 years.
2. Imtiaz Ahmed,
S/o. Late Aleem Ahmed
Aged about 54 years.
3. Mushtari Begum,
W/o. Late Aleem Ahmed
Aged 71 years.
4. Saira Ahmed,
W/o. A. Imtiaz Ahmed,
Aged 55 years.
5. Nadeem Asif,
S/o. Late Nayeemulla Khan Asif,
age 38.
All residing at No.2,
Kandaswamy Mudaliar Road,
Richards Town,
Bengaluru - 560 0-05.
Petitioners Nos.2 to 5 are represented
By their GPA holder petitioner No.1 herein.
.. Petitioners
(By Sri. Chintan Chinappa, Advocate)
2
W.P.No.16500/2017
AND:
1. Dilshad Begum
W/o. Yakoob Shariff
Major in age
2. Naseemunnissa
W/o. I.M. Nassargi Shakeel Ahmed
Major in age
3. Ibrahim Shariff
S/o. Yakoob Shariff
Major in age.
4. Nayeemunnissa,
D/o. Yakoob Shariff
Major in age.
5. Mahaboob Shariff
S/o. Yakoob Shariff
Major in age.
6. Jabeenunissa
D/o. Yakoob Shariff
Major in age.
7. Yousuff Shariff
S/o. Yakoob Shariff
Major in age.
8. Mubeenunissa,
D/o. Yakoob Shariff
Major in age.
9. Ayub Shariff
S/o. Yakoob Shariff
Major in age.
10. Ismail Shariff
S/o. Yakoob Shariff
Major in age
3
W.P.No.16500/2017
All residing at No.2,
Behind St. Mary Church,
24th Street, Shivajinagar,
Bengaluru - 560 001.
.. Respondents
(By Sri. V.B. Shivakumar, Advocate for R1 to R-10)
****
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue an order or writ in the
nature of certiorari setting aside the order dated 01-04-2017
passed by the learned Principal and Sessions Judge (Mayo Hall)
in O.S.No.25506/2011 in I.A.No.17/2017 in allowing an
application of the respondents to direct the Senior Sub-Registrar,
Shivajinagar, Bengaluru to produce the original registered Sale
Deed dated 14-02-1995 executed by Smt. Chitra Annaswamy
and to adduce evidence, vide Annexure A; etc.
This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:
ORDER
The petitioners have filed this writ petition being aggrieved by the order dated 01-04-2017, passed by the learned XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru, (hereinafter for brevity referred to as "the Trial Court") in O.S.No.25506/2011, on I.A.No.17/2017, allowing the prayer of the respondents/defendants, i.e. (i) to call the Senior Sub-Registrar, Shivajinagar, Bengaluru, as 4 W.P.No.16500/2017 a witness in the matter and adduce evidence and (ii) to direct the Senior Sub-Registrar, Shivajinagar, Bengaluru, to produce the original registered Sale Deed dated 11-02-1995.
2. The contention of the petitioners is that, they have purchased the suit property from one, Smt. Chitra Annaswamy, who was the previous owner of the suit schedule property, under a registered Will dated 23-04-1953, which was executed by her late father Sri. A.V. Ramamurthy, who died on 14-07-1967. However, after the petitioners purchasing the property off late, the respondents started interfering in the peaceful possession of the suit schedule property by the petitioners. In that connection, the petitioners preferred a suit in O.S.No.25506/2011 in the Trial Court, for the relief of bare injunction.
When the said suit was pending, the defendants therein (respondents herein) filed I.A.No.17/2017, under Order XVI, Rules 1 and 4 of the Code of Civil Procedure, 5 W.P.No.16500/2017 1908, (hereinafter for brevity referred to as "the CPC") for the above mentioned two reliefs, which application came to be allowed by the Trial Court, in its order dated 01-04-2017.
3. The contention of the respondents/defendants is that, the suit schedule property was purchased by their father one Sri.Yacoob Shariff from the very same Smt. Chitra Annaswamy, in the capacity as a Power of Attorney of the owner of the property under a registered Sale Deed dated 11-02-1995. Since then, they are in lawful possession of the said property. To that extent, the present respondents, apart from being the defendants in the Original Suit, have also filed a counter claim for the similar relief of permanent injunction. It is at this stage, the defendants in the Trial Court came up with the interlocutory application - I.A.No.17/2017 under Order XVI, Rules 1 and 4 of the CPC.
4. Learned counsel for the petitioners in his argument contended that, in a suit for permanent injunction, it is only 6 W.P.No.16500/2017 the lawful possession of the party claiming his possession over the property is required to be proved, but not necessarily his title, as such, production or summoning to produce the title deeds of any of the parties is not warranted.
The other point of argument canvassed by the learned counsel for the petitioners is that, even according to the defendants, the alleged Sale Deed in their favour has been withheld by the Registering Authority, on the ground of under-valuation and insufficiency of stamp duty. That being the case, summoning the said document is uncalled for and is also not warranted in the circumstances of the case.
Learned counsel for the petitioners also submits that, with respect to the very same property, both side parties claim their possession over which, according to both of them bears the same property number as "63, of K.G. Doddigunta, Pottery Road Cross, Bangalore". However, the boundary to the said property differs from the plaint schedule to the schedule given in the counter claim filed by the defendants.
7W.P.No.16500/2017
Learned counsel for the petitioners further submits that against the present petitioners, the respondents (defendants) have filed a suit for declaration in O.S.No.4603/2016, as such, proving of the title or question of the title since is not involved in the present suit, the impugned order passed by the Trial Court, deserves to be quashed.
5. Per contra, learned counsel for the respondents (defendants), in his brief argument, submits that since the alleged vendor to both the parties to the suit are the very same person, production of the original document was very much necessary. The registration of the document has not been specifically denied or disputed by the plaintiffs/petitioners, as such, the production of the document, though in the form of summoning from the custody of the Sub-Registrar, would not, in any way, prejudice the interest of the plaintiffs. He also submits that, since the order passed under Order XVI, Rules 1 and 4 of the CPC, being a discretionary one, this Court cannot 8 W.P.No.16500/2017 interfere in the said order and the writ petition is not maintainable.
6. As at this stage, it can be noticed that, it is not in dispute that, with respect to the suit properties, both the plaintiffs and the defendants are claiming their possession as well the title. The plaintiffs claim that they are the purchasers of the property under a registered Sale Deed from their vendor, which vendor had presented herself as a legatee under a Will. On the other hand, the very same vendor in the alleged sale of the property in favour of the defendants is shown to have presented herself as a Power of Attorney holder. However, irrespective of the same, the fact remains that, both side contend that they are the owners in possession of their properties, based on Sale Deeds. Admittedly, the suit schedule property is an immovable property with land and some construction thereupon. As such, apart from mere registered Sale Deed, there will be several other documents through which either of the parties can establish their 9 W.P.No.16500/2017 alleged lawful possession with respect to the disputed property. Thus, production of the alleged registered Sale Deed is not an essential or a mandatory thing. However, it cannot be denied that, it would be desire of the party to the litigation of producing those type of documents which he feels like, before the Court, or as advised to him. Thus, though it cannot be stated that, the defendants shall not produce the alleged registered Sale Deed, but at the same time, it also cannot be ignored that the alleged registered Sale Deed is not the only or mandatory document to prove the alleged possession of the defendants over the property for the purpose of the relief sought for in the counter claim.
7. Secondly, even according to the respondents/applicants in I.A.No.17/2017, the alleged Sale Deed dated 11-02-1995 has been withheld by the competent authority, which in the instant case, according to the applicants, is the Sub-Registrar, Shivajinagar, Bengaluru, for the reason of under-valuation of the property. Section 45-A of the Karnataka Stamp Act, 1957, 10 W.P.No.16500/2017 prescribes the procedure of dealing with the documents tendered for registration, but with under-valuation. In those cases, the Registering Authority can even refer the matter to the Deputy Commissioner of Under-Valuation, for doing needful in the matter. Thus, even according to the respondents/applicants, in a manner known to law, the public authority has withheld the said document, the possession of which document, the defendants can secure after completion of the process of rectifying under- valuation. The mere contention of the defendants that, till date, the Under-Valuation Authority (competent authority) has not proceeded with the matter, cannot be a reason for getting the said document summoned by filing the application under Order XVI, Rules 1 and 4 of the CPC, that too, in the light of the circumstances of the present case, including the reliefs sought for. If it were to be the grievance of the respondents/applicants that the Under-Valuation Authority (competent authority) is not deciding their matter regarding the alleged under-valuation, then, there are several remedies available to the respondents/ defendants to get the 11 W.P.No.16500/2017 matter expedited and get it disposed of at the earliest. On the contrary, the respondents, claiming themselves to be the purchasers of the property, under a registered document, which is withheld for under-valuation by the competent authority, cannot get their purpose served by securing those documents presented before the Court, invoking Order XVI, Rules 1 and 4 of the CPC and at the same time, not getting a finality reached in the under- valuation matter and not paying the state exchequer the stamp duty, provided they are liable to pay any. Thus, out of the alleged irregularity alleged against them (defendants), they cannot reap the benefit of getting their purpose served by making an application under Order XVI, Rules 1 and 4 of the CPC and securing the documents as well the presence of the Sub-Registrar to present the document and to give evidence on their behalf. Hence, the impugned order which has not considered these aspects, but has mechanically proceeded to allow the interlocutory application filed under Order XVI, Rules 1 and 4 of the CPC, 12 W.P.No.16500/2017 without attributing cogent reasons to it, deserves to be quashed.
Accordingly, I proceed to pass the following:
ORDER [i] The Writ Petition is allowed. [ii] The impugned order dated 01-04-2017, passed by the learned XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru, on I.A.No.17/2017 in O.S.No.25506/2011, is quashed.
Consequently, the interlocutory application
- I.A.No.17/2017 filed by the defendants under Order XVI, Rules 1 and 4 of the Code of Civil Procedure, 1908, in the Trial Court, also stands dismissed.
Sd/-
JUDGE BMV*