Bangalore District Court
Sri. Abdul Karim vs Sri. Mohammed Hussain on 5 November, 2020
1 OS.No.16271/2006
C/w OS.No.26833/2011
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for
AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Judgment in suits
(R.P.91)
Present: Sri. Krishnaji Baburao Patil, B.Com., LL.B.(Spl.),
(Name of the Presiding Judge)
Dated: This the 5th day of November 2020
Original suit No.16271/2006
C/w
Original Suit No.26833/2011
OS.No.16721/2006
Plaintiff:- Sri. Abdul Karim,
S/o Late Sheik Mastan,
Aged about 65 years,
Residing at No.117,
2nd Cross, Kanakanagara,
Kavalbyrasandra,
R.T.Nagar Post,
Bangalore-560 032.
(By Pleader : Sri. Syed Ummer)
V/s
2 OS.No.16271/2006
C/w OS.No.26833/2011
Defendants:- 1. Sri. Mohammed Hussain,
S/o Abdul Gani,
Aged about 53 years,
Permanent resident of Gulbarga,
Presently camped at No.5,
2nd Cross, 1st Main Road,
Bhupasandra,
Bangalore-560 094.
2. Noor Mohammed Khaleel,
S/o Noorulla,
Aged about 32 years,
Residing at No.5,
2nd Cross, 1st Main Road,
Bhupasandra,
Bangalore-560 094.
3. Sri. Mohammed Ayaz Khan,
S/o Sri. Mohammed Khursheed Khan,
Aged about 37 years,
Residing at: Haled Keri (K) Village,
Hyderabad Road,
Bidar, Karnataka.
(Sri. GP Adv., for D.1 & 2, Sri. RVK Adv., for D.3)
OS.No.26833/2011
Plaintiff:- Sri. Mohammed Ayaz Khan,
Aged about 37 years,
Son of Sri. Mohammed Khursheed Khan,
Occupation: Educationist,
Residing at Haled Keri (K), Village,
Hyderabad Road,
Bidar,
Karnataka.
3 OS.No.16271/2006
C/w OS.No.26833/2011
(By Pleader : Sri. Suresh S. Lokre)
V/s
Defendant:- Sri. Abdul Kareem,
Son of Late Sheikh Mastan,
Aged about 65 years,
Residing at No.117, 2nd Cross,
Konanakunte,
Kaval Byrasandra,
R.T. Nagar Post,
Bangalore-560 032.
(Sri. KVK Adv., for Defendant)
19.7.2006
Date of Institution of the suits
21.10.2011
Injunction Suit
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Declaration and
injunction, etc.) Possession
Date of the commencement of 10.9.2014
recording of the Evidence
Date on which the Judgment was 5.11.2020
pronounced
4 OS.No.16271/2006
C/w OS.No.26833/2011
Year/s Month/s Days
Total duration 14 03 16
09 00 14
COMMON JUDGMENT
The suit in OS.No.16271/2006 is filed by the Plaintif
against the Defendants initially for the relief of permanent
injunction. Subsequently got amended the plaint and converted
the suit for specific performance of contract and also to declare
that the Gift Deed dtd: 11.7.2006 is not binding on the Plaintif
in respect of the Suit Schedule Property.
2. Subsequently to filing the present suit, the Plaintif has
got amended the plaint and included Para No.5(a) and 11(a) and
additional prayer.
3. As per the last amended plaint the case of the Plaintif is
that the Defendant No.1 has entered into an Agreement of Sale
with the Plaintif on 15.11.2005 in respect of the residential
property bearing Site No.117, Assessment No.44, V.P. Khathah
No.44 measuring East to West 30 feet and North to South 40
5 OS.No.16271/2006
C/w OS.No.26833/2011
feet, in all measuring 1200 Sq.ft., together with 10 square
residential RCC building constructed with all civil amenities and
the said property is the self-acquired property of the Defendant
No.1 having acquired the same through a registered Sale Deed
dtd: 13.8.1998 from one Javad Nazim. The copy of the
Agreement of Sale and copy of the Sale Deed is produced. The
Defendant No.1 has also handed over the physical possession of
the Suit Schedule Property to the Plaintif, as such the Plaintif is
enjoying the same since the date of Agreement and the Plaintif
herein has produced Gas connection bill, Electricity charges Bill
and Water charges Bill. The Suit Schedule Property is in
possession and enjoyment of the Plaintif as described in the
plaint schedule. The Defendant No.1 was in need of funds to
meet his urgent and other necessities has ofered to sell the Suit
Schedule Property to the purchaser and had entered into an
Agreement of Sale as stated above. The Defendant No.1 being
the absolute owner of the schedule property has absolute right
to alienate the same in favour of the Plaintif. The Plaintif with
an intention to purchase the schedule property and upon
entering into the above said Sale Agreement dtd: 15.11.2005,
6 OS.No.16271/2006
C/w OS.No.26833/2011
the Plaintif has paid a sum of Rs.10,00,000/- out of the total
sale consideration of Rs.17,00,000/- as part of the sale
consideration amount. And at the time of agreement the
Defendant No.1 assured the Plaintif that the Defendant No.1
will execute the Sale Deed in favour of the Plaintif within nine
months from the date of said Agreement. The said Agreement is
still in existence and the records pertaining to property i.e.,
khatha certificate, khatha extract and tax paid receipts along
with the betterment charges receipts stands in the name of
Defendant No.1. Thus being the absolute owner the Defendant
No.1 agreed to sell the Schedule Property and entered into an
Agreement with the Plaintif. But, inspite of several request
made by the Plaintif, Defendant No.1 has not executed the Sale
Deed in respect of the Suit Schedule Property in favour of the
Plaintif.
4. Para No.5(a) has been included subsequent to filing the
suit as the Plaintif at the time of filing the suit the Agreement of
Sale dtd: 15.11.2005 was not completed. As the time of
agreement of sale was also nine months i.e., from 15.11.2005 to
7 OS.No.16271/2006
C/w OS.No.26833/2011
14.9.2006, as such due to the same reason the Plaintif was
unable to seek relief under the specific performance against the
Defendants. Hence, due to some reason the suit was only filed
for the grant of permanent injunction restraining the Defendants
from alienating the Suit Schedule Property to the third parties
and not to interfere with the peaceful possession and enjoyment
of the Plaintif in the Suit Schedule Property. Along with the
plaint, he had filed interlocutory application and on the same
day the same was allowed by this Court. As such Plaintif has
also issued the final legal notice dtd: 19.8.2006 to the
Defendants calling upon them to execute the Sale Deed in
favour of the Plaintif by receiving the balance sale
consideration amount of Rs.7,00,000/-. But, then also the
Defendants did not chosen to comply with the same. Hence, the
amendment in the above suit is very much just and necessary in
the above suit by changing the nature of the suit as the specific
performance. The legal notice dtd: 19.8.2006 was issued to
Defendant by both RPAD and UCP as such the RPAD postal cover
was returned with an endorsement as "Not claimed." The
Plaintif is ready and willing to perform his part of contract by
8 OS.No.16271/2006
C/w OS.No.26833/2011
paying the balance sale consideration amount of Rs.7,00,000/-
and requested the Defendant No.1 to come forward and execute
the Sale Deed in favour of Plaintif. But, the request and
demands went in vain. The Sale Agreement is still in existence.
But from reliable sources the Plaintif came to know that
Defendant No.1 with the help of Defendant No.2 is trying to
alienate the Schedule Property to the third parties without
bringing the said fact to the knowledge of the Plaintif. But, the
Defendants are trying to defraud the right of the Plaintif created
by the said Agreement and trying to gain unlawfully at the cost
of the Plaintif. The Plaintif having left with no other alternative
sent a legal notice dtd: 19.6.2006 calling upon the Defendant
No.1 to execute the Sale Deed in favour of the Plaintif within 15
days from the date of receipt of legal notice and the said notices
were sent to the Defendant No.1 by RPAD and UCP. The notice
sent through RPAD is returned unserved. After deemed service
of the notice also, the Defendant No.1 not come forward to
execute the Sale Deed in respect of the Schedule Property in
favour of the Plaintif. The Plaintif came to know that the
Defendant No.1 with the help of the Defendant No.2 who is the
9 OS.No.16271/2006
C/w OS.No.26833/2011
son-in-law of the Defendant No.1 are trying to alienate the
Schedule Property in favour of the third parties by defrauding
the Plaintif. The Defendant No.2 who is the local person having
power of money and muscle, on 28.6.2006 along with deadly
weapons like iron rods, chains, knives and other in numbers
came to the Plaintif and threatened the Plaintif and his family
to handover the physical possession to them and also
threatened with dire consequences pertaining to the same the
Plaintif has complained before the jurisdictional D.J.Halli Police
through Commissioner of Police and Deputy Commissioner of
Police, as such the endorsements are produced in this case. The
Police acting on complaint instructed the Plaintif to obtain the
order from the Court, as the police is helpless since the matter is
civil in nature. Hence, the suit for seeking justice. On the other
hand, even the Defendant No.2 has made a complaint against
the Plaintif by making fabricated and fictitious story. But, the
jurisdictional police have immediately received the complaint
and FIR was lodged against the Plaintif and his family. As such
the copy of the same is produced. It is very much crystal clear
from the conduct of the Defendants that they are very much
10 OS.No.16271/2006
C/w OS.No.26833/2011
influential persons having much influence in the police and
politics and the police personals are also hand in glove with the
Defendants.
5. Para No.11(a) is included by way of amendment
contending that the 1st Defendant with an intention to deceive
the Plaintif and to defeat the Agreement of Sale dtd:15.11.2005
executed in favour of the Plaintif in respect of the Suit Schedule
Property had allegedly executed the Gift Deed dtd: 11.7.2006 in
favour of his son-in-law Sri. Mohammed Ayaz Khan. The alleged
Gift Deed executed in the name of 1 st Defendant son-in-law is
not binding on the Plaintif as the 1 st Defendant after receiving
the part payment in respect of the Suit Schedule Property under
Agreement of Sale dtd: 15.11.2005, put the Plaintif in
possession and enjoyment of the Suit Schedule Property much
earlier to the alleged Gift Deed dtd: 11.7.2006. The Plaintif and
his family members are residing in the Suit Schedule Property.
Hence, the alleged Gift Deed dtd: 11.7.2006 standing in the
name of Mohammed Ayaz Khan purported to be executed by 1 st
Defendant will not convey any right or title over the Suit
11 OS.No.16271/2006
C/w OS.No.26833/2011
Schedule Property in favour of Sri. Mohammed Ayaz Khan. The
cause of action arose on the dates on which the Plaintif
requested to execute the Sale Deed in his favour and on
19.6.2006 when the Plaintif issued legal notice to the
Defendants within the jurisdiction of this Court. Hence, prayed
to decree the suit.
6. The Defendant No.1 filed his written statement
admitting his ownership over the Suit Schedule Property. But,
denied all other allegations made by the Plaintif against this
Defendant specifically. The Defendant has denied the execution
of Agreement of Sale dtd: 15.11.2005 in favour of the Plaintif
and also denied that he has handed over the physical
possession of the Suit Schedule Property in favour of the
Plaintif. He also denied that he has received part of
consideration of Rs.10,00,000/- out of the total sale
consideration of Rs.17,00,000/-. There is no cause of action for
the present suit. He further contended that the suit for
injunction is pending amendment for specific performance is not
maintainable. It is the duty of the Plaintif to obtain
12 OS.No.16271/2006
C/w OS.No.26833/2011
encumbrance before instituting the suit for injunction and any
relief of interim injunction which is barred by any law. The
address furnished by the Plaintif in respect of this Defendant is
not correct and invented for the purpose of this suit. The
Defendant has gifted the Suit Schedule Property to his son-in-
law Mr. Mohammed Ayaz Khan on 7.10.2005 and subsequent
confirmation by another document so under the circumstances
the suit is not maintainable. There cannot be injunction against
the true owner and the suit without impleading the real owner is
not maintainable either in law or on facts. The Defendant No.1
has never received advance of sale consideration at any time
and has never entered into an agreement of sale with the
Plaintif. The Plaintif has suppressed the fact of committing
trespass and trespasser is not entitled for equity relief. The
Plaintif is in unlawful possession and he cannot seek any relief
of injunction and court cannot come in the aid of trespasser,
that the say that this Defendant is owner is not correct as he
has already gifted the Suit Schedule Property to his son-in-law
Mohammed Ayaz Khan on 7.10.2005 and he came into
possession of the Suit Schedule Property by virtue of gift and he
13 OS.No.16271/2006
C/w OS.No.26833/2011
has began to stay with his wife and children and he has kept his
belongings in the Suit Schedule Property like Cot, Fridge,
Almerah and other household articles and also a Motor Cycle
and began to enjoy the schedule property and he has also
allowed his brother-in-law the Defendant No.2 to stay in the Suit
Schedule Property along with wife and children. When the
Defendant No.2 along with his wife and children had been to
Bidar for the purpose of Nursing Education and to attend the
marriage of the younger brother of Mohammed Ayaz Khan the
Plaintif taking the advantage of their absence have made
criminal trespass by break opening the lock put to the main door
of the schedule property i.e., house, which the Defendant No.2
came to know after returning from Bidar and filed written
complaint against the Plaintif and others on 30.6.2006 before
the D.G. Halli Police Station, the concerned police also
registered a case in Cr.No.198/2006 for the ofences under
Section 448 and 504 r/w Section 34 of IPC against the Plaintif
and others. The above said household articles apart from the
Motor Cycle belonging to Mohammed Ayaz Khan who is the son-
in-law of this Defendant are still lying in the Suit Schedule
14 OS.No.16271/2006
C/w OS.No.26833/2011
Property. Hence, in a suit for temporary injunction based on
insufficiently stamped and hit by Registration and Stamp Act is
void and no relief can be granted on void document and no
relief of alleged possession on void document can be the subject
matter of equity relief of injunction or much more the provisions
of Section 53A of T.P.Act. The document which is hit by
Registration Act and Stamp Act cannot be looked into even for
collateral purpose and in the case of agreement of sale without
admitting the same which discloses as per the averments of the
Plaintif the delivery of possession said to have been given
under the alleged Agreement of Sale, the document is
document of conveyance attracting stamp duty and registration
and documents which cannot be admissible in law or any
proceedings cannot be admitted in evidence and cannot be
looked into and no relief can be granted on the alleged
document even for the purpose of interim relief as contemplated
in the Stamp Act. The trespass case booked against the Plaintif
in Cr.No.198/2006 against the Plaintif is enough to dismiss the
case of the Plaintif. The Plaintif who is wrong doer is not
entitled for any relief of equity and no specific performance is
15 OS.No.16271/2006
C/w OS.No.26833/2011
available for suppression of facts and false say. The Plaintif is
not entitled for the any reliefs. Hence, prayed for dismiss the
suit.
7. Subsequent to filing the suit the 3rd Defendant was
impleaded in the present case and the 3rd Defendant filed his
written statement contending the suit of the Plaintif seeking a
decree of specific performance for execution of Sale Deed on
the basis of an alleged Agreement of Sale dtd: 15.11.2006 is
false claim, hopelessly barred by Limitation, concocted and
created document and brought with fraud and tress for which a
criminal case has been registered for the ofence under Section
448, 504 and 506 of IPC against the Plaintif in
C.C.No.24912/2007. The said criminal case having been
registered against the Plaintif and showing the Plaintif's illegal
conduct, does not empower or entitle the Plaintif in this case to
seek the equitable relief of Specific Performance. The character
of the Plaintif should be unblemished and his conduct from the
date of the alleged Agreement should be crisp, clear and
adherent to the core of the conduct. But, in this case, the facts
16 OS.No.16271/2006
C/w OS.No.26833/2011
disclose that though there is no recital for having allowed
possession under part performance of the alleged Agreement of
Sale, the Plaintif claims to be in possession which is illegal,
palpably false. Since the Plaintif first had claimed the bare relief
of permanent injunction, shows the conduct of the Plaintif in
paying a paltry sum of Rs.25/- as court fee and having forcibly
entered the Suit Schedule Property and in order to avoid
criminal liability in the case registered as Cr.No.198/2006
subsequently registered as C.C.No.24912/2007, the Plaintif has
inexplicably approached this Court seeking only the relief of
permanent injunction and later as an afterthought, he has
amended the plaint to seek enforcement of an Agreement of
Sale way beyond the period of limitation, since the said after
thought is going to the root of the matter showing the conduct
of the Plaintif as illegal and demerited and the entire of the
Plaintif is not sustainable and this Court exercise discretion
under Section 20 of the Specific Relief Act and reject the claim
of the Plaintif as the Plaintif is not seeking bonafide relief. The
Defendant has contended that his title to the Suit Schedule
Property has occurred on 7.10.2005 when the 1 st Defendant has
17 OS.No.16271/2006
C/w OS.No.26833/2011
executed a Gift Deed namely Hiba and put this Defendant in
actual physical possession and enjoyment of the Suit Schedule
Property. Upon entering the Suit Schedule Property, the
Defendant No.3 has exercised all rights of ownership and in
pursuance of the Gift Deed both the 1st Defendant as well as 3rd
Defendant have applied to the concerned branch of the BBMP
seeking registration of Khata in the name of 3 rd Defendant
Mohammed Ayaz Khan. The 3rd Defendant has furnished
documents in regard to his title under the Hiba as well as the
applications given by him seeking registration of Khata by
himself as well as 1st Defendant. The Plaintif knowing fully well
that the 3rd Defendant is in possession and enjoyment of the
Suit Schedule Property, the Plaintif using rowdy elements has
illegally concocted the alleged Agreement of Sale which is a
palpably false document and has approached this Court seeking
equitable relief. The Plaintif has suppressed material facts
wherein the 3rd Defendant has filed a complaint before the D.J.
Halli Police Station on 30.6.2006 at about 3.30 p.m., when the
Plaintif along with his henchmen and rowdy elements wife and
son illegally trespassed into the Suit Schedule Property, at the
18 OS.No.16271/2006
C/w OS.No.26833/2011
very same time when the Plaintif has filed the above suit
seeking only the relief of bare injunction. The 1st Defendant
having executed the Gift Deed by way of Hba and applied for
transfer of Khata was moving pillar to post along with this
Defendant to seek registration of Khata with the BBMP, its
officials have informed this Defendant and the 1 st Defendant
that a Registered Document is required and therefore as a
formality, once again a registered Gift Deed was entered into
and it was formally executed on 6.7.2006. As such, after
execution of the registered Gift Deed only, the BBMP have come
forward to register the Khatha in the name of 3 rd Defendant and
he is the absolute owner in lawful possession and enjoyment of
the Suit Schedule Property. The 3rd Defendant submits that the
illegally created alleged Agreement of Sale dtd: 15.11.2005 is
not binding on this Defendant, his right, title and interest etc.,
over the Suit Schedule Property. This Defendant has instituted a
Civil Suit for Declaration and Possession in OS.No.26833/2011 in
which an interim order of injunction against the Plaintif is
granted and is pending disposal on the file of this Court. The
claim of the Plaintif in respect of the Suit Schedule Property is a
19 OS.No.16271/2006
C/w OS.No.26833/2011
false statement as claimed in Para No.3 of the plaint. The
Plaintif has also falsely claimed that he has received physical
possession of the Suit Schedule Property. The same was not
evidenced either in the Sale Agreement nor in the written
statement. On the other hand, the Agreement of Sale on
30.6.2006 is concocted by the Plaintif. The alleged Agreement
of Sale is created after the Plaintif trespass into the Suit
Schedule Property. The Plaintif claims that the Defendant No.1
continues to be absolute owner is a palpably false statement
since the plaint was filed on 19.7.2006, 19 days after th e
execution of the criminal case against the Plaintif for the
ofence under Section 448, 504 r/w Section 34 of IPC. Therefore,
having been arrested and released on bail on 5.7.2006, the
Plaintif has concocted all the said documents pertaining to the
alleged claim for permanent injunction and filed the suit on
19.7.2006. Hence, there is no bonafides in the Plaintif's
approach to this Court. The Plaintif did not approach either
Defendant No.1 or Defendant No.3 till this day and his claim is
false. The averments made in the amended portion of the plaint
in Para No.5 are also false. The Plaintif has suppressed the
20 OS.No.16271/2006
C/w OS.No.26833/2011
material facts. Further denied all other plaint averments
specifically. The Plaintif is a land grabber and he has wrongly
trespassed into the Suit Schedule Property and thereafter filed
the present suit only to cover up his illegal acts and abusing the
process of Court. The claim of the Defendant No.1 with the help
of Defendant No.2 is trying to alienate the Suit Schedule
Property is false statement. The Defendant No.1 has no right,
title and interest on 15.11.2005 or any other date and was not
empowered to enter into any Agreement of Sale since this
Defendant is already a owner from the date of Hiba and is in
lawful possession and enjoyment of the Suit Schedule Property.
The Plaintif has suppressed the material facts, this Defendant is
the lawful owner and in possession of the Suit Schedule Property
since the Plaintif is not entitled for equitable relief of injunction,
if granted, this Defendant will be put to irreparable hardship and
injury as he being the actual owner of the property, is not bound
by the alleged Agreement of Sale which has been created by the
Plaintif only to set up a false defence in his criminal case.
Hence, prayed to dismiss the plaint.
21 OS.No.16271/2006
C/w OS.No.26833/2011
8. The Defendant No.1 has filed additional written
statement on 11.3.2011 which is similar to the earlier written
statement filed by him prior to amendment and further
contended that the Plaintif has falsely claimed that he is in
possession of the Suit Schedule Property as per the alleged
Agreement of Sale is false. The suit for specific performance
filed by the Plaintif on the alleged unregistered Agreement of
Sale is not maintainable and further more Plaintif was in
possession of the property in dispute in part performance of
agreement to sell according to his plaint averments, but in view
of Section 49 of Registration Act such an alleged agreement
cannot be received as evidence of any transaction afecting
property in question. The donee of the Suit Schedule Property is
a necessary party when the suit is bad for non-joinder of
necessary parties. The said document is hit by Registration Act
and Stamp Act cannot be looked into even for collateral
purpose.
9. The Defendant No.1 again filed written statement on
28.9.2013 contending all the facts which are similar to the
22 OS.No.16271/2006
C/w OS.No.26833/2011
earlier written statement filed by the Plaintif.
10. The Defendant No.3 in OS.No.16271/2006 has filed
OS.No.26833/2011 against the Plaintif in OS.No.16271/2006 for
the relief of declaration that the Plaintif is the absolute owner of
the Suit Schedule Property by virtue of the Gift Deed/Hiba
executed in his favour and for possession of the Suit Schedule
Property and mesne profits at the rate of Rs.10,000/- per month
and for other reliefs.
11. The said suit was decreed by this Court by Judgment
and Decree dtd: 2.7.2012. Subsequently, as per the Order
passed in Miscellaneous Petition No.25206/2020 dtd: 31.1.2013
the said Judgment and Decree was set aside and the suit was
restored in its original file. Thereafter, the Defendant appeared
and filed his written statement.
12. It is the case of the Plaintif that he is the absolute
owner of the Suit Schedule Property. The Plaintif has produced
the copy of the Sale Deed dtd: 12.8.1998 executed by Javed
Nazim in favour of Mohammed Hussain, the father-in-law of the
Plaintif to show the title of the Plaintif's father-in-law over the
23 OS.No.16271/2006
C/w OS.No.26833/2011
Suit Schedule Property. The Plaintif has also produced the Hiba
Deed executed by Mohammed Hussain in favour of the Plaintif.
The Plaintif further contended that, subsequently, the father-in-
law of the Plaintif came forward and executed the registered
Gift Deed on 6.6.2006 asserting the earlier Gift executed in
favour of the Plaintif. The registered Gift Deed dtd: 6.7.2006 is
produced by the Plaintif. The Suit Schedule Property originally
belonged to Mohammed Hussain S/o Abdul Gani the father-in-
law of the Plaintif who executed a Deed of Gift in the form of
Hiba granting possession and enjoyment together with
ownership rights to the Plaintif herein in respect of the Suit
Schedule Property on 7.10.2005 and putting the Plaintif in
peaceful possession and enjoyment of the Suit Schedule
Property. Subsequently, the khatha has been transferred and
duly registered in the name of the Plaintif before the BBMP. The
Defendant herein is a Rank Trespasser who on 30.6.2006
trespassed into the Suit Schedule Property and thereafter,
coming to know about the same, the Plaintif immediately files
complaint on 1.7.2006 before the D.J. Halli Police Station. The
Police have registered the criminal case in Cr.No.198/2006 for
24 OS.No.16271/2006
C/w OS.No.26833/2011
the ofences under Section 448, 504, 506 of IPC against the
Defendant and subsequently, after framing of charges the case
has been registered in C.C.No.24912/2007. The proceedings
before the XIth Additional ACMM Court in C.C.No.24912/2007 is
pending disposal and the Plaintif contended that though the
criminal liability of the Defendant is co-extensive, in order to
secure actual physical possession, it is just, expedient and
necessary for the Plaintif to seek the remedy of Declaration of
his title over the Suit Schedule Property and for possession of
the same. The cause of action arose for the Plaintif when the
Plaintif instituted the suit to seek the relief of declaration and
possession. The Defendant is illegally squatting on the Suit
Schedule Property without any manner of right, title and interest
and in order to obtain possession through process of law. The
Plaintif approached this Court with this suit. The cause of action
arose on 30.6.2006 when the Defendant illegally trespassed into
the Suit Schedule Property and subsequently, when the Police
case was registered against the Defendant and the Plaintif is
yet to get his remedy from the criminal court and thereby, the
Plaintif is seeking the relief of declaration and possession, all
25 OS.No.16271/2006
C/w OS.No.26833/2011
within the territorial and pecuniary jurisdiction of this Court.
Hence, prayed to decree the suit.
13. The Defendant appeared through his counsel and filed
his written statement denying all the contentions taken by the
Plaintif in detail and further contended that the suit of the
Plaintif is not maintainable either under law or on facts. The
Plaintif has suppressed the true material facts and not
approached this Court with clean hands. There is no cause of
action arose for the Plaintif to file the above suit. The suit is
also barred by limitation and the suit is bad for non-joinder of
necessary parties. He admits that the father-in-law of the
Plaintif was the owner of the Suit Schedule Property. But,
denied that the father-in-law of the Plaintif has executed Gift
Deed in favour of the Plaintif. The Plaintif on the basis of illegal
document got created the document in respect of the Suit
Schedule Property and in collusion with his father-in-law has
filed the present suit. All the documents produced by the
Plaintif are false and concocted. He denied that he has
trespassed over the Suit Schedule Property, but contended that
26 OS.No.16271/2006
C/w OS.No.26833/2011
on the date of execution of sale by the father-in-law of the
Plaintif, the father-in-law of the Plaintif has handed over the
Suit Schedule Property along with the title deeds. He has
contended that a false complaint was registered against the
Defendant colluding with the police. The Defendant further
contended that he is the owner in possession and enjoyment of
the Suit Schedule Property. Since from 15.11.2005 the
Defendant and his family members are residing in the Suit
Schedule Property. It is contended that Sri. Mohammed Hussain
had executed Agreement of Sale dtd: 15.11.2005 in favour of
the Defendant in respect of the Suit Schedule Property agreeing
to sell the Suit Schedule Property for Rs.17,00,000/- and
received advance amount of Rs.10,00,000/- and the balance
amount is Rs.7,00,000/- has to be paid at the time of
registration of the Sale Deed in favour of the Defendant.
Accordingly the said Sri. Mohammed Hussain had executed
Agreement of Sale dtd: 15.11.2005 in favour of the Defendant
by receiving the advance sale consideration amount of
Rs.10,00,000/- from the Defendant and put the Defendant in
possession and enjoyment of the Suit Schedule Property. Since
27 OS.No.16271/2006
C/w OS.No.26833/2011
from the date of Agreement of Sale Defendant and his family
members are residing are in possession and enjoyment of the
Suit Schedule Property. Before Sri. Mohammed Hussain
executing Agreement of Sale dtd: 15.11.2005, Sri. Mohammed
Hussain was the owner of the property by virtue of purchasing
the Suit Schedule Property through registered Sale Deed
dtd:13.8.1998 from one Sri. Javed Nazim. After he purchased the
Suit Schedule Property he was in possession and enjoyment of
the same till he executed the Agreement of Sale dtd:
15.11.2005 in favour of the Defendant in respect of the Suit
Schedule Property by receiving advance sale consideration
amount of Rs.10,00,000/- and on the same day put the
Defendant in possession and enjoyment of the Suit Schedule
Property. After few months of the said Agreement of Sale he
started requesting the said Sri. Mohammed Hussain to execute
the registered Sale Deed in favour of Defendant by receiving the
balance sale consideration of Rs.7,00,000/- as agreed in the
agreement. However, the said Sri. Mohammed Hussain keep on
extending the time for one or the other reasons. During the
subsistence of the Agreement the Defendant came to know that
28 OS.No.16271/2006
C/w OS.No.26833/2011
the said Mohammed Hussain along with another Sri. Noor
Mohammed Khaleel were making attempts to alienate the Suit
Schedule Property to some third persons. Immediately he got
issued legal notice dtd: 19.6.2006 calling upon Mohammed
Hussain to execute the registered Sale Deed in favour of the
Defendant by receiving balance sale consideration of
Rs.7,00,000/-. The said Mr. Mohammed Hussain sensing the
contents of the legal notice evaded from receiving the said legal
notice and the same was returned to Defendant. On 28.6.2006
the said Mohammad Hussain along with Sri. Noor Mohammed
Khaleel who was residing in the said locality having money and
political power came with some supporters carrying with deadly
weapons like iron rods, chains, knives and threatened the
Defendant and his family members to handover the physical
possession and enjoyment of the Suit Schedule Property,
otherwise the Defendant and his family members are to face
dire consequences. The Defendant lodged police complaint to
the D.J.Halli Police through Commissioner of Police and Deputy
Commissioner of Police when the jurisdictional police refused to
receive and register the complaint against the said Mohammed
29 OS.No.16271/2006
C/w OS.No.26833/2011
Hussain and his supporters. After sensing the criminal intention
and motive of the said Mohammed Hussain and his supporters
as they are adopting illegal tactics to dispossess the Defendant
and his family members from the Suit Schedule Property, the
Defendant approached City Civil Court at Bangalore and filed
suit in OS.No.16271/2006 against the said Mohammed Hussain
and Noor Mohammed Khaleel seeking permanent injunction
against them from interfering or middling with the peaceful
possession and enjoyment of the Suit Schedule Property. Later
the Defendant amended the suit seeking the relief of specific
performance against Mohammed Hussain by directing him to
execute the registered Sale Deed by receiving balance sale
consideration. The Defendant further contended that after
coming to know the alleged Gift Deed created by the Plaintif in
collusion with Mohammed Hussain the Defendant impleaded the
Plaintif and Defendant No.3 in the present suit by seeking
additional relief in the said suit. The said suit is still pending for
consideration. The Plaintif earlier had managed and obtained
ex-parte Judgment and Decree in the above suit in collusion with
court bailif without serving the suit summons or notice to the
30 OS.No.16271/2006
C/w OS.No.26833/2011
Defendant in the present suit on 2.7.2012. The Defendant after
coming to know of the ex-parte Judgment Decree dtd:2.7.2012
passed in the above suit by this Court, he obtained the certified
copy of the impugned order and filed Miscellaneous Petition
No.25206/2012 before this Court and the said Petition was
allowed on 31.1.2013 and restored the present suit. The Plaintif
in collusion with Mohammed Hussain is making all sorts of illegal
and unlawful methods to dispossess the Defendant and his
family members from their lawful possession. However, the
Plaintif is not succeeded so far in defeating the legitimate right,
title and ownership of the Defendant. The intention of the
Plaintif and Mohammed Hussain is to harass the Defendant and
to force him to part with possession and enjoyment of the Suit
Schedule Property. He has also filed Miscellaneous Petition
before the Principal City Civil & Sessions Judge at Bangalore
under Section 5(2) of Bangalore City Civil Court Act requesting
the Hon'ble Court to transfer this suit to club with
OS.No.16271/2006 and the Miscellaneous Petition is pending for
consideration. The suit of the Plaintif is not maintainable as the
Plaintif has not properly valued the suit and court fee paid is
31 OS.No.16271/2006
C/w OS.No.26833/2011
totally insufficient and the Court has to frame preliminary issue
regarding insufficiency of court fee paid by the Plaintif while
filing the present suit. There is no cause of action as alleged in
the suit. Hence prayed to dismiss the suit.
14. On the basis of above pleadings following issues and
additional issues have been framed in both the cases:
ISSUES in OS.No.16271/2006
1) Whether the Plaintif proves that he was in
possession of the Suit Schedule Property as
on the date of the suit?
2) Whether the Plaintif proves the alleged
interference?
3) What order?
ADDITIOINAL ISSUES ON 12.7.2011
1) Whether the Plaintif proves the execution
of agreement of sale dtd: 15.11.2005 by
the Defendant?
2) Whether the Plaintif prove payment of
Rs.10,00,000/- towards sale consideration?
3) Whether Plaintif was always ready and
willing to perform his part of contract?
32 OS.No.16271/2006
C/w OS.No.26833/2011
4) Whether the Plaintif proves that the Gift
Deed dtd: 11.7.2006 is not binding on the
Plaintif?
5) Whether the Defendants prove that suit is
not properly valued and CF paid is
insufficient?
6) Whether the suit is barred by limitation?
7) Whether suit in the present form is not
maintainable?
ISSUES in OS.No.25833/2011
1) Whether the Plaintif proves that
Mohammad Hussain executed a deed of
gift (Hiba) on 7.10.2005 putting the Plaintif
in possession of the same, by virtue of such
a Hiba he became the owner of the Suit
Schedule Property?
2) Whether the Plaintif proves that Defendant
is in unauthorized occupation of the suit
property, who is liable to deliver the vacant
possession of the same?
3) Whether the Plaintif is entitle for mesne
profits?
4) Whether the Defendant proves that
33 OS.No.16271/2006
C/w OS.No.26833/2011
Mohammed Hussain executed an
agreement of sale on 15.11.2005 putting
the Defendant in possession of the same?
5) What order or decree?
15. To prove their case, the Plaintif in OS.No.26833/2011
has got examined himself as PW.1 and one more witness as
PW.2 and got marked Ex.P.1 to Ex.P.21 documents and the
Plaintif in OS.No.16721/2006 got examined himself as DW.1 and
one more witness as DW.2 and got marked Ex.D.1 to Ex.D.10
and closed their side.
16. Heard both the sides.
17. My findings to the above issues are as follows:
ISSUES in OS.No.16271/2006
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
ADDITIOINAL ISSUES ON 12.7.2011
Addl.Issue No.1 : In the Affirmative.
Addl.Issue No.2 : In the Affirmative.
34 OS.No.16271/2006
C/w OS.No.26833/2011
Addl.Issue No.3 : In the Affirmative.
Addl.Issue No.4 : In the Affirmative.
Addl.Issue No.5 : In the Negative.
Addl.Issue No.6 : In the Negative.
Addl.Issue No.7: In the Negative.
ISSUES in OS.No.25833/2011
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : In the Affirmative.
Issue No.3 in OS.No.16721/2006 &
Issue No.5 in OS.No.26388/2011 : As per final order
for the following:
REASONS
18. Issue No.1, 4 in OS.No.26833/2011 and Issue
No.1 and Additional Issue No.1 and 4 in
OS.No.16271/2006:- These issues are inter-related and hence
answered in common in order to avoid the repetition of facts.
35 OS.No.16271/2006
C/w OS.No.26833/2011
19. OS.No.26833/2011 is filed by Defendant No.3 in
OS.No.16271/2006 for the relief of declaration that he is the
owner and in possession of the Suit Schedule Property on the
basis of the Gift Deed dtd: 7.10.2005 and for possession of the
Suit Schedule Property on the ground that Defendant is in
unauthorized occupation of the Suit Schedule Property. He has
also specifically claimed that the Agreement of Sale dtd:
15.11.2005 is not binding on him.
20. OS.No.16271/2006 is initially filed only for the relief of
injunction against the Defendant No.1 and 2 and subsequently
Defendant No.3 was included in the present suit and the suit
was converted into for the relief of Specific Performance of
Contract dtd: 15.11.2005 and for declaration that the Gift Deed
dtd: 11.7.2006 is not binding upon the Plaintif in respect of the
Suit Schedule Property.
21. Both the suits were clubbed together and common
evidence is led in OS.No.16271/2006. The Plaintif in
OS.No.26833/2011 was examined as PW.1 and his witness as
PW.2 and Plaintif in OS.No.16271/2006 and his witness are
36 OS.No.16271/2006
C/w OS.No.26833/2011
examined as DW.1 and DW.2. Hence, the parties are referred to
in the rank as in OS.No.26833/2011 for the sake of convenience.
22. PW.1 and PW.2 are the son-in-law and father-in-law in
relation. Admittedly, the Suit Schedule Property belongs to PW.2
who has acquired the same under the registered Sale Deed as
per Ex.D.1. The Defendant No.1 in OS.No.16271/2006 has
contended that the Plaintif is a trespasser. He has not executed
any Agreement of Sale and the said document is created. He
has contended that he being the owner and in possession of the
Suit Schedule Property having purchased the same under the
registered Sale Deed dtd: 13.8.1998, he has executed Gift Deed
in favour of his son-in-law who is Plaintif in OS.No.26833/2011
under Gift Deed dtd: 7.10.2005 and handed over the possession
of the Suit Schedule Property. He further contended that his
brother-in-law Defendant No.2 was staying in the said Suit
Schedule Property along with his wife and children and when the
Defendant No.2 along with his wife and children had been to
Bidar for the purpose of Nursing Education and to attend the
marriage of the younger brother of Mohammed Ayaz Khan, the
37 OS.No.16271/2006
C/w OS.No.26833/2011
Plaintif trespassed into the Suit Schedule Property by breaking
open the main door of the Suit Schedule Property. In that regard,
Defendant No.2 filed complaint against the Plaintif and others
on 30.6.2006 before D.J.Halli Police Station and Cr.No.198/2006
was registered against the DW.1 for the ofences under Section
448 and 504 r/w Section 34 of IPC. DW.1 who is the Plaintif in
OS.No.16271/2006 has contended that he is in actual
possession and enjoyment of the Suit Schedule Property on the
basis of the Agreement of Sale dtd: 15.11.2005 and from the
date of Agreement he was in actual possession and enjoyment
of the Suit Schedule Property. Under the said Agreement he has
agreed to purchased the Suit Schedule Property for
Rs.17,00,000/- and the Defendant No.1 agreed for the same and
received Rs.10,00,000/- on the date of Agreement itself and
agreed to execute the Sale Deed within nine months from the
date of Agreement by receiving the balance sale consideration
of Rs.7,00,000/- and subsequently Defendant No.1 and 2 tried to
alienate the Suit Schedule Property to third parties and hence
suit for injunction is filed. On that day there was no cause of
action to file suit for specific performance as the time for
38 OS.No.16271/2006
C/w OS.No.26833/2011
performance was not completed and subsequently the DW.1 got
issued legal notice calling upon the Vendor to execute the Sale
Deed by receiving balance sale consideration and thereafter got
amended the suit for the relief of specific performance of
contract. Subsequently in the year 2011 PW.1 has filed a suit for
declaration of his title and possession of the Suit Schedule
Property on the basis of the Gift Deed (Hiba) dtd: 7.10.2005.
DW.1 got amended his suit for the declaration to declare that
the Hiba is not binding on him.
23. OS.No.26833/2011 was once decreed ex-parte and
subsequently the said Judgment and Decree was set aside in
Misc.No.25206/2012 dtd: 31.1.2013. The suit was restored and
clubbed with OS.No.16271/2006.
24. The Plaintif in OS.No.26833/2011 got examined
himself as PW.1 and one witness who is Defendant No.1 in
OS.No.16271/2006 as PW.2. PW.1 filed his affidavit reiterating
the contents of the suit and got marked Ex.P.1 to Ex.P.21. This
witness is cross-examined by the Defendant's Counsel i.e., the
Plaintif in OS.No.16271/2006 in detail. During the cross-
39 OS.No.16271/2006
C/w OS.No.26833/2011
examination initially he has stated that the original of Ex.P.1 i.e.,
the original Sale Deed in respect of the Suit Schedule Property
was given by his father-in-law to him. Subsequently, during the
cross-examination, Ex.D.1 was confronted to this witness, he
identified the same as the original Sale Deed in respect of the
Suit Schedule Property in the name of his father-in-law. He has
also stated that his father-in-law has not stated as to how the
Ex.D.1 came in possession of DW.1. Again he has stated the
Ex.D.1 was stolen by DW.1 from his house. As far as the
Agreement of Sale dtd: 15.11.2005 between the Plaintif and
Defendant No.1 in OS.No.16271/2006 is concerned the Plaintif
No.1 has denied specifically and has shown ignorance about the
execution of Agreement of Sale and passing of consideration
under Ex.D.2 i.e. the said Agreement of Sale dtd: 15.11.2005.
Though he has specifically denied about the Agreement of Sale
dtd: 15.11.2005 in his pleadings and in his examination-in-chief,
but in the cross-examination he has shown his ignorance about
the said transaction. On the other hand during the cross-
examination Ex.D.2 was confronted to this witness and he has
admitted that Ex.D.2(a) is the signature of his father-in-law and
40 OS.No.16271/2006
C/w OS.No.26833/2011
further he has admitted that Ex.D.2 was executed by his father-
in-law and he only has to speak about the same. He clearly
admitted that Ex.D.2 was executed by his father-in-law himself.
He do not know the contents of Ex.D.2. He do not know the
consideration mentioned in the said Agreement of Sale. He do
not know whether his father-in-law has received Rs.10,00,000/-
on the date of Agreement of Sale and agreed to execute the
Sale Deed within nine months from the date of Agreement of
Sale by receiving the balance sale consideration. He denied that
Ex.D.1 was given by his father-in-law to the DW.1 on the date of
Ex.D.2 i.e., Agreement of Sale. Further, he has clearly admitted
that there is no evidence to show that PW.1 was put in
possession of the Suit Schedule Property on the basis of the gift.
PW.1 is claiming that he came in possession of the Suit Schedule
Property on the basis of the Gift Deed dtd: 7.10.2005. From the
admission of PW.1 during the cross-examination that he has no
evidence to show that under Gift Deed dtd: 7.10.2005 he came
in possession of the Suit Schedule Property. In order to prove the
Gift Deed dtd: 7.10.2005 the PW.1 has not examined any of the
attesting witnesses. PW.1 is claiming that the Gift Deed
41 OS.No.16271/2006
C/w OS.No.26833/2011
dtd:7.10.2005 is Hiba i.e., Oral Gift under Mohammadan Law
and specifically the same was reduced into writing. Ex.P.2 is the
unregistered Gift Deed dtd: 7.10.2005. On plain reading of
Ex.P.2 there is no reference that earlier there was Oral Gift in the
form of Hiba as contemplated under Mohammadan Law and the
same was reduced into writing to confirm the said Hiba Ex.P.2
was accepted. In the absence of any such reference in Ex.P.2 it
cannot be said that Ex.P.2 has to be considered as Hiba as
contemplated under Mohammadan Law. Apart from this PW.1
has contended that after execution of Gift Deed as per Ex.P.2,
has applied for change of Khatha, but the BBMP Authorities
asked him to produce the registered documents and on the
basis of the unregistered document khatha cannot be changed
in respect of the Suit Schedule Property and hence Ex.P.3 was
executed by his father-in-law on 6.7.2006. Even in Ex.P.3 there is
no reference of Oral Gift Hiba or Gift Deed dtd: 7.10.2005. There
is no reference of any Hiba or Oral Gift as contemplated under
Mohammadan Law in Ex.P.3. In Ex.P.2 it was stated that on the
date of Ex.P.2 possession was handed over to the PW.1 under
the said document. But again in Ex.P.3 there is a recital that on
42 OS.No.16271/2006
C/w OS.No.26833/2011
the date of Ex.P.3 possession was handed over to PW.1 and he
accepted the same. In the absence of any evidence to show that
there was Oral Gift in the form of Hiba as contemplated under
Mohammadan Law and on the basis of Ex.P.2 which is
unregistered Gift Deed, which is required to be registered under
Section 60 of Registration Act and without registration of Ex.P.2
the Plaintif cannot claim any title or possession of the Suit
Schedule Property under Ex.P.2 on 6.10.2005. Even if we
consider that he came in possession of the Suit Schedule
Property under Ex.P.2 why there is reference about the handing
over of Suit Schedule Property in favour of PW.1 again in Ex.P.3
also. In the absence of any evidence produced by the Plaintif to
show that on the basis of Ex.P.2 or Ex.P.3 he came in possession
of the Suit Schedule Property, the contention of the Plaintif
cannot be accepted. He has produced the Khatha Extract,
Encumbrance Certificate, Tax Paid Receipts in respect of the Suit
Schedule Property in the name of PW.1 i.e., subsequent to the
date of 6.7.2006. It is also pertinent to note that in a complaint
filed by Defendant No.2 against the DW.1 and others in
Cr.No.198/2006 of D.J. Halli Police Station, it is admitted fact that
43 OS.No.16271/2006
C/w OS.No.26833/2011
in the said case DW.1 and other accused are acquitted. Except
the documents produced in respect of the said proceedings as
per Ex.P.8 to Ex.P.10 there is no evidence to show that DW.1 was
a trespasser and occupied the Suit Schedule Property as alleged
by PW.1 and PW.2 in the present both the suits.
25. The Plaintif in OS.No.16271/2006is claiming
possession over the property on the basis of the Agreement of
Sale dtd:15.11.2005. The Plaintif in OS.No.26833/2011 is
claiming possession over the Suit Schedule Property on the
basis of the alleged Gift Deed dtd: 11.7.2006. In the present
case, PW.2 who is Defendant No.1 in OS.No.16271/2006 has
denied the execution of the Agreement of Sale as contended by
DW.1. PW.1 who is Plaintif in OS.No.26833/2011 during the
cross-examination has clearly admitted that his father-in-law has
executed the Agreement of Sale in favour of the 1 st Defendant in
respect of the Suit Schedule Property, though PW.1 in his plaint
in OS.No.26833/2011 and in his evidence has denied the
execution of the Agreement of Sale by the PW.2 in favour of
DW.1. During the cross-examination, PW.1 has clearly admitted
44 OS.No.16271/2006
C/w OS.No.26833/2011
that Ex.D.2 the Agreement of Sale was executed by his father-in-
law and he has to speak about the same. There is no specific
denial of Ex.D.2, so far as the execution of the same by PW.2. In
order to prove Ex.D.2 the Agreement of Sale, DW.1 who is the
Plaintif in OS.No.16271/2006 has examined the attesting
witness of Ex.D.2 as DW.2. DW.2 has clearly admitted the
execution of Agreement of Sale as per Ex.D.2 by the PW.2 and
also passing of consideration. This witness is cross-examined by
the Advocate for PW.1 in detail. But, nothing was brought on
record to disprove the contention taken by DW.1 in his suit and
the suit filed by PW.1 The Plaintif in OS.No.26833/2011 filed a
suit against the DW.1 and in the said case DW.1 filed his written
statement disclosing about the Agreement of Sale as per Ex.D.2,
even after the filing of written statement, PW.1 has not get
amended his plaint nor filed any reply to the contention taken
by DW.1 in the said suit. Even PW.1 has not got amended the
plaint nor prayed any relied in respect of Ex.D.2 in a suit filed by
him. PW.2 who is DW.1 in OS.No.16271/2006 has totally denied
the execution of Ex.D.2 by him. As far as the inference by the
DW.1, as contended by PW.1 in his suit, PW.2 has stated that his
45 OS.No.16271/2006
C/w OS.No.26833/2011
son-in-law i.e., PW.1 might have objected or interfered with the
possession of DW.1 over the Suit Schedule Property on
28.6.2006. He denied that he was also present along with PW.1
on that day. By this, the PW.2 has clearly admitted the
interference by the PW.1 in respect of the possession of the Suit
Schedule Property by DW.1. PW.1 filed his suit on the basis of
Ex.P.2 and issues were also framed on the basis of Ex.P.2 only.
PW.2 during the cross-examination, when Ex.P.2 was confronted
to him, he has stated that he has not executed the said
document, but he has admitted that he has executed Ex.P.3 as
the PW.1 asked him to get the registered document in respect of
the Suit Schedule Property in his favour. DW.1 in order to prove
Ex.D.2 has made sufficient eforts to prove the same by
examining the attesting witness, whereas the PW.1 and 2 denied
the execution of Ex.D.2. DW.1 has not made any eforts to send
the disputed documents to the Handwriting Expert for
comparison of signature. The Plaintif has got marked the
admitted signature of PW.2 as per Ex.D.1(a). When the signature
was confronted to this witness on Ex.P.3, he has not identified
the said signature. But stated that unless the entire document is
46 OS.No.16271/2006
C/w OS.No.26833/2011
shown to him he cannot identify his signature on Ex.P.3.
Admittedly, it is a case of PW.1 and PW.2 that Ex.P.3 was
executed by PW.2 in favour of PW.1 i.e., the registered Gift Deed.
PW.2 has denied that signature confronted to him on Ex.D.2. But
he has stated that the attesting witness Hussain Sharief has
signed Ex.D.2. He has clearly admitted that the Suit Schedule
Property is in possession of DW.1 since last 6-7 years. PW.1 is
claiming title over the Suit Schedule Property on the basis of the
Gift Deed dtd: 7.10.2005. In respect of Ex.P.3 i.e., the
unregistered Gift Deed alleged to have been executed by PW.2
in favour of PW.1, no relief is claimed by PW.1 in his suit. As
already discussed above, the PW.1 has not at all stated when
the Hiba i.e., Oral Gift was executed by PW.2 in favour of PW.1.
There is no reference of the same in Ex.P.2 and Ex.P.2 is outright
Gift Deed (Oral Hiba) which is unregistered document which
cannot be accepted and in Ex.P.3 the said document was
executed subsequently on 6.7.2006 by the PW.2 in favour of
PW.1 wherein also there is no reference of Ex.P.2 or earlier Hiba.
When the DW.1 is claiming relief on the basis of Ex.D.2 dtd:
15.11.2005 the Gift Deed executed by PW.2 in favour of PW.1 on
47 OS.No.16271/2006
C/w OS.No.26833/2011
7.10.2005 or on 6.7.2006 are not binding on the Plaintif. Thus,
the Plaintif was able to prove that the PW.2 has executed Ex.D.2
in his favour and the subsequent document executed by PW.2 in
respect of the Suit Schedule Property in favour of the PW.1 are
not binding on DW.1. As far as, the financial condition of DW.1 is
concerned, the PW.2 in his written statement has stated that
DW.1 is not having the financial capacity to pay Rs.10,00,000/-
and has no financial capacity to pay balance sale consideration
of Rs.7,00,000/-. But in that regard, no evidence is produced by
PW.2 nor there is any serious cross-examination of DW.1 by the
Advocate for PW.1 and 2 with respect to the financial capacity of
DW.1. Since the DW.1 who is the Plaintif in OS.No.16271/2006
has proved that Ex.D.2 the Agreement of Sale executed by PW.2,
by examining attesting witness as DW.2 and the burden shift on
the PW.1 and PW.2 to disprove the same by producing cogent
evidence. In the present case, in order to prove the alleged Gift
Deed alleged to have been executed by PW.2 in favour of PW.1
has not examined any of the attesting witnesses nor there is
any attempt made by the PW.1 and PW.2 to prove the said Gift
Deeds by producing any other evidence, except the self-serving
48 OS.No.16271/2006
C/w OS.No.26833/2011
statement of PW.1 and PW.2. PW.1 during the cross-examination
admitted the execution of Ex.D.2 by the PW.2 in favour of DW.1.
He has not given any explanation as to when he came to know
about the same. Under these circumstances, it has to presumed
that as on the date of execution of Git Deed by PW.2 in favour of
PW.1 they are aware of the execution of the Agreement of Sale
dtd: 7.10.2005 by PW.2 in favour of DW.1. In view of the
admission of PW.1 during the cross-examination that he has no
documentary evidence, except the Gift Deed executed by PW.2
in his favour, he do not have any other documents to show his
possession over the Suit Schedule Property obtained under Gift
Deed, the Tax Paid Receipts and the Khatha Extracts in respect
of the Suit Schedule Property standing in the name of PW.1 are
subsequent to the date of Ex.P.3. Under these circumstances,
PW.1 failed to prove the alleged interference by the DW.1 as
contended in OS.No.26833/2011 and failed to prove that the
PW.2 has executed Hiba i.e., Oral Gift on 7.10.2005 and he came
in possession of the same by virtue of the said Hiba. On the
other hand DW.1 has proved that PW.2 has executed the
Agreement of Sale as per Ex.D.2 in his favour in respect of the
49 OS.No.16271/2006
C/w OS.No.26833/2011
Suit Schedule Property and received Rs.10,00,000/- as advance
amount in the said document and he is in possession of the said
document from the date of Agreement of Sale. It is true, in
Ex.D.2 it is mentioned at Clause No.1 that under the said
document Rs.10,00,000/- was paid in advance and Rs.7,00,000/-
amount has to be paid at the time of execution of the Sale Deed
within nine months from the date of Agreement of Sale and
possession has to be handed over on the date of registration of
the Sale Deed. At Clause No.4, it was stated that on receiving
the balance sale consideration from the purchaser the vendor
shall handover the vacant possession of Suit Schedule Property
to the purchaser or his nominee at the time of registration along
with original documents i.e., Betterment charges paid receipt,
Encumbrance up to date, Khatha Certificate etc. On reading of
Ex.D.2 it is clear that it is not mentioned in Ex.D.2 that
possession was handed over to DW.1 under Ex.D.2. The original
document is also not given by PW.2 to DW.1 on the date of
Ex.D.2. However, in the plaint in OS.No.16271/2006 the
Plaintif/DW.1 has contended that on the date of Ex.D.2 itself the
possession of the Suit Schedule Property was handed over to
50 OS.No.16271/2006
C/w OS.No.26833/2011
him and original document is also given to him. DW.1 has also
produced original Sale Deed as per Ex.D.1 claiming that he has
received the possession of the Suit Schedule Property and
original documents on the date of execution of Ex.D.2. In
respect of Ex.D.1 there is no pleading by the Defendant No.1 in
OS.No.16271/2006 as to how DW.1 came in possession of the
same and Plaintif in OS.No.26833/2011. PW.1 during the cross-
examination, once he has stated that he has not received any
documents in respect of the Suit Schedule Property from the
PW.2 on the date of alleged Gift Deed in his favour. Again he has
stated that he has received the same and kept in the house and
the same was stolen by DW.1 at the time of alleged trespass by
DW.1 over the Suit Schedule Property. But, in that regard there
is no pleading in the plaint in OS.No.16271/2006 or in the
written statement filed by the Defendants in OS.No.26833/2011.
Apart from this, PW.2 during the cross-examination has stated
that on the date of execution of Gift Deed in favour of PW.1 he
has not handed over any documents to PW.1. Under these
circumstances, the contention taken by PW.1 and PW.2 that
documents as per Ex.D.1 was stolen by DW.1 cannot be
51 OS.No.16271/2006
C/w OS.No.26833/2011
accepted. It is also pertinent to note that in a trespass case filed
by PW.1 against DW.1 was also ended in acquittal as admitted
by both the parties. During the course of trial, PW.2 has filed an
application under Section 33 & 34 of Karnataka Stamp Act and
the same was dismissed by this Court by order dtd: 12.9.2017.
The said order has not been challenged by any of the parties
and the same has attained finality. No possession was handed
over as per Ex.D.2 and hence the said document is admissible in
evidence. But the circumstances under which the Ex.D.1 was
handed over to PW.1, as argued by the Advocate for DW.1 that
as on the date of Ex.D.2 after execution of Ex.D.2, the PW.2 has
handed over the possession of the Suit Schedule Property and
also the original title. It cannot be overruled that in order to
avoid the registration of the Ex.D.2, there might be a recital that
possession has to be handed over only after the execution of the
Sale Deed. In view of the above discussion, it is clear that PW.1
and PW.2 have failed to prove the lawful execution of Gift Deed
dtd: 7.10.2005 or Hiba as alleged by PW.1 and PW.2 or the
subsequent Gift Deed as per Ex.P.3.
52 OS.No.16271/2006
C/w OS.No.26833/2011
26. On the other hand, DW.1 has proved that PW.2 has
executed the Agreement of Sale as per Ex.D.2 in favour of DW.1
on 15.11.2005 agreeing to sell the Suit Schedule Property for
Rs.17,00,000/- and received Rs.10,00,000/- as advance amount.
The Advocate for PW.1 and PW.2 argued that the DW.1 has filed
OS.No.16271/2006 only for the relief of permanent injunction
and hence though he was having Ex.D.2 with him, only
subsequently he has got amended the suit for specific
performance and hence it is clear that the DW.1 was not having
money to pay even court fee the said contention cannot be
accepted, even the fact that Ex.D.2 the time for execution of the
Sale Deed is nine months and as on the date of filing the
OS.No.16271/2006 the said nine months was not over. However,
after filing the suit the DW.1 has filed IA Under Order VI Rule 17
of CPC on 22.11.2007 and the same was disposed on
27.10.2010, from this it is clear that before the expiry of period
of limitation i.e., three years from the completion of nine months
from the date of Ex.D.2 the Plaintif has got amended the plaint,
one from permanent injunction, to for specific performance of
contract. He has also filed fresh valuation slip ans also paid
53 OS.No.16271/2006
C/w OS.No.26833/2011
additional court fee accordingly on the value mentioned in the
Ex.D.2.
27. In view of the discussion made above and in view of
the admission of PW.1 who is the Plaintif in OS.26833/2011 that
he has no evidence to show that on the basis of the Gift Deed
(Hiba) dtd: 7.10.2005 he came in possession of the Suit
Schedule Property and also in view of the admitted fact that as
on the date of suit the Defendant/DW.1 was in possession of the
Suit Schedule Property and also in view of the discussion made
above it is clear that PW.1 has failed to prove that Agreement of
Sale dtd: 15.11.2005 is forged document and DW.1 has acquired
the Suit Schedule Property by trespassing over the same. From
the discussion made above, it is clear that the Plaintif has
proved the execution of the Agreement of Sale dtd: 15.11.2005
by PW.1 in favour of DW.1 as contended by the Plaintif in
OS.No.16271/2006. It is also clear from the admission of PW.1
during the cross-examination and also in the absence of any
evidence produced by PW.1 and PW.2 to show that the
Agreement of Sale dtd: 15.11.2005 is forged document as
54 OS.No.16271/2006
C/w OS.No.26833/2011
contended by them. Admittedly, PW.1 and PW.2 are son-in-law
and father-in-law in relation and when the execution of the
Agreement of Sale dtd: 15.11.2005 is proved by the DW.1 by
producing cogent evidence the passing of consideration
advance amount of Rs.10,00,000/- has to be considered as true..
Under these circumstances, I answer Issue No.1 in
OS.No.26833/2011 in the Negative, Issue No.4 in
OS.No.26833/2011 in the Affirmative, Issue No.1, Additional
Issue No.1 and 4 in OS.No.16271/2006 in the Affirmative.
28. Issue No.2 in OS.No.26833/2011 and
OS.No.16271/2006:- In this regard, in view of the discussion
made above and the findings of this Court that the Plaintif in
OS.No.26833/2011 has failed to prove that he came in
possession of the Suit Schedule Property under Gift Deed dtd:
7.10.2005 and also in view of the admitted fact that as on the
date of suit DW.1 was in possession of the Suit Schedule
Property as claimed by DW.1 that he came in possession of the
same on the basis of the Agreement of Sale dtd: 15.11.2005 has
to be accepted. The Plaintif in OS.No.26833/2011 has failed to
55 OS.No.16271/2006
C/w OS.No.26833/2011
prove that he is in possession of the Suit Schedule Property on
the basis of the Gift Deed dtd: 7.10.2005 and Defendant/DW.1 is
in unauthorized occupation of the Suit Schedule Property and
hence he is liable to deliver the actual vacant possession of the
same cannot be accepted. In view of the fact that, criminal case
filed by the PW.1 against the DW.1 alleging that DW.1 has
unlawfully trespassed over the Suit Schedule Property and he
came in possession in the absence of PW.1 was ended in
acquittal and also in the absence of any evidence to prove the
alleged interference by the DW.1 as contended by PW.1 in his
suit, this Court is of the view that the PW.1 has failed to prove
that DW.1 has unlawfully came in possession of the Suit
Schedule Property and in view of the admission of PW.2 during
the cross-examination to the efect that PW.1 might have
interfered with the Plaintif's possession over the Suit Schedule
Property, this Court is of the view that the Plaintif has proved
the alleged interference as contended by DW.1 in his suit in
OS.No.16271/2006. Hence, I answer Issue No.2 in
OS.No.16271/2006 in the Affirmative and Issue No.2 in
OS.No.26833/2011 in the Negative.
56 OS.No.16271/2006
C/w OS.No.26833/2011
29. Issue No.3 in OS.No.26833/2011:- In view of the
discussion made above and findings of this Court that the
Plaintif has failed to prove that the Defendant is in unauthorized
occupation of the Suit Schedule Property and PW.1 has acquired
title over the Suit Schedule Property on the basis of the alleged
Gift Deed dtd: 7.10.2005. The Plaintif is not entitled for mesne
profits as prayed for in the present suit. He has also not
specifically pleaded what is the mesne profit he is claiming in
his suit. In the absence of any evidence produced by PW.1 and
also in view of the finding of this Court that Plaintif has failed to
prove that he acquired title over the Suit Schedule Property on
the basis of the Gift Deed and also in view of the findings of this
Court that DW.1 has proved the execution of the Agreement of
Sale dtd: 15.11.2005 in respect of the Suit Schedule Property in
favour of DW.1 by PW.2. This Court is of the view that the PW.1
is not entitled for any mesne profit as prayed in the present suit.
Hence, I answer Issue No.3 in the Negative.
30. Additional Issue No.2 and 3 in
OS.No.16271/2006:- DW.1 in his suit has contended that on
57 OS.No.16271/2006
C/w OS.No.26833/2011
the date of execution of Agreement of Sale dtd: 15.11.2005
DW.1 has paid Rs.10,00,000/- towards sale consideration as
advance amount out of total consideration amount of
Rs.17,00,000/- and he has also contended in his suit that he was
/is ready and willing to perform his part of the contract. Though
the present suit is filed by the DW.1 initially for the relief of
permanent injunction as on the date of filing the suit in
OS.No.16271/2006 the period fixed for execution of the Sale
Deed of nine months was not completed on that day.
Subsequently to filing the suit the DW.1 has got issued legal
notice calling upon the PW.2 to execute the Agreement of Sale
by receiving the balance sale consideration in the year 2006
itself. In that regard he has produced legal notice as per Ex.D.3
dtd: 14.6.2006 i.e., immediately after the completion of nine
months from the date of period fixed in the Agreement of Sale
and within three years from the said date. In that regard, he has
also filed application for amendment of plaint under Order VI
Rule 17 of CPC on 22.11.2007 i.e., within 3 years from the date
of time fixed under Agreement of Sale, but the same was
allowed by this Court on 27.10.2010. There is no cross-
58 OS.No.16271/2006
C/w OS.No.26833/2011
examination of DW.1 and DW.2 in respect of Ex.D.3 by the
Advocate for PW.1 and PW.2. No specific denial for receipt of
notice as per Ex.D.3 by PW.1 and PW.2. Even PW.1 and PW.2
though contended that DW.1 was not having financial capacity
to pay Rs.10,0,000/- under Agreement of Sale and also he has
no financial capacity to pay the balance sale consideration
amount of Rs.7,00,000/-, there is no detailed cross-examination
of DW.1 and DW.2 in that regard by the Advocate for PW.1 and
PW.2. Under these circumstances, the contention taken by DW.1
that he has paid Rs.10,00,000/- towards advance amount out of
the sale consideration to the PW.2 under Agreement of Sale dtd:
15.11.2005 has to be accepted. The Plaintif has paid his major
portion of consideration amount under the Agreement of Sale
dtd: 15.11.2005 and in the absence of any evidence to show
that DW.1 was not having any financial capacity to pay the
balance sale consideration of Rs.7,00,000/-, the contention
taken by the DW.1 in his suit that he was/is ready and willing to
perform his part of the contract has to be accepted. Hence, I
answer Additional Issue No.2 and 3 in the Affirmative.
59 OS.No.16271/2006
C/w OS.No.26833/2011
31. Additional Issue No.5 and 6 in
OS.No.16271/2006:- PW.1 and PW.2 who are Defendant No.1
and 3 in OS.No.16271/2006 have contended that the suit of the
Plaintif is not properly valued and court fee paid is insufficient.
This contention cannot be considered in view of the fact that
initially the present was filed by the Plaintif only for the relief of
injunction and has paid court fee of Rs.25/-. Subsequently, after
amendment the Plaintif has filed fresh valuation slip on
1.6.2011 valuing the suit for the consideration amount
mentioned in the Agreement of Sale and paid court fee. Hence,
in the absence of any evidence produced by PW.1 and PW.2 and
in the absence of any specific contention taken by the PW.1 and
PW.2 to show that the court fee paid by DW.1 in his suit is not
proper and the suit is not properly valued cannot be considered.
PW.1 and PW.2 also contended that suit of DW.1 in
OS.No.16271/2006 is time barred and the same cannot be
accepted in view of the fact that as on the date of filing the suit
the period mentioned in the Agreement of Sale was not
completed and hence the suit is only filed for permanent
injunction and immediately after completion of period
60 OS.No.16271/2006
C/w OS.No.26833/2011
mentioned in Agreement of Sale the DW.1 has got issued legal
notice calling upon PW.2 to execute the Sale Deed in terms of
Agreement of Sale and thereafter filed IA under Order VI Rule 17
of CPC. Hence, the contention of PW.1 and PW.2 that the suit of
the Plaintif is barred by limitation cannot be accepted. The
limitation of three years will starts after the completion of nine
months from the date of Agreement of Sale dtd: 15.11.2005.
Hence, the amendment sought for and the prayer made by the
DW.1 for the relief of specific performance in his suit is within
time. As far as the other relief claimed by DW.1 in the present
case by way of amendment that the Gift Deed dtd: 11.7.2006 is
not binding on the Plaintif. In fact the 3 rd Defendant in
OS.No.16271/2006 is not a necessary party and the relief in
respect of the Gift Deed claimed by PW.1 in his suit cannot be
considered in the suit filed by the PW.1, the Defendant after
DW.3 got impleaded in the present suit, in the suit filed by DW.1,
he has sought for the relief regarding non-binding of Gift Deed
dtd: 11.7.2006 on him. Under these circumstances, when the
DW.1 is not liable to claim the said relief only because after PW.1
got impleaded in a suit filed by DW.1 the said relief was claimed
61 OS.No.16271/2006
C/w OS.No.26833/2011
by DW.1 in his suit in OS.No.16271/2006. The validity of the said
Gift Deed is to be considered in OS.No.26833/2011 filed by PW.1
against the DW.1. Under these circumstances, the contention of
PW.1 and PW.2 that the relief claimed by the DW.1 in respect of
the Gift Deed dtd: 11.7.2006 is time barred cannot be accepted
in a suit filed by DW.1 in OS.No.16271/2006. Hence, I answer
Additional Issue No.5 and 6 in the Negative.
32. Additional Issue No.7:- PW.1 and PW.2 in a suit filed
by DW.1 i.e., OS.No.16271/2006 have contended that the suit in
the present form is not maintainable. But, no specific contention
taken by the PW.1 and PW.2 in their written statement in
OS.No.16271/2006 to show that how the present suit is not
maintainable in the present form as contended by them. Hence,
I answer Additional Issue No.7 in the Negative.
33. Issue No.5 in OS.No.26833/2011 and Issue No.3
in OS.No.16271/2006:-
In view of the discussion made above and the oral and
documentary evidence produced by both the parties in both the
suits and also findings of this Court on all the issues discussed
62 OS.No.16271/2006
C/w OS.No.26833/2011
above, this Court is of the view that the Plaintif in
OS.No.16271/2006 is entitled for the reliefs claimed in his suit
and the Plaintif in OS.No.26833/2011 is entitled for the reliefs
claimed in the present suit.
The Advocate for Plaintif in OS.No.26833/2011 and
Defendant in OS.No.16271/2006 has relied on the following
rulings:
1) (1978) 2 SCC 116 between Smt. Sandhya Rani Sarkar
V/s Smt. Sudha Rani Debi and Others.
2) (2017) 7 SCC 694 between Agnigundala Venkata Ranga
Rao V/s Indukuru Ramachandra Reddy (Dead) By Legal
Representatives and Others.
3) (2003) 4 SCC 705 between D.S. Parvathamma V/s A.
Srinivasan.
4) (2019) 8 SCC 575 between Surinder Kaud (Dead)
Through Legal Representatives Jasinderjit Singh (Dead) Through
Legal Representatives V/s Bahadur Sing (Dead) Through Legal
Representatives.
63 OS.No.16271/2006
C/w OS.No.26833/2011
5) (2001) 6 SCC 163 between Vishwambhar and Others V/s
Laxminarayan (Dead) Through LRs and Others.
The Advocate for Plaintif in OS.No.16271/2006 and
Defendant in OS.No.26833/2011 has relied on the following
rulings:
1) (2000) 6 SCC 420 between Motilal Jain V/s Ramdasi Devi
(Smt) And Others.
2) ILR 2005 KAR 2421 between K. Narayana Reddy V/s
Ramakrishna Reddy.
3) AIR 1962 J & K 4 between Mst. Azizi and another V/s
Sona Mir.
4) AIR 1970 ALL 170 between Mst. Noor Jahan Begum V/s
Muftkhar Dad Khan and Others.
5) AIR 1972 Patna 279 between Syed Md. Saleem Hashmi
V/s Syed Abdul Fateh and others.
I have gone through all the decisions. In view of the
discussion made above, I proceeds to pass the following :-
64 OS.No.16271/2006
C/w OS.No.26833/2011
ORDER
The suit filed by the Plaintif in OS.No.26833/2011 is hereby dismissed with no order as to costs.
The suit of the Plaintif in OS.No.16271/2006 is hereby decreed with costs.
The Defendant is hereby restrained from interfering with the peaceful possession and enjoyment of the Plaintif over the Suit Schedule Property.
The Defendant is hereby directed to execute the Sale Deed in respect of the Suit Schedule Property in terms of the Agreement of Sale by receiving the balance sale consideration of Rs.7,00,000/- within 60 days from the date of this order.
On failure of the Defendant to execute the Sale Deed, the Plaintif of OS.No.16271/2006 is at liberty to apply for the same to the Court.
The original of this Judgment copy be kept in OS.No.16271/2006 and copy of the same be kept in OS.No.26833/2011.
65 OS.No.16271/2006
C/w OS.No.26833/2011 Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 5th day of November 2020].
[Krishnaji Baburao Patil], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
SCHEDULE in OS.No.16271/2006 All that piece and parcel of the residential property bearing site No.117, Assessment No.44, V.P. Khatha No.44, measuring East to West 30 feet and North to South 40 feet, in all measuring 1200 sq.ft., together with 10 square residential RCC building constructed with all civil amenities, situated at Nagavara Village, Kasaba Hobli, Bangalore North Taluk, Now called 2nd Cross, Kanakanagara, Kavalbyrasandra, R.T.Nagar Post, Bangalore-32, and bounded on the:
East by : Property No.118.
West by : Road.
66 OS.No.16271/2006
C/w OS.No.26833/2011
North by : Private Property.
South by : Road.
SCHEDULE in OS.No.26833/2011 All that piece and parcel of property bearing Property No.117, situated at Ward No.96 (Hebbal), 2nd Cross, Kanaka Nagar, (Old Nagawara Village, Bangalore North Taluk), Kaval Byrasandra, R.T.Nagar Post, Bangalore-560 032, measuring East to West :
30.0 (Thirty) Feet, and North to South : 40.0 (Forty) Feet, totally measuring 1200 Sq.ft., along with residential unit consisting of a hall, two rooms, kitchen, two bathrooms and bounded on:
East by : Property No.118;
West by : Private Property.
North by : Private Property.
South by : 2nd Cross, Kanaka Nagar.
ANNEXURE
1. List of witnesses examined for the plaintifs:-
P.W.1 : Mohammed Ayaz Khan.
67 OS.No.16271/2006
C/w OS.No.26833/2011
P.W.2 : Mohammed Hussain.
2. List of documents marked:-
Ex.P 1 : Certified copy of Sale Deed dtd:
12.8.1990.
Ex.P 2&3 : Two Gift Deeds.
Ex.P 4 : Certified copy of khatha.
Ex.P 5 : Khatha certificate.
Ex.P 6 : Two tax paid receipts.
Ex.P 7 : Encumbrance certificate.
Ex.P 8 : Certified copy of order sheet in
C.C.No.24912/2007.
Ex.P 9 : Certified copy of FIR and statement.
Ex.P 10 : Charge sheet and annexed documents.
Ex.P 11 : Copy of Sale Deed dtd: 12.8.1990.
Ex.P 12 : Gift Deed dtd: 7.10.2005.
Ex.P 13 : Gift Deed dtd: 6.7.2006.
Ex.P 14 : Khtha Certificate.
Ex.P 15 : Khatha.
Ex.P 16 : Certified copy of order sheet.
Ex.P 17 : Certified copy of FIR.
68 OS.No.16271/2006
C/w OS.No.26833/2011
Ex.P 18 : Certified copy of complaint.
Ex.P 19 : Certified copy of charge sheet.
Ex.P 20 : Eight tax paid receipts.
Ex.P 21 : Encumbrance Certificate.
3. List of witnesses examined for the defendants:-
DW.1 : Abdul Karim. DW.2 : Hussain Sharif.
4. List of documents marked:-
Ex.D 1 : Certified copy of Sale Deed in the name of Mohammed Hussain.
Ex.D 2 : Sale Deed in the name of Plaintif. Ex.D 3 : Office copy of legal notice. Ex.D 4 & : Two receipts for payment made to BBMP 5 for change of khatha.
Ex.D 6 to : Khatha Certificate and Khatha issued by 8 BBMP.
Ex.D 9 : Tax paid receipt.
Ex.D 10 : Encumbrance Certificate.
(Krishnaji Baburao Patil)
XXVIII ADDL.CITY CIVIL JUDGE BANGALORE.69 OS.No.16271/2006
C/w OS.No.26833/2011 7 O.S.No.16712/2005 0 Judgment pronounced in open court vide separate judgment :-
ORDER The suit filed by the Plaintif in OS.No.26833/2011 is hereby dismissed with no order as to costs.
The suit of the Plaintif in OS.No.16271/2006 is hereby decreed with costs.
The Defendant is hereby restrained from interfering with the peaceful possession and enjoyment of the Plaintif over the Suit Schedule Property.
The Defendant is hereby directed to execute the Sale Deed in respect of the Suit Schedule Property in terms of the Agreement of Sale by receiving the balance sale consideration of Rs.7,00,000/- within 60 days from the date of this order.7 O.S.No.16712/2005
1
On failure of the Defendant to execute the Sale Deed, the Plaintif of OS.No.16271/2006 is at liberty to apply for the same to the Court.
The original of this Judgment copy be kept in OS.No.16271/2006 and copy of the same be kept in OS.No.26833/2011.
Draw decree accordingly.
(Krishnaji Baburao Patil) XXVIII ADDL.CITY CIVIL JUDGE BANGALORE.