Bangalore District Court
Smt.Ummay Asma W/O S.R. Tanveer vs Mr.Syed Aftab S/O Late Syed Dawood on 24 April, 2015
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 24th day of April, 2015.
Present
Sri G.M. KUMBAR, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.5280/2011
Plaintiff: Smt.Ummay Asma w/o S.R. Tanveer
d/o Syed Dawood, 31 years, No.14/2
Rhenius Street, Richmond Town
Bangalore-560 025.
(By DUA Associaes, Advocates)
Vs.
Defendant Mr.Syed Aftab s/o Late Syed Dawood
r/at Flat No.8/5, Milkman 'A' Street
Milkman Village, 2nd Cross
Bangalore-560 025.
(By Sri C.Gourishankar, Adv.)
Date of institution of the suit 22.07.2011
Nature of the suit For declaration,
possession & mesne
profit
Date of the commencement 11.10.2012
of recording of evidence
Date on which the judgment 24.04.2015
Pronounced
Total duration Years Months Days
03 08 02
JUDGMENT
1. This suit is filed for declaration that the plaintiff is the absolute owner of schedule 'B' & 'C' properties and 2 O.S.No.5280/2011 for recovery of vacant possession of schedule 'B' & 'C' properties and also for mesne profit.
1(a). The schedule 'A' property is entire property bearing old No.15, new BMP No.8, situated formerly at Milkman 'A' Street and presently Milkman Village, 2nd Cross, Bangalore as shown in plaint schedule 'A'.
1(b). The schedule 'B' property is an undivided 1/6th share measuring 235 square feet in the total land area of 'A' schedule property.
1(c). The 'C' schedule property is flat No.8/5, 2nd Floor, super built up area, 700 square feet with undivided land as shown in 'B' schedule, situated at Milkman Village, 2nd Cross in 'A' schedule property.
2. The brief facts of the plaintiff's case are that:-
The plaintiff is the absolute owner in respect of portion in 'A' schedule property, which is described in 'B' & 'C' schedule and she acquired right, title and interest under registered sale deed dated 30.11.2005 executed by previous owner of the property and she borrowed the loan and sold her gold jewels for purchase of 'B' & 'C' schedule property and that the defendant is own brother of the plaintiff and he is in permissive possession of 3 O.S.No.5280/2011 schedule 'B' & 'C' property. The defendant approached the plaintiff in January 2006 and requested her to provide schedule 'B' & 'C' property on temporary basis and accordingly, the plaintiff permitted the defendant to reside in the said property for a period of two years and after expiry of 2 years, the plaintiff approached the defendant with a request to hand over the possession, but the defendant did not respond and he started harassing the plaintiff and plaintiff issued legal notice, but the defendant has not complied the said notice nor replied to the notice. The suit schedule 'B' & 'C' property is required to plaintiff for her bonafide use and occupation and therefore, she insisted the defendant to vacate the said property and however, the defendant went on dragging the matter. The plaintiff has borrowed the loan from the bank and however, she is facing difficulty to pay the loan instalments as she is not getting income from suit schedule property and present rental value of schedule 'B' & 'C' property is Rs.15,000/- per month and that the defendant is in illegal possession and therefore, he is liable to pay the mesne profit @ Rs.15,000/- per month. The defendant has no right, title 4 O.S.No.5280/2011 or interest in the suit schedule 'B' & 'C' property and now the defendant is making efforts to encumber the suit schedule property without handing over the same to the plaintiff and therefore, the above suit is filed for declaration, possession and mesne profit.
4. The defendant appeared and filed written statement as follows:-
The suit of the plaintiff is not maintainable and it is barred by limitation and the plaintiff filed the suit to harass the defendant. The allegation of the plaintiff that she borrowed the loan from finance and sold the jewels for purchase of schedule 'B' & 'C' property is false. The entire funds of the family were provided by the defendant to purchase schedule properties and the defendant paid Rs.15,00,000/- in cash earlier to registration of sale deed and another sum of Rs.10,00,000/- to purchase open terrace of the same property of 2nd floor earlier to registration by way of cash and the said terrace was purchased on 23.02.2006 in the name of plaintiff and as such, the plaintiff and her husband have received total sum of Rs.25,00,000/- from the defendant to purchase the schedule property and open terrace and thereafter 5 O.S.No.5280/2011 the plaintiff executed memorandum of understanding on 29.08.2008 along with affidavit by stating that she will execute gift deed in respect of the schedule 'B' & 'C' property in favour of the defendant and in the said memorandum of understanding, she admitted that consideration amount to purchase the flat is received from defendant. The defendant is in possession of said flat from 01.12.2005 as absolute and lawful owner in occupation and discharging all duties of ownership towards property in question along with entire terrace portion of schedule 'B' property and that plaintiff was financially supported by mother and brothers as per family arrangement and thereafter, she executed gift deed in respect of terrace portion by receiving consideration amount of Rs.10,00,000/-. The defendant is residing in schedule 'B' & 'C' property as owner but not in permissive possession as asserted by plaintiff. The plaintiff has received total sum of Rs.25,00,000/- by cash and she put the defendant in possession of suit property by way of gift and she has undertaken in the memorandum of understanding that she will not disturb the possession of defendant in any manner and now the 6 O.S.No.5280/2011 plaintiff has filed false suit by ignoring the said memorandum of understanding and gift deeds executed by her and she has pledged the title deeds of the suit schedule property with city finance and utilized the said amount and thereafter she has undertaken to repay the said loan instalments and now the plaintiff is estopped from contending that she is not aware of the contents of memorandum of understanding.
The plaintiff filed suit O.S.No.26739/2009 against the defendant, her mother, other brothers and sisters for partition and subsequently, entered into compromise with some of the defendants by filing compromise petition and therefore, the plaintiff is not entitled for any reliefs in the present suit. The plaintiff having received sum of Rs.15,00,000/- prior to registration of sale deed in respect of flat and sum of Rs.10,00,000/- at the time of registration of terrace portion, has now turned hostile by denying the right, title and interest of the defendant and she has misused the confidence reposed by defendants while executing memorandum of understanding on 29.08.2008 and filed this false suit without executing registered gift deed in respect of suit 7 O.S.No.5280/2011 property in favour of defendant as per terms of memorandum of understanding. The defendant demanded the plaintiff to execute gift deed in respect of the suit flat and in order to escape from the said liability, the plaintiff has denied the contents of memorandum of understanding and filed false suit. Hence, it is prayed to dismiss the suit of the plaintiff.
5. In view of the above pleadings, the following issues are framed:-
1) Whether the plaintiff proves that she is absolute owner of 'B' & 'C' schedule properties?
2) Whether the plaintiff proves that the defendant is in permissive possession of 'B' & 'C' schedule properties?
3) Whether the defendant proves that the
plaintiff has executed memo of
understanding dated 29.08.2008 and that said document is binding upon the plaintiff?
4) Whether the plaintiff is entitled for recovery of vacant possession of suit 'B' & 'C' schedule properties?
5) Whether the plaintiff is entitled for mesne profit?8 O.S.No.5280/2011
6) What order or decree?
6. During the course of evidence, the plaintiff examined P.W.1 and got marked documents Ex.P.1 to Ex.P.9 and closed side. On the other hand, the defendant examined D.W.1 and got marked the documents Ex.D.1 to Ex.D.26 and closed side.
7. Heard arguments.
8. My answer to the above issues is as follows:-
1) In the affirmative;
2) In the affirmative;
3) In the negative;
4) In the affirmative;
5) In the affirmative;
6) As per final order, for the following:-
REASONS
9. ISSUES No.1 TO 3:- It is the case of the plaintiff that she is absolute owner of schedule 'B' & 'C' property consisting of 235 sq.ft. in the total land area of apartment and the flat No.8/5, 2nd Floor, super built up area, 700 sq.ft. BMP No.8, situated at Milkman Village, 2nd Cross, Bangalore and she purchased said property under registered sale deed dated 30.11.2005 and after 9 O.S.No.5280/2011 purchase, she allowed the defendant, who is her brother to reside temporarily at his request for a period of 2 years and that after expiry of 2 years, the defendant has failed to vacate the schedule property and inspite of legal notice, the defendant neither replied to the said notice nor ready to hand over the vacant possession. Hence, the suit is filed for declaration, possession and mesne profit. Whereas the defendant filed written statement denying the plaintiff's case and reliefs claimed by her. The defendant has contended that plaintiff is his sister and that he has paid Rs.15,00,000/- cash to the plaintiff prior to registration of the sale deed in respect of schedule 'B' & 'C' property and thereafter he paid Rs.10,00,000/- at the time of registration of sale deed in respect of purchase of open terrace in the name of plaintiff and accordingly, he has paid Rs.25,00,000/- to the plaintiff and her husband. The defendant has further contended that he is in possession of suit schedule property as lawful owner and he also purchased the terrace portion by paying the consideration amount and to that effect, the plaintiff has executed memorandum of understanding to execute registered gift deed in respect 10 O.S.No.5280/2011 of schedule property and subsequently, the plaintiff has turned dishonest without executing the document and as such, the defendant is not in permissive possession of suit property as stated by the plaintiff and on the other hand, the memo of understanding executed by the plaintiff is binding upon her and by virtue of said document, the defendant is owner and possessor.
10. The plaintiff is required to prove her ownership over 'B' & 'C' schedule properties. On the other hand, the defendant has to prove that memorandum of understanding dated 29.08.2008 is binding upon the plaintiff and by virtue of memorandum of understanding, he has absolute right and title to continue in possession of suit schedule properties. Before discussing the oral and documentary evidence of plaintiff and defendant on issue No.1 to 3, it is necessary to answer the question raised by the advocate for defendant regarding maintainability of suit filed for declaration of ownership. It is argued by learned counsel for defendant that there are no pleadings in the plaint regarding denial of title of the plaintiff by defendant and unless here is denial of tile of the plaintiff by the defendant, the plaintiff has no 11 O.S.No.5280/2011 cause of action to file a suit for declaratory relief of title. The averments of the plaint were read over. No doubt in the plaint there are no direct allegations against the defendant regarding denial of her title by the defendant. But, in para-7 of the plaint, it is contended that the defendant has no right, title or interest in the suit properties and defendant has attempted to grab the schedule property knowing fully well that same does not belong to him and the defendant is aware that plaintiff is owner and inspite of such knowledge is intended to grab the suit property. It is pertinent to peruse the written statement. In para-8 & 9 of written statement, the defendant has contended he is in possession of suit property as the absolute and lawful owner by discharging of duties of ownership over the property No.8 in second floor. He has further stated that he is in possession of suit 'B' & 'C' schedule property in his own capacity as owner and that he is not in permissive possession. In chief-examination, the D.W.1 has reiterated the plaint averments by contending that he is lawful owner and possessor in 'B' & 'C' schedule property. No doubt the defendant has not directly and specifically denied the 12 O.S.No.5280/2011 ownership of plaintiff. But the claim of title by the defendant against the claim of title by the plaintiff is nothing but denial of the title of the plaintiff. When the defendant has set up the title of the property with him, it is nothing but denial of the plaintiff's title. Therefore, the comprehensive suit filed by the plaintiff for declaration, possession, mesne profit, etc. is maintainable. The argument of the defendant that suit for declaration is not sustainable holds no water. It can be seen from the entire proceedings that since beginning the defendant is claiming the title of the suit schedule property along with terrace portion and such kind of defence is sufficient to hold that the defendant is denying the title of the plaintiff. If the defendant had not denied the title of plaintiff, he would not have taken such plea in written statement. The subsequent conduct and the defence taken by the defendant is sufficient to hold that he has denied the title of plaintiff. If the declaration of title is not claimed, again the plaintiff has to amend the plaint after filing written statement by the defendant, for claiming additional relief of declaration. To avoid such situation, the plaintiff has rightly claimed the relief of declaration. 13 O.S.No.5280/2011
11. In order to prove her case of ownership, the plaintiff examined herself as P.W.1. She filed her affidavit evidence and reiterated the plaint averments in her evidence. She has deposed that the defendant agreed to vacate the property if the plaintiff signs the document shown by him and in order to get back the possession, she was forced to sign the said document and later she came to know that the document signed by her was memorandum of understanding, which is produced by the defendant as per Ex.D.1. The P.W.1 has denied the contention of defendant that he paid Rs.15,00,000/- at the time of purchase of the schedule 'B' & 'C' property and paid Rs.10,00,000/- at the time of purchase of terrace. In cross-examination, the P.W.1 has admitted that she has executed gift deed in respect of half portion of terrace in favour of the defendant. But the argument of defendant's counsel that when the terrace portion is gifted, the said portion includes the premises below the terrace, is not acceptable. Because the gift deed executed by the plaintiff in favour of defendant as per Ex.P.9 is only in respect of southern half portion of open terrace upon the second floor of schedule 'A' property. If 14 O.S.No.5280/2011 the entire suit schedule 'B' & 'C' property was gifted under Ex.P.7, same would have been mentioned in unequivocal terms in the gift deed. On the other hand, in Ex.P.7, it is clearly stated that the plaintiff gifted only open terrace existing above the second floor. Thus, it is clear that the schedule 'B' & 'C' property situated below the terrace portion is not gifted under said document. In this regard, the counsel for defendant argued that nobody will purchase only terrace portion without apartment. In the cross-examination of P.W.1, several questions were asked by the defendant's counsel stating that no person will purchase only terrace without the flat situated below the terrace. In the instant case, the Ex.P.7 is gift deed executed by plaintiff in favour of defendant regarding the southern half portion of open terrace situated upon second floor. If the terrace portion was considered as a part of suit schedule 'C' property, there was no need for the plaintiff to purchase the terrace portion subsequently under Ex.P.5- sale deed dated 23.02.2006. The defendant himself has admitted in his written statement that the plaintiff purchased terrace portion separately subsequent to purchase of the 15 O.S.No.5280/2011 schedule 'C' property. This purchase of entire terrace portion of the building by the plaintiff separately under Ex.P.5 itself goes to show that the terrace portion is entirely different from suit schedule 'B' & 'C' property, which was purchased prior to purchase of the terrace. There are separate entry in the encumbrance certificates marked as Ex.D.7 regarding purchase of terrace and also gift of the said terrace portion in favour of defendant and another sister Parvin Taj. It is clear from sale deed- Ex.P.5 and encumbrance certificate- Ex.D.17 that terrace portion is separate and the plaintiff acquired the right of the terrace portion subsequently after purchase of the flat. Therefore, the argument of the learned counsel for defendant that the defendant has acquired ownership over the suit schedule 'B' & 'C' property along with terrace under Ex.P.7 is not correct. If the flat was also gifted in favour of the defendant under Ex.D.7, the same would have been mentioned in the gift deed itself. But Ex.D.7 does not speak anything about the suit schedule 'B' & 'C' properties.
12. It is argued by learned counsel for defendant that the terrace and parking place are the common areas 16 O.S.No.5280/2011 and terrace cannot be sold. In support of his argument, he relied upon the decisions reported in 2010 AIR SCW 5594 (Nahal Chand Lalu Chand Pvt. Ltd. v/s Panchali Co-operative Housing Society Ltd.) and AIR 1999 BOMBAY 385. In the first decision, while discussing the provisions of Maharashtra Ownership Flats Rules & Development Control Regulations For Greater Bombay 1991, it is held that the terrace over the roof of the building is common are and the promoter has no right to sell any portion of the building, which is not a flat within the meaning of Section 2(a)(i) and that parking space is not a flat and therefore, it cannot be sold. In another decision, the Bombay High Court while dealing with the provisions of Maharashtra Ownership Flats Act, it is held that the sale deed executed in respect of terrace does not confer with right of ownership to the purchaser for want of legal sanctity or authority in the builder. But the defendant has failed to produce any such rules and regulations in respect of the ownership of flats in State of Karnataka. Even assuming that the sale of terrace of apartment area is not permissible in Karnataka State and Bangalore City, the above said decisions are not helpful 17 O.S.No.5280/2011 to the case of the defendant to prove his defence. If the said decisions are made applicable to the facts of the present case, at the most we can held that the defendant does not acquire any right, title or ownership over the southern half portion of open terrace and that the Ex.P.7 gift deed in respect of open terrace will not confer any right upon the defendant. Thus, it is clear that by virtue of the above said decisions, the defendant is not able to claim any right even upon open terrace.
13. The defendant has tried to claim his right upon 'B' & 'C' schedule property on the basis of Ex.D.1- memo of understanding. The execution of memorandum of understanding as per Ex.D.1 is admitted by the plaintiff. But she has contented that she signed the document without knowing the contents and the said document is not binding upon her. The plaintiff admits her signature appearing on Ex.D.1 and affidavit- Ex.D.2. The contention of the plaintiff that she signed the said document without understanding the contents cannot be accepted in this case. In view of the observations in the decision reported in AIR 1990 S.C.699, it is settled law that a person who signs document is normally bound by 18 O.S.No.5280/2011 its contents even though he has not read them. Even if it is held that the said document is executed by plaintiff, the defendant does not acquire any right, title or interest over the suit properties by virtue of Ex.D.1. This Ex.D.1 is a simple memorandum of understanding but not deed of transfer of property. The Ex.D.1 is unregistered document. For the purpose of alienation of immovable property having value of Rs.100/- and above, the document of conveyance must be registered document. The said document goes to show that the defendant paid Rs.5,00,000/- to the plaintiff at the time of purchase of flat under Ex.P.1. This document goes to falsify the contention of the defendant that he has paid Rs.15,00,000/- to the plaintiff at the time of sale deed. The said document does not speak anything about payment of Rs.15,00,000/- and further payment of Rs.10,00,000/- by the defendant to the plaintiff at any point of time. If the defendant has paid Rs.5,00,000/-, he is entitled to initiate separate proceedings for recovery of said amount from plaintiff. The Ex.D.1 is not agreement of sale. It is argued by the defendant that the plaintiff has agreed to gift the flat in favour of the 19 O.S.No.5280/2011 defendant immediately after getting her share in the property of her mother and father. No doubt there is such recital written in Ex.D.1. But said recital is not unconditional. It is provided in the said document that the defendant shall help the plaintiff to get share in the property of parents. But, absolutely, there is no evidence to prove that the defendant has made any efforts to get the share of plaintiff in his parents' property. Thus, Ex.D.1 is not an unconditional document nor it will create any right, title or interest in favour of the defendant. There are several conditions imposed in the said document and unfortunately the defendant has failed to fulfill any one of the condition in the said document. Therefore, the said document is not helpful to the defendant to prove his ownership and lawful possession and defendant does not acquire any interest in the property by virtue of said document.
14. It is argued by defendant's counsel that the plaintiff has to prove her case independently by adducing evidence and the burden lies upon the plaintiff to prove her title and without relying upon the weakness of the 20 O.S.No.5280/2011 defendant. In support of his argument, the defendant relied upon the following decisions:-
i) AIR 1964 S.C. 136
ii) AIR 2014 S.C. 937
iii) AIR 1999 S.C. 3381.
No doubt as per the above said decisions, the entire burden to prove her case is upon the plaintiff without aid of weakness of the defendant. In this case, the plaintiff has adduced her independent oral evidence in the witness box and further produced documentary evidence to prove her title. The plaintiff has produced original sale deed dated 30.11.2005 as per Ex.P.1. The defendant has admitted in his cross-examination that he attested the Ex.P.1 as witness. The signature of defendant is marked as Ex.P.1(a). This sale deed is executed exclusively in the name of plaintiff by vendor- Syed Farooq Ismail. The mother of defendant has also attested the document as witness. If the defendant had paid Rs.15,00,000/- at the time of purchase to the plaintiff, same could have been referred in the sale deed. The amount of Rs.15,00,000/- is not a small figure to pay in cash without any documents. Absolutely, there is no evidence from the 21 O.S.No.5280/2011 side of defendant to show that he has contributed Rs.15,00,000/- for purchase of the house. More over the property is purchased for Rs.7,70,000/-. Therefore, question of paying Rs.15,00,000/- by the defendant does not arise. It is admitted by the defendant that the plaintiff has borrowed loan from City Finance for purchase of house. The P.W.1 has deposed that she sold her gold jewels to purchase the schedule properties. Thus, it is clear from the evidence on record that the plaintiff has purchased the schedule 'B' & 'C' property by availing the loan from City Bank and that there is no evidence to prove the alleged contribution by the defendant. The P.W.1 was put in possession of said property by virtue of sale deed on 30.11.2005. The plaintiff has also produced the encumbrance certificate as per Ex.P.2 from April 2004 to March 2005, in the name of her vendor. The Ex.P.3 is copy of uttar patra (transfer of khatha) in the name of plaintiff in respect of suit property and it shows that the khatha was transferred in the name of plaintiff in BBMP records. The Ex.P.4 is tax paid receipt. The Ex.P.5 is copy of sale deed in respect of purchase of terrace portion by the plaintiff totally 22 O.S.No.5280/2011 measuring 1400 sq.ft., which includes the terrace of 700 sq.ft. situated on the roof of flat purchased by the plaintiff. The P.W.1 gifted half of the terrace portion situated on suit 'C' schedule property in favour of her sister under Ex.P.6. Thereafter the sister of plaintiff re- conveyed the same in favour of plaintiff by executing another gift deed as per Ex.P.8. The remaining southern half terrace portion is gifted to defendant under Ex.P.7. It is for the defendant to establish as to how he accepted gift only in respect of terrace portion without any right in the building portion. The photograph of second floor of the building is produced as per Ex.P.9. Thus, it is evident from the oral evidence of P.W.1 coupled with documents that she is absolute owner of schedule 'B' & 'C' property and thereafter she allowed the defendant to stay temporarily for a period of 2 years.
15. The defendant entered the witness box as D.W.1. Even in the chief-examination, the defendant has claimed that he is lawful owner of suit property. There are no pleadings in the written statement regarding the alleged oral gift of 'B' & 'C' property in favour of defendant in January 2006. In the cross-examination, the 23 O.S.No.5280/2011 D.W.1 has deposed that he has not paid the corporation taxes of suit house. He further admitted that the plaintiff has produced the tax paid receipts in her name. If the entire property was gifted in favour of defendant, nothing prevented him to get khatha transferred in his name and to pay the corporation taxes. As discussed above, the Ex.D.1 - memorandum of understanding does not confer any right, title or interest in favour of the defendant. The defendant has produced copy of legal notice issued by plaintiff as per Ex.D.4. The Ex.D.4 & Ex.D.26 are one and the same but marked twice. In the said notice, the plaintiff has contended that she has got share in the property of her parents and that the defendant is in possession of the property temporarily. But the defendant has not issued any reply to the Ex.D.26.
16. The certified copy of plaint in O.S.No.26739/2009 is produced and marked as Ex.D.3. But for the reasons best known to the defendant, he has produced same documents and got marked the same as Ex.D.9, Ex.D.9(a) & Ex.D.18. It is argued by the defendant that the plaintiff has filed suit for partition against her parents, brothers and sisters including 24 O.S.No.5280/2011 defendant and got compromised suit O.S.No.26739/2009 and took her share in properties of her parents. But the counsel for plaintiff submitted that the said suit is not in respect of the present suit schedule property purchased by the plaintiff and it is in respect of some other property and that the compromise is only in respect of one of the property and said compromise is only between the plaintiff and defendants 2, 5, 7 & 9 but not with the present defendant and other family members. The certified copy of the compromise petition is produced and marked as Ex.D.22. The Ex.D.19, Ex.D.20 & Ex.D.21 are written statements of defendants and deposition of P.W.1 in O.S.No.26739/2009. Admittedly the said suit is not yet finally disposed off. The Ex.D.24 is certified copy of plaint in O.S.No.25428/2010 filed by the plaintiff against her mother, brothers and sisters for partition in respect of some other property, which is not subject matter of this suit. Subsequently, the plaintiff withdrawn the said suit by filing a memo as per Ex.D.25. The Ex.D.23 is copy of order sheet in said suit.
17. The plaintiff has filed police complaint against the defendant and other brothers regarding the life 25 O.S.No.5280/2011 threat given by the defendant. The Ex.D.5 to Ex.D.8 are copies of complaint, police endorsement, FIR, etc. The Ex.D.10 to Ex.D.15 are the copies of order sheet, complaint, charge sheet, FIR and statement of witnesses recorded by police in criminal case. All these documents are not helpful to the defendant either to prove his defence or to disprove the plaintiff's case.
18. The learned counsel for defendant argued that the plaintiff has taken different and contradictory stand to claim the possession of property. It is the case of the plaintiff that defendant is in permissive possession of schedule 'B' & 'C' property. But it is argued by defendant that in criminal proceedings, the plaintiff admitted that defendant is tenant. The plaintiff filed complaint in Crime No.324/2011 stating that the defendant is residing in the property as tenant. The FIR is marked as Ex.D.12. Except the stray sentence in the FIR prepared by the Police, there is no other supporting material to prove that the plaintiff has claimed the defendant as a tenant in her property. But it is pertinent to note that in Ex.D.13- complaint in para-4, the plaintiff has specifically stated that accused is in permissive possession of schedule 'B' & 26 O.S.No.5280/2011 'C' property. Thus, it is clear that the Police have wrongly mentioned in Ex.D.12 that the defendant/accused is a tenant in the flat. Such statement of police cannot be considered as an admission of the plaintiff. The admission of a party in civil litigation must be cleared and it shall be read in the light of other pleadings and evidence of the case. In this case, the plaintiff never pleaded that defendant is a tenant. Such stray sentence in police FIR cannot be held as admission of plaintiff. In view of the decision reported in 2007(2) KLJ 28 (Pattanashetty sons deceased by LRs v/s Padmashetty & others). Therefore, the decisions cited by the defendant on the point of alleged admission of tenant are not helpful to the defendant. There are no any contradictory or destructing pleadings of the plaint in this case. The defendant has relied upon the decisions reported in 2014(11) SCC 316 (Praful Manohar Rele v/s Krishna Bai) and ILR 1988 KARNATAKA 3374 (Mangalamba v/s Sulochana Bai) regarding contradictory and destructive plea. The said decisions are not relevant in this case as there is no alternative or contradictory stand taken by the plaintiff. 27 O.S.No.5280/2011
19. The counsel for defendant also submitted that the property was orally gifted to the defendant by virtue of memorandum of understanding- Ex.D.1 and he further submitted that in case of oral gift, registration is not required when the parties profess Islam. He relied upon the decision reported in AIR 1995 S.C.1205 (Mohaboob Sab v/s Syed Ismail & others). But, in this case, there is no reference regarding oral gift in Ex.D.1 nor there is any plea of oral gift taken by the defendant in his written statement nor there is any evidence of oral gift. On the other hand, the plaintiff's counsel relied upon the decision reported in AIR 1951 NAGPUR 428. It is held in the said decision that Hiba- Bil-Iwaz amounts to a sale and requires registration if immovable property was Rs.100/- or more is subject matter. If the argument of defendant's counsel is accepted that the memorandum of understanding is Hiba-Bil-Iwaz (gift for consideration), the said document is compulsorily required registration.
20. In this case, the plaintiff has discharged her burden to prove the absolute ownership over the suit schedule property. Nothing is elicited from the mouth of 28 O.S.No.5280/2011 P.W.1 during the course of cross-examination by defendant to falsify her case. The defendant has failed to prove his defence of payment of Rs.25,00,000/ to the plaintiff and he also failed to prove his alleged right, title or interest over the property on the basis of Ex.D.1- memorandum of understanding and the alleged oral gift. In the absence of proof of such defence by the defendant, it can be safely held that the defendant is in permissive possession of suit schedule property since January 2006. There is no evidence to prove the possession of defendant as owner. Hence, I answer issue No.1 & 2 in affirmative and issue No.3 in negative.
21. ISSUE No.5:- The plaintiff has claimed that she is entitled for mesne profit @ Rs.15,000/- per month from defendant. The plaintiff issued legal notice to the defendant before filing the suit requesting him to hand over the possession. The defendant has not given any reply to the said notice. Thereafter plaintiff filed suit. As such, from the date of demand of plaintiff to hand over the vacant possession, the defendant's possession has become unlawful. The permission granted to defendant to reside in the property was revoked by plaintiff. Hence, 29 O.S.No.5280/2011 the plaintiff is entitled for mesne profit. There is no satisfactory evidence on record to prove the quantum of mesne profit @ Rs.15,000/- per month. Therefore, it requires separate enquiry under Order XX Rule 12 CPC to determine the quantum of mesne profit from the date of suit till delivery of vacant possession. With this observation, I answer issue No.5 in affirmative.
22. ISSUE No.4:- In view of my findings on issue No.1 to 3 and 5, I hold that the plaintiff is entitled for recovery of vacant possession of schedule 'B' & 'C' properties from defendant. Accordingly, I answer issue No.4 in affirmative.
23. ISSUE No.6:- In view of my findings on above issues and for the reasons stated above, I proceed to pass the following:-
ORDER Suit of the plaintiff is decreed with cost.
It is declared that the plaintiff is the absolute owner of the suit schedule 'B' & 'C' properties.
The plaintiff is entitled to recover the vacant possession of 'B' & 'C' schedule 30 O.S.No.5280/2011 properties and the defendant is hereby directed to hand over the vacant possession within three months from this day.
The plaintiff is entitled for mesne profit from the date of suit till delivery of vacant possession by filing separate proceedings under Order XX Rule 12 CPC.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on computer, printout taken, corrected and then pronounced in the Open Court on this the 24th day of April, 2015).
(G.M. KUMBAR) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Ummay Asma List of documents exhibited for plaintiff:
Ex.P1 : Original sale deed dt.30.11.2005 Ex.P2 : True copy of E.C. for the period 1.4.2004 to 31.3.2005 Ex.P3 : Uttara Patra by BBMP Ex.P4 : Tax paid receipt for the year 2006-08 Ex.P5 : Xerox copy of sale deed dt:23.2.2006 Ex.P6 to 8: Copies of gift deeds dt:31.5.2006, 31.5.2006 & 10.1.2008 Ex.P9 : Photo of schedule premises 31 O.S.No.5280/2011 Ex.P9(a) : Schedule premises marked in Ex.P.9 Ex.P9(b) : House marked in Ex.P.9 Ex.P1(a) : Signature of D.W.1 marked in Ex.P.1 List of witnesses examined for the defendant:
DW.1 : Syed Aftab List of documents exhibited for defendant:
Ex.D1 : Memorandum of understanding
Ex.D2 : Affidavit
Ex.D3 : C.C. of plaint in OS 26739/09
Ex.D4 : Xerox copy of legal notice
Ex.D5 : Xerox copy of police complaint
Ex.D6 : Xerox copy of endorsement
Ex.D7 : Copy of FIR in Cr.443/2010
Ex.D8 : Xerox copy of complaint in
Cr.443/2010
Ex.D9 : Xerox copy of plaint in O.S.26739/09
Ex.D9(a): C.C. of plaint in O.S.No.26739/09 Ex.D10: C.C. of order sheet in PCR Ex.D11: C.C. of charge sheet in CC 24712/12 Ex.D12: C.C. of FIR in Cr.324/11 Ex.D13: C.C. of complaint in PCR201/11 Ex.D14: C.C. of spot mahazar Ex.D15: C.C. of statements of Riyaz & Mohammad Ex.D16: C.C. of endorsement of Sub Registrar Ex.D17: C.C. of encumbrance certificate Ex.D18: C.C. of amended plaint Ex.D19,20: C.C. of W.S. & Addl.W.S. in O.S.2673/09 Ex.D21: C.C. of deposition of PW1 in said suit 32 O.S.No.5280/2011 Ex.D22: C.C. of compromise petition in said suit Ex.D23: C.C. of order sheet in O.S.25428/10 Ex.D24: C.C. of plaint in said suit Ex.D25: C.C. of memo in said suit Ex.D26 : Xerox copy of legal notice (G.M. KUMBAR) X Addl. City Civil & Sessions Judge, Bangalore.