Karnataka High Court
S M Mohammad vs Mohammad Haris on 15 April, 2024
1 RSA NO.2502 OF 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
R.S.A.NO.2502 OF 2008
BETWEEN:
S M MOHAMMAD
AGED ABOUT 54 YEARS
SINCE DEAD BY LRS
1a) SMT. P.M.SULAILA
W/O S.M.MOHAMMAD
1b) SRI. RIYAZ
S/O S.M.MOHAMMAD
1c) KUM. RIYANA
D/O S.M.MOHAMMAD
APPELLANT 1a), b) AND c) ARE RESIDING AT
MUBARAK NAGAR, SAMPAGE VILLAGE AND POST,
SULLIA TALUK, D.K - 574 238
......APPELLANTS
(BY SRI. GIRIDHAR H, ADVOCATE FOR A1[a TO c])
AND:
1 . MOHAMMAD HARIS
S/O LATE G HAMEED
AGED ABOUT 40 YEARS
R/O KADABA VILLAGE
PUTTUR TALUK
DAKSHINA KANNADA DIST - 574 234
2 . ANSARI KADAKKAN KADAVATH
S/O S V ABDULLA HAJI
AGED ABOUT 35 YEARS
R/O MADAI PAYANGADI
KANNUR TALUK AND DISTRICT
KERALA STATE - 574 234
RESPONDENTS
2 RSA NO.2502 OF 2008
(BY SRI. SHAKEER ABBASM, ADVOCATE FOR R2;
SRI. HARISH BHANDARY T, ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC
PRAYING TO a) SET ASIDE THE JUDGMENT AND DECREE
DATED 21.04.2007 PASSED IN MISC. CASE NO.6/2005 BY
THE PRINCIPAL C.J.(JR.DN.) AT PUTTUR AND JUDGMENT AND
DECREE DATED 05.12.2008 PASSED IN R.A.NO.54/2007 BY
PRINCIPAL CIVIL JUDGE (SR. DN.) AT PUTTUR, D.K.
DISTRICT; b) FOR SUCH OTHER AND FURTHER RELIEFS. THE
APPELLANT NOT CHALLENGED AGAINST THE COST IMPOSED
BY THE TRIAL COURT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
11.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular Second Appeal is by the objector/ petitioner challenging the impugned judgment and order passed by the trial Court and the First Appellate Court dismissing the petition filed by him under Order 21 Rule 97 C.P.C in Misc.Case.No.6/2005 in O.S.No.139/2003 which came to be confirmed in R.A.No.54/2007.
2. One B. Mohammed Harris (hereinafter referred to as 'plaintiff') filed a suit in O.S.No.139/2003 against one Bavuvalappil Chalil Ashraf (hereinafter referred to as defendant No.1) and Ansari Kadakkan Kadavath (hereinafter 3 RSA NO.2502 OF 2008 referred to as defendant No.2) for a declaration that he is the absolute owner of the suit schedule property measuring 1 acre 90 cents including a residential premises therein and for relief of permanent injunction, restraining the defendants from interfering with his possession and enjoyment thereof.
3. Plaintiff claim that he is the owner of suit schedule property. The other half belongs to his brother B Mohammed Ali, who is in Bengaluru and he is not in possession of suit schedule property. Plaintiff is in possession and enjoyment of suit schedule property and residing in the premises situated in the suit schedule property. Defendant No.1 was business partner of plaintiff in the year 2000 and they were doing international trading of import and export of fresh fruits and vegetables. Their trading office is situated at Bengaluru. However, the business suffered loss and defendant No.1 put the entire blame on the plaintiff and demanded Rs.22 lakhs. During 2002, defendant No.1 took three blank cheques from plaintiff with a view to recover money. He also obtained a General Power of Attorney dated 11.06.2002 from the 4 RSA NO.2502 OF 2008 plaintiff with reference to suit schedule property by exercising police force. Hence it is not valid.
3.1 Vide letter dated 29.10.2003, plaintiff cancelled the said General Power of Attorney. However, on 26.06.2002, based on the GPA, defendant No.1 executed registered sale deed, conveying all the rights of plaintiff in suit schedule property in favour of defendant No.2. Hence, the said sale deed is not binding on the plaintiff. The sale deed is void ab initio. Defendant No.2 applied for change of Khatha and it was resisted by plaintiff. However, his objections were overruled on the ground that defendant No.2 is holding a registered document. Hence, to clear the clog on his title, plaintiff is filing the suit. Plaintiff continued to be in possession of the said property.
3.2 On 19.08.2003, plaintiff was forcefully taken to the police station and his signatures were taken to several papers. Any documents created with them would not be binding on the plaintiff. Based on the sale deed, defendant Nos.1 and 2 started demanding possession of suit schedule property with the help of local police and hence the suit. 5 RSA NO.2502 OF 2008
4. However, the suit ended in compromise between the plaintiff and defendant Nos.1 and 2. Briefly stated the terms of the compromise are as under:
"i) Defendant number two permitted the plaintiff to continue to reside in the premises in suit schedule property till 31.12.2004( End of the year)
ii) During this period, plaintiff shall not allow any outsider to stay in the premises or create any tenancy, right or title etc.
iii) Plaintiff agreed to surrender possession of the building in good condition to defendant No.2 or before 31.12.2004 without creating any obstruction.
iv) Plaintiff admit ownership of defendant No.2 on the suit schedule property as per the sale deed No.516/02-03.
v) Plaintiff withdrew all the claims and allegations made in the plaint. Defendant No.2 agreed not to disturb the peaceful occupation of the premises by plaintiff up to 31.12.2004.6 RSA NO.2502 OF 2008
vi) The parties agreed to pass a decree for recovery of possession in favour of defendant No.2, directing the plaintiff to surrender vacant possession of the premises in suit schedule property and not to create any obstruction or resistance to the peaceful delivery of property and the premises therein on 31.12.2004, either by himself or through any other person under him.
vii) It is agreed that the plaintiff shall discharge entire liability due to the defendant No.1 as agreed through cheque bearing number 941465 for Rs.10 lakhs, payable on 31.12.2004.
viii) Suit against defendant No.1 may be dismissed and a decree be passed in favour of defendant No.2 for recovery of possession as claimed in the counterclaim enforceable on or after 31.12.2004 without cost."
5. Though the suit ended in compromise, in fact, it is a decree passed in favour of defendant No.2. The only relief which the plaintiff got is to remain in possession of the residential premises situated in the suit schedule property till 31.12.2004 and thereafter handover possession to defendant 7 RSA NO.2502 OF 2008 No.2. On the failure of plaintiff to handover possession of suit schedule property to defendant No.2, he sued out execution in Ex.P.No.3/2005 (in O.S.139/2003) against the plaintiff and the trial Court issued delivery warrant. However, when the Ameen went to the spot to deliver possession, it was resisted.
6. One S.M.Mohammed (hereinafter referred to as 'objector') filed a petition under Order 21 Rule 97 r/w Section 151 C.P.C that on 11.04.2005, claiming that plaintiff has executed a sale agreement dated 15.10.1999 to sell suit schedule property, including the residential premises for a sum of Rs.45,000/- and he has paid advance of Rs.40,000/-. He is put in possession of suit schedule property by the plaintiff. As per the terms of the agreement, plaintiff is liable to execute registered sale deed on or before 15.10.2005 by receiving the balance consideration. The Objector has alleged that colluding with defendant No.2, plaintiff has obtained a decree for possession in favour of defendant No.2 and based on it, Ex.P.No.3/2005 is filed and attempt is being made to 8 RSA NO.2502 OF 2008 dispossess him and sought for dismissal of the execution petition.
7. Before the Execution Court, enquiry was held wherein the Objector has examined himself as PW-1 and two witnesses as PW-2 and 3. He got marked Ex.P1 and 2.
8. The PA holder of defendant No.2 is examined as RW-1 and Ex.R1 to 15 are marked.
9. Including the Court Ameen, 4 witnesses are examined as Court witnesses i.e. CWs-1 to 4.
10. Vide judgment and order dated 21.04.2007, the trial Court dismissed the petition filed by the Objector.
11. Aggrieved by the same, the Objector filed Regular Appeal No.54/2007 before the First Appellate Court. However, vide judgment and order dated 05.12.2008, the First Appellate Court dismissed the appeal and thereby confirmed the order passed by the Execution Court. 9 RSA NO.2502 OF 2008
12. Aggrieved by the same, the Objector is before this Court, contending that the impugned judgments and orders are illegal, contrary to the well-founded principles of law. The Courts below have not appreciated the contentions raised by the Objector and flaws in the case of plaintiff and defendant No.2. The Courts below have failed to appreciate the fact that defendant No.2 has failed to prove his case. They have not properly appreciated the contention of Objector that he is in lawful possession and enjoyment of suit schedule property and it cannot be disturbed by a collusive decree passed in favour of defendant No.2. The Courts below did not appreciate the fact that the Executing Court can re-open the case in the original suit and try the matter afresh and decide on the case of Objector and the contesting parties after allowing the application filed by the Objector. Viewed from any angle, the impugned judgments and orders passed by the Executing Court and First Appellate Court are not sustainable and pray to set aside the same.
13. On 19.01.2010, this appeal is admitted on the following substantial question of law:
10 RSA NO.2502 OF 2008
"Whether Ex.P1 which was an agreement of sale which acknowledged possession of appellant could be marked as Ex.P1 and thereafter its admissibility could be questioned, in the light of the judgment of Supreme Court in Javer Chand and others Vs. Pukhraj Surana reported in AIR 1961 SC 1655, notwithstanding, the later judgment of the Supreme Court in case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, reported in (2009) 2 SCC 532 ?".
14. Heard elaborate arguments of learned counsel for all the parties and perused the record.
15. The facts emerging from the material placed on record are that defendant No.1 executed a sale deed in respect of suit schedule property in favour of defendant No.2 in his capacity as the Power of Attorney holder of plaintiff. Disputing the same plaintiff filed suit in O.S.No.139/2003 seeking declaration that he is the absolute owner in possession and enjoyment of suit schedule property. He sought for permanent injunction, restraining the defendants from disposing him or interfering with his possession. However, in the compromise entered into before the Lok 11 RSA NO.2502 OF 2008 Adalath plaintiff admitted the ownership of defendant No.2 over suit schedule property. So far as the residential premises in the suit schedule property is concerned plaintiff was permitted to remain in possession till 31.12.2004 and thereafter, he is required to handover possession to defendant No.2. When plaintiff failed to handover possession of the residential premises in the suit schedule property, defendant No.2 filed the execution petition and sought for recovery of the possession of residential premises and secured delivery warrant. When the Court Ameen went to the spot to execute the delivery warrant, it was resisted.
16. The Objector has filed petition under Order 21 Rule 97 C.P.C claiming to be in possession of the suit schedule property including the residential premises through a sale agreement dated 15.10.1999 executed by plaintiff in his favour and that he has been put in possession of the same. Plaintiff has denied that he has executed the sale agreement dated 15.10.1999, agreeing to sell the suit schedule property including the residential premises to the Objector. However, he claimed that he has put the Objector 12 RSA NO.2502 OF 2008 in possession of only the residential premises situated in the suit schedule property by permissive possession. Therefore, heavy burden is on the Objector to prove that plaintiff has executed sale agreement dated 15.10.1999 and he was put in possession of the entire suit schedule property by virtue of the said agreement and as on 08.04.2005, he was in possession of the same and legally resisted the execution of delivery warrant and handing over possession of residential premises to defendant No.2.
17. CW-1 Babu Gowda is the Ameen, who went to deliver possession of the residential premises in favour of defendant No.2. He has specifically stated that from defendant No.2 he came to know that the lady present in the premises is the wife of plaintiff. However, in the residential premises plaintiff was not present. When they went to the residential premises and enquired and informed her about the delivery warrant and requested her to handover the possession, the said lady closed the door from inside. He has denied that Objector S.M. Mohammed and his wife were present in the residential premises and objected. 13 RSA NO.2502 OF 2008
18. CW-2 P. Abdul Rehman is an attesting witness to the report dated 08.04.2005 at Ex.P2 submitted by the Ameen regarding the non-execution of delivery warrant. He has specifically deposed that he signed this document at the premises of plaintiff Mohammed Harris. At that time, along with the Ameen, defendant No.2 Ansari Kadakkan Kadavath was present. He has specifically deposed that since he was knowing plaintiff - Mohammed Harris, he went there and inside the premises, the wife and child of plaintiff - Mohammed Harris were present. He has specifically deposed that he knew the wife of plaintiff - Mohammed Harris and as such he was able to identify the woman who was present inside the premises as the wife of Mohammed Harris. At that time, Mohammed Harris was not present. He has denied the suggestion that from 15.10.1999, the Objector is residing at Kodimbala. When suggested that at the residential premises in question Objector and his wife were present, he has stated that he did not see them there. The evidence of this witness prove the fact that he was knowing plaintiff Mohammed Harris and his wife from long time and at the time when 14 RSA NO.2502 OF 2008 Court Ameen went to the spot to execute delivery warrant, the wife and child of plaintiff Mohammed Harris were present in the premises and the Objector and his wife were not present in the said premises. The testimony of this witness that he knew plaintiff Mohammed Harris and his family members since long time and had seen them residing in the schedule premises is not disputed by the Objector.
19. CW-4 P.P. Ummer Kutti is also a witness to Ex.P2. He has specifically stated that he signed the said document at Kodimbala and Razak, Abdul Rahman and Ansari have also signed this document at the time when the Court Ameen was brought to the said place by defendant No.2. He has specifically deposed that the wife of plaintiff Mohammed Harris was present in the premises and the Court Ameen spoke to her and she refused to handover possession of premises to the Court Ameen and she spoke to the Ameen about 5-10 minutes. His evidence reveal that he was knowing plaintiff Mohammed Harris before and he has denied the suggestion that Objector S.M.Mohammed and his wife were present in the premises and they refused to handover 15 RSA NO.2502 OF 2008 vacant possession to the Court Ameen. During his cross- examination on behalf of defendant No.2, he has specifically deposed that when he signed Ex.P2 at the spot, Razak (CW-
3), Abdul Rahman (CW-2) and Ansari (defendant No.2) were present. He has specifically deposed that neither the Objector nor his wife were present at this spot when they went there along with the Court Ameen. He has also stated that Razak (CW-3) has signed Ex.P2 at the spot and not at the shop.
20. CW-3 Razak is another attesting witness to the report at Ex.P2. Though he has admitted of having signed Ex.P2, he has claimed that he signed the said document at the instance of Court Ameen at his shop. He has deposed that at the relevant point of time, Objector S.M. Mohammed was residing in premises situated in the suit schedule property. However, his evidence reveal that Objector S.M Mohammed used to sell Areca nuts to him and other than this, he had no personal knowledge about his residence. In the light of testimony of CW-1, 2 and 4 and the manner in which he has given evidence indicate that to help the 16 RSA NO.2502 OF 2008 Objector CW-3 is falsely stating that in the premises situated in the schedule property Objector S.M. Mohammed was residing.
21. The Objector is examined as PW-1. During the course of his evidence he has deposed that a sale agreement came into existence with regard to suit schedule property between him and plaintiff as per Ex.P1 and he was in possession of the same. During his cross- examination, the plaintiff has disputed the fact of sale agreement having come into existence between him and the Objector and a suggestion is made that he was only put in possession of the residential premises and it is a permissive possession and misusing the said situation, he is trying to knock off the entire suit schedule property. During his cross-examination, it is elicited that he and plaintiff are co-brothers - their wives being real sisters.
22. During his cross-examination made on behalf of defendant No.2, PW-1, i.e the Objector has admitted that from Arantodu , he contested the Taluk Panchayat election 17 RSA NO.2502 OF 2008 and the certificate at Ex.R1 issued by Sampaje Gram Panchayat is correct. He has conceded that he has casted his vote at Sampaje village and the address of himself, his wife, children and mother is Sampaje Village and their voters list is at Sampaje. It is pertinent to note that though, as per Ex.P1 the agreement of sale was allegedly executed on 15.10.1999 and substantial portion of sale consideration was paid, it is stated that the Sale deed is required to be executed on before 15.10.2005. No reasons are forthcoming as to why such a long period was fixed for executing the sale deed. In this regard, the Objector has deposed that since plaintiff believe in astrology, on the advise of the Astrologer the date for execution is fixed as on or before 15.10.2005. In fact, PW-1 has deposed that two months after the sale agreement, he requested plaintiff to execute the sale deed and once again he gave the same reason. Admittedly, the Objector has not chosen to file any suit, seeking enforcement of the sale agreement.
23. PW-2 Ganapathy Bhatt is an attesting witness to Ex.P1. He has deposed that on the date of the said 18 RSA NO.2502 OF 2008 agreement, the objector was put in possession of the suit Schedule property. During his cross-examination on behalf of defendant No.2, he has deposed that he came to know the Objector on the date of agreement, but he knows the plaintiff since childhood. While PW-1 has deposed that the sale agreement was prepared at the typing pool, PW-2 has stated that when they went to the spot, the agreement was not yet ready and at around 11-00 a.m, it was made ready. He has deposed that all have signed to Ex.P1 in the same pen, which is not the case on hand.
24. PW-3 Cerial Castra is also a witness to Ex.P1. He has also deposed regarding the execution of sale agreement at Ex.P1 and that Objector was handed over possession of the suit schedule property along with the residential premises.
25. RW-1 Abdul Majeed K.E.N is the Power of Attorney Holder of defendant No.2. He has deposed with regard to the previous transaction based on which O.S.No.139/2003 was filed and it ended in compromise and 19 RSA NO.2502 OF 2008 filing of execution petition. His evidence is supported by the Court proceedings. His evidence also reveal the fact that at the time when the Court Ameen went to the spot to issue delivery warrant, plaintiff was not present, but his wife was present and she was identified by defendant No.2. He has denied the suggestion that she was not present at this spot. He has also denied that the Objector and his wife are residing in suit schedule property.
26. In the light of dispute by plaintiff that he has executed such an agreement in favour of Objector and the evidence placed on record to show that the Objector is a resident of Mandadka premises of Sampaje villege, Sulya Taluk, and he has contested election from the Sampaje Gram Panchayath, both the execution court as well as the First Appellate court have come to a correct conclusion that the Objector was never in possession of the Suit schedule property, including the residential premises and only at the instance of plaintiff to prevent the execution petition, he has filed the false petition.
20 RSA NO.2502 OF 2008
27. PW-2 has deposed that the sale agreement at Ex.P1 is signed by all in the same pen, whereas in fact they are in different ink. This fact itself goes to show that it is not prepared on the date reflected in the document, but it has come into existence subsequently.
28. In the plaint, plaintiff has not pleaded that he has put the Objector in possession of the residential premises in the suit schedule property and it is a permissive possession. Throughout the plaint has claimed in unequivocal terms that he is in possession and enjoyment of the entire suit schedule property, including the residential premises. There was no impediment for him to plead that he has put the objector in possession of the residential premises and it is permissive possession. This itself falsifies the claim of plaintiff that the Objector is in possession of the residential premises and it is a permissive possession. The explanation of the Objector that on account of plaintiff's belief in astrology, he did not choose to execute the sale deed is also not convincing, especially in the light of the testimony of Objector/PW-1 that immediately after two months of the sale agreement, he 21 RSA NO.2502 OF 2008 requested the plaintiff to execute regular sale. Moreover, the fact that the objector has not taken any steps to enforce the sale agreement is also a negative aspect. As observed by the First Appellate Court, being Muslims, both parties does not believe in astrology. The fact that the Astrologer has advised not to execute the Sale deed for about five years is also not forthcoming in the agreement. As rightly observed by the First Appellate Court, the objector and plaintiff have put forth their contentions as though they are totally strangers. Whereas in fact, they are co-brothers- their wives being real sisters.
29. It is pertinent to note that CW-1 to 4 who are the Court Ameen and witnesses to the execution of delivery warrant have been examined before the Court at the instance of Objector. Despite their extensive cross- examination, the objector has failed to establish that at the time when the Court Ameen went to the spot to execute the delivery warranty, the Objector and his wife were present and resisted the same. On the other hand, the evidence prove the fact that the wife of plaintiff was present in the 22 RSA NO.2502 OF 2008 residential premises situated in the suit schedule property and resisted the execution and thereafter, the Objector is being set up to file the petition. Though the Objector has managed to get CW-3 Razak turn hostile and claim that he signed the report of the Court Ameen at his shop, the evidence of other three witnesses establish the fact that CW- 3 Razak was also present at the spot and signed the report. The evidence of CW-1 to 4 is not helpful to the case of Objector.
30. While rejecting the petition filed under Order 21 Rule 97 C.P.C filed by the Objector, the Executing Court has held that since Ex.P1 is an unregistered document, it will not affect the properties covered under the same and that it will not create any right in favour of the Objector in respect of the schedule property and therefore, the Objector has no right to obstruct the execution and issue of delivery warrant and accordingly rejected it.
31. Now coming to the substantial question of law framed by this Court at the admission of appeal. In this case, 23 RSA NO.2502 OF 2008 the sale agreement relied upon by the Objector is unregistered. It is marked without objection by the other side. In Javer chand, the trial Court held that since penalty is paid and the document is marked, Section 36 comes into play and disputed documents cannot be rejected and excluded from evidence. However, the High Court was of the opinion that inspite of payment of duty and penalty, the document could not be admitted in evidence. However, the Hon'ble Supreme Court held that in the light of Section 36 of the Stamp Act, when instrument is admitted in evidence, the same cannot be called in question at any stage of the same suit or proceedings except as provided under Section 61 of C.P.C. When the Court rightly or wrongly decided to admit the document in evidence, so far as the parties are concerned, the matter is closed. It is not open to the trial Court or to a Court of appeal or revision to go behind that order and review or revise it. In the present case, the unregistered sale agreement which is not adequately stamped is admitted in evidence and therefore now it cannot be treated as non-est. 24 RSA NO.2502 OF 2008
32. However, in Avinash Kumar Chauhan, the objection for admission of the document was raised at the initial stage and the trial Court ruled and directed the plaintiff to pay duty and penalty. It was upheld by the High Court and the Hon'ble Supreme Court refused to interfere. It was a stage before the marking of documents and as such the said decision is not applicable to the present case.
33. However, despite the fact that the document in question is admissible in evidence, the Objector has failed to prove the same. On the other hand, the evidence led by defendant No.2, who is the decree holder and who has sued out execution for recovery of the residential premises from the possession of plaintiff as per the compromise decree, has established that Ex.P1 is a concocted document and objector was never in possession of the schedule property, whether the immovable property or the residential premises situated there in and he never resisted the delivery of possession and on the other hand, it is the plaintiff who has set up the Objector to protract the proceedings. In the circumstances, though the substantial question of law is answered in the 25 RSA NO.2502 OF 2008 Negative, on facts having failed to prove his lawful possession and enjoyment over the suit schedule property, the Objector has no right to resist the delivery of possession in favour of defendant No.2. In the result, the appeal filed by him challenging the impugned judgment and order of the Execution Court and the First Appellate Court fails and accordingly, the following:
ORDER
(i) The Regular Second Appeal filed by the Objector is dismissed.
(ii) The impugned judgment and order dated 21.04.2007 in Misc.Case.No.6/2005 (Ex.P.No.3/2005) on the file of Prl.Civil Judge (Jr.Dn.), Puttur of the Executing Court and that of the First Appellate Court dated 05.12.2008 in R.A.No.54/2007on the file of Prl.Civil Judge (Sr.Dn.), Puttur D.K, are hereby confirmed.26 RSA NO.2502 OF 2008
(iii) The Registry is directed to send back the trial Court as well as the First Appellate Court records along with the copy of this judgment forthwith.
Sd/-
JUDGE RR