Bangalore District Court
Mr. A.G. Noor vs Mr. A.R. Aslam on 26 February, 2015
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
Sri. S.Shantaveer, B.A., LL.B.,(Spl),
Presiding Officer, FTC-VIII
C/c XXXVII ADDL. CITY CIVIL JUDGE,(CCH-38)
BANGALORE
DATED: THIS THE 26TH DAY OF FEBRUARY 2015
OS.NO.4430 /2003
PLAINTIFF: 1. MR. A.G. NOOR
S/O ABDUL RAHMAN
AGED ABOUT 46 YEARS,
RESIDING AT NO. 36,
'F' 2ND STREET, QUADRANT ROAD
CROSS, BEHIND RENUKA TALKIES
BANGALORE.
2. P. RAJESH
S/O LATE M. PALANIVELU
AGED ABOUT 33 YEARS
RESIDING AT NO. 323,
OLD POOR HOUSE ROAD,
BANGALORE - 560 001.
(By Sri. N.S. Advocate)
Versus
DEFENDANTS: MR. A.R. ASLAM
S/O A.B. AMEER KHAN SAHEB
(since deceased by his LRs)
1(a) CHANDBEGUM
AGED ABOUT YEARS,
W/O LATE A.R. ASLAM
2 O.S.No.4430 / 2003
1(b) TARUNM
D/O A.R. ASLAM
AGED ABOUT 22 YEARS.
1(c) SAJID
S/O A.R. ASLAM
AGED ABOUT 20 YEARS.
1(d) MAJID
S/O A.R. ASLAM
AGED ABOUT 18 YEARS.
ALL ARE
RESIDING AT NO. 8,
STEPHEN SQUARE,
CHANDINI CHOWK ROAD,
BANGALORE - 560 051.
(Defendant No.1 (a) to 1(b) - Absent
Defendant No.1(c) & 1(d) By Sri. SMA, Adv.)
Date of Institution of the 25.06.2003
suit
Nature of suit Declaration and permanent
injunction.
Date of commencement of 04.05.2008
recording of evidence.
Date on which judgment 26.02.2015
was pronounced.
Total Duration. Years Months Days
11 08 01
C/c XXXVII ACCJ; BANGALORE
3 O.S.No.4430 / 2003
JUDGMENT
This is a suit for declaration and injunction filed by the plaintiff.
2. The brief facts of the case are as follows.
The plaintiff contended that the plaintiff have purchased suit schedule property from its owner Sri. Narayanappa s/o late Muniswamappa under a registered sale deed dated 06.01.1989 for a valuable consideration of Rs. 80,000/-. The vendor of the plaintiffs put them in possession of the suit schedule property on the date of the registration of the sale deed.
3. The plantiff further contended that the defendants are also claiming ownership and title over the suit schedule property on the basis of the sale deed dated 06.01.1984 purported to having purchased from Sri. Revanna S/o Narayanappa. The plaintiffs filed a suit in O.S. No. 2836 / 1989 against the tenants and Sri. Narayanappa for eviction, after they have purchased the suit schedule property. They have also sought for declaration that they are the owners of the suit schedule property. The said suit came to be decreed. 4 O.S.No.4430 / 2003 Then the plaintiff filed HRC petitions against the tenants for eviction which came to be allowed on 30.07.1990. The defendants had also filed HRC no. 1025 to 1027 of 1986. These HRC petitions were also allowed by an order dated 13.06.1989. The defendants filed Execution petitions in Ex.Petn.No. 10784 to 10784 of 1991, wherein the plaintiffs participated and objected for the same. In the meanwhile the defendants filed O.S. No. 10197 of 1990 for declaration that the decree passed in favour of the plaintiffs in O.S. No. 2836 / 1989 and also the orders passed in favour of the plaintiffs in HRC cases to be declared as bad. The suit came to be withdrawn on 22.10.2002.
4. The plaintiff further contended that now the suit schedule property is vacant site. The building which was standing in the suit schedule property was demolished. Now the plaintiffs are in exclusive possession and enjoyment of the suit schedule property. As the defendant is interfering in the peaceful possession and enjoyment of the suit schedule property and denying the ownership and title of the plaintiff over the suit schedule property the plaintiffs were 5 O.S.No.4430 / 2003 constrained to file the suit seeking declaration that they are the owners of the suit schedule property and injunction against the defendants not to interfere in the peaceful possession of the plaintiff.
5. On service of suit summons the defendants appeared before the Court, filed their written statement contending that the suit schedule property is a residential property which is part of larger composite property including shops New No. 114 and 115. The suit schedule property was purchased by the defendants along with younger brother namely Sri. Faheem Pasha, A.R. Wasim and Nayeem Khan.
6. The defendants further contended that the suit schedule property belongs to Sri. S. Muniswamappa who gifted the said property by a registered gift deed dated 05.06.1957 in favour of Smt. Akkayamma with a condition not to alienate the same during her life time and the property was to be devolved upon his grand son one Revanna and his younger brother if any in the event of their birth. Revanna did not have any brothers. There was further condition that Revanna and his brothers 6 O.S.No.4430 / 2003 should not alienate the property. But Revanna did not have brothers and he became the absolute owner of the property, as such the condition of non-alienation on Revanna had no force in law. After the death of Akkayamma, Revanna became the owner of the property and sold the suit schedule property for Rs. 46,000/- under a registered sale deed dated 10.10.1985. His father M. Narayanappa attested the sale deed as consenting witness and possession was also delivered to the defendants.
7. But as there were tenants in the suit schedule property the defendants and their vendor Revanna and his father Narayanappa jointly issued notice of attornment to the tenants and the defendants also issued similar notice of attornment dated 18.10.1985. The defendants subsequently filed eviction petition against the tenants in HRC No. 10225, 10226 and 10227 of 1986. The tenants raised their objection contending that the defendants were not their landlord, although they accepted that they were tenants of the premises and further contended that vendor of the defendants had no right and title to alienate the property in view of the 7 O.S.No.4430 / 2003 prohibition under the Gift Deed by his paternal grand father - Sri. Muniswamappa.
8. The court had raised the question of relationship of the lands and tenants and answered the same in affirmative that there is jural relationship of landlord and tenants between the defendants and the tenants, as the title was proved by the sale deed executed by Sri. Revanna. The said order was challenged by the tenants in Revision petition No.2517 / 1987 and 3428/ 1988. They were dismissed by the Hon'ble High Court by an order dated 10.08.1988. Eviction petitions were also allowed on merits by an order dated 13.06.1989. Hence, the defendants filed execution petition and obtained vacant possession of the entire suit schedule property from the tenants.
9. One of the tenant by name Abdul Kareem and M. Palanivelu in order to prevent the defendants from taking possession of the property set up their respective brothers that is plaintiff and the vendor of the plaintiff Palanivelu in collusion with the father of the vendor of defendant and created sale deed purported to have purchased the property 8 O.S.No.4430 / 2003 under a registered sale deed dated 06.01.1989. Sri. M. Narayanappa had no title over the suit schedule property as it was earlier gifted by Muniswamappa to his grandson by way of Gift Deed dated 05.06.1951. M. Narayanappa had attested the earlier sale deed as consenting witness in favour of the defendants. Hence, the plaintiffs have not derived any title over the suit schedule property. Plaintiffs thereafter filed collusive suit in O.S. No. 2836 / 1989 against the tenants and got the collusive suit decreed.
10. After obtaining collusive decree the plaintiffs filed Eviction petition against the tenants thereby preventing the defendants from taking physical possession of the suit schedule property in his favour in furtherance of the order in HRC. But the defendants were able to execute the orders and secure possession of the suit schedule property. The defendants have demolished the old structure on the suit schedule property for reconstruction. The plaintiffs once again filed a suit in O.S. No. 10948 / 1990 for injunction contending that the plaintiffs are in possession of the suit schedule property and sought for injunction against the 9 O.S.No.4430 / 2003 defendants. But the court considering the facts and circumstances had not granted injunction order in favour of the plaintiffs.
11. The Misc. First Appeal preferred by the plaintiffs was also rejected by the Hon'ble High Court. After failure in all these activities the plaintiffs have set up Revanna and his two minor sons to file a suit in O.S. No. 11133 / 1995 for declaration that Revanna had no right to alienate the suit schedule property. This suit also came to be dismissed on 21.11.2001. Now in order to harass the defendants the plaintiffs have come up with this suit which is not maintainable. The plaintiffs are not at all in possession and enjoyment of the property. Hence, the suit deserves to be dismissed with cost and sought for dismissal of the suit.
12. On the basis these pleadings my learned predecessor framed the following issues.
1. Does plaintiff prove that Narayanappa son of late Muniswamappa executed registered sale deed dated 06.01.1989 in favour of the 1st plaintiff and late Palanivalu father of 2nd plaintiff for consideration of Rs. 80,000/-? If so 10 O.S.No.4430 / 2003 did 1st plaintiff and Palanivelu derive title to the suit property under the said sale deed?
2. Does defendant derive title to suit property under sale deed dated 06.01.1984 executed by Revanna son of Narayanappa?
3. Did defendant attempt to put up construction on suit property on or above 06.01.1989 illegally?
4. What decree or order?
Additional issue as per order dated 06.02.2008:
1. Whether valuation made for the purpose of court fee is incorrect and court fee paid is insufficient?
Note: As per order passed on I.A.No.-IV dated 03.11.2009, the said additional issue framed on 06.02.2008 shall be treated as preliminary issue.
Additional issue as per order dated 25.03.2014:
1. Does the plaintiff prove that he was in lawful possession of the suit schedule property as on the date of filing of the suit?
2. Does the plaintiff prove that, defendants are interfering in his possession over the same?
13. Both the sides led their evidence on preliminary issue i.e. regarding suit valuation and payment of court fees and also on the main suit. The plaintiff adduced evidence as PW 1 11 O.S.No.4430 / 2003 and marked Ex.P1 to P4. In rebuttal the defendants examined DW 1 and marked documents at Ex.D1 to D45.
14. Heard both the sides.
15. The findings of the court on the above issues are as follows:
Issue No.1: In Negative
Issue No.2: In Affirmative
Issue No.3: In Negative
Addl. Issue No.1
dated 06.02.2008: In affirmative.
Addl. Issue No.1
dated 25.03.2014: In Negative.
Addl. Issue No.2
dated 25.03.2014: In Negative.
Issue No.4: As per final order, for the
following.
REASONS
ISSUE NO.1, 2, 3 & Addl. Issues No.1 & 2 dated 25.03.2014:
16. As the issues No.1, 2, 3 and Additional issues No.1 and 2 are inter-linked with each other hence, they are taken up together for discussion to avoid repetition. 12 O.S.No.4430 / 2003
17. Admitted facts are that Muniswamappa was the original owner of the suit schedule property. It is also admitted that Muniswamappa had purchased the suit schedule property under a registered sale deed and the suit schedule property is the self-acquired property of Muniswamappa. It is also admitted that Muniswamappa had gifted the property to his wife Smt. Akkayamma with a condition that Akkayamma shall not alienate the suit schedule property during her life time and on her demise the property shall devolve upon son Sri. Revanna, grand son of Muniswamappa and if he gets any younger brother they shall inherit the property. The grand son of Muniswamappa i.e. Revanna did not get any younger brothers. Hence, after the death of Akkayamma he became the absolute owner of the property.
18. The plaintiffs dispute that Revanna becoming the absolute owner of the suit schedule property. They have contended that it is Narayanappa S/o Muniswamappa who inherited the suit schedule property and he sold the same to the defendants. But the court is of the opinion that Ex.D1 the sale deed of Muniswamappa and the original gift deed 13 O.S.No.4430 / 2003 Ex.D2 clearly reveals that Muniswamappa has gifted the suit schedule property to his wife and after her demise Revanna inherited the property. Ex.D3 is the absolute sale deed executed in favour of the defendants. On perusal of Ex.D3 goes to show that M. Narayanappa had attested the same as consenting witness. Ex.D3 is dated 10.10.1985, whereas the alleged title deed of the plaintiff Ex.P1 the original sale deed said to have been executed by Narayanappa in favour of the plaintiff is dated 06.01.1989. That is to say that it is later than the title deed of the defendants.
19. As per Ex.D2 the court is of the opinion that Narayanappa did not have any right over the suit schedule property. It was Revanna who had absolute right over the suit schedule property. As such the sale made by Revanna in favour of defendants is valid and binding. Narayanappa S/o Muniswamappa did not inherit the suit schedule property and did not derive any title over the suit schedule property from his father. Considering the same the court is of the opinion that the plaintiffs have failed to prove that they derived title 14 O.S.No.4430 / 2003 over the suit schedule property from their vendor by a registered sale deed dated 06.01.1989.
20. Further the court is of the opinion that when the plaintiffs have failed to prove their title over the suit schedule property, the question of interference by the defendants does not arise. More over the defendants after filing HRC petitions and succeeding in HRC petitions against the tenants in the suit schedule property has preferred execution petition and got evicted the tenants from the suit schedule property. The report of the Bailiff in Execution petitions are produced at Ex.D23, D26, D30, D31. It is clearly goes to show that the defendants are in possession and enjoyment of the suit schedule property. Hence the plaintiffs have failed to prove that they were in lawful possession and enjoyment of the suit schedule property as on the date of suit. They have also failed to prove that the defendants interfered with their peaceful possession and enjoyment of the suit schedule property.
When the defendant has came in possession of the suit schedule property, the question of defendant illegally attempting to put up construction over the suit schedule 15 O.S.No.4430 / 2003 property does not arise at all. Hence, Issue No.1, 3 and Additional Issues No.1 and 2 are answered in the Negative and Issue No.2 in the affirmative.
ADDL. ISSUE DATED 06.02.2008:
21. With regard to suit valuation made and court fees paid by the plaintiffs, the court is of the opinion that, perusal of the evidence led by the plaintiffs on preliminary issue regarding valuation and court fees, the plaintiffs have failed to value the suit schedule property properly. The notings in the order sheet dated 06.11.2013 goes to show that the suit property is valued at Rs. 1,500/- per sq. ft. as on the date of suit and the total market value is Rs. 13,28,250/- as per Section - 24 (b) of Karnataka Court Fees and Suits Valuation Act, 1958, the plaintiffs had to pay half of the market value which amounts to Rs. 43,222/-. But the records does not reveal that the plaintiffs have paid court fees accordingly.
Hence, the additional issue framed on 06.02.2008 is answered in Negative.
16 O.S.No.4430 / 2003ISSUE NO.4:
22. In view of the aforesaid reasons, this Court proceed to pass the following:
ORDER The suit filed by the plaintiffs against the defendants is dismissed with costs to the defendants. (Dictated to the Judgment Writer, transcribed by him, corrected and then pronounced by me in open court, this the 26th DAY OF FEBRUARY 2015) (S.Shantaveer) Presiding Officer, FTC-VIII C/c XXXVII ADDL. CITY CIVIL JUDGE,(CCH-38) BANGALORE.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. A.G. Noor Documents marked on behalf of the plaintiff/s:
Ex.P1 Original Sale deed
Ex.P2 Certified copy of the order sheet in O.S. No. 10197
of 1980
Ex.P3 Certified copy of the judgment dated 04.09.1989
Ex.P4 Certified copy of decree
List of witnesses examined on behalf of the Defendant/s:
DW 1 Sri. Sajid Khan 17 O.S.No.4430 / 2003 Documents marked on behalf of the Defendant/s:
Ex.D1 Copy of sale deed
Ex.D2 Original Gift Deed
Ex.D3 Original Sale Deed
Ex.D4 Original of Attornment.
Ex.D5 Another original of Attornement.
Ex.D6 Katha Acknowledgment.
Ex.D7 to
Ex.D11 Tax Paid Receipts
Ex.D12 Copy of order in HRC no. 10225 of 1986.
Ex.D13 Copy of Order in CRP No. 2517 / 1998
Ex.D14 Copy of order in CRP No. 3779 of 1989
Ex.D15 Copy of order in CRP No. 3777 of 1989
Ex.D16 Copy of order in CRP No. 3778 of 1989
Ex.D17 Copy of order in CRP No. 2608 of 1989
Ex.D18 Copy of order in CRP No. 2610 of 1989
Ex.D19 Copy of order in CRP No. 2611 of 1989
Ex.D20 Copy of order in CRP No. 3776 of 1989
Ex.D21 Copy of Delivery Warrant.
Ex.D22 Copy of Mahazar
Ex.D23 Bailiff report.
Ex.D24 Copy of order
Ex.D25 copy of Delivery Warrant in Execution No. 10783 /
1991
Ex.D26 Bailiff Report.
Ex.D27 copy of Mahazar
Ex.D28 copy of order in said execution.
Ex.D29 Delivery warrant in No. 10784 of 1991
Ex.D30 Bailiff Report.
Ex.D31 Copy of Mahazar
Ex.D32 copy of order in the said Execution.
Ex.D33 Copy of plaint in O.S.No. 10197 of 1990
Ex.D34 Written statement in the said suit.
Ex.D35 I.A.No.1 in the said suit.
Ex.D36 copy of order in the said suit.
Ex.D37 Copy of memo
Ex.D38 Misc. Application no. 601 of 1992
Ex.D39 Judgment and Decree in O.S. No. 11133 of 1995.
Ex.D40 Copy of decree in RFA No. 69 of 2002
Ex.D41 Copy of plaint received by the defendant in O.S. No.
18 O.S.No.4430 / 2003
10948 of 1991.
Ex.D42 I.A. received in the said suit. Ex.D43 Original Katha certificate.
Ex.D44 Copy of Katha Ex.D45 Rent Attornment.
(S.Shantaveer) Presiding Officer, FTC-VIII C/c XXXVII ADDL. CITY CIVIL JUDGE,(CCH-38) BANGALORE.19 O.S.No.4430 / 2003
26.02.2015:
Plaintiff: NS Defendants-1(a)&(b) - Absent Defendants-1(c)&(d) - SMA Judgment:
Judgment pronounced in open court vide separate judgment. The operative portion reads thus -
The suit filed by the plaintiffs against the defendants is dismissed with costs to the defendants.
Presiding officer, FTC-8 C/c XXXVII ACCJ, Bangalore (CCH-38)