Bangalore District Court
Shaik Subban vs Sheikh Abdul Kareem Sab on 22 February, 2024
KABC010140642011
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 22nd day of February 2024
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
ORIGINAL SUIT No.2185/2011
PLAINTIFFS : 1. Sheik Subban
S/o Late.Sheik Ahmed,
Aged about 53 years,
Dead by LRs of plaintiff No.1
1(a) Smt.Fareeda
W/o Late.Sheik Subban,
Aged about 55 years,
1(b) Sheik Khaleem
S/o Late.Sheik Subban,
Aged about 38 years,
1(c) Mrs.Ayisha Banu
D/o Late.Sheik Subban,
Aged about 36 years,
2 OS No.2185/2011
1(d) Sheik Saleem
S/o Late.Sheik Subban,
Aged about 34 years,
1(e) Mrs.Arshiya Banu
S/o Late.Sheik Subban,
Aged about 30 years,
2. Sheik Athaulla
S/o Sheik Ahamed
Dead by LRs of plaintiff No.2;
2(a) Sheik Nyamath
S/o Late.Sheik Attaulla,
Aged about 39 years,
2(b) Sheik Sanaulla
S/o Late.Sheik Attaulla,
Aged about 33 years,
2(c) Mrs.Firdous
D/o Late.Sheik Attaulla,
Aged about 28 years,
2(d) Jiaulla
S/o Late.Sheik Attaulla,
Aged about 28 years,
All are residing at Shikaripalya
village, Jigani Hobli, Anekal
Taluk, Bengaluru - 560 105.
(By Sri.S.M., Advocate)
-V/s-
DEFENDANTS : 1. Sheik Abdul Kareem Sab
3 OS No.2185/2011
S/o Plaintiff not known,
Aged about 50 years,
Residing at Mohammed
Sabarapalya, Yelahanka Hobli,
Bengaluru North Taluk.
2. Mohammed Siraj
S/o Abdul Kareem Sab,
Aged about 53 years,
Residing at Govt. Fair Price Shop,
Near Vidyaranyapura Bus Stand,
Vidyaranyapura,
Bengaluru - 560 097.
3. Mohammed Nazeer
Aged about 50 years,
4. Mohammed Shazuddin
Aged about 47 years,
5. Mohammed Kaleem Ulla
Aged about 44 years,
6. Mohammed Mathiyar
Aged about 41 years,
7. Mohameed Riyaz
Aged about 39 years,
8. Mohammed Azaz
Aged about 37 years,
9. Mohammed Shamiulla
Aged about 35 years,
All are sons of Abdul Kareem Sab,
residing at Nelamangala Town
4 OS No.2185/2011
and Taluk, Bengaluru District.
10. Mohammed Rafeeq
Aged about 46 years,
11. Semiull @ Papa
Aged about 41 years,
12. Shafi Ulla @ Munna
Aged about 38 years,
13. Rahamathulla
Aged about 36 years,
14. Inayathulla
Aged about 34 years,
Defendant Nos.10 to 14 are sons
of Abdul Kareem Sab, residing at
No.331, 1st Main, 1st Cross,
Ganesh Layout, M.S.Palya,
Vidyaranyapura Post,
Bengaluru - 560 097.
15. Hampeeshwar Reddy
S/o Nagi Reddy,
Aged about 57 years,
Residing at No.210, 3rd Main,
M.S.R.Nagar,
Bengaluru - 560 054.
(D1 by Sri.H.P.L.,
D2 to 9 by Sri.G.G.,
D10 - Exparte,
D11 to 14 by Sri.H.P.L.,
D15 by Sri.PNNR, Advocates)
5 OS No.2185/2011
Date of institution of the suit 21.03.2011
Nature of the suit Declaration and Injunction
Date of commencement of 26.09.2022
recording of evidence
Date on which the judgment 22.02.2024
was pronounced
Years Months Days
Total Duration 12 11 01
JUDGMENT
The plaintiffs No.1 and 2 have filed this suit against the defendants for the relief of declaration, permanent injunction and for other reliefs.
2. The brief facts of the plaintiff's case are as under;
According to the plaintiffs they are the absolute owners in possession and enjoyment of the property bearing Sy.No.55/16 measuring 32 guntas out of total extent of 1 acre 13 guntas, situated at Jarakabande Kaval, Yelahanka Hobli, Bengaluru, which is fully described in the schedule. Previously the schedule property belonged to one Sri.Sheik Ahmed/father of the plaintiffs. After his death, the plaintiffs being the legal heirs have been in possession and enjoyment of the suit 6 OS No.2185/2011 schedule property as tenants in common in accordance with the Mohammedan Law. However, the revenue records pertaining to the schedule property continued to be in the name of their father Sheik Ahmed. The father of the plaintiffs Sheik Ahmed and defendant No.1 are the brothers. The property bearing Sy.No.55/16 totally measuring 1 acre 13 guntas situated at Jarakabande Kaval, originally belonged to Sri.Moder Sab, grandfather of plaintiff. After the death of Mader Sab, his sons viz., Sheik Ahmed/father of the plaintiff, Mohammed Reyaz, Sheik Ibrahim, and Abdul Razak, the deceased defendant No.1 had inherited the aforesaid property along with other properties bearing Sy.No.55/21 measuring 19 guntas and Sy.No.56/2 measuring 1 acre 7 guntas. Accordingly, they had been in peaceful possession and enjoyment of the said properties as tenants in common. Later, Sheik Ahmed/father of the plaintiff and his two younger brother Mohammed Razay and Abdul Kareem/deceased defendant No.1 have mortgaged the property bearing Sy.No.55/16, 55/21 and 56/2 in favor of one Ameer Sab through a Mortgage Deed dated 26.03.1953 for a sum of Rs.400/-. After redemption of said mortgage, on 7 OS No.2185/2011 10.08.1961, the aforesaid properties mortgaged in favor of one Raheem Sab for a sum of Rs.700/-. After repayment of mortgage amount of Rs.700/-, Raheem Sab released property through registered Redemption Deed dated 31.10.1967 had released the aforesaid properties in favor of Sheik Ahmed. On the very same day i.e., on 31.10.1967, the defendant No.1 has sold the property bearing Sy.No.56/2 measuring 32 guntas in favor of Abdu Kareem/father of defendant No.2 to 9. Thereafter MR No.8/84-85 has been passed. After the death of Sheik Ahmed, the plaintiffs have been in peaceful possession and enjoyment of the suit schedule property. The defendant No.1 is the Junior Uncle of the plaintiffs and he sold Sy.No.56/2 measuring 32 guntas situated at Jarakabande Kaval village with a specific boundaries in favor of father of defendant No.2 to 9 through a registered document dated 31.10.1967. As per Sale Deed, the mutation was effected in the name of defendant No.2 under MR No.8/84-85. Thereafter, Abdul Kareem Sab/father of defendant No.2 to 9 with dishonest intention and in collusion with the revenue officials forged the Sy.No.56/2 as Sy.No.55/16. Based on the alleged mutation, the father of defendant No.2 to 8 OS No.2185/2011 9 had claimed right over the schedule property. The father of the defendant No.2 to 9 and defendant No.2 to 9 have no right, title, interest of whatsoever over the schedule property because the defendant No.1 sold the property Sy.No.56/2 in favor of father of defendant No.2 to 9 and he sold Sy.No.55/16 instead of 56/2 in favor of Hampeeshwar Reddy through a registered Sale Deed dated 26.08.1998. Neither defendant No.1 nor defendants No.2 to 9 and purchaser Hampeeshwar Reddy have any right, title and interest of whatsoever over the schedule property. The plaintiffs claim that they are the absolute owners in possession and enjoyment of suit property.
3. In the first week of May-2006, the father of defendant No.2 to 9 had tried to form layout in the in the schedule property. The plaintiffs are resident of Maragondanahalli village, Jigani Hobli, which is far away from the schedule property. Soon after coming to the knowledge of the said fact, plaintiffs rushed to the suit schedule property and resisted the illegal attempt of the father of defendant No.2 to 9 in formation of revenue layout. At that juncture, the father of defendant No.2 to 9 has placed RTC standing in his 9 OS No.2185/2011 name in respect of the schedule property. Being aggrieved by the revenue entries standing in the name of father of defendant No.2 to 9, the plaintiffs have preferred appeal in RA No.73/06-07 on the file of Asst. Commissioner, North Sub-Division, Bengaluru. After hearing, the said appeal was dismissed on 13.01.2011 and directed the plaintiffs to approach the competent Civil Courts for declaratory relief. After dismissal of the RA No.73/06-07, the father of the defendant No.2 to 9 on 07.03.2011 once again tried to interfere with the peaceful possession and enjoyment of the suit schedule property of the plaintiffs. The father of the defendant No.2 to 9 disputed the very title of the plaintiffs. Hence, without any option, the plaintiffs have filed the suit for declaration and consequential relief of injunction. According to the plaintiffs, they may be declared as owners in possession and enjoyment of the schedule property as tenants in common, declare the Sale Deed dated 26.08.1998 executed by the father of defendant No.2 to 9 in favor of Hampeesh Reddy is not binding on the plaintiffs, relief of injunction and for other reliefs.
4. Even after service of summon defendant No.10 fails to appear and therefore he has place ex-parte. In 10 OS No.2185/2011 pursuance of service of summons, other defendants appeared through their Counsels. The defendant No.2 filed the written statement. He denied all the allegations made in the plaint in toto and called upon the plaintiffs to strict proof of the same. The suit filed by the plaintiff is mischievous and misleading with an ulterior motive and dishonest intention to knock off the suit schedule property which belongs to him. He is in physical possession and enjoyment of the suit property. The plaintiffs have not impleaded all the proper and necessary parties for adjudication. The suit is bad for non-joinder of necessary parties. The suit is not properly valued and the Court fee paid is not proper. The suit is also barred by law of limitation and plaintiffs are having no locus-standy to file this suit for declaration, possession and consequential other reliefs. The defendant No.1 is no more and has expired long back left behind his legal heirs and representatives more than 14 members. All the legal heirs are not party to the suit. The defendant No.1 alienated the suit property in favor of his father on 31.10.1967 through registered sale deed. By virtue of the said sale deed the name of his father entered in all the revenue records.
11 OS No.2185/2011At the time of executing the sale deed, there is typographical mistake in the sale deed and the same has been rectified at the the time of transfer of revenue records. The plaintiff has never challenged sale deed since 1967. After lapse of 55 years the present suit is filed. The suit is barred by limitation. The plaintiffs have wrongly mentioned the boundaries of the schedule property. The plaintiffs have not paid the Court fee on the market value of the suit schedule property. Among other grounds prayed for dismissal of the suit with exemplary cost.
5. Subsequently, the plaintiffs have got impleaded the defendant No.15. After impleading the defendant No.15, he has filed written statement. He denied all most all the plaint allegations in toto and called upon the plaintiffs to strict proof of the same. According to him, the plaintiff is neither the owner nor in possession of the suit schedule property at any point of time. No documents produced to show that he is the owner and in possession of the property bearing Sy.No.55/16 measuring 32 guntas, out of total extent of 1 acre 13 guntas situated at Jarakabande Kaval village. The first transaction of the suit schedule property through Sale 12 OS No.2185/2011 Deed dated 31.10.1967 in favor of vendor of this defendant and the second transaction of the suit schedule property through Sale Deed dated 26.08.1998 executed in favor of this defendant. It means, after a lapse of 44 years from the first sale transaction and after a lapse of 18 years from the second sale transaction, the plaintiffs have filed the suit. Hence, the suit is barred by law of limitation.
6. One Abdul Kareem Sab was the owner and in possession of the Sy.No.55/16 measuring 32 guntas out of total 1 acre 13 guntas situated at Jarakabande Kaval village. He sold the said property one Abdul Kareem Sab son of Madar Sab on 31.10.1967 through a registered Sale Deed by mentioning the specific boundaries, but by oversight the Survey Number mentioned in the Sale Deed as 56/2. In pursuance of the Sale Deed, revenue authorities by following the due procedure and confirming possession and the boundaries mentioned in the registered Sale Deed dated 31.10.1967, has tallied to the actual Sy.No.55/16 and made order in MR No.8/84-85 and Khatha was registered in the name of father of the defendant No.2 to 9/Abdul Kareem Sab. He being the lawful owner along 13 OS No.2185/2011 with his children has sold the land of 30 guntas out of 32 guntas in Sy.N.55/16 situated at Jarakabande Kaval village through a registered Sale Deed dated 26.08.1998 in favor of this defendant after receipt of the valuable consideration and put the possession of the property mentioned in the said Sale Deed. Accordingly, MR No.3/1998-99 was effected in the name of this defendant. From the date of purchase, this defendant is in peaceful possession and enjoyment of the property without any hindrance from any other persons. He is paying taxes regularly to the concerned revenue authorities and he is a bonafide purchaser. This defendant converted his entire land with residential house with all civic amenities provided by the concerned authorities. Therefore, the said property has lost the agriculture character prior to 2003-04. Prior to 2007, the suit property came under the purview of BBMP and this defendant fully got converted the property purchased by him from agricultural to non- agricultural purpose. The concerned authorities after confirming the title and possession of this defendant on receipt of the conversion fee, passed the conversion order vide No.ALN (NAY)SR:191/2010-11. He is the 14 OS No.2185/2011 lawful owner and in physical possession and enjoyment of the officially converted property bearing Sy.No.55/16 measuring 30 guntas out of 1 acre 13 guntas situated at Jarakabande Kaval village. By suppressing all these facts, the plaintiffs have filed this suit.
7. This defendant has raised the compound wall and shed to safeguard the property and formed road with the amicable permission from the owner of the adjacent site holder. The defendant is residing in the house situated in the property purchased by him through registered Sale Deed. In the year 2014, two persons came to interfere with his possession. Therefore, this defendant had filed the suit for injunction against the present plaintiffs and obtained an order of injunction. This defendant is the lawful owner in possession of the property. The plaintiffs are strangers to the property and therefore pray to dismiss the suit with cost.
8. During the pendency of the suit, the plaintiff No.1 and 2 died and therefore, the LR's of plaintiffs No.1 and 2 are brought on record as plaintiff No.1(a) to 1(e) and plaintiff No.2(a) to (c).
15 OS No.2185/20119. Based on the pleadings, my predecessor in office has framed the following issues:
1. Whether the plaintiffs prove that they became the absolute owners of the suit schedule property as tenants-in-common in accordance with Mohammedan Law after the death of their father?
2. Whether the plaintiffs prove that the Sale Deed dated 31.10.1967 executed by the father of defendant No.2 to 9 in favor of defendant No.1 is not binding on them?
3. Whether the plaintiffs prove that they are in possession and enjoyment of the suit schedule property as on the date of institution of this suit?
4. Whether the plaintiffs prove the alleged interference of the defendant No.1 over the suit schedule property?
5. Whether the suit is barred by limitation?
6. Whether the court fee paid is insufficient?
7. Whether the plaintiff is entitled for a decree of declaration and permanent injunction as prayed?
8. What decree or order?
10. In view of the IA filed by the Advocate for plaintiff u/o 14 Rule 5 issued No.2 is recasted as under;
Whether the plaintiffs prove that the Sale Deed dated 26.08.1998 executed by the father of 16 OS No.2185/2011 defendant No.2 to 9 in favor of defendant No.15 is not binding on them?
11. In order to prove the plaint allegations, the plaintiff No.1(b)/Sheik Kaleem examined himself as PW1 and got marked Ex.P1 to 24. In order to prove the defence taken in the written statement, the GPA Holder of the defendant No.15 by name Sri.G.K.Shankar examined as DW1 and got marked Ex.D1 to 23.
12. Heard arguments from both the side. Perused the materials placed on record.
13. My finding on the above issues are as here under:-
Issue No.1 to 4 & 7: As in the negative; Issue No.5 & 6: As in the affirmative; Issue No.8: As per the final order for the following;
REASONS
14. In order to prove the plaint allegations, the plaintiff No.1(b)/Sheik Kaleem examined as PW1 and has reiterated the allegations made in the plaint. In support of his oral evidence has also produced the documentary evidence at Exs.P1 to 24. Ex.P1 to 8 are RTC's, Ex.P9 is the order copy of RA (BNA) 73/06-07, Ex.P10 is the Form No.15, Ex.P11 is the Hissa Tippani, Ex.P12 is the certified copy of Sale Deed, Ex.P13 is the 17 OS No.2185/2011 certified copy of Sale Deed, Ex.P14 is the Mutation Register, Ex.P15 is the Form No.15, Ex.P16 is the copy of redemption of mortgage deed, Ex.P17 is the Mutation Register, Ex.P18 to 21 are the Form No.15, Ex.P22 and 23 are the Form No.16, Ex.P24 is the certified copy of Sale Deed.
15. In order to prove the defence taken in the written statement, the GPA Holder of defendant No.15 Sri.G.K.Shankar examined himself as DW1 and reiterated the defence taken in the written statement. In support of his oral evidence has also produced the documentary evidence at Exs.D1 to 23. Ex.D1 is the Special Power of Attorney, Ex.D2 to 6 are the RTC's, Ex.D7 is the certified copy of Sale Deed, Ex.D8 is the certified copy of the order passed by D.C., Ex.D9 is the certified copy of Encumbrance Certificate, Ex.D10 is the certified copy of Mutation Register, Ex.D11 is the certified copy of RTC's, Ex.D12 is the certified copy of Encumbrance Certificate, Ex.D13 is the certified copy of Mutation Register extract, Ex.D14 is the Form No.15, Ex.D15 is the certified copy of judgment of OS No.756/2014, Ex.D16 is the copy of Decree of OS 18 OS No.2185/2011 No.756/2014, Ex.D17 to 22 are the photos, Ex.D23 is the CD.
16. This is all oral and documentary evidence placed on record by the parties to the suit in support of their respective contentions.
17. Advocate for plaintiffs argued that the plaintiffs are the absolute owners in possession and enjoyment of the suit property. Defendant No.1 is the brother of Sheik Ahmed. The Sy.No.55/16 totally measuring 1 acre 13 guntas originally belonged to Sri.Moder Sab, grandfather of plaintiffs, after the death of Mader Sab, his children inherited the properties bearing Sy.No.55/21 measuring 19 guntas, Sy.No.56/2 measuring 1 acre 7 guntas and suit property and they are possession of the said properties as tenants in common. Initially they have mortgaged their properties in favor of one Ameer Sab and thereafter in favor of Raheem Sab. After redemption on 31.10.1967, the defendant No.1 has sold the property bearing Sy.No.56/2 measuring 32 guntas in favor of Abdu Kareem/father of defendant No.2 to 9. Thereafter MR No.8/84-85 has been passed. The defendant No.1 has 19 OS No.2185/2011 sold Sy.No.56/2 measuring 32 guntas in favor of father of defendant No.2 to 9 through a registered document dated 31.10.1967. As per Sale Deed, the mutation was effected in the name of defendant No.2 under MR No.8/84-85. Thereafter, father of defendant No.2 to 9 in collusion with the revenue officials forged the Sy.No.56/2 as Sy.No.55/16. The father of defendant No.2 sold Sy.No.55/16 instead of 56/2 in favor of defendant No.15 through a registered Sale. Soon after coming to the knowledge of the alleged illegal act, plaintiffs have preferred RA No.73/06-07 before Asst. Commissioner, Bengaluru but in that case plaintiffs are directed to get remedy from Civil Court. Hence, the plaintiffs have filed this suit. The oral and documentary evidence placed on record is sufficient to decree the suit. In support of his arguments, has placed reliance on the citation reported in (2008) 4 SCC 594 (Anathula Vs P Budhi Reddy (Dead) By LR's and Others)
18. Defendant No.1 to 9, 11 to 14 have though appeared have not participated in the trial.
19. Per contra, Advocate for defendant No.15 argued that the plaintiffs are neither the owners nor in 20 OS No.2185/2011 possession of the suit schedule property at any point of time. No documents produced in that regard. The first transaction of the suit schedule property taken place in 1967 in favor of vendor of defendant No.15 and the second transaction in the year 1998 executed in favor of this defendant. Therefore, the suit is barred by law of limitation. Abdul Kareem Sab was the owner of Sy.No.55/16 measuring 32 guntas out of total 1 acre 13 guntas and on 31.10.1967 and sold by mentioning the specific boundaries and in pursuance of the Sale Deed, revenue authorities by confirming possession, has tallied to the actual Sy.No.55/16 and made order in MR No.8/84-85 and Khatha was registered in the name of Abdul Kareem Sab. He being the lawful owner along with his children has sold the land of 30 guntas out of 32 guntas in Sy.N.55/16 through registered Sale Deed dated 26.08.1998 in favor of defendant No.15 for valuable consideration and put the possession of the suit property. Accordingly, MR No.3/1998-99 was effected in the name of this defendant and ever since from the date of purchase, this defendant is in peaceful possession and enjoyment of the property. He is regular in paying taxes. Defendant No.15 converted 21 OS No.2185/2011 entire land for residential and the said property has lost the agriculture character prior to 2003-04. The suit property came under the purview of BBMP has passed the conversion order by collecting conversion. Defendant No.15 is in physical possession and enjoyment of the officially converted property bearing Sy.No.55/16 measuring 30 guntas out of 1 acre 13 guntas and plaintiffs by suppressing all these facts, the plaintiffs have filed this suit. The plaintiffs have challenged the ME No.8/84-85 before the Assistant Commissioner. At the time of challenging the ME No.8/84-85 and filing of this suit, the name of defendant No.15 was shown to the extent of 30 guntas to land in Sy.No.56/16, but the plaintiffs have not made the defendant No.15 as a party to the said RTC proceedings. At the time of filing of the suit in the year 2011, though the name of defendant No.15 was appearing in the RTC the plaintiffs have not made him as a party to the suit. The plaintiffs have filed IA No.2 u/o I Rule 10 of CPC on 01.07.2011. After hearing said IA was allowed and impleaded defendant No.15 to the suit. The plaintiffs have filed IA No.6 u/o VI Rule 17 of CPC on 28.09.2016 and got amended the plaint with 22 OS No.2185/2011 regard to the relief. Therefore, the suit is hopelessly time barred. The Ex.P24/sale deed, Ex.D8/conversion order and other documents clearly discloses that defendant No.15 is in possession of 30 guntas of land in Sy.No.56/2016. Therefore, according to him, the suit filed by the plaintiffs without seeking the relief of possession, the suit is not at all maintainable and liable to be dismissed. Further, he urged that the defendant No.15 had filed OS No.756/2014 against the plaintiff No.1 and 2 for the relief of permanent injunction in respect of 30 guntas of land in Sy.No.56/16. Though the present plaintiff No.1 and 2 who are made as parties to the said suit as defendant No.1 and 2 have appeared through Advocate, have not participated in the said suit. The said suit was decreed and present plaintiffs No.1 and 2 are restrained from interfering with the peaceful possession of the said property. The judgment and decree passed in the said suit has not been challenged by the present plaintiffs. Therefore, the findings recorded in the said suit reached finality. The evidence placed on record clearly discloses that the plaintiffs are not in possession of the suit schedule property as pleaded in the plaint. The cause of action 23 OS No.2185/2011 pleaded in the plaint discloses that cause of action arose in the year 2011, but the relief of declaration is got amended in the year 2016. Therefore, the suit is barred by limitation and it is hit by Article 58 of the Limitation Act. Looking from any angle, the plaintiff is entitled for the relief sought in the plaint. Hence, prayed to dismiss the suit with cost. In support of his arguments, has placed reliance on the following citations.
1. AIR 1972 SC 2685 (Ram Saran and another Vs. Ganga Devi
2. (2012)8 SCC 148 (UOI Vs. Ibrahim Uddin and another)
3. (2017)3 SCC 702 (E.O., Arulmigu Chokkanatha Swamy Koil Vs. Chandran and others
4. AIR 2011SC 3590 (Khathri Hotels Pvt. Ltd., and another Vs. UOI and another)
20. I have gone through the citations relied on behalf of the learned Counsel for the plaintiffs and defendant No.15 and kept in mind the views taken in the said citations while appreciating the evidence on record and coming to the final conclusion.
21. Before considering the case on merits it is necessary to the dictum lay down by the Hon'ble Apex 24 OS No.2185/2011 Court. It is settled law that the plaintiff must succeed or fails on his own case and cannot take advantage of the weakness of the defendant's case to secure a decree. Whenever, a party approaches the Court for the relief, based on the pleadings and issues, has to prove his case. A suit has to be decide on the merits and demerits of the party who approaches the Court. Even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited. In this regard, a reference may be made by a decision reported in 1998 SAR (Civil) 390 (Punjab Urban Planning and Dev. Authority V. M/s Shiva Saraswati Iron and Steel Re-rolling miIlls), 2014 (2) SCC 269 (Union of India and others Vs Vasavi Co-op. Housing Society Ltd. and others) and (2019) 6 SCC 82 (Jagdish Prasad Patel(D) Thr. Lrs. vs Shivnath)
22. It is necessary to note that mere entries in the Revenue records cannot be a basis to declare title of a person in respect of any immovable property. Whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party who approaches the Court.
25 OS No.2185/2011Weakness of the defendant cannot be considered as a trump card for the plaintiff. In this regard reference may be made of decisions of Hon'ble Apex Court and Hon'ble High Court of Karnataka reported in 2008 (1) Civil L.J. 272 (SC) (Narain Prasad Aggarwal (dead) by LRs. V/s. State of M.P.) and 2004 (1) KCCR 662 (K. Gopala Reddy (deceased) by LRs. V/s. M/s Suryanarayana and others).
In the light of the arguments submitted by Advocate for plaintiffs and defendant No.15 and settled principles of law, let me consider the issues.
23. Issue No.1, 3 & re-casted issue No.2:- As these issues are inter related to each, to avoid repetition taken these issues together for discussion. In the instant case the plaintiffs have sought for the relief declaration of title of the suit property bearing Sy.No.55/16 measuring 32 guntas out of total extent of 1 acre 13 guntas, situated at Jarakabande Kaval, Yelahanka Hobli, Bengaluru. The said property previously belonged to their father Sri.Sheik Ahmed, after his death, the plaintiffs being the legal heirs have succeeded the same and are in possession and enjoyment of the suit schedule property as tenants in 26 OS No.2185/2011 common in accordance with the Mohammedan Law. Later, the ancestors of plaintiffs had mortgaged the suit property and other properties through a Mortgage Deed dated 26.03.1953 and after redemption of said mortgage, on 10.08.1961, the aforesaid properties mortgaged in favor of one Raheem Sab and after repayment of mortgage amount he released the properties through registered Redemption Deed dated 31.10.1967 and same day defendant No.1 has sold the property bearing Sy.No.56/2 measuring 32 guntas in favor of Abdu Kareem/father of defendant No.2 to 9, after the death of Sheik Ahmed, the plaintiffs have been in peaceful possession and enjoyment of the suit schedule property. Abdul Kareem Sab/father of defendant No.2 to 9 with dishonest intention and in collusion with the revenue officials forged the Sy.No.56/2 as Sy.No.55/16. In fact defendants No.2 to 9 and their father have no right, title or interest of whatsoever over the schedule property. In spite of that they sold Sy.No.55/16 instead of 56/2 in favor of Hampeeshwar Reddy through a registered Sale Deed dated 26.08.1998 and therefore, the said sale deed is not binding on them.
27 OS No.2185/201124. As per the rule of Evidence, the entire burden is on the person who asserts in the affirmative. The plaintiffs claim that they are the absolute owners of the suit schedule property, the Sale Deed dated 26.08.1998 executed in favor of defendant No.15 by defendants No.2 to 9 and their father is not binding and they are in possession and enjoyment of the suit schedule property. Therefore, the entire burden is on the plaintiffs to prove the said assertions. If the answer is in the affirmative, in that case, the suit is liable to be decreed. If the answer is in the negative, the plaintiffs are not entitled for the relief sought in the suit. Now the question is whether the plaintiffs are able to prove the plaint assertions. In order to prove the said assertions, plaintiffs have placed entire reliance on the oral evidence of PW1 and revenue documents i.e., Ex.P1 to 8/RTC's, Ex.P11/Hissa Tippani, Ex.P14 and 17/Mutation Registers. Plaintiffs have also relied on Mortgage Deeds, redemption of Mortgage deeds and some Encumbrance Certificates. On the basis of the above said documents, the plaintiffs claim that they are the owners and in possession of the suit property and 28 OS No.2185/2011 therefore, the Ex.P24/sale deed executed by defendant No.2 to 9 and their father is not binding on them.
25. Before considering the oral and documentary evidence produced by the plaintiffs, it is necessary to go through the description of the suit schedule property narrated in the plaint schedule. For the sake of convenience, the suit schedule property described in the schedule is extracted and reproduced as hereunder;
"All that piece and parcel of the Survey Number 55/16 measuring 32 guntas out of total extent of 1 acre 13 guntas situated at Jarakabande Kaval, M.S.Palya, Yelahanka Hobli, Bengaluru North Taluk and bounded on:
East by : Remaining land and property of Sri.Mehaboob Sab West by : Property of Sri.Kareem Sab North by : Property of Sri.Kamal Sab South by : Property of Sri.Kalandar Sab
26. It is evident from the above reproduced schedule that the suit schedule property is 32 guntas of land out 1 acre 13 guntas in Sy.No.55/16 of Jarakabande Kaval, M.S.Palya, Yalahanka.
27. In this case the plaintiffs have produced Ex.P12/Mortgage deed and Ex.P16/redemption of 29 OS No.2185/2011 mortgage deed. As the claim of the plaintiffs is based on the said deeds it is necessary to go through the description of the property narrated in the said deeds. Ex.P12/Mortgage deed is dated 26.03.1953. In the said Deed, in all there is reference of three survey numbers. Since the dispute is with regard to Sy.No.55/16 it is necessary to go through the description of Sy.No.55/16 described in the said document. For the sake of convenience, the description of Sy.No.55/16 is extracted and reproduced hereunder:
ಜವಿುೕನು ಭೋಗ್ಯ ಪತ್ರ ಸಹಿ ಷೆಡ್ಯೂ ಲ್ ಬೆಂಗಳೂರು ನಾರ್ತ್ ತಾಲ್ಲೂ ಕು ಯಲಹಂಕದ ಹೋಬಳಿ ಜಾರಕಬಂಡೆ ಕಾವಲು ಗ್ರಾ ಮಕ್ಕೆ ಸೇರಿದ ಸರ್ವೆ ನಂ.55 ಸಬ್ 16 ನೇ ನಂಬರು ಖುಶ್ಕಿ ಒಂದು ಎಕರೆ ಹದಿಮೂರು ಗುಂಟೆಗೆ 01-7-0 ವುಳ್ಳ ಸ್ವ ತ್ತಿ ಗೆ ಚಕ್ಕುಬಂದಿ ಪೂರ್ವಕ್ಕೆ ಹಂಚೀಪುರದ ಎಲ್ಲೆ , ಪಶ್ಚಿ ಮಕ್ಕೆ ಹಿಮಾಮು ಸಾಬರ ಜಮೀನು, ಉತ್ತ ರಕ್ಕೆ ಮಸೀದಿ ಹೊಲ ಈ ಮಧ್ಯೆ ಇರುವ ಸ್ವ ತ್ತು ಅಂದರೆ ದಕ್ಷಿ ಣಕ್ಕೆ ಮಲ್ಲಿ ಕ್ ಸಾಬರ ಹೊಲ ಈ ಮಧ್ಯೆ ಇರುವ ಸ್ವ ತ್ತ .
28. It is evident from the above reproduced portion of Mortgage Deed that the said description is in respect of 1 acre 13 guntas of Sy.No.55/16. As noted supra, the plaintiffs have claimed the relief in respect of 32 guntas only in Sy.No.55/16.
30 OS No.2185/201129. Ex.P16/redemption of mortgage deed dated 31.10.1967. The plaintiffs have got marked the typed of the said Ex.P16 and Ex.P16(a). On perusal of said Ex.P16(a), in entire recitals absolutely there is no reference of description of any of the property. Even there is no mention with regard to which date this redemption deed is executed. However, there is mention of receipt of Rs.700/- and there is no due to pay any amount in connection with mortgage.
30. As noted supra it is the definite case of the plaintiffs that after redemption of mortgage dated 10.08.1961, the suit property and other properties mortgaged for a sum of Rs.700/- and it was Redeemed through redemption of mortgage deed on 31.10.1967. Admittedly the mortgage dated 10.08.1961 is not produced by the plaintiffs. Though the typed copy of redemption of mortgage deed dated 31.10.1967 is produced at Ex.P16(a), there is no reference of description of any of the property, there is no mention about the date in connection with which mortgage deed this redemption deed is executed. In view of non reference of date or with regard to which mortgage deed the amount is received and in the absence of survey 31 OS No.2185/2011 number it cannot be said that the said deed is in respect of the suit property. Therefore, either the mortgage deed or redemption of mortgage deed on which the plaintiffs have placed reliance are no way helpful to the plaintiffs to prove that they are the owners of the suit schedule property.
31. Plaintiff has also produced the RTC's at Ex.P1 to 8 pertains to suit schedule property. In Ex.P1/RTC at column No.9 the name of Shekh Ahmad Sab was shown and the extent of the land is 1 A 13 G. In Ex.P2 to 5/RTC's at column No.9 the name of Shekh Ahmad Sab Pyarijan and the Abdul Karim Sab was shown. The total extent of the land is shown as 1 A 13 G. The extent of the land in possession of the Abdul Karim Sab is shown as 32 Gutans and there is no mention about the extent of land is in possession of Shekh Ahmad Sab Pyarijan. However, it could be seen the remaining extent of land is only 21 Guntas. In Ex.P6 and 7 /RTC's at column No.9 the name of Shekh Ahmad Sab Pyarijan, Abdul Karim Sab and defendant No.15 was shown. The total extent of the land is shown as 1 A 13 G. The extent of the land in possession of the Abdul Karim Sab is shown as 2 Gutans, the extent of the land 32 OS No.2185/2011 in possession of the Abdul Karim Sab is shown as 30 Gutans and there is no mention about the extent of land is in possession of Shekh Ahmad Sab Pyarijan and remaining extent of land is only 21 Guntas. In Ex.P8 the extent of land could not be seen properly due to the tear of the page at column No.9. Even in MR's produced by the plaintiff there is mention that the plaintiffs or their ancestors are in possession of the land claimed in the plaint. In other words in none of Ex.P2 to 8 or in MR's there is mention that the plaintiffs or their ancestors were the owners and in possession of 32 guntas land in Sy.No.56/16 as pleaded in the plaint.
32. If we exclude the mortgage deed, redemption of mortgage deed, RTC's and MR's discussed above the only documents remain for consideration are the Form No.15 and 16 issued by the Sub-Registrar. In none of those documents there is mention that the plaintiffs or their ancestors were owners and in possession of land to the extent of 32 guntas in Sy.No.56/16 as pleaded in the plaint. As noted supra, even in other documents also there is no mention that the plaintiffs are the owners and in possession of the suit schedule property as on the date of filing of the suit.
33 OS No.2185/201133. It is the definite case of the plaintiffs that the father of defendant No.2 to 9 in collusion with the revenue officials forged the Sy.No.56/2 as Sy.No.55/16. If really the revenue officials forged the Sy.No.56/2 as Sy.No.55/16, nothing has been prevented the plaintiffs to lead the evidence of revenue official to prove said allegations. To substantiate the said contention except the interested oral evidence of PW1, plaintiffs have not produced any admissible evidence. In the absence of any positive admissible evidence it cannot be said that the father of defendant No.2 to 9 in collusion with the revenue officials forged the Sy.No.56/2 as Sy.No.55/16. The said plaint allegations remain as pleadings without any proof.
34. The plaintiffs have sought for the declaratory relief in respect of the suit schedule property on the basis of the revenue records. First of all the as per the settled law mere entries in the Revenue records cannot be a basis to declare title of a person in respect of any immovable property. Even otherwise also in none of the revenue records produced by the plaintiffs, are sufficient demonstrate that the plaintiffs are the owners and in possession of land to the extent of 32 guntas in 34 OS No.2185/2011 Sy.No.56/16 as claimed in the plaint. The plaintiffs who approached the Court for the relief of declaration, has utterly failed to prove that case.
35. Per contra, defendant No.15 in his written statement claimed that he purchased 30 guntas of land in Sy.No.55/16 from defendant No.2 to 9 and their father through a registered Sale Deed. On the basis of the Sale Deed, his name is entered in the revenue records and from the date of purchase, he is in possession and enjoyment of the said property. To substantiate his claim, SPA Holder is examined as DW1 and he has reiterated the defence taken in the written statement and he has produced the copy of Sale Deed at Ex.D7, the Mutation Register at Ex.D10 and Encumbrance Certificate at Ex.D14. Even though DW1 is subjected to cross-examination, nothing has been elicited to prove the plaint assertions or disprove the Ex.D7, Ex.D10 and Ex.D14. The said documents are prima facie sufficient to show that defendant No.15 purchased 30 guntas of land in Sy.No.55/16.
36. At the same time it is also important to note that defendant No.15 got converted 30 guntas of land bearing No.55/16 from agricultural to non-agricultural 35 OS No.2185/2011 purpose. The order passed in that regard by the proper authority has been produced by the defendant No.15 at Ex.D8. As per said Ex.D8 document Sy.No.55/16 measuring 30 guntas of land owned by defendant No.15 has been converted from agricultural purpose to non- agricultural purpose. To that effect, Ex.D13/MR No.15/11-12 has been passed. As it could be seen from Ex.8 and Ex.D13, as per the representation submitted by defendant No.15 the conversion of 30 guntas of land from agricultural to non-agricultural purpose in Sy.No.56/16.
37. That apart, it is also material to note that defendant No.15 had filed OS No.756/2014 against Sheik Subhan and Sheik Athaulla, who are the plaintiff No.1 and 2 in this case for the relief of permanent injunction. The said suit was decreed on 01.04.2017 and thereby the present plaintiffs are restrained from disturbing the peaceful possession and enjoyment of the defendant No.15 over 30 guntas of land owned by him in Sy.No.55/16. The Advocate for the defendant No.15 has taken this Court to Para-3 of the said judgment. On perusal of the said Para-3, it is noticed that the summons was served on the defendant No.1 36 OS No.2185/2011 and 2 and they appeared through Counsel, but have not filed written statement. It means present plaintiff No.1 and 2 were having the knowledge of filing of the suit by the present defendant No.15 against them in OS No.756/2014. The finding recorded in that suit clearly establishes that the defendant No.15 is in possession of 30 guntas of land in Sy.No.55/16. Admittedly nothing has been placed on record by the plaintiffs that the finding recorded in OS No.756/2014 has been challenged before the higher forum. Therefore, the finding recorded in the said suit reached finality.
38. The above discussed facts clearly establishes that the defence taken by the defendant No.15 to the effect that he purchased 30 guntas of land in Sy.No.55/16 from it owners through registered document, on the basis of the said document, his name came to be entered in the revenue records, he got converted the said land from agricultural purpose to non-agricultural purpose, he is in possession and enjoyment of the said property. The defendant No.15 purchased land in Sy.No.55/16 from defendant No.2 to 9 and their father through registered Sale Deed dated 26.08.1998. On the basis of the said sale deed the name of defendant No.15 37 OS No.2185/2011 is entered in the revenue records and subsequently he got converted the said land from agricultural purpose to non-agricultural purpose and therefore the said sale deed is binding on the plaintiffs.
39. On appreciation of the oral and documentary evidence produced by the plaintiffs in nutshell it could be said that except the interested oral inconsistent oral evidence of PW1 absolutely no iota of evidence produced by the plaintiffs to establish that they are the owners and in possession of the suit schedule property as pleaded in the plaint and Sale Deed dated 26.08.1998 through which the defendant No.15 purchased 30 guntas of land in Sy.No.55/16 is not binding on them. The said plaint allegations remain intact without any proof. Under the facts and circumstances of the without any hesitation, in the opinion of this Court plaintiffs have miserably fail to prove with regard to their ownership over the suit schedule property and Sale Deed dated 26.08.1998 through which the defendant No.15 purchased 30 guntas of land in Sy.No.55/16 is not binding on them. For the reasons discussed above, I answer issue No.1 to 3 in negative.
38 OS No.2185/201140. Issue No.4:- The plaintiffs have pleaded that the defendant No.1 interfered with their possession over the suit property. In view of my finding on issue No.3 the plaintiffs fails to establish that they are in possession of the suit schedule property as pleaded in the plaint. Therefore, the question of interfering over the possession of plaintiffs in the suit property by any of the defendants does not arise. Hence, I answer issue No.4 in negative.
41. Issue No.5:- The defendant No.15 in his written statement has taken the contention that the first transaction in respect of the suit property was made through Sale Deed dated 31.10.1967 and second transaction in respect of the suit property was made through Sale Deed dated 26.08.1998. This suit is filed by the plaintiffs after a lapse of 44 years from the first sale transaction and after 18 years from the second sale transaction. Hence, the suit of the plaintiff is hit by law of limitation.
42. Initially, the plaintiff has filed the suit against defendant No.1 to 9 on 21.03.2011. The learned Counsel for the defendant No.15 submits that as per Ex.P6/RTC, the name of defendant No.15 reflected in 39 OS No.2185/2011 the RTC from 1998-99. The plaintiff has preferred the appeal before the Assistant Commissioner in the year 2006-07 challenging the MR No.8/85-86. At the time of filing of the said appeal before the Assistant Commissioner North, Bengaluru, the name of defendant No.15 was reflecting in the revenue records, but the plaintiffs have not made him as party to the appeal before the Assistant Commissioner. The plaintiff has filed this suit on 21.03.2011. On that also the name of defendant No.15 was reflecting in the revenue records but he has not made as a party to the suit. On 01.07.2011, the plaintiffs have filed IA u/o 1 Rule 10(2) of CPC and prayed to implead defendant No.15 as a party to the suit. In the affidavit the GPA Holder of the plaintiff has stated that recently this defendant No.15 came near the suit property and tried to form the layout, at that time, came to know that defendant No.15 purchased the schedule property from defendant No.2 to 9 and their father. However, plaintiffs by filing IA u/o VI Rule 17 of CPC the relief in respect of the said Sale Deed on 13.09.2017. It means amendment IA was filed after a lapse of about 5 years from filing the impleading application. 3 years time limitation is 40 OS No.2185/2011 provided to file a suit for declaration. Therefore, the suit filed by the plaintiff against this defendant is hopelessly barred by limitation.
43. Per contra, the learned Counsel for the plaintiffs pleaded that soon after coming to know about the Sale Deed executed in favor of defendant No.15, the relief is sought and therefore, the suit is within the period of limitation. In view of the submissions of both sides, first let me go through the relevant provisions of Limitation Act. Part III of the Schedule of Limitation Act 1963 deals with suits relating to declaration and it consists Article 56 to 58. Article 56 deals with forgery of an instrument issued or registered. Article 57 deals in connection with adoption and Article 58 deals with any other declaration. In the instant case, the plaintiffs have sought for the relief of declaration about the Sale Deed dated 26.08.1998 is not binding on them. As rightly submitted by Advocate for defendant No.15 the relief sought by the plaintiff falls with the scope of Article 58. For the sake of convenience said Article is extracted and reproduced here under;
Article Description of suit Period of Time from
Limitation which period
begins to run
41 OS No.2185/2011
58 To obtain any other Three Years When the right
declaration to sue first
accrues
44. As it could be seen from the above said Article, to obtain relief of declaration the time begins to run when the right to sue first accrues. Keeping in mind article 58 let me consider the present case on hand. The plaintiffs have filed IA u/o 1 Rule 10(2) of CPC on 01.07.2011, to implead the defendant No.15. The GPA Holder of the plaintiff has stated on oath that recently they came to know about the sale transaction between defendant No.2 to 9 and the proposed defendant. The plaintiffs have not specifically pleaded the date when they first time came to know about the said transaction. For the sake of arguments from the available material it could said that plaintiff came to know about the sale transaction through which the defendant No.15 purchased the suit property at least by 01.07.2011. If plaintiffs came to know the said sale transaction 01.07.2011, as per the Article 58 of the Limitation Act the plaintiffs have to sought relief of declaration with regard to the Sale Deed dated 26.08.1998 within 3 years from 01.07.2011 i.e., 30.06.2014 but in the 42 OS No.2185/2011 instant case, the plaintiffs have filed IA u/o VI Rule 17 of CPC on 28.09.2016 seeking the relief of declaration in respect of said Sale Deed. It is evident from the material available on record the said relief of declaration sought by the plaintiff is beyond 3 years from the date of right to sue first accrues.
45. That apart, it is also necessary to note that PW1 in his cross-examination has stated that Ex.P8/RTC taken on 23.08.2010 and in the said RTC, the name of defendant No.15 was reflected and in spite of that he was not made as party to the suit. It means, the plaintiffs have obtained the RTC and came to know about reflecting the name of defendant No.15 in the RTC. Even from that date, within 3 years the plaintiffs have not filed the suit.
46. The purpose of the Limitation Act is not to destroy rights. It is founded on public policy fixing the life span for legal remedy for the general welfare. The Limitation Act is enacted to put an end to the litigation and the parties cannot file the suit as per their whims and fancies against the provisions of Limitation Act. From the above discussion, in the opinion of this Court, the plaintiffs have failed to sought the relief of declaration in respect of the Sale Deed said to have executed in 43 OS No.2185/2011 favor of defendant No.15 on 26.08.1998 within 3 years from the date of first cause of action accrues. The evidence placed on record is sufficient to demonstrate that the plaintiffs have utterly failed to file the suit within the period prescribed in the Article 58 of the Limitation Act. The defendant No.15 has successfully demonstrated that the suit filed by the plaintiffs with regard to the relief of declaration is barred by law of limitation. For the reasons discussed above, I answer issue No.5 in the affirmative.
47. Issue No.6:- The plaintiffs have filed the suit on 21.03.2011 for the relief of declaration to declare that they are owners and to declare the sale deed date 31.10.1967 is not binding on them and consequential relief of injunction and paid the court fee u/s 7(2) of KCF and SV Act and u/s 7(2) and 24(d) of KCF and SV Act. Later the plaintiffs have filed IA u/o VI Rule 17 of CPC on 28.09.2016 seeking the relief of declaration in respect of said Sale Deed dated 26.08.1998. The learned Counsel for the defendant No.15 vehemently argued that as on the date of filing of IA u/o VI Rule 17 of CPC dated 28.09.2016, the suit property has lost the nature of agricultural land as the same was converted 44 OS No.2185/2011 into non-agricultural purpose. Therefore, the court fee paid u/s 7(2) and 24(d) of KCF and SV Act is incorrect. The plaintiffs ought to have paid the Court fee u/s 24(a) of KCF and SV Act. The learned Counsel for the defendants filed the Conversion Order passed by the Deputy Commissioner, Bengaluru at Ex.D8. The said order was pronounced on 01.04.2011. It means up to 01.04.2011, the said property was agricultural land. As noted supra, present suit is filed on 21.03.2011 and IA u/o VI Rule 17 of CPC on 28.09.2016. The conversion Order was passed by the Deputy Commissioner, Bengaluru on 01.04.2011. The relief of declaration in respect of Sale Deed dated 26.08.1998 is sought in the year 2016 and subsequent to the passing of the Conversion Order. In other words, as on the date of filing of the suit, the suit property was agricultural land and the plaintiffs have paid the Court fee as provided u/s 7(2) and 24(b) of KCF and SV Act. However, the relief of declaration in respect of Sale Deed dated 26.08.1998 is sought in the year 2016 subsequent to the passing of the Conversion Order. Therefore, the Court fee paid by the plaintiffs as on the date of filing of the suit was proper and correct. As on the date of filing 45 OS No.2185/2011 of IA seeking relief of declaration in respect of Sale Deed dated 26.08.1998 is sought in the year 2016 and by that the suit property was converted in to non- agriculture purpose. In the case on hand plaintiff has not sought the relief of possession and sought relief of declaration consequential relief of injunction and therefore, the court fee shall be computed on one half of market value of the property or rupees one thousand whichever is higher as per Sec.24(b) of the KCF and SV Act as on the date allowing the IA filed by plaintiffs. For the reasons discussed above, in the opinion of this Court the court fee paid by the plaintiffs is insufficient. Accordingly, I answer this issue No.6 in the affirmative.
48. Issue No.7:- According to the plaintiff's, they are in possession and enjoyment of the suit schedule property and therefore, filed the suit for the relief of declaration and permanent injunction. Per contra, the Advocate for the defendant No.15 strongly contended that the plaintiffs are not in possession of the suit schedule property as on the date of filing of the suit and the present suit is filed only for the relief of declaration and permanent injunction and no relief is sought for 46 OS No.2185/2011 possession. When the plaintiffs are not in possession of the suit schedule property, without seeking the relief of possession, the suit filed by the plaintiffs is not maintainable in the view of Sec.34 of Specific Relief Act. For the sake of convenience, it is necessary to go through the said provision.
49. Section 34 of the Specific Reliefs Act, 1963 provides as follows:
"Section 34. Discretion of court as to declaration of status or right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. ..... ..... ...."
Section 34 of the Specific Relief Act provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status 47 OS No.2185/2011 or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.
50. In citation relied on by the learned Counsel for plaintiff reported in (2008) 4 SCC 594 (Anathula Vs P Budhi Reddy (Dead) By LR's and Others. The Hon'ble Apex Court has summarized the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the 48 OS No.2185/2011 property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.
51. In the instant case the defendants have seriously disputed the title and possession of the plaintiffs over 49 OS No.2185/2011 the suit property. As per the 1 st guide line issued by the Hon'ble Apex Court where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. In spite of serious dispute by the defendant over the title and possession of the plaintiffs over the suit property, plaintiffs fail to claim the relief of possession.
52. In Ram Saran & Anr. Vs. Smt.Ganga Devi, AIR 1972 SC 2685, the Hon'ble Apex Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of Specific Relief Act, 1963 and not maintainable.
53. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, the Hon'ble Apex Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act.
50 OS No.2185/201154. In view of above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief. In the instant case, suit for declaration of title of ownership has filed though; the plaintiffs are not in possession of the suit property. Thus, the suit was barred by the provision of Section 34 of the Specific Relief Act and, therefore, the suit is liable to be dismissed on ground that it is not maintainable.
55. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable.
56. In 2011, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession over any portion of the suit properties. The plaintiffs have not sought possession of those property. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable.
57. The plaintiff, who was not in possession, has claimed only declaratory relief along with permanent 51 OS No.2185/2011 injunction. Plaintiffs being out of possession, the relief of recovery of possession are a further relief which ought to have been claimed by the plaintiffs. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable.
58. In view of my findings on issue No.3 that the plaintiffs have failed to prove that they are in possession and enjoyment of the suit schedule property as on the date of suit. The present suit is filed for the relief of declaration and permanent injunction without seeking the relief of possession. In view of the law laid down in the citations relied on by the learned Counsel for the defendant No.15, the suit filed by the plaintiffs for the relief of declaration and permanent injunction without seeking the relief of possession is not maintainable. Therefore, in the considered opinion of this Court, the plaintiffs are not entitled for the relief of declaration and permanent injunction. For the reasons discussed above I answer this issue No.7 in the negative.
59. Before parting with judgment it is necessary to observe that the court fee paid by the plaintiffs is insufficient and liable to pay the proper court fee as per 52 OS No.2185/2011 the Sub-Registrar valuation as on the date of allowing the IA i.e., 06.01.2017 to declare Sale Deed dated 26.08.1998. Plaintiffs shall have to pay the Court fee as per Sec.24(b) of KCF and SV Act as per the prevailing Sub-Registrar valuations.
60. Issue No.8:- In view my discussions on issue No.1 to 7, I proceed to pass the following:
ORDER The suit filed by the plaintiffs is hereby dismissed with cost.
Plaintiffs shall have to pay the Court fee as per Section 24(b) of KCF and S V Act on prevailing sub-register valuation in respect of the suit property as on the date of allowing the IA i.e., 06.01.2017 within one month from the date of passing of this order.
Payment of Court fee by the plaintiffs is condition to draw decree.
(Dictated to the Stenographer Grade-I, transcribed and typed by her, the transcript revised, taken print out, corrected by me and then pronounced by me in open court on this the 22nd day of February 2024) (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge, (CCH-64), Bengaluru City.53 OS No.2185/2011
ANNEXURE
1. List of witnesses examined for the plaintiff:-
PW1 Sheik Kaleem
2. List of witnesses examined for the defendant:-
DW1 G.K.Shankar
3. List of documents marked for the plaintiff:-
Ex.P1 to 8 RTC's
Ex.P9 order copy of RA (BNA) 73/06-07
Ex.P10 Form No.15
Ex.P11 Copy of Hissa Tippani
Ex.P12 Copy of Sale Deed
Ex.P13 Copy of Sale Deed
Ex.P14 Mutation Register
Ex.P15 Form No.15
Ex.P16 Copy of the redemption of lease
agreement
Ex.P17 Mutation Register
Ex.P18 to 21 Form No.15
Ex.P22 & 23 Form No.16
Ex.P24 Copy of Sale Deed
4. List of documents marked for the defendants:-
Ex.D1 Special Power of Attorney
Ex.D2 to 6 6 RTC's
Ex.D7 Certified copy of Sale Deed
54 OS No.2185/2011
Ex.D8 Order of D.C.
Ex.D9 Encumbrance Certificate
Ex.D10 Mutation Register extract
Ex.D11 RTC's
Ex.D12 Form No.16
Ex.D13 Mutation Register extract
Ex.D14 Form No.15
Ex.D15 Copy of judgment in OS No.756/2014
Ex.D16 Copy of decree in OS No.756/2014
Ex.D17 to 22 Photos (6)
Ex.D23 CD
(A.V.PATIL)
LXIII Addl. City Civil and Sessions
Judge (CCH-64), Bengaluru